SABAL TRAIL TRANSMISSION LLC v. .792 ACRES OF LAND IN ALACHUA COUNTY FLORIDA et al

Filing 84

ORDER DENYING PLAINIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT re: 69 MOTION for Partial Summary Judgment and Memorandum of Law in Support filed by SABAL TRAIL TRANSMISSION LLC is DENIED, 51 MOTION APPOINTMENT OF COMMISSION AND MEMORANDUM OF LAW IN SUPPORT filed by SABAL TRAIL TRANSMISSION LLC,. Signed by JUDGE MARK E WALKER on 6/27/17 - DENIED WITH PREJUDICE - re; 80 ORDER (bkp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION

SABAL TRAIL TRANSMISSION, LLC,
Plaintiff,
v.

Case No. 1:16-cv-063-MW-GRJ

REAL ESTATE, ET AL.
Defendants.
__________________________/
ORDER DENYING PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY JUDGMENT 1
“[T]he dichotomy between personal liberties and property
rights is a false one. Property does not have rights. People have
rights[, such as t]he right to enjoy property without unlawful deprivation . . . . That rights in property are basic civil rights has
long been recognized.” Lynch v. Household Fin. Corp., 405 U.S.
538, 552 (1972) (citations omitted). Those basic civil rights also
dictate that private property owners must be compensated when
their property is taken for public use.

This order has been amended solely to correct a scrivener’s error. “Of
corrections” was removed from the case’s caption.
1

1

This case presents a related, straightforward choice-of-law
question. What substantive law controls the amount of compensation due to a private landowner for the taking of his or her property by a private entity exercising federal eminent-domain authority—federal or state law? If federal law controls, Defendants
are not entitled to litigation expenses. But if state law controls,
they are.
Because Eleventh Circuit precedent—and the overwhelming weight of authority—teaches that state substantive law controls, Plaintiff’s Motion for Partial Summary Judgment, ECF No.
69, is DENIED.
I
Sabal Trail Transmission, LLC (“Plaintiff”) proposes to construct 516.2 miles of mainline pipeline in Alabama, Georgia, and
Florida, known as the Sabal Trail Project (“Project”). ECF No. 1,
at 3–4. Plaintiff also proposes associated lateral pipelines in Florida, five new compressor stations, and a hub in Central Florida.
Id. at 4. The Project will supply natural gas to Florida Power &
Light Company and Duke Energy Florida, LLC, for their powergeneration needs. Id. at 3–4.

2

The Federal Energy Regulatory Commission (“FERC”) issued Plaintiff a Certificate of Public Convenience and Necessity
(“FERC Certificate”) for the Project. Id. at 3. As holder of that
FERC Certificate, § 717f(h) of the Natural Gas Act authorizes
Plaintiff to “exercise . . . the right of eminent domain” and bring a
condemnation action against private property owners for any
property needed to construct, operate, or maintain a pipeline or
associated facilities. 15 U.S.C. § 717f(h) (2012).
Plaintiff initiated an eminent-domain condemnation action
against multiple private property owners (“Defendants”). ECF
No. 1. Plaintiff then filed a Motion for Partial Summary Judgment, asserting that the Fifth Amendment to the United States
Constitution’s “just compensation” measure—which does not include the property owner’s litigation expenses in an eminent-domain condemnation action—governs. ECF No. 69, at 1; see also
United States v. Bodcaw Co., 440 U.S. 202, 203 (1979) (“Thus,
‘[a]ttorneys’ fees and expenses are not embraced within just compensation . . . .’” (quoting Dohany v. Rogers, 281 U.S. 362, 368
(1930))). Defendants disagree, and argue that the Florida Constitution’s “full compensation” measure—which includes reasonable
attorney’s fees and expenses—governs. ECF No. 81, at 1–2; see
3

also Fla. Const. art. X, § 6(a) (“No private property shall be taken
except for a public purpose and with full compensation therefor
paid to each owner . . . .” (emphasis added)); Joseph B. Doerr
Trust v. Cent. Fla. Expressway Auth., 177 So. 3d 1209, 1215 (Fla.
2015) (holding that it is “fundamentally clear” that the definition
of full compensation under Florida’s Constitution includes reasonable attorney’s fees (citations omitted)).
II
Summary judgment is appropriate when “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The parties agree to all material facts; thus, the
only disputes relate to questions of law. “Where the unresolved
issues are primarily legal rather than factual, summary judgment is particularly appropriate.” Bruley v. Vill. Green Mgmt.
Co., 592 F. Supp. 2d 1381, 1388 (M.D. Fla. 2008) (quoting Uhl v.
Swanstrom, 79 F.3d 751, 754 (8th Cir. 1996)).
III
Plaintiff contends that the Fifth Amendment’s “just compensation” measure controls because federal law supplies the ex-

4

clusive measure of compensation in Natural Gas Act condemnation proceedings. This Court disagrees.

A
Federal law governs questions involving the rights and liabilities under the Natural Gas Act. See United States v. Kimbell
Foods, Inc., 440 U.S. 715, 726 (1979) (“[F]ederal law governs
questions involving the rights of the United States arising under
nationwide federal programs.”). But that does not mean that federal law necessarily applies. See id. at 727–28 (“Controversies directly affecting the operations of federal programs, although governed by federal law, do not inevitably require resort to uniform
federal rules.” (citations omitted)). “Instead, ‘whether to adopt
state law or to fashion a national federal rule is a matter of judicial policy dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to
the effects upon them of applying state law.’” Redwing Carriers,
Inc. v. Saraland Apartments, 94 F.3d 1489, 1500 (11th Cir. 1996)
(quoting Kimbell Foods, 440 U.S. at 728).
In that scenario, courts must first start “with the premise
5

that state law should supply the federal rule unless there is an
expression of legislative intent to the contrary, or, failing that, a
showing that state law conflicts significantly with any federal interests or policies . . . .” Ga. Power Co. v. Sanders, 617 F.2d 1112,
1116 (5th Cir. 1980) 2 (citing Wallis v. Pan Am. Petroleum Corp.,
384 U.S. 63, 68 (1966)). When deciding whether there is a “significant conflict” between a federal policy or interest and the application of state law, id. at 1117 (quoting Wallis, 384 U.S. at 68),
courts consider the following factors: “(1) the need for a nationally
uniform body of law, (2) whether the application of state law
would frustrate specific objectives of the federal program at issue,
and (3) the extent to which application of a federal rule would upset commercial relationships predicated on state law.” Columbia
Gas Transmission Corp. v. Exclusive Nat. Gas Storage Easement,
962 F.2d 1192, 1195–96 (6th Cir. 1992) (citing Kimbell Foods, 440
U.S. at 728–29).

Decisions of the Fifth Circuit prior to October 1, 1981, are binding
within the Eleventh Circuit. Bonner v. City of Pritchard, 661 F.2d 1206, 1207
(11th Cir. 1981) (en banc).
2

6

B
This Court’s analysis begins with the language of the Natural Gas Act. See id. at 1197 (beginning a similar case “with the
statutory language”). Section 717f(h) states that “[t]he practice
and procedure in any action or proceeding for [condemnation under § 717f(h)] shall conform as nearly as may be with the practice
and procedure in similar action or proceeding in the courts of the
State where the property is situated . . . .” 3 15 U.S.C. § 717f(h).
That language is largely unhelpful and arguably irrelevant.
Both parties agree that “the practices and procedures of federal
eminent domain actions, including those filed pursuant to the
Natural Gas Act, 15 U.S.C § 717f(h), are governed by Rule [71.1] 4
and not by state [procedural] law.” S. Nat. Gas Co. v. Land, Cullman Cty., 197 F.3d 1368, 1375 (11th Cir. 1999); see also ECF No.
69, at 12; ECF No. 81, at 21. That is because Rule 71.1 supersedes the Natural Gas Act’s practice and procedure clause. Cullman Cty., 197 F.3d at 1375.

3

clause.”

This Court will refer to this language as the “practice and procedure

Former Rule 71A of the Federal Rules of Civil Procedure was redesignated as Rule 71.1 in 2007. See Fed. R. Civ. P. 71.1 advisory committee’s
note.
4

7

Looking then to Rule 71.1, which governs “proceedings to
condemn real and personal property by eminent domain,” subsection (l) states that “[c]osts are not subject to Rule 54(d).” Fed. R.
Civ. P. 71.1. Plaintiff fervently argues that this rule “expressly
provides that costs are not recoverable by prevailing parties in
such actions . . . .” ECF No. 69, at 17 (emphasis in original). But
that is not so. Rule 71.1(l) simply states that the proceedings it
governs are not subject to any provisions for costs set forth in
Rule 54(d). It does not mean that “costs are not recoverable” in all
eminent-domain condemnation actions.
Because the rule itself does not provide an answer, this
Court looks to the Advisory Committee Notes for guidance. Fed.
R. Civ. P. 71.1(l) advisory committee’s note. Those explain that
the rule does not “attempt[] to state what the rule on costs is.” Id.
The Advisory Committee Notes also explain why Rule 71.1 excludes eminent-domain condemnation actions from the normal
award of costs. Rule 71.1(l) is not meant to punish private property owners in eminent-domain condemnation cases by stripping
them of costs; rather, it is meant to protect them. See id. (explaining that costs are exempted in condemnation actions because the

8

condemnor (typically, the government) will usually be the prevailing party, and granting it fees would further reduce the compensation award). In any event, all that can be gleaned from Rule
71.1(l)—and, more broadly, Rule 71.1 generally—is that this
Court is not bound by Rule 54(d).
C
Neither the Natural Gas Act nor Rule 71.1 resolve the issue
presented here. But, luckily, this Court does not write on a clean
slate. In Georgia Power, the Eleventh Circuit’s predecessor court
addressed whether compensation issues in Federal Power Act
condemnation cases “should be determined under federal law or
under the law of the state where the condemned property is located when a licensee of the [FERC] exercises the power of eminent domain in federal court . . . .” 617 F.2d at 1113. Although
the court acknowledged that the choice-of-law issue was a close
one, it nonetheless held that “the law of the state where the condemned property is located is to be adopted as the appropriate
federal rule for determining the measure of compensation when a
licensee [of the FERC] exercises the power of eminent domain
pursuant to . . . the Federal Power Act.” Id. at 1124.

9

The Georgia Power court did not reach that conclusion willy
nilly; rather, it painstakingly considered whether there was a
“significant conflict” between the “important federal interests . . .
arising under the Federal Power Act” and the application of state
law. Id. at 1117–18 (quoting Wallis, 384 U.S. at 68). It decided
that there was not. See id. at 1118 (“[T]he interests of the United
States in the determination of the amount of compensation a private licensee must pay a landowner in a condemnation proceeding under Section 21 are not sufficient to warrant displacement of
state law on that issue.”).
In reaching that conclusion, the court first emphasized that
the project at issue was undertaken by a private party—not the
government. Id. It therefore did not significantly “implicate the
interests of the United States . . . .” Id. Moreover, because FERC
licensees have the option to proceed in either state or federal
court, the court reasoned that incorporating state law would not
further upset the important interest in national uniformity. See
id. at 1122 (noting that even the “application of uniform federal
law . . . could result in a corresponding loss of uniformity even in
a single project”). In fact, the court highlighted “the state’s interest in avoiding displacement of its laws in the area of property
10

rights, traditionally an area of local concern.” Id. at 1123. And
while the court acknowledged that applying state law would arguably lead the condemner to pay higher costs to the property
owner, that speculative possibility did not “amount[] to the kind
of conflict which [would] preclude[] adoption of state law.” Id. at
1121 (citation omitted).
That reasoning applies equally here. The Natural Gas Act
makes its guiding light explicit: to further the public interest “in
matters relating to the transportation of natural gas and the sale
thereof in interstate and foreign commerce . . . .” 15 U.S.C. §
717(a). Adopting state law as the measure of compensation will
not significantly conflict with that goal; it simply means that Natural Gas Act condemners may have to pay more than would be
required under a federal rule. But that pea-sized conflict—if a
conflict at all—is not enough to “preclude[] adoption of state law
as the federal rule.” Ga. Power, 617 F.2d at 1121 (citing United
States v. Little Lake Misere Land Co., Inc., 412 U.S. 580 (1973)).
In any event, “property rights have traditionally been, and to a
large degree are still, defined in substantial part by state law.”
Columbia Gas, 962 F.2d at 1198 (citation omitted). Even adopting

11

federal law could therefore upset the parties’ commercial expectations, which are likely founded upon state law.
Similarly, there is no need for a uniform federal rule. For
uniformity concerns to dictate the adoption of a federal rule, the
need must be “plain,” Clearfield Trust Co. v. United States, 318
U.S. 363, 367 (1943), and “generalized pleas for uniformity [may
not function] as substitutes for concrete evidence” that application of state law would adversely affect administration of the federal statute, Kimbell Foods, 440 U.S. at 730. But here, the necessity of a federal rule is conspicuously absent. Simply put, nothing
in the Natural Gas Act “evidences a distinct need for nationwide
legal standards.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90,
98 (1991) (citing Clearfield Trust, 318 U.S. at 366–67). And even
if a federal rule was adopted, that would do nothing to address
the corresponding lack of uniformity stemming from the fact that
Natural Gas Act condemnation proceedings may be brought in
federal or state court. See § 361.05, Fla. Stat. (2016) (granting entities that are “subject to regulation under the federal Natural
Gas Act . . . the right of eminent domain”). Indeed, applying federal law “could result in a corresponding loss of uniformity even
in a single project.” Ga. Power, 617 F.2d 1122.
12

Plaintiff tries to distinguish Georgia Power by stating that
it addressed the Federal Power Act—not the Natural Gas Act.
ECF No. 69, at 22. That argument is unconvincing. A brief glance
at the statutes’ condemnation provisions reveals that they are
near carbon-copies of one another. See 15 U.S.C. § 717f(h); 16
U.S.C. § 814. There is more. The Natural Gas Act’s legislative
history also suggests that it “was intended to mirror the parallel
provision of the Federal Power Act.” Columbia Gas, 962 F.2d at
1199 (citing H.R. Rep. No. 695, 80th Cong., 1st Sess., reprinted in
1947 U.S.C.C.A.N. 1477, 1477). This Court therefore “can conceive of no logical reason for the practice and procedure language
of these two statutes”—or cases analyzing that language—“to be
given two different meanings.” Cullman Cty., 197 F.3d at 1375.
Many circuit courts have reached the same conclusion;
namely, that Georgia Power (or at least its reasoning) applies to
Natural Gas Act cases. 5 Take Columbia Gas, for example. There,

Plaintiff tries to convince this Court otherwise by stating that the
Second Circuit has limited Georgia Power’s reasoning “only to Power Act
cases, and to hold that its analytical framework would look to federal law for
a uniform rule in other takings contexts.” ECF No. 69, at 31. That is, at best,
disingenuous. Neither of the cases cited by Plaintiff limits Georgia Power’s
reasoning to Federal Power Act cases. Nor do they even mention the Natural
Gas Act. Rather, both cases cite Georgia Power with approval. See Nat’l R.R.
Passenger Corp. v. Two Parcels of Land, 822 F.2d 1261, 1265 (2d Cir. 1987)
(agreeing “that the Georgia Power analysis is sound” but concluding that, as
5

13

the Sixth Circuit relied on Georgia Power to hold that the Natural Gas Act “incorporates the law of the state in which the condemned property is located in determining the amount of compensation due.” 962 F.2d at 1199. That holding was recently reaffirmed. See Rockies Express Pipeline LLC v. 4.895 Acres of Land,
734 F.3d 424, 429 (6th Cir. 2013) (“While condemnation under
the Natural Gas Act is a federal matter, courts conducting such
proceedings must apply ‘the law of the state in which the condemned property is located in determining the amount of compensation due.’” (quoting Columbia Gas, 962 F.2d. at 1199)). And
the Sixth Circuit is not an outlier; the Fifth and Tenth Circuits
agree. See Bison Pipeline, LLC v. 102.84 Acres of Land, 560 F.
App’x 690, 695–96 (10th Cir. 2013) (declining to hold a new trial
applying federal common law in a Natural Gas Act condemnation
proceeding because state law governed the compensation measure); Miss. River Transmission Corp. v. Tabor, 757 F.2d 662, 6 665

applied to the specific facts of that case, “it points to a different result”);
Winooski Hydroelectric Co. v. Five Acres of Land, 769 F.2d 79, 81–82 (2d Cir.
1985) (“Preliminarily, we agree with the Fifth Circuit that in a condemnation
action under [the Federal Power Act] the substantive law applied is federal
law . . . but the source of the federal law is the law of the state in which the
property is located.” (citing Ga. Power, 617 F.2d at 1115)).
6 This Court acknowledges that Tabor involved a condemnation effectuated under both state and federal law. It nonetheless finds it persuasive.
14

n.3 (5th Cir. 1985) (applying Louisiana law as the measure of
compensation in a Natural Gas Act condemnation proceeding).
The same is true for the overwhelming majority 7 of district courts. 8 Rockies Express Pipeline, LLC v. 77.620 Acres, No.
08-cv-3127, 2010 WL 3034879 (C.D. Ill. Aug. 3, 2010)—a Natural
Gas Act condemnation case—is instructive. There, the court first
acknowledged that no Seventh Circuit precedent definitively

This Court is unpersuaded by Columbia Gas Transmission, LLC v.
252.071 Acres, More or Less, in Baltimore Cty., Md., No. ELH-15-3462, 2016
WL 7167979 (D. Md. Dec. 8, 2016), and Tenn. Gas Pipeline Co. v. Permanent
Easement for 1.7320 Acres, No. 3:cv-11-028, 2014 WL 690700 (M.D. Pa. Feb.
24, 2014). Both of those cases erroneously rely on United States v. Miller, 317
U.S. 369 (1943), which this Court finds distinguishable. See infra pp. 17–18.
7

Columbia Gas Transmission, LLC v. Booth, 1:16-cv-1418, 2016 WL
7439348, at *5 (N.D. Ohio Dec. 22, 2016) (citing Columbia Gas); N. Nat. Gas
Co. v. Approximately 9117 Acres in Pratt, Kingman, 2 F. Supp. 3d 1174, 1179
(D. Kan. 2014) (citing Columbia Gas); Cadeville Gas Storage, LLC v. 10.00
Acres of Land In Ouachita Par., La., No. 12-2910, 2013 WL 6712918, at *9
(W.D. La. Dec. 20, 2013) (citing Tabor); Tex. Gas Transmission, LLC v. 18.08
Acres +/- in Se. Quarter Section 24, Tp. 30, N., Range 4 W., Coahoma Cty.,
Miss., 2:08-cv-240, 2012 WL 6057991, at *5 (N.D. Miss. Dec. 6, 2012) (citing
Ga. Power); Perryville Gas Storage, LLC v. Dawson Farms, LLC, No. 11-1883,
2012 WL 5499892, at *7 (W.D. La. Nov. 13, 2012) (citing Tabor); Columbia
Gas Transmission, LLC v. Crawford, 746 F. Supp. 2d 905, 910 (N.D. Ohio
2010) (citing Columbia Gas); Maritimes & Ne. Pipeline, LLC. v. 0.714 Acres of
Land, More or Less, in Danvers, Mass., No. 02-11054, 2007 WL 2461054, at
*2 (D. Mass. Aug. 27, 2007) (citing Portland Nat. Gas and Algonquin Gas);
Portland Nat. Gas Transmission Sys. v. 19.2 Acres of Land, 195 F. Supp. 2d
314, 319–20 (D. Mass. 2002) (citing Ga. Power, Algonquin Gas, and Tenn.
Gas); Spears v. Williams Nat. Gas Co., 932 F. Supp. 259, 260–61 (D. Kan.
1996) (citing Columbia Gas and Ga. Power); Algonquin Gas Transmission Co.
v. 60 Acres of Land, More or Less, in Brockton, Plymouth Cty., Mass., 855 F.
Supp. 449, 453 (D. Mass. 1994) (citing Columbia Gas and Tenn. Gas); Tenn.
Gas Pipeline Co. v. 104 Acres of Land More or Less, in Providence Cty. of
State of R.I., 780 F. Supp. 82, 85 (D.R.I. 1991) (citing Tabor).
8

15

stated “whether federal or state substantive [compensation] law
should apply.” Id. at *2. Nonetheless, after considering the parties’ arguments, the court concluded that
the arguments supporting the application
of state law [are] more persuasive. In general, property rights are defined by state
law. Furthermore, the Court does not see
an overriding need for national uniformity
on substantive property law when dealing
with a FERC licensee. The uniform procedure under [Rule] 71.1 provides sufficient
predictability.
Id (emphasis in original). Other courts within the Eleventh Circuit’s jurisdiction agree. Fla. Gas Transmission Co. v. An Approximately 9.854 Acre Nat. Gas Transmission Pipeline Easement, 9614083-CIV, 1999 WL 33487958, at *1 (S.D. Fla. May 27, 1999) 9
(reasoning in a Natural Gas Act condemnation proceeding “that
Florida substantive law will control the actual determination of
compensation”).
Under Georgia Power, state substantive law governs the
compensation measure in eminent-domain condemnation pro-

The same court later awarded costs and reasonable attorney’s fees in
the case. Fla. Gas Transmission Co. v. An Approximately 9.854 Acre Nat. Gas
Transmission Pipeline Easement, 96-14083-CIV, 2000 WL 33712491, at *3
(S.D. Fla. Aug. 25, 2000).
9

16

ceedings brought by private parties against private property owners. 617 F.2d at 1124. That reasoning applies equally to condemnation proceedings brought under the Natural Gas Act. Florida’s
full compensation measure therefore governs here.
IV
Plaintiff makes a boatload of arguments to the contrary,
but none of them hold water. Below is just a sample.
At the heart of Plaintiff’s argument is the misguided belief
that United States v. Miller, 317 U.S. 369 (1943) controls. That
case involved a condemnation proceeding brought by the federal
government in California. Id. at 370. The Miller Court held that
the Fifth Amendment constitutional measure of just compensation applied to the condemnation in question. See id. at 379–80
(holding that a federal court does not apply “the law of the State
in which the court sits” to “questions of substantive right—such
as the measure of compensation”).
Yet Georgia Power expressly considered and distinguished
Miller. 617 F.2d at 1115 n.4. In Miller, 10 the federal government—not a private party—was the condemner. 317 U.S. at 370.

Plaintiff contends that “Miller is strikingly similar to this case.”
ECF No. 69, at 10. But that simply is not true. In fact, a deep-dive into Miller
10

17

But Natural Gas Act condemnation proceedings are brought by
private parties against private landowners. And, in those scenarios, “the interests of the United States in the determination of the
amount of compensation a private licensee must pay a landowner
in a condemnation proceeding . . . are not sufficient to warrant
displacement of state law on that issue.” Ga. Power, 617 F.2d at
1118. Miller is therefore inapposite. See id. at 1119–20 & n.9 (explaining that decisions like Miller, “where the United States is
the party condemning and paying for the land,” do not control in
Federal Power Act cases).
Kohl v. United States, 91 U.S. 367 (1875), does not dictate
otherwise. In Kohl, the Supreme Court stated that eminent-domain “power is not changed by its transfer to another holder.” Id.
at 372. That does not mean, as asserted by Plaintiff, that Miller

reveals glaring inconsistencies in Plaintiff’s argument. The eminent-domain
power in Miller allowed the federal government “to purchase or condemn . . .
suitable land for relocation of [transportation facilities and utilities]” as necessary to accommodate the project at issue in that case. Miller v. United
States, 125 F.2d 75, 76 n.1 (9th Cir. 1942). That is far from “strikingly similar
to” the Natural Gas Act. Plaintiff nonetheless insists that it is, and simultaneously claims that this case is nothing like those cases addressing the Federal Power Act. See ECF No. 69, at 22–32 (attempting to distinguish Ga.
Power and Columbia Gas). But Plaintiff cannot have its cake and eat it too.
Saying that Miller is “strikingly similar” to this case—while also asserting
that the Natural Gas Act is nothing like the Federal Power Act—is like saying men’s soccer is “strikingly similar” to bobsledding, yet not women’s soccer.
18

applies when “a private entity, rather than a governmental entity, exercises federal eminent-domain authority . . . .” ECF No.
69, at 11. Rather, in context, it stands for the simple proposition
that eminent-domain power is held by both the federal and state
governments. Kohl, 91 U.S. at 372 (“But, if the right of eminent
domain exists in the Federal government, it is a right which may
be exercised within the States, so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution.”).
Plaintiff’s attempt to fit a square peg into a round hole is futile.
At bottom, Plaintiff’s argument fails to grasp the distinction between procedural and substantive law and the source of
those laws. It is undisputed that federal procedural law—Rule
71.1—applies to Natural Gas Act condemnation actions. Cullman
Cty., 197 F.3d at 1375; see also ECF No. 81, at 21 (agreeing that
“federal procedural law applies to condemnation actions under
the [Natural Gas Act]”). But that rule does not decide the issue
presented here. Likewise, it is evident that “the substantive law
applied is federal law.” Winooski Hydroelectric Co. v. Five Acres of
Land, 769 F.2d 79, 81 (2d Cir. 1985) (citing Ga. Power, 617 F.2d
at 1115); see Columbia Gas, 962 F.2d at 1199 (concluding that
“condemnation under the Natural Gas Act is a matter of federal
19

law”). The question is what law supplies the applicable rule for
determining the amount of compensation. See Ga. Power, 617
F.2d at 1116 (considering what “law should supply the federal
rule”); see also Redwing Carriers, 94 F.3d at 1500 (asking
“[w]hether to adopt state law or to fashion a national federal
rule” (quoting Kimbell Foods, 440 U.S. at 728)). The answer is the
substantive law of the state.
Because state substantive law governs the compensation
measure in eminent-domain condemnation proceedings brought
by private parties against private property owners, Florida’s “full
compensation” measure governs here.
V
Under Rule 71.1, this Court may appoint a three-person
commission to determine the amount of compensation that Defendants are due to be paid. See Fed. R. Civ. P. 71.1(h)(2)(A)
(“[T]he court may instead appoint a three-person commission to
determine compensation . . . .”). It refuses to exercise that authority. 11 Doing so would unnecessarily waste the parties’ time and

This Court previously denied Plaintiff’s Motion for Appointment of
Commission without prejudice. ECF No. 67 (order); ECF No. 51 (motion). It
has sua sponte reconsidered that motion, and for the reasons stated herein,
that motion is DENIED WITH PREJUDICE.
11

20

money. See Fed. R. Civ. P. 71.1(h)(2) advisory committee’s note
(“Experience with the commission on a nationwide basis . . . has
been that the commission is time consuming and expensive.”); see
also United States v. Del., Lackawanna & W. R.R. Co., 264 F.2d
112, 115 (3d Cir. 1959) (“[A] reference to a commission tends unduly to prolong the proceedings, thereby causing vexation to all
concerned and additional expense . . . .”). It would also run counter to the “general rule” of trying the compensation issue to a
jury. Fed. R. Civ. P. 71.1 advisory committee’s note; see also id.
(“[I]n the bulk of states a land owner is entitled eventually to a
jury trial[.]”); § 73.071, Fla. Stat. (2016) (requiring a twelve-person jury in “eminent domain cases”).
But at an even more basic level, property rights have long
been recognized as sacred and fundamental. Arthur Lee, a Virginia delegate to the Continental Congress, once declared that
“[t]he right of property . . . is the guardian of every other right,
and to deprive a people of this, is in fact to deprive them of liberty.” James W. Ely Jr., The Guardian of Every Other Right: A
Constitutional History of Property Rights 26 (2d ed. 1998). And
that statement was no accident—the Supreme Court has also

21

stressed that property rights are just as fundamental others—including, again, the right to liberty. See Zinermon v. Burch, 494
U.S. 113, 132 (1990) (acknowledging that there can be no “categorical distinction between a deprivation of liberty and one of
property” (citing Lynch, 405 U.S. at 552)). This Court tries all
kinds of cases before a jury—even the most trivial ones. So, no
matter how busy this Court’s docket is, it will not deprive Defendants of their property rights without the same opportunity.
VI
Condemnation is not akin to marriage—it is far from a joyous affair. See Phelps Dodge Corp. v. Atchison, T. & S. F. Ry. Co.,
400 F.2d 20, 24 (10th Cir. 1968) (“Condemnation at best is an unhappy event aggravated by . . . the subjective (and often unrealistic) beliefs of [both] parties as to value and damage[s].”). Indeed,
it is quite likely that neither party will be enthralled with this
case’s outcome; Defendants are having their property unilaterally
taken from them, while Plaintiffs are being forced to pay more for
that property than they feel law requires. But state substantive
law governs the compensation measure in eminent-domain condemnation proceedings brought by private parties against private

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property owners. See, e.g., Ga. Power, 617 F.2d at 1118. Florida’s
“full compensation” measure therefore applies here.
Accordingly,
IT IS ORDERED:
1. Plaintiff’s Motion for Partial Summary Judgment, ECF
No. 69, is DENIED.
2. Plaintiff’s Motion for Appointment of Commission, ECF
No. 51, is DENIED WITH PREJUDICE.
SO ORDERED on June 27, 2017.
s/Mark E. Walker
United States District Judge

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