In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3734

NORTHERN BORDER PIPELINE COMPANY,

Plaintiff-Appellee,

v.

64.111 ACRES OF LAND IN WILL COUNTY,

ILLINOIS, et al.,

Defendants-Appellants.

____________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 00 C 3122—Paul E. Plunkett, Judge.

____________

ARGUED SEPTEMBER 4, 2003—DECIDED SEPTEMBER 19, 2003

____________

Before FLAUM, Chief Judge, and EASTERBROOK and

MANION, Circuit Judges.

EASTERBROOK, Circuit Judge. Federal law permits a

natural-gas pipeline to condemn private land in order to

assemble a transportation corridor, if the owner and the

pipeline cannot agree on a price for the acquisition. See 15

U.S.C. §717f. Northern Border Pipeline Co., which has been

licensed by the Federal Energy Regulatory Commission to

build and operate an extension to an existing pipeline, filed

a complaint seeking the condemnation of 16 tracts of

land in Will County, Illinois. The owners wanted a jury (or

perhaps 16 juries) to determine “just compensation” for
2 No. 02-3734

these takings. They observed that §717f(h) requires federal

courts in gas-pipeline-condemnation cases to follow state

practice, and that Illinois affords owners jury trials in

condemnation proceedings. But the court concluded that

Fed. R. Civ. P. 71A(h) supersedes §717f(h) and permits

it to choose among a bench trial, a jury trial, and valuation by a commission. The district judge appointed a commission, which set values that the owners do not now

contest. Nonetheless, they contend, the case should be

remanded so that one or more juries can make independent

awards, which the owners hope will be higher.

When concluding that Rule 71A(h), which was adopted

in 1951, supersedes §717f(h), which was enacted in 1938,

the district judge relied not only on the language of Rule

71A but also on the dictum in Kirby Forest Industries, Inc.

v. United States, 467 U.S. 1, 4 n.2 (1984), that Rule 71A

creates a nationally uniform practice, and the holding

of Southern Natural Gas Co. v. Land in Cullman County,

197 F.3d 1368 (11th Cir. 1999), that Rule 71A(h) displaces

the conformity clause of the Natural Gas Act, in particular.

According to the owners, however, §717f(h) should be

applied because repeals by implication are disfavored, and

Rule 71A, which does not mention §717f(h), thus should

not be treated as repealing the statute.

That’s not a helpful way to think about the interaction between procedural rules found in statutes and those

in the national rules. The Rules of Civil Procedure, which

are established by the Supreme Court under the Rules

Enabling Act, cannot “repeal” any statute; the Constitution

does not give the Judicial Branch any power to repeal

laws enacted by the Legislative Branch. But Congress

may itself decide that procedural rules in statutes should

be treated as fallbacks, to apply only when rules are

silent. And it has done just this, providing in what has

come to be called the supersession clause of the Rules

Enabling Act that “[a]ll laws in conflict with such rules
No. 02-3734 3

shall be of no further force or effect after such rules have

taken effect.” 28 U.S.C. §2072(b). Any doubts about the

force and validity of the supersession clause were laid

to rest in Henderson v. United States, 517 U.S. 654 (1996).

Thus Rule 71A(h) prevails: its nationally uniform approach conflicts with the conformity-to-state-practice approach of §717f(h), and under §2072(b) the statutory rule

“shall be of no further force or effect”.

Of course, the supersession clause does not trump the

seventh amendment, which says that in “suits at common

law” exceeding $20, “the right of trial by jury shall be

preserved”. But the Supreme Court held long ago that

condemnation actions filed by the United States and its

instrumentalities are not “at common law” because the

obligation to pay is undisputed, and only valuation is

required. See, e.g., Bauman v. Ross, 167 U.S. 548, 593

(1897); Shoemaker v. United States, 147 U.S. 282, 300,

301 (1893); United States v. Jones, 109 U.S. 513, 519

(1883). The owners have not argued that things are otherwise when federal condemnation power has been delegated

to a private entity. The only appellate decision mentioning the subject says (in dictum) that there is no difference.

See Atlantic Seaboard Corp. v. Van Sternkenburg, 318

F.2d 455, 459 (4th Cir. 1963). Given the owners’ litigation

strategy, we need not decide whether that perspective is

correct.

There remains the question whether the district court

erred in deciding that a commission would be the best

way to ascertain the land’s value. The judge gave several

reasons. First, one commission is better than 16 juries.

The owners have been coy about whether they want one

jury trial, or one per parcel. Sixteen trials would be too

many (other litigants, waiting in the queue to have their

own cases resolved, would be sorely inconvenienced), and

one mega-trial would be too complex, the judge thought.

Second, a commission proceeds less formally than does
4 No. 02-3734

a trial, so the commissioners can visit the parcels and

learn facts about them (and their market value) more

readily than can a jury, which would sit in Chicago, more

than 100 miles from the parcel farthest from the courthouse. Any evidentiary hearings likewise could be conducted near the parcels and so would be more convenient

to the parties, counsel, and witnesses. Third, the commission could be (and was) staffed with experts in evaluating market prices for land, while lay jurors likely would

be at a loss to evaluate the inevitable disagreement

among experts hired by the litigants. Commissions thus

are less likely than juries to split the difference in the

parties’ valuations (a tendency that encourages litigants to

take extreme positions in jury trials). Appellate review

of the decision to entrust this dispute to a commission is

deferential, and we do not see any clear error or abuse

of discretion.

AFFIRMED

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-19-03