got it whenever you're ready action by the federal government and it had on how action by a private entity under federal law ok so if that's the distinction you want to start with and let's have one sort of proceeding to that and that is tell me about miller why should we think of miller is being entirely dispositive that is the totality or the  entirety if you will of what the relief i could be as far as just compensation but when we look at miller miller says and it's all putting a sentence this is a paper by the federal government for a federal use object being paid for with public funds that is the limiting factors in the miller case miller goes on to talk about how the congress funded the act the acquisition applicable as i understand you that we should look at kimball foods but my question to you is is there a way to think of both cases applicable so for instance should we or could we think of miller as providing a baseline alluding to your statement that you know we have thousands of takings cases right we're all familiar with  miller is definitive on what just compensation is in that context right so you want to look at campbell foods and we think of miller as say a baseline and depending on the state and the state takings regime  there can be less than miller but there can be more than miller and in this case and something you applies i'm sorry pennsylvania provides more than miller so if we meld or mary miller be food tells us based on clearfield trust that we have to look at other things now what struck me about that when i was looking at the can before the about the controversies affecting operations of federal enacted there's been no need for uniformity and more importantly when congress passed back it said we could apply and could be done in either state court or federal court if we make the application in federal court we apply the is there are circumstances in which a state takings regime could provide or or on define just compensation has less than fair market value because constitutional principle and you don't need to look to miller we don't need to have them for that as far as i can see are right so let me ask you this question about commercial relationships the third factor because i'm trying to figure out exactly that is relationship looking at the business relationship the parties have established by virtue of the applicable law to which they are conducting their business relations you seem to really be hanging your hat pretty heavily on that this is a private party this is a very private thing but i mean if this kind of nation of property was pursued certificate proper certificate of public service convenience i mean it's not a public use i mean it's you know i get it i now understand  south united states but it isn't really holding private it is a private taking under a federal statute affected for a public interest but it is not in public use the government has an interest in making sure gas gets transmitted across state lines from point a to point b bay but if the government truly wanted to be involved the government would be doing the transmission by creating the to make you laugh and get in the papers when we when we look at the overall question about private versus public that's a major major major distinction are not talking about the government doing something for its purposes or for the public we all we're talking about a private entity doing something for its business oriented purposes which has an effect on the  i get to that distinction but the question is you know in the fox hole of decision yes or just computers as i don't understand why there's that distinction now you've explained what the distinction is but you haven't explained why the distinction so helpless when we i think it was best said in the georgia power  to automatically go to state i believe so are you if you pointed out your brief that there's already a developed federal common law as pertains a body of law which says what should be the compensation to be paid under federal law under the circumstance we talk about we have always applied state law all the sort honestly not i mean maybe maybe maybe circuits but not brought by the united states no this court no it has not although the district courts i disagree with mr steele in fact there are a number of condemnations under the natural gas act in pennsylvania the well actually i don't think that's true in my brief we cite a whole list of the seventy five years of cases that have been decided under miller for the proposition that miller resolve the question of federal condemnation  you when you read the case you see that they're applying federal principles but there is no discussion of state versus federal law so you know there are two ways to look right you know narrowly as licensees to bring condemnation proceedings in state court i'm missing something ok so your honor first of all the  definition of property in the state is the province of the state so states decide whether water rights of property or not things like that but the determination of compensation you do under the guarantee remember the fifth amendment is a this case isn't only about attorneys fees and appraisal fees and pennsylvania and me in the underlying case here for example mr steele is arguing that he would get certain damages he believes under pennsylvania law they wouldn't get clearly under federal law and remember starting with miller the supreme court found that there were certain things which would either be admissible or recoverable under different state schemes which are not part of just compensation under the fifth amendment they're not guaranteed but if you look at the amtrak case that we cite and i don't i don't believe that mr c addresses that is national ruger says two parcels is the second circuit case so it's a case where the ticket was doing i mean that was pretty blatant right that i was attempting to do but it was part of their eminent domain and so in there was real concerns about what was going on it could have to get it seems that amtrak is significantly different than the types of federal judge those that you would have here i would say they are exactly the same what my client is putting in are the railroad for natural gas natural gas is not transported on railroad natural gas is not transported by truck on the highway in natural gas what was that issue here the railroad for natural gas or was it a case well in this case is the principle we don't believe that king arthur will be able to recover the additional damages arguing it believes it should be covered even under state law but constitutional ability so so any time whether a rule condemned or a private condemned or federal law is invoked the totality of the damages want to write that opinion then i presume because it's the third circuit that will then be taken as precedent in every court in the nation other circuits choose to follow that the totality of of recovery in the takings case whether it's initiated in federal court or in state court will be fair market value and if i misunderstanding you tell me well fair market value as defined by the very robust body of law that has developed under the fifth amendment was seventy five years of federal cases that is the rule for every taking that is  to develop this particular transmission system very similar to the railroads and amtrak so the rules for amtrak would be saying to every state you may not construct a takings regime which will provide a greater benefit than fair market value under any circumstances you know right no that is not logical no that is not what you  ok you would be saying when the taking is occurring it would be limited only to the natural gas attack so when the taking is occurring under the natural gas act in which congress have has evidence a desire to have a network of pipelines which run all the way from maine to florida all the way to texas and all the way to washington state they crisscross the country you look at a map it covers the entire country everyone who is subject to taking under the natural gas act across the country will know what the rules are and in fact have know what the rules are the appraisals are federal rules of civil procedure seventy one point one only applies to the procedure not to the substantive law and then we get back to miller so miller said we need not determine what is a local offer the federal statutes upon which reminds us placed require only that in condemnation proceedings a federal court will adopt the form and method of procedure afforded by the will of the state so in miller there was a a practic because they do not and could not affect questions of substantive right such as the measure of compensation grounded upon the constitution of the united states practice and procedure cla statement that you can go to federal or state court and you have to follow the procedure of the state that was all superceded by rule seventy one they now will seventy one point one so the problem with cases like columbia gas which is really what started this mischief about oh we shouldn't apply federal law to columbia gas started with the proposition that has a maybe there is substantive law included in that practice and proceed your statement they did not say to look at or analyze the fact that in fact there is a history more than one hundred year history that those those kinds of practice and procedure provisions being only procedural and not substantive you know war so right and that law is very simple yet so what columbia whole the actual holding in colombia gas if you look at it is clearly wrong because the holding in colombia again is that seven seventeen after each which contains the practice and procedure clause incorporates the law the state in which the property is located that is wrong that's directly contrary to miller and to the line of supreme court cases which hold up to some procedure clauses are merely procedural the fact that what we are building here is a nationwide network there were landowners in pennsylvania and new jersey who were affected by this project this project had two hundred  landowners three hundred seventy nine fecht tracks fourteen condemnations and pennsylvania five in new jersey what you're asking me to consider is should there be a different rule should people in new jersey would you have never done that in the context of a federal taking because all of those cases i cited to everyone whether they were in pennsylvania or new jersey everyone in the third circuit is having the same measure of just compensation applied to the you're trying to make the natural gas act an exception to that they saw only on i'm i'm gathering this idea that we are a private to build a national network of natural gas transmission lines so that the united states doesn't have to build a whole there is a certificate still that these projects can encompass two states as this one but they can involved landowners and properties from pennsylvania that you want and as in the amtrak case the second circuit case if any one of those states has a scheme which would that in your hypothetical or your explanation there's a different takings regime if you will in each state but how does that frustrate the objective i mean what is your is argument that because there could be different costs for taking in pennsylvania versus georgia versus north carolina that's going to stop the project  cost alone not necessarily but i think the best example to look at is that amtrak case so every state has its own constitution and every state has a takings clause in that co was seriously when the court said it would quote seriously interfere with the administration of the federal inner city rail passenger service program right and the same if we were trying we also do partial take insist like law it was in connecticut if you were taking will require in a holdover parcel you have to go apply for the variance and get the zoning first that was part of their takings jurisprudence not just their zoning law that would like with all due respect they were only talking about money here and it's a little less money in your client's pocket it's not only about money if they're born it's not money well it's also about fairness and just compensation cases in your book as well was cited by both sides then in florida the land owners are going to get their attorneys fees in pennsylvania they will not if the us was doing the taking nobody would illustrated in the amtrak case in each state's development of its own takings law and some of them have precedent requirements for things you have to do before you can condemn for example if this presume you're argument would be the exact say that is you rely totally on miller disregard state the state taking th correct if we did sheers to proceed in state court which we can still do even under seventy one point one the substantive law that would apply is the law rooted in the constitution the guarantee of just tim miller should be interpreted more broadly than it's written and the extension of miller should be all condemned doors private no your honor i respectfully disagree military opinion you know i read you miller they do not and could not affect questions of substantive rights such as the measure of compensation grounded upon the constitution of the united states what miller says is regardless of whether the kind of me is standing in the shoes of the federal government or is the federal government miller already said that the wool is the federal common question he did point out that this this case deals with professional fees in development costs he said there was seeking more than that i'm interested in what i thought i was under i was a live in same impression so if you look at the underlying briefs in this case there's a provision under pennsylvania eminent domain code that if you interfere with an access then you get efficient all damages essentially for that  interference we claim we do not interfere with an access the only access to this parcel actually already has a it's a preexisting pipeline running through it but our opponents claim that they purchased other properties which are now interfered which they were going to use for access which will now be interfered with and they should get a million dollars so it's it's a persian of the argued with judges so this to me when i was in your spot but if you notice in your brief there was nothing about like really crazy state laws that might persuade us g s we can't we can't have a national gas companies hav laws but the lack of cases so just to show you again in this case two hundred  we settle ninety nine point nine percent of our cases right a very few of these cases especially get to circuit court and even to district court because at least in pennsylvania attorneys case because that will now be his question is in this area with the national sect are there any states that with respect to condemnation are so far out there that you go oh my goodness we just can't have  off your driveway what do you do that every state has a little quirks like that in its eminent domain and the only one i can point you to that's easy to read about is this favor of state law so what does that particularly special unique about so for for for one thing campbell food should only apply when it's a question of whether you need to develop a federal common law the already is a federal common law we all agree on that so that's the first thing about kimball and why wouldn't apply here because you're not looking at my state law or develop something new it already exist and but it is with regard to the federal government as a condemned or it's also the common law under the amendment it is the definition of what someone who is c under the fifth amendment takings clause as opposed to a state takings clause is entitled to receive us just compensation we have more than a hundred years of jurisprudence on that and that is what should apply here because this is a federal action but to go back to kimball and the three the three point same chemical you know the number be need for a nationally uniform body of law there already is a nationally uniform body of law it's the takings law under the united states takings cases number two is whether application of state law would frustrate we believe that in fact amtrak has already held that connecticut scheme was so egregious that you needed to know what and it it seemed to be that you have to go get a variance which could take forever with regard to the laying down track in new london connecticut in connection with the bed for the northeast corridor again it is that we're talking about here it is respect leon or it is because we saw you were what almost all this development is going south not north because the provisions in states like connecticut and new york that have you know have tried to apply the same precedence to stop federal programs that they don't like this is not stopping a federal program this is this is an ancillary matter pertaining to a combination under the national gas act and you said that you don't know of any state that is so great that's really out there just that whacko with maybe one possible exception and so this if connecticut was using my term whacko and there's maybe no state here that's wacko then why is there a need for a national nationally uniform law concern of federal state relations don't mess around with state matters too except to the extent you really have to i mean that's a battle was being fought for for two and have some centuries but the point is this is a matter condemnations are normally matter of state law and when you look at the kimball test i can't see how it is that we don't confine miller to exactly what miller said was a condemnation by the united states federal law but going further under kimball well it's not a condemnation by the united states but state law applies specially tinsley measures like we have here you and i read miller differently because miller never says anywhere that it knows that the kind of noise the united states that touchstone in miller though is that the condemnation is federal and under the fifth amendment there is no state that has a common law of compensation under the fifth amendment states have compensation law developed under their own state constitutions and their separate eminent domain codes federal takings are not under pennsylvania's constitution a delaware's constitution and new jersey's constitution and that's to think i think what we need to remember that this whole thing is not something that panacea has set forth in its brief that was why was natural gas i passed in the first place it was passed because states were not allowing the exercise of state law condemnation law for the installation of interstate gas transmission lines as a result of which they passed the act allowing the interstate these companies the power of eminent domain to further off arised it was to eliminate a state restriction on the exercise of its powers that restriction was a lemonade it but congress said ok you can what was the word that they used in that case to prevent the abuse of people by the natural gas companies those are the two things those are the two predicates which we have to step back and look at in the adoption of