Sabal Trail Transmission, LLC v. 2.468 Acres of Land in Levy County Florida

USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 1 of 41
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11995
____________________
SABAL TRAIL TRANSMISSION, LLC,
Plaintiff-Appellant,
versus
18.27 ACRES OF LAND IN LEVY COUNTY,
LEE A. THOMAS AS SUCCESSOR SOLE TRUSTEE
OF THE TRUST AGREEMENT FOR LEE A. THOMAS
DATED OCTOBER 1, 2003,
LEE A. THOMAS AS SUCCESSOR SOLE TRUSTEE
OF THE TRUST AGREMENT FOR BEVERLY J. THOMAS
DATED OCTOBER 1, 2003,
RYAN B. THOMAS,
DRUMMOND COMMUNITY BANK,
UNKNOWN OWNERS IF ANY,
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 2 of 41
2 Opinion of the Court 21-11995
PNC BANK, NATIONAL ASSOCIATION,
Defendants-Appellees,
WILBUR F. DEAN,
Defendant.
____________________
Appeals from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:16-cv-00093-MW-GRJ
____________________
____________________
No. 21-11998
____________________
SABAL TRAIL TRANSMISSION, LLC,
Plaintiff-Appellant,
versus
2.468 ACRES OF LAND IN LEVY COUNTY FLORIDA,
RYAN B. THOMAS,
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 3 of 41
21-11995 Opinion of the Court 3
FARM SERVICE AGENCY UNITED STATES DEPARTMENT
OF
AGRICULTURE ACTING ON BEHALF OF UNITED STATES
OF AMERICA,
UNKNOWN OWNERS IF ANY,
Defendants-Appellees.
____________________
Appeals from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:16-cv-00095-MW-GRJ
____________________
Before JORDAN and ROSENBAUM, Circuit Judges, and STEELE, Dis-
trict Judge. *
ROSENBAUM, Circuit Judge:
* The Honorable John Steele, United States District Judge for the Middle Dis-
trict of Florida, sitting by designation.
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 4 of 41
4 Opinion of the Court 21-11995
This case is all about our prior-precedent rule. As any prac-
titioner before our Court knows, once a panel—or in this case, the
en banc Court—has decided an issue in a published decision, that
decision is binding on all future panels. That is so because, as a
court of law, we aim for rules to be clear, consistent, and predicta-
ble. So when our prior-precedent rule applies, it doesn’t matter
whether we agree with our earlier decision or not. It doesn’t matter
whether the prior panel or en banc Court missed an argument or
overlooked a reason. It doesn’t matter if the current panel thinks
the earlier decision was wrong. The current panel must follow the
earlier decision.
Here, the parties dispute whether, in a condemnation action
where a private entity uses the federal eminent-domain power un-
der the Natural Gas Act, § 15 U.S.C. § 717f(h), federal law or state
law supplies the rule of decision in determining what compensa-
tion the condemnor must pay the landowner. In this instance, the
state’s substantive law would provide more compensation than
would federal law because the state (Florida) law defines compen-
sation for condemnation as including attorney’s fees. Federal law
doesn’t.
But in resolving this question, all the action takes place in
determining whether and, if so, how our predecessor Court’s prec-
edent, Georgia Power Company v. Sanders, 617 F.2d 1112 (5th Cir.
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 5 of 41
21-11995 Opinion of the Court 5
1980) (en banc) 1, controls our analysis. As it turns out, Georgia
Power applies. And the facts and administrative scheme involved
in that case are so close to those in this one that it’s almost like we
are deciding the same case again—only this time we are bound by
precedent. Because Georgia Power applies here, it’s game over:
Georgia Power necessarily dictates the answer. And that answer
requires us to choose state law to supply the federal law on the
meaning of “compensation” under 15 U.S.C. § 717f(h) of the Natu-
ral Gas Act.
After a thorough review of the record and with the benefit
of oral argument, we therefore affirm the district court’s judgment.
I. BACKGROUND
Plaintiff-Appellant Sabal Trail Transmission, LLC (“Sabal
Trail”), is a natural-gas company that has a “certificate of public
convenience and necessity” from the Federal Energy Regulatory
Commission (“FERC”) 2 under the Natural Gas Act. See 15 U.S.C.
1 Decisions of the former Fifth Circuit rendered prior to October 1, 1981, con-
stitute binding precedent in the Eleventh Circuit. Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
2 The Natural Gas Act does not refer to FERC specifically. Rather, the statute
entrusted the power to grant certificates of public convenience and necessity
to the Federal Power Commission. See 15 U.S.C. § 717a(9). But in 1977, when
the Department of Energy was created, Congress transferred the power to
grant such certificates to FERC, which is housed within the Department of
Energy. See 42 U.S.C. § 7172(a)(D).
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 6 of 41
6 Opinion of the Court 21-11995
§ 717f(c). A natural-gas company with such a certificate can exer-
cise eminent-domain power to construct, operate, and maintain
natural-gas pipelines. 3 Id. § 717f(h). Some states, like Florida, au-
thorize these licensees to exercise the eminent-domain power of
the state to condemn property for the purpose of constructing or
maintaining natural-gas pipelines. See, e.g., Fla. Stat. § 361.05.
Similarly, Section 717f(h) is a delegation to private parties of the
federal government’s eminent-domain authority. PennEast Pipe-
line Co., LLC v. New Jersey, 141 S. Ct. 2244, 2254 (2021) (“Since
the founding, the Federal Government has exercised its eminent
domain authority through both its own officers and private delega-
tees. . . . Section 717f(h) is an unexceptional instance of this estab-
lished practice.”). So often, private licensees have the option of
3 (h) Right of eminent domain for construction of pipelines, etc.
When any holder of a certificate of public convenience and ne-
cessity cannot acquire by contract, or is unable to agree with
the owner of property to the compensation to be paid for, the
necessary right-of-way to construct, operate, and maintain a
pipe line or pipe lines for the transportation of natural gas, and
the necessary land or other property, in addition to right-of-
way, for the location of compressor stations, pressure appa-
ratus, or other stations or equipment necessary to the proper
operation of such pipe line or pipe lines, it may acquire the
same by the exercise of the right of eminent domain in the dis-
trict court of the United States for the district in which such
property may be located, or in the State courts.
15 U.S.C. § 717f(h).
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 7 of 41
21-11995 Opinion of the Court 7
using state or federal eminent-domain authority to condemn prop-
erty for use in constructing or maintaining natural-gas pipelines.
Acting under the federal eminent-domain authority, in 2016,
Sabal Trail sued to condemn easements on two tracts of land so it
could build a natural-gas pipeline through two adjacent properties
in Levy County, Florida: an 837-acre farm that Defendant-Appellee
Lee Thomas owned and a 40-acre residential tract Lee’s son, De-
fendant-Appellee Ryan Thomas (together, the “Thomas family”),
owned. See Sabal Trail Transmission, LLC v. 18.27 Acres of Land
in Levy Cnty., 824 F. App’x 621, 623 (11th Cir. 2020) (hereinafter,
Sabal Trail I). The Thomas family grows watermelons and pea-
nuts, tends cattle, and boards horses on the farm. Id. Ryan4 oper-
ates the farm and lives on the adjoining 40-acre tract with his two
children. Id.After Sabal Trail filed the condemnation actions, the district
court granted it immediate possession of the land. Id. at 623–24.
Sabal Trail then built the pipeline across the two properties. Id. at
624.
Sabal Trail and the Thomas family could not agree on com-
pensation for the taking, so the district court held a jury trial on
that issue. Id. The jury awarded $861,264 to Lee, including
$782,083 in severance damages for the loss in value the pipeline
caused to the remainder of the property. Id. It awarded $463,439
4 To avoid confusion, we refer to the individual Thomases by their first names.
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 8 of 41
8 Opinion of the Court 21-11995
to Ryan, including $451,654 in severance damages. Id. Besides the
severance damages, the district court also ruled that the Thomas
family would be entitled to attorney’s fees and costs, though it
hadn’t yet awarded them. Id. at 625.
Sabal Trail appealed. See Sabal Trail I, 824 F. App’x 621.
Among other things, it sought a new trial on the ground that the
district court gave erroneous jury instructions and allowed oppos-
ing counsel to make improper arguments by referring to Florida’s
“full compensation” standard rather than the United States’s “just
compensation” standard. Sabal Trail also challenged the ruling on
attorney’s fees and costs.
We held that, even assuming the references to “full compen-
sation” were erroneous, Sabal Trail failed to show prejudice from
them because it did not “identif[y] any differences between the fed-
eral and state standards for measuring land value or severance dam-
ages that are relevant to this case.” Id. at 626. We also noted that
Sabal Trail failed to object to opposing counsel’s closing statement
at trial, and it was unable to meet the high plain-error standard of
review. Finally, we determined, that because the district had not
yet set an amount for attorney’s fees and costs, it had not yet ren-
dered a “final decision” on that particular matter, so we lacked ju-
risdiction to review it. We explained that exercising pendent ap-
pellate jurisdiction was inappropriate because the attorney’s fees
arguments were not inextricably intertwined with the other issues
on appeal. Rather, we said that the trial issues on appeal at that
time required us to determine whether Sabal Trail suffered
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 9 of 41
21-11995 Opinion of the Court 9
prejudice, while the issue of attorney’s fees “turned on whether
federal or state law supplies the applicable rule of decision.” Id. at
627.
So in sum, we affirmed the judgments awarding compensa-
tion to the Thomas family for the value of the condemned land and
dismissed Sabal Trail’s appeal of the court’s ruling that it would
have to pay attorney’s fees and costs.
On remand to the district court, the parties briefed the issue
of attorney’s fees and costs. Sabal Trail opposed awarding them,
arguing again that the U.S. Constitution’s “just compensation”
standard should apply and that that standard did not include attor-
ney’s fees and costs. The district court rejected Sabal Trail’s posi-
tion, instead concluding that “state substantive law governs the
measure of compensation in eminent domain cases brought by pri-
vate parties against private property owners under the [NGA].” It
then awarded over $765,000 in total fees and costs for both actions.
Sabal Trail appeals. 5
II. STANDARD OF REVIEW
The question of whether state law or federal law provides
the rule of decision to determine whether the Thomas family is
5 Prior to briefing and oral arguments, we consolidated these appeals: Sabal
Trail Transmission, LLC v. +/-18.27 Acres of Land in Levy County, Florida,
et al., Case Number 21-11995 and Sabal Trail Transmission, LLC v. 2.468 Acres
of Land in Levy County, Florida, et al., Case Number 21-11998.
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 10 of 41
10 Opinion of the Court 21-11995
entitled to attorney’s fees and costs is a question of law that we
review de novo. S. Nat. Gas Co. v. Land, Cullman Cnty., 197 F.3d
1368, 1372 (11th Cir. 1999).
III. DISCUSSION
We divide our discussion into five parts. In Section A, we
analyze the statutory text. In Section B, we review our Circuit’s
prior-panel precedent rule. Section C discusses Georgia Power. In
Section D, we explain why our prior-panel precedent rule requires
us to conclude that Georgia Power controls this case and demands
the conclusion that state law supplies the substantive rule for de-
termining compensation in condemnation actions under the Natu-
ral Gas Act. And in Section E, we address Sabal Trail’s counterar-
guments to applying Georgia Power.
A. The Text of the Natural Gas Act is Inconclusive.
In statutory-construction cases, we first consider the statu-
tory text. Dixon v. United States, 900 F.3d 1257, 1263–64 (11th Cir.
2018). If it clearly answers our question, our task ends with the text
as well. Id.In relevant part, the Natural Gas Act provides,
(h) Right of eminent domain for construction of pipe-
lines, etc.
When any holder of a certificate of public conven-
ience and necessity cannot acquire by contract, or is
unable to agree with the owner of property to the
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 11 of 41
21-11995 Opinion of the Court 11
compensation to be paid for, the necessary right-of-
way to construct, operate, and maintain a pipe line or
pipe lines for the transportation of natural gas, and
the necessary land or other property, in addition to
right-of-way, for the location of compressor stations,
pressure apparatus, or other stations or equipment
necessary to the proper operation of such pipe line or
pipe lines, it may acquire the same by the exercise of
the right of eminent domain in the district court of
the United States for the district in which such prop-
erty may be located, or in the State courts.
15 U.S.C. § 717f(h). Here, the Natural Gas Act does not say
whether federal or state law supplies the standard for determining
compensation in a condemnation action that a Natural Gas Act li-
censee institutes relying on the federal power of eminent domain.
It is totally silent on the question. And though this section of the
Natural Gas Act was last amended in 1988, subsection (h) wasn’t
touched. See Pub. L. No. 474, 102 Stat. 2302 (Oct. 6, 1988).
But at the same time, other sections of the Natural Gas Act
do answer the question as it relates to them. For instance, § 717y—
added in 1978—was intended to “to facilitate voluntary conversion
of facilities from the use of natural gas to the use of heavy petro-
leum fuel oil.” 15 U.S.C. § 717y(a)(1). And that section authorizes
FERC “to determine the maximum consideration permitted as just
compensation under this section,” id. § 717y(b)(2). In other words,
by designating FERC as the supplier of the meaning of
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 12 of 41
12 Opinion of the Court 21-11995
“compensation” under Section 717y, the section provides that the
measure of compensation is determined under a federal rule.
Yet notably, Section 717y authorizes FERC to determine the
meaning of “just compensation” only as it pertains to voluntary
conversions under “this section,” meaning Section 717y. So Sec-
tion 717y doesn’t control our case because it applies to only volun-
tary conversions brought under it, not, as here, involuntary con-
demnations brought under Section 717f(h).
Still, Section 717y’s selection of the federal rule is interesting
for a different reason. Namely, Section 717y shows that Congress
knew how to expressly designate a federal standard as the measure
of compensation under the Natural Gas Act. Yet it did not do so in
the context of condemnation proceedings. And “[w]here Congress
includes particular language in one section of a statute but omits it
in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion
or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983) (al-
teration omitted and quotation marks omitted). Indeed, we have
said that “[w]here Congress knows how to say something but
chooses not to, its silence is controlling.” Animal Legal Def. Fund
v. U.S. Dep’t of Agric., 789 F.3d 1206, 1218 (11th Cir. 2015) (internal
citation and quotation marks omitted).
Given that silence here, we conclude that Congress has left
a gap in the statute on whether state law or federal law should sup-
ply the measure of compensation in condemnation proceedings
under the Natural Gas Act. See Ga. Power, 617 F.2d at 1115. And
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 13 of 41
21-11995 Opinion of the Court 13
when “the statute does not specify the appropriate rule of decision,
the task of interstitial federal lawmaking falls upon the federal judi-
ciary . . . to declare the governing law in an area comprising issues
substantially related to an established program of government op-
eration.” Id. (cleaned up).
We therefore turn to that task. But we don’t write on a
blank slate because of the prior-precedent rule.
B. We abide by the prior-precedent rule, which means a prior de-
cision of ours binds future panels unless it is overruled by the
Court sitting en banc or by a Supreme Court decision that is
“clearly on point.”
From the earliest days of our Circuit’s existence, we have
followed what has come to be known as the prior-precedent rule.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)
(en banc), we adopted “the absolute rule that a prior decision of the
circuit (panel or en banc) [can]not be overruled by a panel but only
by the court sitting en banc.” Even a later Supreme Court decision
does not provide a basis for failing to follow prior precedent unless
the Supreme Court decision is “clearly on point.” Garrett v. Univ.
of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir.
2003). And even then, the Supreme Court decision must “actually
abrogate or directly conflict with, as opposed to merely weaken,
the holding of the prior panel.” United States v. Kaley, 579 F.3d
1246, 1255 (11th Cir. 2009).
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 14 of 41
14 Opinion of the Court 21-11995
Not only that, but our prior-precedent rule has no exception
when a later panel “is convinced the prior one reached the wrong
result—for whatever reason.” Smith v. GTE Corp., 236 F.3d 1292,
1303 (11th Cir. 2001). Indeed, we have “categorically reject[ed] any
exception to the prior panel precedent rule based upon a perceived
defect in the prior panel’s reasoning or analysis as it relates to the
law in existence at that time.” 6 Id. And our prior-precedent rule
also requires us to “follow the reasoning behind a prior holding if
we cannot distinguish the facts or law of the case under considera-
tion—even if the present case does not involve precisely the same
issue.” Devengoechea v. Bolivarian Rep. of Venezuela, 889 F.3d
1213, 1227 (11th Cir. 2018).
We have often explained the reasons for the prior-precedent
rule. For example, in Bonner v. City of Prichard, we emphasized
the need for “[s]tability and predictability” in the “proper operation
of law,” and we explained that the prior-precedent rule “main-
tain[s]” and “promote[s]” these essential factors. 661 F.2d at 1210.
As the Supreme Court has reasoned, following past decisions is im-
portant. This practice “furnish[es] a clear guide for the conduct of
6 We have referred to this rule by the interchangeable names of the “prior-
panel-precedent rule,” see, e.g., Smith, 236 F.3d at 1303, and the “prior-prece-
dent rule,” see, e.g., United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th
Cir. 2008). We refer to the rule here as the “prior-precedent rule” because the
prior precedent that controls this case—Georgia Power—is not a panel prece-
dent but an en banc precedent. So we think the moniker “prior-precedent
rule” more accurately reflects the rule we are applying here.
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 15 of 41
21-11995 Opinion of the Court 15
individuals, to enable them to plan their affairs with assurance
against untoward surprise; . . . further[s] fair and expeditious adju-
dication by eliminating the need to relitigate every relevant propo-
sition in every case; and . . . maintain[s] public faith in the judiciary
as a source of impersonal and reasoned judgments.” Moragne v.
States Marine Lines, Inc., 398 U.S. 375, 403 (1970).
In sum, as our colleague Judge Ed Carnes memorably
penned, “Without the [prior-precedent] rule every sitting of this
court would be a series of do-overs, the judicial equivalent of the
movie ‘Groundhog Day.’ While endlessly recurring fresh starts is
an entertaining premise for a romantic comedy, it would not be a
good way to run a multi-member court that sits in panels.” Atl.
Sounding Co. v. Townsend, 496 F.3d 1282, 1286 (11th Cir. 2007)
(E. Carnes, J., concurring). We therefore put Punxsutawney Phil
aside and adhere to the prior-precedent rule.
C. In Georgia Power, we determined that state substantive law
should govern the meaning of “compensation” as used in the
Federal Power Act.
With our prior-precedent rule in mind, we review our deci-
sion in Georgia Power, the decision that we conclude controls the
analytical framework here because of the similarity between the
statute there and the one here.
Georgia Power arose under the Federal Power Act, 16
U.S.C. § 791a et seq. Under the Federal Power Act at that time, the
Federal Power Commission (now the Federal Energy Regulation
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 16 of 41
16 Opinion of the Court 21-11995
Commission (we refer to the Federal Power Commission and its
successor, the Federal Energy Regulation Commission, as the
“Commission”)) had the authority to issue licenses to (among oth-
ers) private companies for the purposes of building, operating, or
maintaining water-related projects that were “necessary or conven-
ient for the development and improvement of navigation” or “for
the development, transmission, and utilization of power across,
along, from, or in” any waterways over which Congress has juris-
diction.” Ga. Power, 617 F.2d at 1114 n.2 (quoting 16 U.S.C. §
797(e) (1976)) (quotation marks omitted).
Through the Federal Power Act, Congress delegated to
these licensees the federal authority to exercise the right of eminent
domain under certain circumstances, so they could proceed with
construction, operation, or maintenance of water-related power
projects. Id. at 1114. Under this authority, licensee Georgia Power
Company, a privately owned Georgia utility, began condemnation
proceedings in federal court against Georgia landowners. Id.Georgia Power sought to acquire land for its Lake Wallace hydro-
electric-power-generating project. Id.Employing the condemnation procedures of what was then
Rule 71A, 7 FED. R. CIV. P. 71.1, the district court appointed a three-
7 Rule 71A has since been redesignated Rule 71.1. See FED. R. CIV. P. 71.1
Advisory Committee Notes for 2007 amendment. By its terms, Rule 71.1
“govern[s] proceedings to condemn real and personal property by eminent
domain, except as [Rule 71.1] provides otherwise.”
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 17 of 41
21-11995 Opinion of the Court 17
member commission to determine how much compensation the
landowners were entitled to. Ga. Power, 617 F.2d at 1114. As it
turned out, the landowners were entitled to more money under
Georgia law than they were under federal law. See id. at 1115. So
our predecessor Court had to decide whether federal or state law
supplied the substantive law for determining the landowners’ com-
pensation under the Federal Power Act. Id.
We addressed the issue in two parts. See id. First, we found
it “clear that the source of the eminent domain power at issue
[t]here [was] federal.” Id. As we explained, the licensees “derive[d]
their authority to exercise the power of eminent domain from the
Federal Power Act, which was passed in the exercise of a constitu-
tional function or power.” Id. (citing United States v. Kimbell
Foods, Inc., 440 U.S. 715, 726 (1979) (citations omitted)) (quotation
marks omitted). So, we reasoned, the licensees’ rights also “de-
rive[d] from a federal source.” Ga. Power, 617 F.2d at 1115. And
for those reasons, federal law governed. See id.
But that conclusion did not end our inquiry. Even though
the Federal Power Act used the federal eminent-domain power, we
observed that the Federal Power Act did not specify whether the
state or federal measure of compensation applied in a private con-
demnation action under it. Id. In the absence of such an indication
in the governing statute, we said it was up to us to fill that gap and
“declare the governing law in an area comprising issues substan-
tially related to an established program of government operation.”
Id. (internal citation and quotation marks omitted). We explained
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 18 of 41
18 Opinion of the Court 21-11995
that our choice for the federal substantive law on the measure of
compensation in private-licensee condemnation actions was be-
tween federal common law and state law. Id.
Before beginning the analysis of whether federal or state law
should fill the gap, we started with a presumption of sorts: that a
tie would go to state law. To explain why, we began with “[b]asic
considerations of federalism, as embodied in the Rules of Decision
Act.” Id. at 1115–16. We noted that the Rules of Decision Act in-
structs that “[t]he laws of the several states, except where the Con-
stitution or treaties of the United States or Acts of Congress other-
wise require or provide shall be regarded as rules of decision in civil
actions in the courts of the United States, in cases where they ap-
ply.” Id. at 1116 n.5. Then we reviewed Supreme Court precedent
and concluded that it evidenced “a growing desire to minimize dis-
placement of state law.” Id. at 1118 (citation and quotation marks
omitted).
Given this backdrop, we started the rest of our analysis from
“the premise that state law should supply the federal rule.” Id. at
1116. But we said this premise could be defeated by a showing of
(1) contrary legislative intent or (2) “other sufficient reasons . . . to
displace state law with federal common law.” Id. at 1118.
As to “express congressional intent,” we found none that
Congress intended for federal common law, as opposed to state
law, to govern the determination of compensation in a condemna-
tion action under the Federal Power Act. Id. So we moved on to
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 19 of 41
21-11995 Opinion of the Court 19
the next inquiry: whether “other sufficient reasons” warranted
“displac[ing] state law with federal common law.” Id.
To answer that question, we analyzed the problem in three
steps. See id. at 1118–24. One, we identified the “specific govern-
mental interests” in play. Id. at 1118–21. Two, we considered
whether applying state law would “virtually . . . nullify the federal
objectives,” see id. at 1118, along the way evaluating whether the
Federal Power Act required, in defining “compensation,” the uni-
formity that federal law provides. Id. at 1121–23. If the answer to
either question was “yes,” we said, that would amount to “a con-
flict that preclude[d] application of state law.” Id. at 1118. But if
the answers to both questions was “no,” then three, we examined
“the relative strength of the state’s interests in having its rules ap-
plied.” Id. at 1123–24.
At the first step, we acknowledged “the existence of im-
portant federal interests in issues arising under the Federal Power
Act.” Id. Indeed, we said “[t]he overriding federal interest at stake
in a case such as this one is in implementing or effectuating the
federal program.” Id. at 1120. More specifically, we identified the
federal interests or policies under the Federal Power Act as follows:
“1) maximization of hydroelectric development, 2) reduced energy
costs and 3) minimization of cost to the government should it de-
cide to exercise its option to acquire a project at the expiration of
the license term . . . .” Id.
At the second step, we determined that applying state law
“to the narrow question of the determination of the amount of
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 20 of 41
20 Opinion of the Court 21-11995
compensation a licensee must pay a landowner does not result in a
conflict which would preclude application of state law.” Id. at 1121.
That is, applying state law to the meaning of “compensation”
wouldn’t nullify the Federal Power Act’s objective, nor did the Fed-
eral Power Act require uniformity.
On the latter point, we considered whether the Federal
Power Act required the uniformity of federal common law. See id.
at 1121–22. Of course, we recognized that “[i]n any case involving
the issue of choice of federal or state law, the desirability of uni-
formity achieved by application of federal common law may be ad-
vanced.” Id. at 1121. Still, though, we found that uniformity bore
“little relation to the federal program at issue.” Id. In fact, we ob-
served that the Federal Power Act did not “represent an attempt by
Congress to provide for application of uniform national law to all
aspects of hydroelectric development under the Act.” Id. at 1121
n.14. Rather, we said, Congress sought “to promote the long
needed development of water power.” Id. So, while uniformity is
always helpful, we said, it wasn’t a particularly salient considera-
tion when it came to the meaning of “compensation” in private
condemnation actions under the Federal Power Act.
In further support of our conclusion, we noted that the Fed-
eral Power Act “integrat[ed] . . . state and federal jurisdiction,
which carefully preserve[d] the separate interests of the states.” Id.
As examples of this, we pointed to 16 U.S.C. §§ 812 and 813, which
“expressly limit[ed] the Commission’s authority to regulate rates
and other charges, which are directly related to energy costs, to
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 21 of 41
21-11995 Opinion of the Court 21
situations where a state does not have its own regulations.” Id.This example, we said, highlighted “the absence of intent to apply
uniform federal law to the compensation question.” Id.We also had a third reason why uniformity wasn’t especially
important on the compensation question. We observed that a li-
censee under the Federal Power Act “often has the option of utiliz-
ing either state or federal eminent domain power (as Georgia
Power Company ha[d] with respect to most, if not all, of the land
taken for the [project at issue there].” Id. at 1122. So, we reasoned,
applying federal law “could result in a corresponding loss of uni-
formity even in a single project.” Id. Based on these realities, we
assumed any advantage of applying either federal or state law over
the other “arguably cancel[ed] out the advantage otherwise
gained,” so we viewed the uniformity inquiry as a wash. Id. at
1123.
As to the “nullifying federal objectives” prong of step two,
we acknowledged that applying state law would result in higher
compensation awards to the landowners. Id. at 1121. But we said
that did not “amount[] to the kind of conflict which precluded
adoption of state law . . . .” Id. Still, we recognized that applying
state law resulting in higher condemnation costs to the licensee “ar-
guably burden[ed] or interfere[d] with the three [specified] federal
interests or policies.” Id. So we proceeded to the third step—
“weigh[ing] the federal interest in avoiding this interference against
the state interest in having its law applied.” Id.USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 22 of 41
22 Opinion of the Court 21-11995
At the third step, we emphasized that property rights—
which condemnation implicates—have “traditionally been an area
of local concern.” Id. at 1123. As we explained, “property has been
viewed as a bundle of valuable rights and [ ] the question of what
constitutes property is usually determined with reference to state
law.” Id. Given those circumstances, “we [thought] it consistent
that the value of those [property] rights also be determined with
reference to state law.” Id. We further reasoned that states also
“have an interest in providing economical energy to their citizens,”
so “accommodating that interest with that of insuring that their
condemnee-landowner citizens are compensated in accord with
their (states’) views of what is just, are entitled to weight.” Id.As to Georgia Power’s argument that increased compensa-
tion costs would cause increased power costs down the line to con-
sumers, we rejected that as a basis for discounting the states’ inter-
ests in applying state compensation law. Id. at 1123–24. We ex-
plained that applying federal law because it decreased the cost of
power to the consumer would “require certain Georgia landown-
ers partially to subsidize a private Georgia utility and consumers of
electric power in a way which would not be required of them if
Georgia law were applied.” Id. And because we found no “indica-
tion of specific legislative intent to impose such a burden on Geor-
gia landowners,” we declined to “presume that Congress would
have balanced the interests of private licensees and consumers of
hydroelectric power, on the one hand, and the property owners,
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 23 of 41
21-11995 Opinion of the Court 23
on the other hand,” differently from how Georgia’s laws “balance
such interests.” Id.For these reasons, we ultimately concluded that “the show-
ing of federal interests and the effects thereon of applying state law
[were not] sufficient to overcome” the “preference” for applying
state law. Id.D. Georgia Power requires the conclusion that state law provides
the meaning of “compensation” in a condemnation action un-
der Section 717f(h) of the Natural Gas Act.
We now turn to the issue of compensation in private con-
demnation actions under the Natural Gas Act.
We proceed in two steps. First, we recognize that Georgia
Power supplies the framework for analyzing whether we apply fed-
eral or state law as the substantive federal law on the meaning of
“compensation” in condemnation actions under the Natural Gas
Act. And second, we apply Georgia Power’s framework to the Nat-
ural Gas Act.
1. Georgia Power’s framework controls this case.
Georgia Power supplies the framework to decide this case.
Both Georgia Power and this case involve the same question:
whether to use federal common law or state law as the substantive
measure of compensation under federal statutes that delegate the
federal government’s eminent-domain power to private licensees.
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 24 of 41
24 Opinion of the Court 21-11995
Even though the Natural Gas Act and the Federal Power Act
are different, they are not different in any way meaningful to our
analysis. One, both Acts empower the Commission to award li-
censes to private entities to construct, operate, and maintain facili-
ties necessary to our nation’s energy needs. Compare 16 U.S.C. §
797(e), with 15 U.S.C. § 717f(e). Two, Congress intended that the
two statutes allow private licensees to exercise the federal eminent-
domain power in a co-extensive way. As we discuss more below,
see infra at 25–27, Congress amended the Natural Gas Act to make
the delegation of the federal eminent-domain power function the
same way as it does under the Federal Power Act. Three, both Acts
delegate the federal government’s eminent-domain power to the
private licensees. Compare 16 U.S.C. § 814, with 15 U.S.C. §
717f(h). And, four, neither specifies whether federal or state law
supplies the federal substantive law on the meaning of compensa-
tion in such actions. Compare 16 U.S.C. § 814, with 15 U.S.C. §
717f(h).
So we must apply Georgia Power’s analytical framework
here to determine whether federal common law or state law sup-
plies the substantive federal law on the meaning of compensation
under the Natural Gas Act. But as it turns out the parallels between
the Federal Power Act and the Natural Gas Act are so close in all
the ways material under Georgia Power’s analytical framework,
that our prior-precedent rule requires us to reach the same answer
here as we did in Georgia Power.
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 25 of 41
21-11995 Opinion of the Court 25
2. Applying Georgia Power to the Natural Gas Act
We approach the question on compensation in two parts,
with the second part of our analysis divided into three steps.
At the first part, as we did in Georgia Power, we find it “clear
that the source of the eminent domain power at issue here is fed-
eral.” 617 F.2d at 1115. That is so because the licensees under the
Natural Gas Act “derive their authority to exercise the power of
eminent domain from [a federal statute—this time, the Natural Gas
Act], which was passed in the exercise of a constitutional function
or power.” Id. After all, the Natural Gas Act “is a federal statute
implementing a nationwide federal program.” Tenn. Gas Pipeline
Co., LLC v. Permanent Easement for 7.053 Acres, 931 F.3d 237, 247
(3d Cir. 2019). Thus, like it did in Georgia Power, federal law gov-
erns here.
That brings us to the second part of our inquiry: following
the Georgia Power framework, we begin with “the premise that
state law should supply the federal rule,” unless we find a contrary
legislative intent or we conclude that other reasons require us to
apply federal law. Id. at 1116. As we have explained, we do that
because the Rules of Decision Act expresses “[b]asic considerations
of federalism” and sets state law as the default in civil actions. Id.
at 1115.
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 26 of 41
26 Opinion of the Court 21-11995
a. Applying the Georgia Power framework, we conclude that
congressional intent supports the application of state law to
define appropriate compensation in condemnation actions un-
der Section 717f(h).
Our legislative-intent inquiry further favors application of
state law here because it reinforces the outcome-controlling nature
of Georgia Power. We find “no express congressional intent,” id.
at 1118, that Congress expected federal common law to supply the
measure of compensation in a condemnation action under the Nat-
ural Gas Act. To the contrary, the original enactment of the Natu-
ral Gas Act did not include an eminent-domain provision because
it assumed licensees would be able to institute condemnation pro-
ceedings for necessary property under state statutes or constitu-
tions. See S. Rep. No. 429, at 1–2 (1947).
But when Congress learned state law didn’t always provide
for eminent-domain actions by licensees, it amended the Natural
Gas Act in 1947 to add the eminent-domain provision. See id. The
Senate Report supporting the bill that became that amendment ex-
plained that the eminent-domain provision’s wording “follows sub-
stantially the wording of the eminent domain provision of the Fed-
eral Power Act . . . which confers upon concerns that have acquired
licenses from the Federal Power Commission [now Federal Energy
Regulatory Commission] to operate certain power projects, the
right to condemn the necessary property for the location and oper-
ation of the projects.” Id. at 1. The Report continued, “When the
Congress passed the Natural Gas Act, it failed to include a similar
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 27 of 41
21-11995 Opinion of the Court 27
provision of eminent domain to those concerns which qualified as
natural gas companies under the act and obtained certificates of
public convenience and necessity for the acquisition, construction
or operation of natural gas pipe lines.” Id. at 1–2.
We take two lessons from this history. First, Congress in-
tended the eminent-domain right to be coextensive under the Fed-
eral Power Act and the Natural Gas Act. That fact strongly sug-
gests that, under both statutes, we must apply the same substantive
law on what “compensation” includes. And, because the Federal
Power Act uses state substantive law, this suggests that the Natural
Gas Act does too.
And second, the fact that Congress initially expected licen-
sees to institute condemnation proceedings under state law inde-
pendently supports the notion that Congress intended state law to
provide the substantive law in condemnation proceedings. To be
sure, Congress sought to correct the problem that Natural Gas Act
licensees were denied or otherwise unable to exercise the right of
eminent domain under state law in some states before the 1947
amendment. See id. at 2–3. But ensuring the availability of the
right of eminent domain to licensees does not conflict with defining
“compensation” under state law. After all, even after the 1947
amendment of the Natural Gas Act, often, private licensees have
the option of using state or federal eminent-domain authority to
condemn property for use in constructing or maintaining natural-
gas pipelines. And the federal standard for compensation in emi-
nent-domain cases establishes the floor, not the ceiling, on
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 28 of 41
28 Opinion of the Court 21-11995
compensation. See Justice v. City of Peachtree City, 961 F.2d 188,
194 n.1 (11th Cir. 1992) (“States are free to provide [their] residents
and visitors with more protection than the United States Constitu-
tion requires.). So applying state law on compensation would not
undermine a federal interest in ensuring a minimum amount of
compensation.
The upshot of our discussion is that we do not find the leg-
islative intent behind the Natural Gas Act’s eminent-domain provi-
sion to be “contrary” to application of state law on the substantive
meaning of “compensation.” Rather—and especially given our
reading of the Federal Power Act’s materially indistinguishable
provision—we think congressional intent supports the application
of state law here.
b. Applying the Georgia Power framework, we do not find good
reason to displace state law on the meaning of “compensa-
tion” with the federal common-law definition.
We next assess whether other reasons warrant “displac[ing]
state law with federal common law.” Ga. Power, 617 F.2d at 1118.
Georgia Power conducts this analysis in three steps: (1) identify the
“specific governmental interests” underlying the statute; (2) con-
sider whether applying state law would “virtually . . . nullify the
federal objectives”; and (3) if not, weigh “the relative strength of
the state’s interests in having its rules applied.” See id.
At the first step, we acknowledge that “important federal in-
terests,” see id., exist in issues arising under the Natural Gas Act.
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 29 of 41
21-11995 Opinion of the Court 29
And as in Georgia Power, “[t]he overriding federal interest at stake
. . . is in implementing or effectuating the federal program.” Id. at
1120. As for the specific federal interests underlying the Natural
Gas Act, the Supreme Court has explained that “the primary aim
of the Natural Gas Act is to protect consumers against exploitation
at the hands of natural-gas companies.” Sunray Mid-Continent Oil
Co. v. Fed. Power Comm’n, 364 U.S. 137, 147 (1960) (internal cita-
tion and quotation marks omitted). To accomplish this goal, the
House and Senate Reports accompanying the bill that became the
Natural Gas Act reflect that Congress sought “to regulate the trans-
portation and sale of natural gas in interstate commerce . . . .” H.R.
Rep. No. 709, at 1; see also S. Rep. No. 1162, at 1.
Though these last two interests differ from the other inter-
ests underlying the Federal Power Act, that fact does not affect the
outcome at the second step of our analysis. At the second step, as
in Georgia Power, we conclude that applying state law “to the nar-
row question of the determination of the amount of compensation
a licensee must pay a landowner does not result in a conflict which
would preclude application of state law.” Ga. Power, 617 F.2d at
1121.
In reaching this conclusion, we consider both the need for
uniformity and the specific interests behind the Natural Gas Act to-
gether, since the analysis is interrelated. As to the first, we cannot
say that uniformity in calculating compensation bears any more re-
lation to the aims of the Natural Gas Act than it does to those of
the Federal Power Act. See id. at 1121–22. Similar to the Federal
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 30 of 41
30 Opinion of the Court 21-11995
Power Act’s approach to hydroelectric power, the Natural Gas Act
does not “represent an attempt by Congress to provide for applica-
tion of uniform national law to all aspects of [natural-gas sales and
transportation] under the Act.” See id. at 1121 n.14. Rather, the
law applies to only interstate transportation and sales of natural
gas; it does not apply to intrastate transportation and sales. See 15
U.S.C. § 717(b)–(c). Nor does it apply to sale or transportation of
vehicular natural gas in certain circumstances. Id. § 717f(d).
And even within the interstate-natural-gas field, the Natural
Gas Act authorizes “[]reasonable differences in rates, charges, ser-
vice, facilities, or in any other respect . . . as between localities.” Id.
§ 717c(b). In other words, the Act anticipates that a consumer of
natural gas in one state—or even in one part of a state—may not
pay the same amount for natural gas as a consumer in a different
state or part of a state. So to the extent that paying “compensation”
based on state law might cause differences in costs to licensees—
and therefore differences in rates to consumers—the Natural Gas
Act’s rate-setting mechanism can account for that.
Plus, as we’ve mentioned, and as under the Federal Power
Act, private licensees often can choose to use state or federal emi-
nent-domain authority to condemn property for use in construct-
ing or maintaining their projects. See Ga. Power, 617 F.2d at 1122
(explaining that, under the parallel text in the Federal Power Act,
“a licensee often has the option of utilizing either state or federal
eminent domain power”); see also S. Rep. No. 429, supra, at 1–2;
see, e.g., Fla. Stat. § 361.05. So if we apply the state standard for
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 31 of 41
21-11995 Opinion of the Court 31
compensation across the board, that actually promotes uniformity
to the extent that the state standard would apply, regardless of
whether a licensee proceeded under the federal or state eminent-
domain right. But if we adopt the federal standard for compensa-
tion as the substantive rule under the Natural Gas Act, then a lack
of uniformity would occur because licensees can elect to proceed
under the state eminent-domain right and implicate the state stand-
ards for compensation, anyway.
On the other hand, under Section 717y’s voluntary-conver-
sion program, the Natural Gas Act adopts federal law as the meas-
ure of compensation. So employing state law on the measure of
compensation in condemnation actions under the Natural Gas Act
would result in the application of two different measures of com-
pensation under the same Act. But again, given the difference in
purpose between the voluntary-conversion and condemnation
provisions, we’re not convinced that’s a meaningful measure of
lack of uniformity.
And even if it is, we don’t see how the resulting lack of uni-
formity materially differs from the lack of uniformity under the
Federal Power Act that our predecessor Court addressed in Geor-
gia Power. The Federal Power Act provides that the United States
may decide to take over hydroelectric projects. See 16 U.S.C. §
807. 8 If the United States does so, the federal measure of
8 Section 807 authorizes the Commission, after either the expiration of any
license or at least two years’ notice, “to take over and thereafter to maintain
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 32 of 41
32 Opinion of the Court 21-11995
compensation governs. See Ga. Power, 617 F.2d at 1122. So we
reasoned in Georgia Power that “applying federal law to determine
the measure of compensation in [situations when the United States
takes over a project] but not in [cases when private licensees run
projects], might be thought to be . . . lacking in uniformity and un-
desirable.” Id. Indeed, we noted that it could cause a “loss of uni-
formity even in a single project.” Id. at 1122.
Despite this lack of uniformity, we concluded that the pro-
vision authorizing the United States to take over private projects,
at worst, “arguably cancel[ed] out the advantage otherwise gained”
by using state law as the federal substantive standard for “compen-
sation.” Id. at 1122–23. So we found the uniformity question to be
a wash. Id. We see no meaningful difference between the situa-
tions under the Federal Power Act and the Natural Gas Act as they
involve uniformity. We therefore conclude that the uniformity
question also comes out even under the Natural Gas Act.
Next, we reach the third step: “weigh[ing] the federal inter-
est in avoiding [any] interference [with the federal interest] against
the state interest in having its law applied.” Id. at 1121. We first
recognize that the same state interests at stake in Georgia Power
are at work here—property rights and “providing economical
and operate any project or projects” under the Federal Power Act, upon pay-
ment for any taking. 16 U.S.C. § 807(a). That provision expressly provides
that the United States must pay “just compensation,” thereby invoking the
federal standard, if it does so. See id.USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 33 of 41
21-11995 Opinion of the Court 33
energy to [the state’s] citizens.” Id. at 1123. So just like in Georgia
Power, “accommodating [the states’] interest [in “providing eco-
nomical energy to their citizens”] with that of insuring that their
condemnee-landowner citizens are compensated in accord with
their (states’) views of what is just, are entitled to weight.” Id.We must also resolve the argument that applying the state
measure of compensation would cause increased power costs to
consumers the same way we did in Georgia Power. There, as here,
we find no “indication of specific legislative intent to impose . . . a
burden on . . . landowners” to “partially . . . subsidize a private . . .
utility and consumers of [natural gas] in a way which would not be
required of them if [state] law were applied.” Id. at 1124. So here,
similar to our conclusion in Georgia Power, we decline to “pre-
sume that Congress would have balanced the interests of private
licensees and consumers of [natural gas], on the one hand, and the
property owners, on the other hand,” differently from how Flor-
ida’s laws “balance such interests.” Id.At bottom, based on the Georgia Power analysis that binds
us, we must conclude that “the showing of federal interests and
effects thereon of applying state law [are not] sufficient to over-
come” [the] preference” for applying state law. Id. We note that
the only two other Circuits to have considered this question have
reached the same answer. See Tenn. Gas Pipeline Co., 931 F.3d at
241; Columbia Gas Transmission Corp. v. Exclusive Nat. Gas Stor-
age Easement 6, 962 F.2d 1192, 1199 (6th Cir. 1992).
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 34 of 41
34 Opinion of the Court 21-11995
E. Sabal Trail’s arguments against applying Georgia Power fail.
Sabal Trail raises two arguments that we have not already
addressed in our Georgia Power discussion as to why Georgia
Power should not control our analysis. First, Sabal Trail contends
that, because it exercised power delegated to it by the federal gov-
ernment, the Supremacy Clause 9 dictates that the federal measure
of compensation must apply, and Georgia Power’s framework is
irrelevant. And second, Sabal Trail asserts that Federal Rule of
Civil Procedure 71.1 precludes the award of attorney’s fees here.
We are not persuaded.
First, we address Sabal Trail’s Supremacy Clause argument.
Sabal Trail relies on Kohl v. United States, 91 U.S. 367 (1875),
United States v. Miller, 317 U.S. 369 (1943), and PennEast, 141 S.
Ct. 2244, to argue that the federal measure of compensation must
govern because, when licensees exercise the federal eminent-do-
main power, that power and everything that goes with it—includ-
ing the measure of compensation—are coextensive with whatever
they would be if the federal government itself exercised its emi-
nent-domain power. We do not agree that Kohl, Miller, and
9 The Supremacy Clause provides, “This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof; and all Treaties made,
or which shall be made, under the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.” U.S. CONST. art. VI, cl. 2.
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 35 of 41
21-11995 Opinion of the Court 35
PennEast require application of the federal measure of compensa-
tion to condemnation proceedings under the Natural Gas Act.
For starters, our predecessor Court issued Georgia Power
after Kohl and Miller came out. So even if this Court “overlooked”
Kohl and Miller, our prior-precedent rule would still render Geor-
gia Power binding. See Smith, 236 F.3d at 1303–04.
And in any case, Georgia Power did not overlook Miller be-
cause it distinguished the decision and found it inapplicable to the
question of the measure of compensation under the Federal Power
Act. More specifically, Georgia Power did not find Miller instruc-
tive because Miller involved a situation “where the United States
[was] the party condemning and paying for the land,” but Georgia
Power did not. Ga. Power, 617 F.2d at 1119. Although licensees
rely on the federal power of eminent domain under the Federal
Power Act, we explained that “the nature of the federal interests
involved differ markedly [when a private licensee institutes con-
demnation proceedings than] from the nature of the federal inter-
ests involved where the United States is the condemnor.” Id. at
1119–20. Under our prior-precedent rule, then, Kohl and Miller
cannot render Georgia Power inapplicable.
As for PennEast, of course, an intervening Supreme Court
decision can abrogate our precedent. Kaley, 579 F.3d at 1255. But
to do so, that Supreme Court decision “must be clearly on point”
and must “actually abrogate or directly conflict with, as opposed to
merely weaken, the holding of the prior panel.” Id. (citation and
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 36 of 41
36 Opinion of the Court 21-11995
quotation marks omitted). PennEast does not satisfy that thresh-
old.
In PennEast, the Supreme Court held that the Natural Gas
Act authorizes private licensees to condemn all necessary property,
regardless of whether another private party or a state owns the
property. 141 S. Ct. at 2252. In reaching this conclusion, the Court
reaffirmed the point from Kohl that “[t]he federal eminent domain
power . . . can neither be enlarged nor diminished by a State. Nor
can any State prescribe the manner in which it must be exercised.”
Id. (quoting Kohl, 91 U.S. at 374) (internal quotation marks omit-
ted).
But PennEast’s quotations from Kohl are not “clearly on
point,” and PennEast does not “actually abrogate or directly con-
flict with,” Kaley, 579 F.3d at 1255, our holding in Georgia Power.
PennEast was concerned with a state’s attempt to deny exercise of
the federal power of eminent domain when Congress chose to del-
egate that power to a private party. In Georgia Power and here, by
contrast, no state is denying Sabal Trail’s ability to exercise its fed-
eral eminent-domain power. Rather, we must “declare the gov-
erning law in an area comprising issues substantially related to an
established program of government operation” because “the stat-
ute does not specify the appropriate rule of decision.” Ga. Power,
617 F.2d at 1115. More to the point, we must simply ascertain
whether state law or the federal common law should supply the
measure of compensation for condemnations under Section
717f(h).
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 37 of 41
21-11995 Opinion of the Court 37
Plus, 95 years before Georgia Power issued, the Supreme
Court wrote the exact same words in Kohl that it quoted in Pen-
nEast. So we cannot say that the Supreme Court’s reinvocation of
them is something new. And under our prior-precedent rule, even
if our Court “overlooked” a reason—including a Supreme Court
case—we remain bound by our prior precedent. See Kaley, 579
F.3d at 1255.
Second, Sabal Trail contends that Rule 71.1, FED. R. CIV. P.,
precludes awards of attorney’s fees under the Natural Gas Act. In
our view, this argument misunderstands the issue. For starters, we
do not decide today that attorney’s fees and costs are generally re-
coverable under the Natural Gas Act. Rather, we decide only that
we apply state law to determine the measure of compensation in
condemnation proceedings arising out of § 717f(h). It so happens
that when we do that here, Florida’s measure of compensation in-
cludes attorney’s fees and costs. But that does not change the na-
ture of our decision today to one about whether the Natural Gas
Act authorizes awards of attorney’s fees. And since the Natural Gas
Act does not preclude awards of attorney’s fees, that Florida’s
measure of compensation includes them does not present a prob-
lem. 10
10 Sabal Trail also argues that Georgia Power does not apply because attor-
ney’s fees are not part of “compensation” in a condemnation action. This ar-
gument assumes its answer and does not account for Florida’s definition of
“compensation” in a condemnation action. Indeed, in Georgia Power, we rec-
ognized that some states “award[] costs and expenses, including attorneys’
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 38 of 41
38 Opinion of the Court 21-11995
As for Rule 71.1, it does not bear on the question of the
measure of compensation to apply under the Natural Gas Act. Ra-
ther, it governs only “practice and procedure,” not substantive law.
See S. Nat. Gas Co. v. Land, Cullman Cnty., 197 F.3d 1368, 1373–
74 (11th Cir. 1999). 11 As we explained in Southern Natural Gas,
the Advisory Committee Notes provide that “Rule 71A affords a
uniform procedure for all cases of condemnation invoking the na-
tional power of eminent domain, and . . . supplants all statutes pre-
scribing a different procedure.” Id. at 1374 (citation omitted) (em-
phasis added). Not only that, but what is currently called Rule 71.1
existed when our predecessor Court issued Georgia Power. And
the rule also applied to condemnation proceedings under the Fed-
eral Power Act at that time. In fact, our Court even cited the rule
in its opinion. See Ga. Power, 617 F.2d at 1114–15 (noting that,
under Rule 71A, the district judge there appointed a three-member
commission to determine the amount of compensation due). So
not only does the rule lack relevance to substantive questions of
law, but also, under our prior-precedent rule, it cannot free us from
Georgia Power’s binding nature.
In short, Georgia Power governs this case from beginning to
end. And under it, we are bound to hold that state law supplies the
fees” as part of compensation in condemnation actions. See Ga. Power, 617
F.2d at 1119 n.10.
11 Rule 71A, FED. R. CIV. P., was renamed Rule 71.1, FED. R. CIV. P. in 2007.
See FED. R. CIV. P. 71.1 Advisory Committee Notes for 2007 amendment.
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 39 of 41
21-11995 Opinion of the Court 39
measure of compensation in proceedings that arise under Section
717f(h) of the Natural Gas Act.
IV.
For the foregoing reasons, we hold that state law provides
the measure of compensation in proceedings that arise under Sec-
tion 717f(h) of the Natural Gas Act. The parties agree that under
Florida law, the Thomas family is entitled to an award of attorney’s
fees and costs as part of its compensation. Sabal Trail offers no
other reason that the district court’s award here should not be up-
held. So we affirm the judgment of the district court.
AFFIRMED.
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 40 of 41
21-11995 JORDAN, J., Concurring 1
JORDAN, Circuit Judge, Concurring:
I agree that Georgia Power Co. v. Sanders, 617 F.2d 1112,
1119-20 (5th Cir. 1980) (en banc), controls the outcome of this case,
and therefore join Judge Rosenbaum’s opinion for the court. But,
like the Georgia Power dissenters, I “fail to perceive any sound rea-
son to distinguish between condemnation proceedings brought by
the United States and those in which it authorizes its power to be
used by its statutory licensee for a federal public purpose.” See id.
at 1129 (Rubin, J., dissenting). If I were writing on a blank slate, I
would apply the federal standard for just compensation. See also
Tennessee Gas Pipeline Co., LLC v. Permanent Easement for 7.053
Acres, 931 F.3d 237, 257 (3d Cir. 2019) (Chagares, J., dissenting)
(“[B]ecause Congress has authorized natural gas companies to in-
voke the federal eminent domain power under the [Natural Gas
Act], and because exercise of that power entitles a landowner to
just compensation under the Fifth Amendment, the question of
just compensation in a [Natural Gas Act] condemnation action is a
question of federal substantive right to which federal substantive
law applies.”).
Just compensation under federal law does not include attor-
ney’s fees. See United States v. Bodcaw Co., 440 U.S. 202, 203
(1979) (“Thus, attorneys’ fees and expenses are not embraced
within just compensation.”). It seems to me, then, that a private
delegee invoking the federal government’s eminent domain power
should not have to pay a property owner’s attorney’s fees. Nothing
in the Constitution or the Natural Gas Act dictates otherwise. And
USCA11 Case: 21-11995 Document: 56-1 Date Filed: 02/03/2023 Page: 41 of 41
2 JORDAN, J., Concurring 21-11995
“[t]o carve out a separate set of rules for private parties exercising
federal eminent domain power for a federal public purpose . . .
would create ‘an artificial wedge between federal condemnations
brought by the United States and federal condemnations brought
by private entities acting pursuant to congressionally delegated au-
thority.’” Tennessee Gas Pipeline Co., 931 F.3d at 257 (Chagares,
J., dissenting). See also Georgia Power Co. v. 54.20 Acres of Land,
563 F.2d 1178, 1188-89 (5th Cir. 1977) (Wisdom, J.) (“[W]e find no
reason to ignore the general rule of following federal law to set
compensation because the United States is not taking the land di-
rectly. . . . The balance tips toward the need for federal law.”),
overruled by Georgia Power, 617 F.2d at 1124. Cf. Nat’l R.R. Pas-
senger Corp. v. Two Parcels of Land, 822 F.2d 1261, 1265-67 (2d
Cir. 1987) (holding, in a case involving Amtrak’s condemnation of
land pursuant to 45 U.S.C. § 545(d)(1)(B) (1982), that the federal
standard for just compensation applied, and distinguishing Georgia
Power because “the federal interests supporting Amtrak’s mission
are identifiable and strong and the application of state law would
‘actually frustrate’ federal objectives”).