United States District Court, M.D. Florida, Jacksonville Division
ORDER
TIMOTHY J.CORRIGAN UNITED STATES DISTRICT JUDGE
These
cases came before the Court for the resolution of two
questions: first, whether federal common law or Florida
substantive law supplies the federal rule for determining
compensation when a licensee exercises the power of eminent
domain under the Natural Gas Act (“NGA”), 15
U.S.C. § 717, et seq., and second, whether
juries or a commission should try the issue of compensation.
The Court has considered the parties' briefs and the
relevant authorities, and also heard oral argument on June 9,
2017, at which the Court and the parties thoroughly explored
these issues. (E.g., Case No. 3:16-cv-263-J-20PDB,
Doc. 55).
A few
days before oral argument, on June 5, 2017, Judge Mark Walker
of the Northern District of Florida issued a well-reasoned
opinion in which he decided the identical issues before this
Court. Judge Walker held that the NGA adopts Florida
substantive law as the federal measure of compensation.
Sabal Trail Transmission, LLC v. Real Estate, ___
F.Supp.3d ___, 2017 WL 2434533 at *2-7 (N.D. Fla. Jun. 5,
2017). Judge Walker further ruled that juries, not a
commission, would try the issue of compensation. Id.
at *7.
This
Court adopts Judge Walker's opinion and will follow its
reasoning (and includes some further discussion in footnotes
1 and 2 to address two points not specifically covered in
Judge Walker's opinion). For the reasons stated therein,
when a private licensee like Sabal Trail takes private
property in Florida to construct a pipeline under the NGA,
Florida substantive law provides the measure of compensation,
which the Florida Constitution refers to as “full
compensation, ” Fla. Const., art. X, §
6(a).[1] In turn, Florida's definition of
“full compensation” encompasses the
landowners' attorney's fees, Joseph B. Doerr
Trust v. Cent. Fla. Expressway Auth., 177 So.3d 1209,
1215 (Fla. 2015), and reasonable expert costs, Florida E.
Coast Ry. Co. v. Martin, 171 So.2d 873, 877 (Fla.
1965).[2] Therefore, the landowners will be entitled
to attorney's fees (as calculated under Fla. Stat. §
73.092) and costs (as calculated under Fla. Stat. §
73.091) because they are part of the federal rule of
compensation applicable in this case.
With
respect to whether juries or a commission should try the
compensation issue, the Court honors the landowners'
request that juries should be employed. As Judge Walker
noted, commissions can be expensive and time consuming. Sabal
Trail, 2017 WL 2434533 at *7 (citing Fed.R.Civ.P. 71.1(h)(2),
Adv. Cmte. Note; United States v. Del., L. & W.R. Co.,
264 F.2d 112, 115 (3d Cir. 1959)). More basically, private
property rights are fundamental and landowners whose property
is being condemned should be able to avail themselves of a
jury trial whenever possible. The Court is confident that any
logistical concerns with jury trials can be readily resolved.
Regarding cases that are assigned to judges other than
myself, I will leave it to each judge's informed
discretion whether to use juries or a commission.
Accordingly,
it is hereby ORDERED
1. The
NGA adopts Florida substantive law of “full
compensation” as the federal rule for measuring
compensation in these cases. With the consent of my
colleagues, this holding applies to all cases captioned in
this Order.[3]
2. I
will empanel juries to try the compensation issue as to those
cases assigned to me.[4] Each judge will exercise his or her own
discretion with respect to whether jury trials or commissions
will be employed.
DONE
AND ORDERED
---------
Notes:
[*] To
save space, the numbers but not the style of the remaining
cases are listed.
[1] Sabal Trail argues that this case is
distinguishable from the leading case of Georgia Power
Co. v. Sanders, 617 F.2d 1112 (5th Cir. 1980) (en banc)
(holding that state law supplied the measure of compensation
where a licensee took land under the Federal Power Act, or
“FPA, ” 16 U.S.C. § 814), because under the
FPA, the Federal Energy Regulatory Commission can clear a
licensee to undertake a project only if it determines that
the project does not affect the development of water
resources to the degree that the United States should
undertake the project, 16 U.S.C. § 800. “Thus, by
definition, a licensed [FPA] project does not implicate the
interests of the United States to the degree that it is
thought desirable that the project be undertaken by the
United States itself.” Georgia Power, 617 F.2d
at 1118. Under the NGA, by contrast, private licensees carry
out all pipeline projects. Sabal Trail interprets
this difference to mean that all pipeline projects implicate
the interests of the United States to a greater extent than
projects undertaken by private licensees under the
FPA.
A more plausible interpretation is that Congress
simply did not think that any one pipeline project would be
so vital to the public interest that the United States itself
should carry it out. Indeed, Congress knows how to reserve
critical projects for the United States, as it did under the
FPA. If Congress thought some pipeline projects were so vital
to the United States' interests, it could either have (a)
reserved vital projects for the federal government, or (b)
given NGA licensees the same condemnation powers as the
United States. But Congress did neither. For example,
Congress has not given pipeline companies “quick take
authority, ” i.e., the power to take possession before
paying compensation. Transwestern Pipeline Co. v. 17.19
Acres, 550 F.3d 770, 774-75 (9th Cir. 2008). Instead, a
pipeline company must either pay compensation or satisfy the
requirements for a preliminary injunction before taking
possession. See E. Tenn. Natural Gas Co. v. Sage,
361 F.3d ...