Chief Justice John Roberts built his hypothetical in four short steps on Monday. The federal government can condemn land for a pipeline without paying the owner's legal fees. It can then sell that land to a private pipeline company. So the company, too, ends up never paying those fees. "So I don't understand why this isn't an easy case," he told Robert J. McNamara, the lawyer for a group of North Dakota landowners.
The case is Hoffmann v. WBI Energy Transmission, No. 25-159, and it asks a question the Natural Gas Act never answers. When Congress let private pipeline companies use eminent domain in 1947, did it leave the measure of what they owe the landowner to state law, or did it set a single federal rule?
How a ranch easement got here
WBI Energy Transmission, a private gas company with federal approval for a pipeline, condemned an easement across McKenzie County ranchland owned by the petitioners and their families, according to the landowners' brief. The two sides first fought over how to value the easement, then settled after a ruling that let the landowners use evidence of what oil companies had paid for similar easements. The settlement left one question open: who pays the landowners' lawyers and experts.
North Dakota law treats those costs as part of just compensation, so the condemning party pays them. Federal law generally leaves landowners to pay their own. The district court applied North Dakota law and awarded the fees. The Eighth Circuit reversed, reasoning, as the brief quotes it, that a private condemnor "step[s] into the federal government's shoes" and owes only what the government would. The brief counts four circuits that had applied state law to Natural Gas Act takings before that ruling: the Fifth in 1985, the Sixth in 1992, the Third in 2019 and the Eleventh in 2023.
What the bench asked
McNamara opened with a symmetry. "Silence meant state law then. Silence means state law today," he said.
Justice Elena Kagan tested the limits with a state that imposed treble damages on private condemnors, and suggested such a rule would make pipelines much harder to build than Congress expected. She also told McNamara that before reading his brief, she would have said the power of eminent domain is "the government's right to take subject to just compensation," with both parts inside the one power.
Justice Ketanji Brown Jackson raised the General Bridge Act of 1946, in which Congress wrote that just compensation "is to be ascertained and paid according to the laws of the state," as she read it from the bench. Justice Brett Kavanaugh picked up the point. "So, in 1946, it puts it in. In 1947, it doesn't," he said. He returned to cost later. "So, when you say that it's been a uniform rule and hasn't frustrated anything, I think a lot of consumers might disagree with that," he told McNamara, pointing to electricity prices.
Justices Samuel Alito and Neil Gorsuch ran opposite hypotheticals. Alito asked about a state that set compensation for pipeline takings at one quarter of fair market value. McNamara said the Constitution's floor would stop it. Gorsuch asked about a state requiring 150 percent. McNamara said an even-handed rule like that would be allowed.
Paul W. Hughes, arguing for WBI, faced a question from Kagan about why so many courts had ruled the other way for so long. He answered that "there are 11 different court of appeals judges who agree with us." Zoe A. Jacoby of the Solicitor General's office, arguing for the United States in support of WBI, told Kavanaugh that "land acquisition costs are a factor in rate base," the figure regulators use to set what customers pay.
Our count of the transcript
We counted every time a justice spoke in the official transcript, not counting the Chief Justice calling the case. That gives 106 speaking turns. Some are full questions and some are a few words, and the total includes the Chief Justice's calls to each colleague during the round of individual questioning.
Of those 106 turns, 89 came while McNamara was at the lectern, or 84 percent. Hughes drew 9. Jacoby drew 7. McNamara's rebuttal drew 1. In pages, McNamara's main argument fills pages 3 through 43, about 40 of the transcript's 69 pages, against about 16 for Hughes and 8 for Jacoby. The argument began at 11:30 a.m. and ended at 12:29 p.m.
By justice, the Chief Justice had 18 turns once the opening call is removed, counting his procedural prompts, then Kavanaugh with 16, Jackson with 15, Justices Clarence Thomas, Kagan and Gorsuch with 11 each, Justice Sonia Sotomayor with 10, Justice Amy Coney Barrett with 8 and Alito with 6.
A lopsided split does not decide a case. But questions tend to go where the doubts are, and SCOTUSblog's recap of the argument ran under the headline "Justices dubious of fee award in eminent domain dispute about interstate pipeline."
Our timeline of the docket
The petition was filed August 7, 2025. On December 8, 2025, 123 days later, the Court asked the Solicitor General for the government's views. That brief arrived May 22, 2026, 165 days after the invitation. The Court granted review on June 29 and heard the case 133 days later. From petition to argument took 459 days, by our count of the docket.
The docket shows six merits-stage amicus briefs filed August 20, a week after the landowners' brief, from groups including the Owners' Counsel of America, the National Association of Realtors and the Pacific Legal Foundation. Three more were filed September 21, a week after WBI's brief, from the U.S. Chamber of Commerce, the United States and the Interstate Natural Gas Association of America. Court rules tie those filing dates to the side a brief supports, though a brief can also support neither side.
What comes next
A decision is due by the end of the term, typically late June or early July. The same day's argument calendar also brought the Bivens case of a Hawaii prisoner, and the November sitting closed on Tuesday with the Sun Valley Orchards agency judges case.
Two Taps News stories summarize reporting and the analysis discussed on Two Taps and Friends. They are not legal advice. Read our standards.
