Supreme Court Appears Skeptical of North Dakota Family's Bid for Legal Fees in Pipeline Land Fight

WASHINGTON. Several Supreme Court justices on Monday questioned a North Dakota family's argument that a natural gas company that took an easement across their land should have to pay their legal fees, in a case about how much property owners are owed when a private company uses the federal government's power of eminent domain.

The case, Hoffmann v. WBI Energy Transmission, No. 25-159, asks whether, when a private company condemns land under the Natural Gas Act, "just compensation" should be measured by state law. North Dakota law allows landowners to recover attorney fees in condemnation cases, according to the federal appeals court that heard the case. The federal government, when it takes land itself, generally does not pay them.

Three years of negotiations

WBI Energy Transmission, which transports and stores natural gas, needed a strip of land in McKenzie County, N.D., for a pipeline, according to a March 2025 opinion by the U.S. Court of Appeals for the Eighth Circuit. "One family turned down its offers," the court wrote, so the company filed a federal condemnation action under the Natural Gas Act.

After "a winding procedural history and three years of negotiations," the parties settled on the amount of just compensation for the easement, the appeals court said. A federal district judge then ordered WBI to pay the family's attorney fees under North Dakota law.

The Eighth Circuit vacated that award. "Attorney fees are typically unavailable when the United States exercises its eminent-domain power," Judge David Stras wrote. "Nothing changes when the federal government delegates the power to a private party under the Natural Gas Act." Under the Fifth Amendment, the court said, property owners cannot recover "indirect costs" like attorney fees, and "only a statute can require more."

'A floor ... but not a ceiling'

Robert J. McNamara, a lawyer with the Institute for Justice representing the Hoffmann family, according to the docket, argued that the 1947 law lets companies take property but says nothing about what the property is worth. "The Fifth Amendment places a floor on that compensation but not a ceiling," he told the justices. "Silence meant state law then. Silence means state law today."

He said the federal government is exempt from state compensation rules because it is sovereign, and private companies are not. "They're private delegees," he said.

Justice Clarence Thomas asked whether, if the United States delegates its eminent domain power, "it brings with it state law trappings of just compensation."

Chief Justice John G. Roberts Jr. said it seemed "just a more efficient process to have a private developer get the land under the same terms as the federal government without having to pay the attorneys' fees that the state wants to insist on." After Mr. McNamara agreed that the federal government would not have to pay such fees, the chief justice said, "So I don't understand why this isn't an easy case."

Justice Ketanji Brown Jackson said the family's argument seemed to assume "that state law, with respect to just compensation, is the default," while she had understood federal condemnation to be "a circumstance in which the default was federal law."

Company and government: Congress knew how to say 'state law'

Paul W. Hughes, representing WBI, pointed to the General Bridge Act, which he said Congress enacted a year before the Natural Gas Act and which explicitly adopted state compensation law. "When Congress wanted state law to apply, it said so," he said.

Zoe A. Jacoby, an assistant to the solicitor general, argued for the United States in support of the company. "When the federal government exercises its eminent domain power through a delegee, the same default rule applies," she said, referring to the Fifth Amendment standard.

In rebuttal, Mr. McNamara noted that railroads still rely on state eminent domain law, and he urged the court to treat the right to take property and the right to compensation as "distinct legal concepts flowing from distinct sources."

North Dakota and 11 other states, including Texas, Florida and Alabama, filed a friend-of-the-court brief supporting the family when it asked the court to take the case, according to the brief. A decision is expected by the end of the court's term.