essential element of sovereignty and that private parties could be deputized to exercise that power for infrastructure projects once the federal eminent domain power was exercised this court made clear that state lands are not immune but states are entitled to just compensation like other property owners new jersey does not take issue with those precedents but still assert immunity from the process used to ensure just compensation if not initiated by the federal government itself that claim fails for two interrelated reasons st states exceeded to the federal government superior eminent domain authority in the plan of the convention and our system of dual sovereignty only one sovereign can have the ultimate authority over land when the federal and state governments assert conflicting claims the supremacy clause largely settles that debate and new jersey concedes that sovereignty must yield when the federal government decides to take state property but once it concedes that it has no immunity left to assert in the proceedings necessary to  domain eminent domain that depends on consent is an oxymoron nd the proceedings here are in ram and can only augment the state treasury discords recognize that in rem proceedings pose a lesser threat to state sovereignty justices washington and story made the same point when the th amendment which new and of all in ram actions eminent domain proceedings post the lease concerns they allege no wrongdoing they impose no liability and they cannot be brought without federal authorisation the whole point of the proceeding is to ensure just compensation for taking new jersey's effort to convert a constitutional remedy into a veto over the federally authorized taking it simply incompatible with our constitutional design  clement do you have any other examples outside the area of eminent domain where the federal government can delegate its powers to a private party and then the private party can exercise  power being delegated or maybe the better way to think about it is that a private entity is deputized to exercise the power and i don't think we're asking for any ruling that would extend outside the eminent domain context but i think all sovereigns including new that it's the only it is the only example we have it's really quite extraordinary to have private parties overriding state immunities well i think st of all mr chief justice i'm not sure that's the right way to think about it which is to say i think when somebody like kenny asked asked pursuant to a deputized eminent domain power it really is exercising the federal power directly and it's not an ordinary citizen i think one way to understand that is if penny's doesn't provide sufficient compensation it has violated the just compensation clause of the takings clause now we generally don't think that the takings clowes applies to anyone other than a federal actor you know applies here because distinctly you have somebody exercising authority why why is this such a problem why can't this private party join the federal officer is an indispensable party or whatever so that the federal government is part of the condemnation proceeding to your honor i suppose congress could alter the statute and do that but you know congress has been delegating or deputising parties to exercise eminent domain authority for well over a one hundred years it's never done that and i don't think there are any there is any reason that they need to do that in order to save the authority and again new jersey exercises the ability to delegate or deputized private parties and they don't necessity cannot acquire by contract or is unable to agree with the owner of the property the compensation be paid for the net in the necessary right of way to construct operate and maintain a pipeline for the transportation of natural gas it may acquire the wrong to think about delegating the eminent domain authority because it is an inherently sovereign authority so that's one reason i think of it more as deputizing rather than delegating but the other reason is what i leave it to with the chief justice which is it seems to me that when a private party does exercise the eminent domain the already is a limited purpose federal actor for purposes of the takings clause and by parity of reasoning it seems like it is also a federal actor for purposes of the eleven think we really put it in those terms your honor i guess what i would say though is one thing that is evident from the pleadings if this is principally an in rem proceeding so you know the proceeding is pending east versus one point nine acres of land for purposes  is in the possession of the court it's not like personal property we're made into court has to issue in persona process to a defendant to bring the property within the jurisdiction of the court the land itself is in the territorial jurisdiction of the court and that's why there's never been a sovereign immunity defense to an eminent domain action by the superior sovereign because of the immovable property exception thank you just as prior there are a number of cases where this said if you're going to interfere with the sovereign immunity rights of the state congress has to do so clearly you've read them what ones take the ones whatever three or two or three you think are the strongest against you and then explain to me how you distinguish them i'd appreciate thank you just as prior what i would say is all the cases that are looking for a clear statement are looking for it in the abrogation context so they assume that there is a sovereign immunity that has to be abrogated and we don't think there is any sovereign immunity here that needs to be abrogated at all and i think that's true for true two primary reasons one is because no sovereign has ever had a sovereign immunity defense to an eminent domain proceeding by the superior sovereign ever in the history of the world i mean the movable property exception wh well before the framing of the republic and so we think there's just no sovereign immunity here to abrogate for that reason but we also think you can get to the same result simply by looking at this as not just an interim proceeding that is against the property and not against state but an extraordinary in rem proceeding where there is no allegation of wrongdoing no effort to impose lie delivery on the state and the action can't be brought at all unless it's authorized by the federal government here in the process of  role when new jersey and other state and sort of the union and they read the constitution they saw the federal structure that was set up and they read the scope of federal emphasize i think what principally did it for them and what they should have read is the supremacy clause as opposed to necessarily article three case like united ok the supremacy clause in article three but this was something that this court thought they must have realized when they had to the union this was part of the bargain now i understand your argument that they must also have realized that a sovereign can deputize a private party to exercise a combination power and therefore because they were surrendering their immunity from a condemnation suit by the united states they necessarily were also surrendering their immunity with respect to a private party that might be deputized to exercise that power but is that a fair think that we necessarily are getting our sovereign immunity with respect to the nation suit by adele when he even though this is a rule that applies in other context don't i don't think that would have been a reasonable inference because the eminent domain power has always been delicate poll that is something that was well established before the framing to explain except that at the at the framing as i think they must of because of the supremacy clause that they would not be able to assert a sovereign immunity from an eminent domain action brought by the federal government because they would presumably know about the immovable property exception and they would understand that it's essentially an oxymoron to say that i'm going to assert a sovereign immunity defense against the superior sovereignty has eminent domain over everything in the realm i think they would have understood that that was equally true whether the federal government exercised that through  its shelf or by delegating limited purpose federal agent if our correct understanding of what the constitution a question boils down to in a word because my time is run i think that's one way for us to prevail but i don't think the constitutional question boils down to just about because i do think that you could decide this case just on the ground that there is properly understood no action against the state it's against the property and and this doesn't apply this term but can and can it if we didn't have the government have delegated in your use of the term to a private entity the decision as to what route was necessary and to then condemn those portions of the route that you thought necessary to justice sotomayor i think there would be a separate question there about whether the delegation was essentially sort of you know ascertainable enough for these purposes i would say though if you go back to the exercise of eminent domain power historically there has certainly been situations where the federal government gave less direction than you have here with respect to st to for example you know when the railway roads were built there was you know a fair amount of discretion given to the railroads to determine what land that they would be able to condemn now i would say also that i think particularly when this sort of delegate has greater discretion that's when you would probably look for congress to put in more restrictions that certain lot land is off limits and i do think when you have a situation like this where no pipeline traverses any land without the approval of burke and they can take into account whether you know this is excessive or whether or not going through this particular piece of state land would require the pipeline to be substantially rerouted that would create additional environmental problems and the like especially when the federal government is playing that role it seems like most of the concerns that you have under the th amendment with some private party with an unf right to sue are just simply misplaced counsel your adversaries point to certain aspects of the condemnation proceeding that seem to lend themselves to solve and to sovereign decision making i do agree with you that just a simple appraisal is something different how much is this land worth and you could you hire a lawyer and a lawyer helps you with that you can hire a party that does the same thing that's basically your argument but how about the negotiation aspects the state argues that there is a sovereign to solve ring part of this process which is you're not supposed to start condemnation until you have negotiation and why should i be forced as a sovereign to negotiate with a non sovereign so your honor i guess i would say that you know that he is a part of their concern but i think it concern because you know the sovereign immunity the th amendment immunity doesn't kick in until you really get to court and you know honestly if the end of the day vera problem was that they had a negotiate with us i still don't think that that would sound in any kind of normal sovereign immunity i also think that it's not really the challenge that they have preserved to that sort of negotiation and i still think they would be negotiating with turks agent and told the chief justice that we shouldn't think of this as a case about a private party condemning land that we should think that that penny's to centrally steps into the shoes of the government and that raises questions in my mind as to what the government involvement in this case was another word was there any supervision by the government was there any participation by the government that any lawyers from the united states approve the timing of the condemnation action that any lawyers for the united states approved the parcels to be condemned is there anything that the the u s itself was involved in in this case well just as kagan i guess you have to distinguish between what happened at  agents and what happened sort of after that and you know i'm not here to tell you that after the specific route of the pipeline was approved by ferkin a process where objections were heard from all the property owners including the state and over seventy route modifications were made that was all done under the auspices of the federal government they approved the route in the certificate right down to which parcels were affected now once that happens the way it is worked for seventy years is that the certificate holder then gets to go into federal court and certainly st can buy it by its by its rule making sort of determine you know generally speaking when the timing is it could as it suggested had its has done recently promulgated a rule that says that the that the certificate holder should not initiate the condemnation proceedings until the rehearing period closed it could change that timing all of that's within their control but i don't want to suggest that ferkin is kind of directly sitting over our shoulder in the district court action to new jersey says that there were a whole range of things that that the u s government would not have done you know new jersey says the u s has an obligation to negotiate in good faith the new well you refused to negotiate did you rush to condemn the land before the rule was finalized in the way that the u government wouldn't have that your interest in land valuation is different in other words today were a whole set of mitigation tactics or moves that a private party would have been perfectly legitimately made that the us government would not have justice kagan i don't think that's true and you know if you go through each of those things i mean we didn't do anything here in terms of timing didn't approve and so i don't think for will say we did anything wrong in that respect and i don't think if st were forced to do this differently they would have necessarily done anything different with respect to the negotiations the district court found that in fact we did negotiate in good faith here and so i don't think that's a material difference and in terms of the valuation and the paying of just compensation i mean the way the federal government has been doing this for one hundred years is support some of these infrastructure projects they think that it's just much more efficient to have the private party act is the federal act or deputy and they're not doing that to shortchange the property owner and i would bet if you ran the empirical numbers the property owners probably did better but i just like to ask a question about that i understand the argument the penny steps into the shoes of the federal government many senses but as i understand it haste as a citizen of delaware that's what the lower court said we have before us to sue the law for equity cole says that so i know this case fall within the plain text of the th amendment itself which limits the judicial power of the united states in cases by a citizen of one state right again i would beg to differ on both counts which is i think what you have is a federal deputy suing land and you can look at principle captions of these cases below they are pennies diversity and federal deputy exists it's coming into court but it is a citizen of delaware it doesn't lose that by virtue of being deputized is just a deputy from delaware it's a deputy from delaware but you know if if there were a human being who was the federal deputies from delaware they would still be a citizen of delaware but when they walked into federal court and found that action they would be filing it in that capacity and i do think that's what ultimately matters but i also think you know as to the  you know i mean obviously put in reading matter to one side but you know i i do think that it's an important distinction here and i think this is very parallel to this court's decision hood thank you justice comment on thank you chief justice and good if we lose this case then you know this pipeline will not be built at least at anything like its current configuration and depending on exactly how we lose this case i think this pipeline with a special interest pipeline until the law is changed will be at the mercy of new jersey because i don't think there is a way to reroute this pipeline in a way that doesn't implicate a state interest in land  parcels that issue here don't implicate it but this pipeline has to cross the delaware river somewhere and half of the delaware river belongs to new jersey so there's just no way for this pipeline to exist under the current law and i think that does show why there is something fundamentally wrong here i mean new jersey would be operating as a property owner in this context and yet as a property owner they would be trying to do something that they can't do as a shopper which is to exercise a private party standing on the side of federal government's eminent domain power the cases that you cite like immovable cut property cases like georgia vs chattanooga all kind of rely on inference and i mean so far as i i think they're both pretty good your honor and if i could just try to convince you that the plan of the convention are going a little better than you suggested i'd just point out that the situation here is almost directly parallel to the situation in united states against texas which new jersey of course says is a legitimate point of the convention seating of sovereign immunity as a matter of fact it took longer for the federal government to assert an original jurisdiction action against the state than it took the federal government to exercise its federal eminent domain authority in the states five by my count the st original action against the state was against us against north carolina in eight hundred and ninety dollars but in both cases even though it took seven thousand two hundred years for the federal government to exercise the power the courts still looked and said ok going back to the framing we understand that the supremacy clause which is part obviously of the plane of the convention has certain implications and one implication that it's here is that once new jersey concedes as it does and i think it must that the federal government has the eminent domain authority over this property then no sovereign ever has had an immunity defense against the taking of do with the fact that the land that georgia had was located within another sovereign borders as opposed to here where this is land with the new jersey's own borders and we have carried that case your way well obviously your honor you don't have to read it way but but but what i would say is i think the principle is the same which is in both cases there's a recognition that there is a superior sovereign the mechanism for making that recognition is different in the chattanooga tennessee is the superior sovereign because the property is territorially within tennessee here this property is subject to the superior eminent the main claim of the federal government because of the supremacy clause and what's so odd about new jersey's position it's they they concede that the federal government has the power to take this property from them which is the principal charge of you know recognition of eminent domain yet they still think they can assert a sovereign immunity defense and that's never been the case since before the friend thank you mr comment a minute around counsel thank you mr chief justice in the end new jersey's two fishing amounts to a claim that the federal government has less eminent domain authority than any other sovereign you jersey itself not only exercises eminent domain but really deputized is a wide range of utilities including pipelines to exercise that power and provide just compensation the claim that the federal government is only a junior varsity sovereign was rejected i'm sorry mr chief justice and they have placed the court under the natural gas act and this court's decision in the city of tacoma the courts below without jurisdiction to resolve the spawn and statutory challenge to penny's exercise the federal government's power of eminent domain is complete in itself and that no state can prescribe the manner in which it may be exercise that power and a speed ability extends to state on property and it has been established since before the founding that the sovereigns ri domain includes the power to authorize private entities to exercise that right for roads canals and other infrastructure projects the district court therefore may proceed with these actions to determine the amount of compensation that is owed to the state for this federally authorized taking of a property putting aside your jurisdictional issue mr nadler and private party with the certificate under than natural gas  could they bring in condemnation action against federally owned land no no they could not mr chief justice for our shepherd statutes that deal with the acquisition of a right of way across federal property  that would ordinarily not be regarded as dealing with the enacting sovereigns own rights and own rights and property this this is a statute that deals with with nonfederal property  with state owned property in this case or or private property your client wants this pipeline to be built why don't you just have a federal official join the action and then you know advise the court th date i think in order for the united states to become a party there would have to be some statutory authorization for the united states to conduct the eminent domain proceeding you know i suppose a federal is a fair characterization but i don't think anything turns on the protection of the label the with the do you need clear statement to do in order to accomplish that or do we just simply imply that  you do not need a a clear statement of the clear statement issue comes in where the question is whether congress has abrogated an existing immunity in our deal and we agree with petitioner on this there is no immunity to abrogate to begin with so that the question is applying ordinary principles of statutory construction whether the statute authorizes the private party to commence the eminent domain proceeding and here we think it's clear that it does respond to that knowledge is that the st can properly site this pipeline across state lands and the statutory provision here says that whenever a certificate is issued was issued otherwise the pipeline couldn't be built thank you notes just prior yes thank you if you were to lose this case what would happen to the network of pipelines across the country now it leas eminent domain though improperly i think i think the demand judgment would still stand now there could be situations in which the what the pipeline acquired was principles don't apply at all i mean that's an important principle for the united states government that a suit against the government's property is to suit a city going to united states with god minnesota versus united states in the united states versus alabama for that proposition but we do think that in the end the the the the nature of the proceeding as in ran when coupled with the with the longstanding tradition of of and able in private parties to exercise what we think those things and in combination do support the validity of that because what's left after i mean what's left after further has approved the pipeline route it's a federally authorized taking from the state based on state along the line so i think that the the nature of it as an enron procedure that is triggered by federal authorization we do think that that supports the position that there is no sovereign c in order to invoke sovereign immunity in another when it hasn't been sued yet there's no existing claim against it that it could raise the defense in how does that make sense mean that would apply but i think city of tacoma and the statute are statutory strong forms of coin preclusion because they also require that the issue be raised before the agency and in fact for did address various questions about  the right of eminent domain but the state did not make this argument and didn't raise it on on judicial review and we think undercity have to comment can't be raised and the district court but that doesn't mean that the actual immunity eleven penn east was conducting this litigation whether it had to do with negotiating with new jersey or with valuation decisions or anything else if the us didn't approve of something could it do anything and if so what well i and i we have an address that i suppose of it it's possible i don't know what the st procedures would be but i would but it it might be possible for the state to request suspension or stay the certificate i don't know if i would be something with that for could do i it could be asked to do that might perhaps some appeal to for to exercise some sort of persuasion in the conduct of this i'm after all for does not have an interest in and a pipeline behaving badly but i don't think there's any basis for for for thinking about is going to be and and whether there's not something that's really lost by giving this over to private parties who have their own interests separate and apart from what the governments might big well the critical decision with respect to his condemnation here is a very narrow question in terms of the amount of compensation and that's the sort of not for sort of issue that courts decide all the time with with a party on one side and the in this case a state on the other side of it but condemnation we discussed with mr clement you know whether pennies to as a citizen of delaware that's one issue and then the other is whether we have assumed law in equity in the in ram was was proffered as a way to get around that but i'm not sure how that suing as a as an agent or however you want to describe it you know i understand it's a delegate and agent we've got a lot of words of the deputy but it a deputy has a residence and and this deput delaware right and i accept that and we're not saying that he's not that that the company is not a citizen of delaware whether this is a a suit against the state under the particular circumstances of this you said that you thought when he was asking about the th amendment that maybe the better way to think of this was that it was a suit against a state and i've been trying to get my mind around what role this in ram issue play as a novice in particular because as federal of civil procedure seventy one point one require the state to be joined as a partner as a party as the property owner so if you say the better way to think of it is really is a suit against the state you said you've accepted pennies argument  about the enron nature of the proceeding how does seventy one dollars in the enron nature of the proceeding and your concession to justice course which bear on that well that the seventy one point one requires that the property owner be identified for purposes ran the state obviously has an interest in it but and it's a particular kind of in ram where the consequences the payment of money to the state in exchange for its property it's sort of a contractual exchange and not in that respect so it's not the sort of it's not the sort of proceeding that the th and then as this court has described as most concerned about which is a suit for damages against the state where the state might be a wrongdoer d and and here where the federal government itself has decided that the particular land should be taken the only question is where is the compensation so to not respect we think that the in rand character of the suit matters  want to underscore the the importance of the movable property exception in city of chattanooga here because and in city of chattanooga the city a delegate of tennessee which was the superior sovereign in that case was permitted to sue georgia and there was no immunity in that situation what we had and that's the same as the movable property exception that the court discussed in the permanent mission of india what we have here is the equivalent in the supremacy clause for the superior sovereign comes from the fact that the united states has to have complete authority with respect to the exercise of the of eminent domain and the state is not immune from  action by the united states through its agent for these purposes with respect to property within the territory of the united states that's the relevant situation and justice bradley's decision in stockton is also instructive on on this point which was quoted in the cherokee nation case extensively that congress can utilize private entities to carry out public functions it's more efficient the pipeline here  a entity that is going to construct to profit from it and to require the united states to become involved in a suit like this in aid of something that has already been federally approved would not independent reasons st the th amendment bars this to the united states has a necessary and proper power to file condemnation suit against the state to effectuate all its other enumerated powers to private companies like pennies do not because all of them held private party suits against the state are never proper state consent to suit by the united states was not consented to by those the us might select and there are important differences between lawsuits by responsible and politically accountable sovern and those by private parties the only way to justify this private suit against the state is to provide evidence founding era consent but condemnation lawsuits against non consenting states were unheard of as the  framing nd even where congress can subject a state to private suit its choice must be explicit in the statute congress would not subject the state to private without doing so clearly and this approach advances fundamental protections for fellow sovern that rule also dictates the result here because the n g a a silent as to the state that leaves any complaint about the practical consequences but those concerns have not been borne out in reality other industries expressly lack the power to file condemnation suits against non consenting states in federal court yet oil pipelines and electric transmission like other infrastructure projects proceed apace and new jersey itself has continued to grant rights of way to other natural gas projects it seems to present a significant practical problem so i don't think it does i don't think that the sort of landowner veto concern that penny's traces hold up for two reasons the st is that other industries expressly lack the power to file these sorts of action i noted oil pipelines st the electric transmission proceed and so on well i don't know maybe those dinner did not cross the state property or maybe the state didn't always knows but you oppose this one and it crosses the property and seems to be a pretty practical problem so there's no reason to think that other industries have to cross state land any more frequently than the natural gas industry does and we've included in our briefing examples from other states and new jersey conservation foundation briefing indicating that those other industries case in which all of the consequences can be remedied by congress and it requires a sort of double speculation on any part of anything speculating that state will impressively try to wield veto powers when there's no evidence from any industry to support that  jersey itself is granted right of way to other natural gas pipelines even after the decision to go out and then i think again speculating that congress won't step in even though congress has consistently passing new statute to address problems that industries confront in the condemnation cont don't think that sort of double speculation as an up to justify eliminating the state sort of historic immunity to private suit without evidence the founding era contempt no no i'm not suggesting that it's enough to eliminate the immunity the federal sovereign due to a response to that absolutely i don't think the united states is becoming a junior varsity soccer and i do think that the united states still has the complete power of eminent domain i just don't think that resolves this case the united states has all kinds of complete or superior powers like the power to recover federal dollars or the power to step out and punish infringers but he can't subject the states to private party suit as a means of affection waiting that power and that's i think especially true in condemnation eminent domain itself is an implied power meaning it's a necessary and proper way to accomplish other enumerated powers like the commerce clause but we know that when states are acting under the commerce clause private suits when congress is acting private suits ca against the states because they aren't necessary and proper and the way to square that is easy the united states can condemn sovereign land when it takes responsibility and ownership of the suit but it can't select a private party to do so over  i think it would make both dignitary and practical differences for the state so obviously as to the dignitary harms i don't think we should forget that penny's just trying to directly subject a state to the jurisdiction of a federal court over its objection which is a sort of offense to the dignity of in practical sense our concern in this case is that a private plaintiffs is the one that gets to decide whether to take state to state land it might never need while the pipeline in the route remains subject to so much change which is something we think a more responsible and politically accountable sover and it as part of the future permitting stage and as the process unfolds but then east went and saw eminent domain along the entire original route which is something that we think the united states would be less likely to do relative to our sovereign way and when all of this process is still forty we have other sorts of property interest which we hold title with kind of property interests depend sometimes agricultural easements development as men and the like they're not all the same kind of cross the forty so the  doesn't implicate sauber an immunity and i appreciate the opportunity justice thomas and i think the united states admitted there are a number of cases from this court that suggest just the opposite that parcels to which the united states or if they have an interest in are lawsuits against the state or the united states itself and that makes sense the united states is the one that actually has to litigate this case the united states is the one that have to the state is the one that's going to lose its parcels where  private plaintiffs deciding when that happens and the state is the one that has to participate in an adversarial compensation trial the movable property doctrine on which petitioner in the united states are relying was about something else entirely it wasn't about a general and ram exception or an in rem exception that would extend to new jersey's land that we own within our borders it was about property that we own outside of our borders where we quote assumed the character of a private landowner and don't function as a sovereign this court said that in chattanooga and skin are exchanged and in the separate opinions in upper skag it and the reason that matters is that the immovable property doctrine would also open us up to private suit as this court may remember from the opera skag a case and a longer and quiet title suit against a tribe and movable property isn't just about eminent domain but is about property suits generally and everyone agrees new jersey is not open to that sort of private property suit for land we own within our borders finally an opportunity to comment specifically on blachford explain the united states can always to the states and when it does so it takes political responsibility for the loss it itself controls the decisions in the lawsuit and doesn't offend our sovereignty but a private office is different because it would the founding or in any time sense that there's an understanding that simply because the us can bring suit that it can't delegate or deputize to someone the ability to bring that same loss it would really blow a hole in the way this court has always understood governing unity  and they were on the verge of who had built pipelines to carry that natural gas to california san diego el paso natural gas we're up to pennsylvania over to illinois up to massachusetts a lot of the states not a lot but some more objecting in a whole variety of complex ways and so congress passed the natural gas act they could not build the pipeline and unless they have this power i think states own water beds they own all kinds of obstacles but this was passed to build a pipeline how could they have done it i don't see it and having known a little bit about that since you need the federal power or government power to for a private person to use eminent domain for anything against a private lender b state i don't understand how they would have how any reasonable person would have delegated any eminent domain power to the natural gas act which was for interstate pipelines without including the power to proceed against the state am i right about that and if i am right and therefore it is clearly in this statute why in heaven's name can't the federal power commission then or for can now have done the same thing and if they could have done the same thing under law of congress why can't they are somebody just as mississippi hires private prosecutors sometimes in criminal cases or there are dozens of examples where private persons are delegated under supervision and here the supervision is close to go and do something that the public can do i bring a care criminal case and cetera et cetera you see the thrust of my argument very historical but that's been the understanding for the last eighty years so i think to i appreciate they are i think the same things can be said about the oil industry but we don't see the concerns being raised here even though they don't have any sort of federal eminent domain authority that anyone would proport allows them to handle non consenting sta into court and yet they are built anyway there was no women are big oil by doing so and down from canada to new orleans sure but there hasn't been any evidence that a problem in that process has been sovereign immunity even though everyone agrees that there is no ability to raise federal eminent domain claims against non consenting states in that context and i think what that shows is that there's plenty of reasons why pipelines not might not get built having nothing to do with sovereign immunity but that uncertainty does exist in the industry which is one of the reasons why we were so nervous about condemnation even before the permitting process had finished but to take your point on the statutory question for a moment it's also notable that other times that congress has spoken to the issue it has understood that sometimes it wanted the statutes to include state land and sometimes they didn't and sometimes that excluded them which if it was true that every industry going through state lands was going to need this power well then it would be very strange to see those inclusion exclusion congress was silent here and it doesn't give us much to work with more than a purely formal argument now you argue that things might have worked out better for you for as opposed to penn east work conducting the proceeding be the federal and it's not for i don't think that's right it's not just about the form for new jersey and your hypothetically of course took out the substantive concerns that we were afraid of but in this case in the case we're actually facing we do have substantive concerns about this litigation and the calls that pennies rather than the united states are making we think you know i understand that but if pennies were required negotiated in good faith of all of this was the timing was they couldn't bring the condemnation action until the route had been of the property you would have exactly the same constitutional objection as a formal matter yes because it's still a lawsuit directly filed against the state by a private party which we think is exactly what the framers thought would be an offense to the fundamental dignity of sovereignty can't be held into court without their consent is new jersey's the new team really in any kind of practical terms compromise to a greater degree based on the caption of the lawsuit we  because if it were otherwise then all manner of this court cases would have to come out i think differently and all than for example the court was facing a private suit that everyone agreed the united states could have brought instead but the fact the private party was bringing it into stead of the united states that created an offense even if it was sort of just the stated employer just like new jersey as landowner the fact is the offense to a state dignity is a private party lawsuit and that's the through line of all of this court cases and governing it no i understand  but it is a purely formal and it is a purely formal argument ok thank you just to sort of your counsel just to be clear other then your argument that any east responded not in the way you liked but it did what what else did you not have an opportunity to or didn't litigate in that case so two things your honor st the adversarial compensation trial to which we're going to be so jacked if any spray out on the foster and this case is a contested compensation trial over the value of sovereign land where a company can fight tooth and nail to keep away from us the  think we're entitled to none of that is ever going to that's true but that would be true whether it was the government through you and your once the once the decision is made that lands necessary for a public service that you're subject to anyway what was the nd thing const council the nd thing was that we did raise issues around the timing but st didn't just say we disagree with you on the timing we wanted to go forward at page two hundred and thirty nine dollars into forty of the record st that the timing is something to be worked out in the district court with the private party and new jersey so it was sort of washing your hands clean exactly as we say shouldn't be able to be done by a responsible father william had you had the position which is that for at least one hundred and fifty years sates some states not all have been delegating to private parties their power  was no sense that there was a sovereign immunity to eminent domain the exercise of an eminent domain by the federal government or by a state against its own citizens and hands who they delegate that power to unlike the other cases that we've addressed this issue or this issue has been around that only the state can do that at least in this narrow field ram nature of this proceeding has gone differently in history than in the normal cases how do you respond to that i don't think that's what the history shows for a couple of  since that time a couple of states have raised to that texas raised it in two thousand and seventeen connecticut raised it in two thousand and three and we know from ninety nine to two i just made it material that new york and even earlier but more importantly i think it makes sense that this comes up and frequently because any is again wrong about the way that it behaves even worse they've clearly have the authority to withhold content we frequently allow for a right of way which is why this happened at a problem for other industries and why new jersey itself granted multiple rights of way to ending at a gas pipeline project even after the decision below but finally at that and the put it modern practice can't overcome the lack of pounding our content and so in addition to being not back compelling i think in the unique context of sovereign immunity it dull the sort of practice to which penny and the folks at  not have to be named as united states versus new jersey it is pennies to purses new jersey as the court caption suggests and there's no naming convention that would have it be the united states in this case no no i meant is there could the us delegate but what would make that case hard make this one easy if the united states actually contained or oversaw and directly supervised the litigation itself in some meaningful way it would look a lot more like the kind of control that led to the circuit split over key cams and therefore you could see a different result with the us being the real party and interest but none of that exists here you suppose to justice alito and that the states dignitary interest in said that this is been a consistent through line in our sovereign immunity cases most of those cases in the modern why is it why isn't any less or greater if a private party or in the united states is involved can you explain that to me what is the suppose the dignitary interest and the dignitary interest which i think comes from the founding era document is that it was always understood for any thought on that you could not be held into court without your content that would sort of black letter pre founding understanding and so if it was true that states really did retain the true sovereignty that everyone had promised that when they joined the union then they would as a matter of actually being co equal sovereigns treated with that poverty they would have the ability to withhold content as well now it's not true because of the other states in the united states because as we know in international law the federal government and you knew that governments routinely used delegations to effectuate eminent domain suits so you put those two things together why didn't you consent to suits of exactly this kind so i don't think you can just put those two things together because that syllogism would cause all sorts of problems and magine in say a normal property context or in the patent context you know that the united states would be able to  have a patent power and file patent lawsuits against infringing states if it soffit you know that the united states would be able to empower private patent holders just to private patton infringers so why can't private patent holders do state infringe rs everyone understands that that last step in the syllogism doesn't follow from the others because what we're actually looking for in sovereign immunity cases is state understanding and consent to the idea that they could be held into court not a federal power existed party and on the rule seventy one point one complaint had filed suit against both property and at least one of the property owners and of course is going to be compensation due to the state which would seem to be more impersonal than the ground but there's also a long strand of thinking about condemnation proceedings as in ram as the notes to the rule make clear and of course we've heard some argument today that this that's the better way to conceive of these kinds of suits can you speak to that a little further absolutely honor so i don't think there's any sort of general in ram exception to sovereign immunity as this court has recognized a suit come from the movable property doctrine which existed specifically to draw contrast to the lands that state owned within their borders so the idea of the move of property doctrine being cited by both any sin the united states was that states when they own that has to do with property outside of the state what about inside state when i think it's cold and i think it's minnesota versus united states explaining that these are suits that law and that lawsuit against the united states in which or a lawsuit against land in which the united states has an interest is a lawsuit against the united states that's why states can't condemn for example tribal land where the united states holds a fee and tourist and we can't condemn that land simply by naming the land and choosing not to name the united states because that is in both form and function a lawsuit against the united states we don't have the ability to bring it was entirely different in cases like admiralty and bankruptcy which are the only exceptions where this court has allowed ram to move forward in that way based on really unique founding bankruptcy clause and the fact that jurisdiction is over debtors property not the state's property and so it is informally seeking any affirmative relief from the state that put a page for fifty there's no historical evidence and no example that anyone can point to that would allow for to penny's arguments about what will happen if you were to prevail in this case and you respond by saying well of course congress could take action and then you say this is page forty five but even absent congressional action pennies does hardly without options and then i want to focus on your st one there st of all the united states disclaims authority under the n g a to condemn property the lower courts have had no occasion to consider this question and this issue deserves greater exploration so is that a real thing or or or not what you're offering there so below before the rd circuit you can find that i think most clearly in pages twenty to twenty two of our reply brief we articulated a theory in which the united states might have an implied power under the structure of the n p a to itself step in especially on the theory like the rd circuit suggested that it's strange to think of st being able to grant private parties the ability to file the suit and not retain the power itself since that time the united states itself has come in at any scourging to say we actually don't have that authority that is the state in the grave grave but they got it and acquired to order as well so i don't want to pull this court the men at the time of the taking and so you know penny basically said this lawsuit is to remedy if the man problem but we think it's a false choice between the th amendment and the th a moment because the us could bring this lawsuit in a way that is absolutely coherent with the th amendment and with the th amendment simultaneously let me ask you about the th amendment and how it might relate to them little property doctrine do you agree that all of your land or your property is private property for th amendment purposes which is what permits you to have a it as private property for purposes of state sovereign immunity as well so i think the court didn't say it was actually private but just that it was sort of in comprehensible under the takings clause that you would be able to have condemnations of sovereign land to which the sovereign was even less entitled to relieve than for a private party and that's how they reasoned it there is no sort of reasoning here that i think would justify a private lawsuit against the state as somehow necessary and proper from that reading  movable property argument the pennies just making that you know if a state has property of georgia has property within the borders of tennessee you know the a movable property georgia can be sued because it's treated basically as the  a private landowner because it's not land within its sovereign territory but if the th amendment treats this as private property for those purposes doesn't that strengthen penney's argument about the immobile property doctrine i don't think so because  reason that the property was private property outside of our borders was the difficulty because a state can't be a sovereign in other states territories so switzerland can be starvin in the united states we can't be sovereign in georgia are and phobia and the consequence of that and why i think the theory proves far too much is that it opens the state up to private property suits like the longer and quiet title to it and at st i get so suggesting that i move the property doctrine has a role to play or goes well beyond eminent domain because it is not a theory that is actually linked at define possession for intangible interest as having title and we have title to all of the easement interest that we have in this case to even drawing that line would sweep in all of new jersey's interest in this particular dispute ok last question and your view there be anything to stop you or any other state from waiting until further to prove the pipelines are out and then producing a property interest in land within the pipelines past would allow a private party to subject the state to the indignity of a federal suit without their consent because it would allow a private company rather than a responsible and accountable sovern to control the litigation and because it would allow pennies to decide whether to risk needless condemnations of state land while the tipline en route remain subject to so much challenge and change and to decide how much our land is worth in an adversarial compensation trial but penny's lacks the evidence to justify that drastic ste when it comes to the constitution he's provides no founding are evidence that states contemplated private condemnation suits and when it comes to the n g a and he's identified nothing in the text to show that congress explicitly endorsed privates against them and his condemnation carve out thus relies on the very evidence this court has rejected so many times before silence in the constitution silence at the founding and silent in the text of the statute thank you thank you counsel thank you mr chief justice and they please the court i dislike to make three basic points and rebuttal st on the delegation or death decision point i don't think it's right for the state suggest that this is just like blatchford this is just like even this is a power that is constrained completely by the federal government penney's cannot get into court at all in lest it is given a certificate or particular property for continues to have the authority to oversee the delegated chance to bring a damages action against the state it's an inherently government function the states treasury will be augmented and for purposes of the action tenney's is a federal actor for th amendment purposes so to go on form and i'm going to talk about substance in a minute but if we're going to go on for the form of an in rem action is an action against the land or if you want a historical framing ear of sorts look at bush washington decision in united states against bright re talked about it in ram action being an action against the world what you're doing is you're settling the rights of the land and that's why in ram actions are fundamentally different they are not in persona matching a foreign owner of land can block eminent domain or other interim proceedings just by not showing up because the territorial process of the court doesn't reach them and importantly rule seventy one  insert a sovereign immunity defense to be eminent domain authority is to lose the forest for the tree sovereign immunity is a stranger in a strange land when it comes to an assertion of eminent domain and they the new jersey concedes the validity of the federal exercise of eminent domain here they just want to insist on how it's exercised and that is not an authority that an interior sovereign gets under any authority especially when they're wielding that authority as a property owner to veto a federal infrastructure project thank your honour's thank you council the cases submitted