PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-2212

UNITED STATES OF AMERICA,

Plaintiff – Appellant,

v.

269 ACRES, MORE OR LESS, LOCATED IN BEAUFORT COUNTY, STATE 

OF SOUTH CAROLINA; HAROLD E. TRASK, JR.; JOHN DONALD TRASK; 

JAMES HEIDE TRASK; MARGARET SCHEPER TRASK; WILLIAM D. 

TRASK, JR., as Trustee of the William D. Trask, Jr. Trust under Article Nine of the

William D. Trask Revocable Trust dated February 17, 2000; SARAH T. BURRUS, 

as Trustee of the Sarah T. Burrus Trust under Article Nine of the William D. Trask 

Revocable Trust dated February 17, 2000; ROBERT EDWARD L. HOLT, III, as 

Trustee of the Kitty Trask Holt Family Trust and as Trustee of the Kitty Trask Holt 

Family Trust−Marital both under the Last Will and Testament of Kitty Trask Holt 

dated June 8, 2004; ROBERT EDWARD L. HOLT, III, as Trustee of the Kitty Trask 

Holt Family Trust and as Trustee of the Kitty Trask Holt Family Trust 

(EI#26−6501159) under the Last Will and Testament of Kitty Trask Holt dated June 

8, 2004; SOUTH CAROLINA DEPARTMENT OF REVENUE,

 Defendants – Appellees,

and

BEAUFORT COUNTY ASSESSOR; INTERNAL REVENUE SERVICE,

Defendants.

No. 20-1226

UNITED STATES OF AMERICA,
2

Plaintiff – Appellant,

v.

269 ACRES, MORE OR LESS, LOCATED IN BEAUFORT COUNTY, STATE 

OF SOUTH CAROLINA; HAROLD E. TRASK, JR.; JOHN DONALD TRASK; 

JAMES HEIDE TRASK; MARGARET SCHEPER TRASK; WILLIAM D. 

TRASK, JR., as Trustee of the William D. Trask, Jr. Trust under Article Nine of the

William D. Trask Revocable Trust dated February 17, 2000; SARAH T. BURRUS, 

as Trustee of the Sarah T. Burrus Trust under Article Nine of the William D. Trask 

Revocable Trust dated February 17, 2000; ROBERT EDWARD L. HOLT, III, as 

Trustee of the Kitty Trask Holt Family Trust and as Trustee of the Kitty Trask Holt 

Family Trust−Marital both under the Last Will and Testament of Kitty Trask Holt 

dated June 8, 2004; ROBERT EDWARD L. HOLT, III, as Trustee of the Kitty Trask 

Holt Family Trust and as Trustee of the Kitty Trask Holt Family Trust 

(EI#26−6501159) under the Last Will and Testament of Kitty Trask Holt dated June 

8, 2004; SOUTH CAROLINA DEPARTMENT OF REVENUE,

 Defendants – Appellees,

and

BEAUFORT COUNTY ASSESSOR; INTERNAL REVENUE SERVICE,

Defendants.

No. 20-1281

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

269 ACRES, MORE OR LESS, LOCATED IN BEAUFORT COUNTY, STATE 

OF SOUTH CAROLINA; HAROLD E. TRASK, JR.; JOHN DONALD TRASK; 

JAMES HEIDE TRASK; MARGARET SCHEPER TRASK; WILLIAM D. 

TRASK, JR., as Trustee of the William D. Trask, Jr. Trust under Article Nine of the

William D. Trask Revocable Trust dated February 17, 2000; SARAH T. BURRUS, 
3

as Trustee of the Sarah T. Burrus Trust under Article Nine of the William D. Trask 

Revocable Trust dated February 17, 2000; ROBERT EDWARD L. HOLT, III, as 

Trustee of the Kitty Trask Holt Family Trust and as Trustee of the Kitty Trask Holt 

Family Trust−Marital both under the Last Will and Testament of Kitty Trask Holt 

dated June 8, 2004; ROBERT EDWARD L. HOLT, III, as Trustee of the Kitty Trask 

Holt Family Trust and as Trustee of the Kitty Trask Holt Family Trust 

(EI#26−6501159) under the Last Will and Testament of Kitty Trask Holt dated June 

8, 2004,

 Defendants – Appellants,

and

BEAUFORT COUNTY ASSESSOR; SOUTH CAROLINA DEPARTMENT OF 

REVENUE; INTERNAL REVENUE SERVICE,

Defendants.

Appeals from the United States District Court for the District of South Carolina, at 

Beaufort. Richard M. Gergel, District Judge. (9:16-cv-02550-RMG)

Argued: December 10, 2020 Decided: April 16, 2021

Before KING, WYNN, and RICHARDSON, Circuit Judges.

Affirmed in part and reversed in part by published opinion. Judge Richardson wrote the 

opinion, in which Judge King and Judge Wynn joined.

ARGUED: Jeffrey Steven Beelaert, UNITED STATES DEPARTMENT OF JUSTICE, 

Washington, D.C., for Appellant/Cross-Appellee. Paul Allen Dominick, NEXSEN 

PRUET, LLC, Charleston, South Carolina, for Appellees/Cross-Appellants. ON BRIEF: 

Jeffrey Bossert Clark, Assistant Attorney General, Eric Grant, Deputy Assistant Attorney 

General, Daniel W. Kastner, Richard McMurtray, Environment and Natural Resources 

Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Peter M. 

McCoy, Jr., United States Attorney, Columbia, South Carolina, Lee E. Berlinsky, Assistant 

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, 

South Carolina, for Appellant/Cross-Appellee. Alexandra H. Austin, NEXSEN PRUET, 

LLC, Charleston, South Carolina, for Appellees/Cross-Appellants. 
4

RICHARDSON, Circuit Judge:

Deference to a district court’s factual findings is vital to our judicial system. Our 

deference respects the superior competence of local fact finders in reviewing the evidence 

while also promoting judicial economy. This appeal turns on that deference. 

After a trial before a three-member land commission, a district court awarded

compensation to Landowners after the government took an easement on their land, which 

is near a U.S. Marine Corps airbase in Beaufort, South Carolina. See U.S. Const. amend. 

V. The district court awarded the Landowners $4.4 million, apportioned attorney’s fees

and litigation costs, and split the cost of the commission. 

The government challenges the amount the district court awarded in compensation 

and the award of attorney’s fees. The Landowners cross-appealed to dispute the district 

court’s apportionment of the attorney’s fees and the commission costs. 

Although we might have decided this case differently in the first instance, the 

deference we afford to the district court compels us to affirm its award of just 

compensation. See Anderson v. Bessemer City, 470 U.S. 564, 573–74 (1985) (a reviewing 

court may not “reverse the finding of the trier of fact simply because it is convinced that it 

would have decided the case differently”). Similarly, we cannot say the court abused its 

discretion in splitting the commission costs. But we do find that the district court legally 

erred in awarding attorney’s fees to the Landowners as the “prevailing party” in this 

litigation. See 28 U.S.C. § 2412(d). So we affirm in part and reverse in part.
5

I. Background

In 2016, the federal government filed an action to impose a permanent easement on 

269.22 acres of land in Beaufort, South Carolina. See 10 U.S.C. § 2663; 40 U.S.C. 

§§ 3113–3114. The land is near a busy Marine Corps Air Station where the government

trains fighter pilots. The easement restricts development in the military jets’ flight paths 

to ensure pilot and civilian safety, as takeoff and landing is the most dangerous part of 

training. Along with the action imposing the easement, the government deposited 

$1,091,000 with the district court as an estimate of the condemned property’s value. The 

court appointed a three-member land commission that conducted a bench trial to determine 

how much compensation the government owed the Landowners. See Fed. R. Civ. P. 

71.1(h)(2). After the commission recommended just compensation of $5,311,313, the 

district court reviewed the evidence de novo and awarded the Landowners $4,441,410. See 

United States v. 269 Acres, No. 9:16-2550-RMG, 2019 WL 1450578, at *6 (D.S.C. Apr. 

2, 2019). The district court also awarded the eligible Landowner attorney’s fees and costs 

under the Equal Access to Justice Act and split the cost of the commission equally between 

the government and the Landowners. United States v. 269 Acres, No. 9:16-2550-RMG, 

2020 WL 219792, at *11 (D.S.C. Jan. 15, 2020). The government appealed the amount of 

compensation and the award of attorney’s fees, and the Landowners cross appealed based 

on the court’s apportionment of attorney’s fees and commission costs.

A. The Property and the easement

The Property, which the Landowners’ family has owned in fee simple since the midfifties, consists of two parcels. One parcel is 446.33 acres zoned for industrial use
6

(“Industrial Parcel”), of which the restrictive easement covers 179 acres. The second parcel 

is 90.22 acres zoned for residential use of up to one house per three acres (“Residential 

Parcel”), which is entirely covered by the restrictive easement.1

 

The Property is undeveloped land that has been used for farming, recreation, and 

timber. It is bisected by power lines, and, while it has access to municipal utilities, those 

utilities are not connected to the Property. The Property also has significant road frontage 

1 The Industrial Parcel is shown as Lots 1-4 on the map and the Residential Parcel 

is the portion labeled “Residential” on the bottom left. Unfortunately, the property lines

are only visible in a color version. For context, a portion of the air base is visible on the 

right side of the map.
7

on Parker Drive, a newly paved two-lane road less than twenty miles from Interstate-95. It

sits within the Marine Corps Air Station Overlay Zone, an area where activities that may 

interfere with flight patterns are limited by a Beaufort County ordinance: For example, 

that ordinance limits activities that produce smoke, glare, or electronic signals or attract 

waterfowl. 

The easement is quite restrictive, prohibiting the property’s subdivision, human 

habitation, the installation of any structures or obstructions taller than 120 feet, activities 

that attract birds or produce visual hazards like smoke or glare, for-profit recreational 

activities, and activities that encourage more than 10 people to gather. The Landowners 

retain all responsibilities of land ownership and must bear all costs and liabilities “of any 

kind related to the ownership and maintenance of the [Encumbered Property].” J.A. 54. 

And even using the property for approved activities sometimes requires approval from the 

Navy.

B. The Industrial Parcel

At trial, the Landowners called an expert appraiser, Thomas Hartnett, and put forth 

their own lay appraisal of the fair value of the easement on the Industrial Parcel.

Hartnett concluded that the highest and best use of the Industrial Parcel was light 

industrial development. In his view, Beaufort was a “growing community” that he 

compared to “Charleston 25 years ago, or 20 years ago.” J.A. 234. Even so, he admitted 

that he did not know of any serious demand for the parcel or how far in the future such 

demand may manifest. Hartnett found no comparable arm’s-length sales in Beaufort 

County and so relied on four land sales that took place outside the county, three in Berkeley 
8

County and one in Charleston County. For these sales, he applied downward adjustments 

of 15% to 43% for their size and 20% to 35% for their location. Based on those adjusted 

values, Hartnett opined that the encumbered portion of the Industrial Parcel’s value before 

the restrictive easement was $20,000 per acre, for a total value of $3,580,000 (179 acres ×

$20,000/acre). Then he concluded that the easement reduced the value of the encumbered 

land by 75 percent to $5,000 per acre for a total reduction in value of $895,000 (179 acres 

× $5,000/acre).2

 Thus, using his values, just compensation for the easement on the

Industrial Parcel was $2,685,000 ($3,580,000 − $895,000).3

 

As an alternative to Hartnett’s expert testimony, Landowner Harold Trask offered 

his lay opinion on the “before” value of the Industrial Parcel. Trask argued that the vacant 

encumbered land was worth $30,000 per acre before the easement for a total value of 

$5,370,000 (179 acres × $30,000/acre). Trask reached this valuation based on his 

experience “working with the family properties,” including sales of smaller tracts of land. 

J.A. 190. Trask acknowledged that his family had never received an offer to purchase the 

Industrial Parcel. But shortly before this litigation began, a solar company had offered to 

2 In coming to this conclusion, Hartnett did not consider comparable sales because 

he could not find properties with similar encumbrances. He concluded that the Landowners 

may continue to use the encumbered part of the parcel “for such [purposes] as planting and 

gardening, hunting, and other uses in keeping with the restrictions of the easement.” J.A.

1046

3 Even though he was their own expert, the Landowners rejected Hartnett’s appraisal 

of the Property’s value after the easement and argued based on their belief that the 

Industrial Parcel had no post-easement value, and thus they were entitled to the full 

$3,580,000 in compensation for the Industrial Parcel. 
9

lease portions of the parcel for $1,000 an acre to operate a solar farm for up to 30 years. 

And Landowner James Trask acknowledged that the solar lease was “the best financial 

option available” for the use of the parcel at that time. J.A. 327. The Landowners, despite 

this offer, still put forth a valuation of $5,370,000 before the easement. The Landowners

then argued that the encumbered portion of the Industrial Parcel had “no value” after the 

easement. J.A. 196, 464–65. So they sought the entire $5,370,000 as just compensation 

for the encumbered part of the Industrial Parcel. The Landowners also claimed that the 

easement on the encumbered portion of the Industrial Parcel (179 acres) reduced the value 

of the unencumbered portion (267.33 acres) by 20% because the easement reduced road 

access and required a 50-foot setback from the encumbered part of the parcel. So they

argued they were also entitled to $1,603,980 (267.33 acres × (0.2 × $30,000/acre)) for that 

portion.

The government disputed the Landowners’ valuations. The government’s expert,

Haywood Newkirk, concluded that the encumbered portion of the Industrial Parcel was 

worth only $7,500 per acre before the easement, for a total value of $1,342,500 (179 acres 

× $7,500/acre). Newkirk believed that the parcel’s highest and best use was its current one

(farming, recreation, and timber). He projected that the demand for industrial development 

in the area was “very small.” J.A. 396; see also J.A. 900. Newkirk noted that over the last 

50 years, roughly 225 acres of industrial-zoned land had been sold near the Industrial 

Parcel, an average of only four acres per year, and extensive industrial space remained 

unoccupied nearby. 
10

The government bolstered Newkirk’s projection with the testimony of Kimberly 

Statler, a regional workforce adviser at the South Carolina Department of Commerce. 

Statler testified that Beaufort’s market for industrial property was “very, very small” and 

“pretty much nonexistent.” J.A. 92. She explained that Beaufort was not “a logical 

location” for industrial development because it is not near major highways or ports. J.A.

96. She also opined that incoming industrial developers do not want to purchase raw land 

like the Industrial Parcel; instead, they prefer property with existing infrastructure. Some 

evidence suggested that infrastructure improvements would cost at least $16 million, and 

Statler did not think a developer would purchase the parcel without those improvements.

To conduct his appraisal, Newkirk considered four comparable land sales, two in 

Beaufort County, one near Charleston, and one near Savannah, Georgia. Some of those

sales were unusual, however: one involved land with soon-to-expire wetlands permits and 

another was a bank’s sale of a park bought at a foreclosure auction to the City of Beaufort. 

Newkirk then adjusted those sales to reflect the characteristics of the Industrial Parcel and 

concluded that the parcel was worth $7,500 per acre before the easement. He then 

determined that the easement reduced the value of the encumbered property to $3,000 per 

acre, leading to a lost value of $805,500 (179 acres × ($7,500/acre − $3,000/acre)).

C. The Residential Parcel

Hartnett, who once again was the Landowners’ appraiser, concluded that the highest 

and best use of the Residential Parcel was residential development consistent with its 

zoning status. At first, he misunderstood the zoning acreage requirement but later claimed
11

that his error made no difference.4 Hartnett testified that although he did not observe any 

demand for residential development near the Residential Parcel, the vacant land was still

“ideal for” such development: “it’s close to Beaufort, it’s 90 acres of land, it is in a 

residential area, [and] it does have public utilities available to it.” J.A. 269. But Hartnett 

noted that he did not know when development could happen—it could manifest five to 

fifteen years in the future. 

To value the parcel, Hartnett considered three sales of undeveloped land in Beaufort 

County between 2014 and 2015. Those parcels had sold for $14,000 to $55,000 per acre. 

Hartnett then applied a downward adjustment of 10% to 28% for size and up to 25% for 

location to each parcel. J.A. 225, 1043. He thus valued the Residential Parcel at $18,500 

per acre before the easement, for a total value of $1,669,070 (90.22 acres × $18,500/acre).

J.A. 225, 1044. As he had done for the Industrial Parcel, Hartnett concluded that the 

easement reduced the value by 75% to $4,625 per acre, for a post-easement value of 

$417,267 (90.22 acres × $4,625/acre). J.A. 1063. Thus, in his view, just compensation for 

the Residential Parcel was $1,251,803 ($1,669,070 − $417,267). J.A. 221.

Again, the Landowners disagreed with their expert’s post-easement valuation. As 

they had done with the Industrial Parcel, the Landowners claimed that the Residential 

Parcel was worth $30,000 per acre before the easement and had no value after the easement. 

4 Hartnett originally understood the applicable zoning standard for the Residential 

Parcel as permitting “two houses per acre,” J.A. 1030, when it allowed only one house 

“every three acres,” J.A. 263.
12

So they argued just compensation for the easement was $2,706,600 (90.22 acres ×

30,000/acre). 

By contrast, the government’s expert, Newkirk, opined that the highest and best use 

of the Residential Parcel was residential development of one to three lots along the road 

and agricultural or recreational use otherwise. And he concluded that only 83.95 acres of 

the 90.22-acre tract was usable and thus available for development at all. But Newkirk 

identified limited demand for single family homes in the area and believed the market 

showed “little signs of growth.” J.A. 858. 

To arrive at his valuation, Newkirk considered three land sales in Beaufort County. 

After applying downward adjustments, he concluded that the Residential Parcel was worth 

$4,800 per acre, or $402,960 in total (83.95 acres × $4,800/acre), before the taking. Based 

on comparable recreational land sales, Newkirk concluded that the Residential Parcel was 

worth $3,000 per acre, or $270,660 in total (90.22 acres × $3,000/acre), after the easement. 

J.A. 431, 927.

5

 So he found the compensation owed for the easement on the Residential 

Parcel was $132,300 ($402,960 − $270,660). 

D. The land commission

The land commission accepted Hartnett’s pre-easement valuations for both parcels. 

In doing so, it rejected the Landowners’ higher valuation and the government’s lower 

valuation. The commission then rejected all of the proposed post-easement estimates. 

Instead, it concluded that the easement reduced the value of the encumbered portion of the 

5 Newkirk used the full 90.22 acres to calculate the parcel’s value after the easement 

because the excluded wetlands had recreational value.
13

Industrial Parcel by 91% and the value of the unencumbered portion of the Industrial Parcel 

by 10%. So the commission recommended a total compensatory award of $5,311,313 

(($3,580,000 × .91) + ($1,669,070 × .91) + (267.33 acres × ($20,000/acre × 0.1))). The 

commission also concluded that the government’s litigation positions were not 

substantially justified and recommended awarding attorney’s fees and costs to the 

Landowners.

E. The district court

The government objected to the award recommended by the commission. It argued 

that Hartnett relied on incomparable land sales, ignored the high cost of the infrastructure 

required to make development feasible, and did not rebut the presumption that the 

Property’s current use was its highest and best one. The court rejected those arguments, 

finding that the land was unique and the easement was extremely restrictive, which 

required both experts to rely on their expertise and judgment to identify reasonable 

comparisons. 269 Acres, 2019 WL 1450578, at *4. The court also found that the expert 

testimony showed a reasonable probability that the land could be used for future industrial 

development. Id. And because it found that Hartnett’s comparisons were more apt, it

adopted his (and therefore the commission’s) pre-taking values. Id. at *5. 

But the court rejected both the commission’s and Hartnett’s after-taking valuation, 

questioning Hartnett’s failure to identify comparable sales and the commission’s 

unsupported 91% devaluation. Id. at *6. Instead, it adopted Newkirk’s after-taking 

valuation of $3,000 per acre. Id. at *5–6. The area was quickly developing like other parts 
14

of the surrounding area, the court explained, and the government, aware of this 

development, had tried to take the land before it appreciated in value. Id. at *6. 

The district court thus found that the encumbered portion of the Industrial Parcel

was worth $20,000 per acre before the taking and $3,000 per acre after, requiring

compensation of $3,043,000 (179 acres × ($20,000/acre − $3,000/acre)). Id. And it found 

that the Residential Parcel was worth $18,500 per acre before the easement and $3,000 per 

acre after, requiring compensation of $1,398,410 (90.22 acres × (18,500/acre −

$3,000/acre)). Id. So in total, it ordered the government to pay $4,441,410 in 

compensation. Id.6

In a separate opinion, the district court awarded the Landowners attorney’s fees and 

litigation expenses under the Equal Access to Justice Act. 269 Acres, 2020 WL 219792, 

at *11. It determined that the Landowners were entitled to those fees because they were 

the “prevailing party” in the litigation and the government’s position was not “substantially 

justified.” Id. at 7–8; see 28 U.S.C. § 2412(d)(1)(A). The court decided that the 

Landowners were the “prevailing party” because their highest valuation of the Property 

was closer to the final compensation awarded than the government’s valuation. 269 Acres, 

2020 WL 219792, at *7. In making this determination the court only took Hartnett’s 

valuation into account, ignoring Harold and John Trask’s estimates because they valued 

the total property, not just the encumbered property. Id. at *6 n.5. It then found that the 

government’s position was not “substantially justified” because the government had

6 The district court found the unencumbered property’s value was unaffected. See 

269 Acres, 2019 WL 1450578, at *6.
15

changed its valuation three times and sought to discover “irrelevant” personal information 

of the Landowners. Id.

Considering cost-of-living adjustments and the complexity of the case, the court 

awarded $593,301 in attorney’s fees and $37,998.60 in litigation costs to the Landowners. 

Id. at *9. It then apportioned these amounts among the seven Landowners, finding that 

only William Trask, as the only party eligible to receive reimbursement based on his 

limited net worth, could receive his share of the fees, $84,757.29 ($593,301 / 7) and costs, 

$5,428.37 ($37,998.60 / 7). Id. at 9–10. Finally, the court equally divided the cost of the 

land commission between the government and the Landowners at a cost of $35,575 per

side. Id. at *11.

Both the government and the Landowners timely appealed. We have jurisdiction 

under 28 U.S.C. § 1291. 

II. Analysis

We affirm the district court’s award of just compensation and the splitting of the 

commission costs because of the deference we must afford to the district court. But we 

reverse the award of attorney’s fees and costs because the Landowners were not the 

“prevailing party” in the litigation. 28 U.S.C. § 2412(d)(1)(A). 

A. Just compensation

When the government uses its power of eminent domain to take private property 

rights, the Constitution requires it to pay “just compensation.” U.S. Const. amend. V. 

“[J]ust compensation” is the “amount of money necessary to put a landowner in as good a 

pecuniary position, but no better, as if his property had not been taken.” United States v. 
16

69.1 Acres, 942 F.2d 290, 292 (4th Cir. 1991). For an easement, that amount is “the 

difference between the value of the property before and after the Government’s easement 

was imposed.” United States v. Va. Elec. & Power Co., 365 U.S. 624, 632 (1961). The 

relevant “value” is the “fair market value” of the property, which is “‘what a willing buyer 

would pay in cash to a willing seller’ at the time of the taking.” United States v. 564.54 

Acres, 441 U.S. 506, 511 (1979) (quoting United States v. Miller, 317 U.S. 369, 374 

(1943)). Landowners bear the burden of establishing the fair market value of their 

property. United States ex rel. Tenn. Valley Auth. v. Powelson, 319 U.S. 266, 273 (1943).

A particular property may be “adaptable to several uses” so “just compensation is 

measured by the use that would bring the highest price—the ‘highest and best’ use.” 69.1 

Acres, 942 F.2d at 292. The highest and best use of a parcel “is presumed to be its current 

use.” Id. But compensation is not limited to the current use of the property, as it “also 

includes any additional market value it may command because of the prospects for 

developing it to the ‘highest and best use’ for which it is suitable.” United States v. 480.00 

Acres of Land, 557 F.3d 1297, 1307 (11th Cir. 2009); accord Mitchell v. United States, 

267 U.S. 341, 344–45 (1925) (value includes adaptability for potential uses). Indeed, 

much of the value of a piece of land may be its future potential. But to base compensation 

on a use other than the current one, the landowner must produce evidence that the 

proffered use is “‘reasonably probable’ and that the probability has a real market value.” 

69.1 Acres, 942 F.2d at 292. A showing of physical adaptability to a proposed use is not 

enough; there must be demand for the use in the “reasonably near future.” Olson v. United 

States, 292 U.S. 246, 255 (1934). 
17

The best evidence of property value comes from comparable land sales, where the 

more similar the land is the more probative the sale price is. United States v. Whitehurst, 

337 F.2d 765, 775 (4th Cir. 1964); 480.00 Acres, 557 F.3d at 1307. “Courts have generally 

recognized that comparability is a function of three variables: the respective 

characteristics of the properties, their geographic proximity to each other, and the 

closeness in time of the sales.” United States v. 68.94 Acres of Land, 918 F.2d 389, 399

(3d Cir. 1990) (citing United States v. 320.0 Acres of Land, 605 F.2d 762, 798 (5th Cir. 

1979)). Very often, the most comparable sales will differ in these aspects, even 

significantly. 320.0 Acres, 605 F.2d at 798. Because identifying the relevant comparisons 

and making value adjustments often turns into a battle of experts, we defer to the district 

court in weighing the varying opinions those experts offer, reversing only when the district 

court has made a clear error. See United States v. 1,061.14 Acres of Land, 491 F.2d 700, 

701 (8th Cir. 1974); United States v. 124.84 Acres of Land, 387 F.2d 912, 915 (7th Cir. 

1968). 

Our review of a district court’s determinations of a property’s highest and best use, 

the probability of future demand, and the ultimate award of just compensation is equally 

deferential under the clear error standard. See 69.1 Acres, 942 F.2d at 293–94. This is

especially true when the district court adopts the findings of a land commission. See, e.g.,

United States v. Certain Parcels of Land Located in Fairfax and Loudoun Cntys., 384 

F.2d 677, 679 (4th Cir. 1967). To reverse under the clear error standard, we would need 

to be “left with the definite and firm conviction that a mistake has been committed.” 

United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). Even if we are “convinced 
18

that had [we] been sitting as the trier of fact, [we] would have weighed evidence 

differently,” as long as “there are two permissible view of the evidence,” we cannot find 

clear error. Anderson, 470 U.S. at 574.

The government argues that the district court clearly erred in accepting the 

Landowners’ pre-taking valuations for the Industrial and Residential Parcels. The 

overarching theme of their argument is that the valuations hinged on speculative future 

demand, and that speculative future demand could not rebut the presumption of its current 

use being the highest and best use. In making that argument, the government contends

that (1) many of the district courts’ factual findings were clearly erroneous; (2) Hartnett’s 

land comparisons were inapplicable and should not have been credited; and, (3) the 

Landowners presented insufficient evidence of demand for the Property in the reasonably 

near future. The first two arguments are intensely factual and ask us to second guess both 

the land commission’s and the district court’s credibility determinations and weighing of 
19

the evidence. On this record, we cannot find that the district court clearly erred in making

its factual determinations,7 including its decision to credit Hartnett’s comparable sales.8

 

7 The government marshals a plethora of arguments against the valuations, but most 

turn on factual determinations that we cannot find to be clearly erroneous. We only 

address a few of their factual arguments. For example, the government points out that

Hartnett used the wrong zoning requirements in evaluating the potential uses of the

Residential Parcel. But Hartnett acknowledged his mistake and said it made little 

difference to his valuation, which the district court seemed to accept. See 269 Acres, 2019 

WL 1450578, at *5. 

The government also offered Statler’s deposition into evidence at trial to show that 

industrial demand in this area was low. But the commission and the court found that 

Statler’s testimony was not very probative since her relevant experience took place near 

the recession. Those credibility and weight determinations are within the purview of the 

district court. 

The government also argues that it would cost around $16 million to ready the land

for development, and investment developers would not purchase the land without it. 

According to the government, neither the court nor Hartnett accounted for that cost. But 

many of the sale comparisons the district court credited involved undeveloped land that 

also lacked infrastructure. At their base, this is a factual determination that turns on the 

weight given to conflicting evidence, which is in the province of the district court. So we 

cannot conclude that the district court clearly erred in making any of these or the other 

factual determinations about which the government complains. 

8 The government argues that the land sales Hartnett relied on are not sufficiently 

similar to the Property because of their sizes, locations, infrastructure, and ready 

development. But comparisons are rarely identical. See 320.0 Acres, 605 F.2d at 798 (“In 

most cases, of course, there are no open market sales ‘ideally’ comparable.”). That is why 

courts rely on experts to select good comparisons and make adjustments for the 

condemned property’s differences. See id. at 798, 802; 68.94 Acres, 918 F.2d at 393. 

Even the government’s appraiser admitted the Property was unique and looked outside 

Beaufort for comparable sales. And his land-sale comparisons were also significantly 

different from the Property. 

Identifying comparable land sales is a highly factual endeavor and often turns on a 

battle of expert opinions. The district court is at the apex of its discretion in weighing 

such testimony. See United States v. Wateree Power Co., 220 F.2d 226, 230 (4th Cir. 

1955); 124.84 Acres, 387 F.2d at 915; United States v. Banisadr Bldg. Joint Venture, 65 

F.3d 374, 377–78 (4th Cir. 1995); United States v. 7,216.50 Acres of Land, 507 F. Supp. 

228, 237 (D.S.C. 1980). So on this record we cannot conclude that the district court clearly 

erred in choosing to credit Hartnett’s comparisons.
20

The government’s third argument has more merit. The government posits an array 

of facts that suggest demand for industrial and residential development on the Property 

was speculative: The Landowners had received no offers to purchase the Property; the 

best available use of the Property at that time was a solar-farm lease; the potential demand 

for the Property was unknown and possibly five to fifteen years in the future; most people 

moving into the area want to purchase condos or apartments, not large pieces of 

undeveloped land; there had been no major industrial developments nearby; and the 

closest industrial spaces had not been leased. And merely speculative demand cannot 

suffice.

We agree that the Landowners’ evidence of demand in the reasonably near future 

for the particular property at issue is tenuous and a reasonable court could find it 

insufficient. But in such fact-intensive areas, we defer to resident district courts, who have 

both knowledge of the local community and fact-finding expertise. Cf. Ornelas v. United 

States, 517 U.S. 690, 700 (1996) (noting the importance of deference to resident judges). 

And the very point of deference is to accept a reasonable decision even though we might 

have decided it differently. See Anderson, 470 U.S. at 573–74.

We applied this deference in 69.1 Acres. There, we held that a district court did not 

clearly err in finding “that the highest and best use” of a condemned property was 

commercial sand mining, even though the land was not currently being used for that 

purpose. 942 F.2d at 291–92. The landowners had to show that a “market exists for the 

mineral that would justify its extraction in the reasonably foreseeable future” to rebut the 

presumption of current use. 69.1 Acres, 942 F.2d at 292. So they presented an appraiser 
21

who considered comparable sales to value the property and a businessman in the sandmining industry who testified that “[w]hile the current demands for sand in the [] area are 

being met by existing sources . . . his company was interested in purchasing reserves for 

development within the next twenty years, and possibly within the next five years.” Id. at 

293. 

The government there, just as in this case, relied on United States v. Whitehurst, 337 

F.2d 765 (4th Cir. 1964), for the proposition that the land “may not be valued on the basis 

of conjectural future demand for it. There must be some objective support for the future 

demand, including volume and duration.” 69.1 Acres, 942 F.2d at 293 (quoting 

Whitehurst, 337 F.2d at 771). The government reasoned from Whitehurst that the 

landowner had not shown the “volume and duration” of future demand for sand from the 

property so sand mining could not be the property’s highest and best use. Id. But we 

rejected that argument and confined Whitehurst to its “context,” the disfavored use of the 

“income capitalization” method of calculating just compensation. Id. We then held that 

“the landowner [did] not have to show an imminent demand for the sand from his property. 

He just ha[d] to show that there [was] a reasonable probability that the sand w[ould] be 

needed and wanted at a near enough point in the future to affect the current value of the 

property.” Id. at 294 (footnote omitted). It was enough that a person in the industry was 

interested in purchasing the land at that time to secure sand reserves that might be 

extracted within twenty years and that similar sales in the area had been made. Id. 

The “person in the industry” in 69.1 Acres tied the future demand for sand to current 

demand for obtaining the particular property for sand reserves. And we found that 
22

evidence sufficient. But in United States v. Wateree Power Co., 220 F.2d 226 (4th Cir. 

1955), we upheld an award where the connection of future and current demand was even 

less apparent. There, we found no clear error in the conclusion that a property’s highest

and best use was not its current use of growing timber but its potential industrial use. Id. 

at 230. The government argued that future demand for the property lacked any support as 

shown by recent sales and the lack of any industry in the area. Id. at 228–30. The 

landowners countered with testimony that the particular property was suitable for future 

industrial use and that industry was growing in areas of the state with similar attributes. 

Id. at 228–29. The district court and the commission, we held, did not clearly err in finding 

evidence of non-speculative future demand because the landowners “show[ed] that a 

market for these properties existed or was reasonably likely to exist in the near future.”

Id. at 230–31. As industrial development was “not remote or speculative,” we held that it 

could be considered. Id. at 232 (quoting United States v. 1,532.63 Acres of Land, 86 F. 

Supp. 467, 470 (W.D.S.C. 1949)). 

The government tries to distinguish Wateree by arguing that the industry experts

there showed actual demand for the land and the proposed future use. But those experts 

had not shown specific demand for that particular property or even property in that 

particular area. They had merely opined that the land had physical attributes favorable for 

industrial use and that similar locations across the state had shown such demand. Id. at 

228–29. We found that the evidence permitted the district court to conclude that the taken 

land might have been used for industrial purposes “within the reasonable foreseeable 

future.” Id. at 231. And that is all that is needed here.
23

Hartnett’s testimony satisfies that threshold showing. He opined that the Property

was suitable for industrial and residential development based on the growth of the area 

and similar sales and growth in other parts of the surrounding area. And general demand 

in similar areas can affect a property’s market value, even if the owners cannot produce

direct evidence of current demand for their specific tract. Id. The commission and the 

district court agreed with Hartnett’s assessment, and we cannot find their reliance clearly 

erroneous.

Instances when deference to a district court’s factual finding was overcome because 

the future demand was too speculative provide useful foils. In Olson v. United States, 292 

U.S. 246, 260 (1934), the Supreme Court found that the evidence of demand for a future 

use of a particular property was speculative because any potential future demand turned 

on a purely theoretical use of the land as a reservoir, which would require acquiring many 

other lots from private individuals, Native American tribes, and sovereign proprietors. In 

the face of those complexities, the physical adaptability of that land to use as a reservoir 

was not enough. Id. at 256–57. Similarly, in United States ex rel. & for Use of Tennessee 

Valley Authority v. Powelson, 319 U.S. 266, 274–76, 281 (1943), the Supreme Court 

found the potential future use of the condemned land as a dam was too speculative because 

building a dam would require uniting hundreds of individually owned pieces of land, 

including by the use of eminent domain. 

But contrary to Olson and Powelson, the proposed uses of this Property do not 

require massive preparatory undertakings, the acquisition of other pieces of land, or the 
24

additional use of eminent domain. The Property is physically and legally adaptable to the 

proposed uses on its own.

The deference we afford district courts in this area requires us to affirm. A resident 

district judge is in a better position to weigh comparable sales, dueling experts, prospective 

uses, the local economy, and other factors bearing on its decision. The government’s 

argument that the Property’s current agricultural and recreational use has not been rebutted

has real force. The Landowners produced little evidence tying the generalized demand to 

potential demand for their particular property. So a district court could well have rejected 

the Landowner’s position. 

But there was some evidence of industrial demand in the area—including for a 

nearby industrial park—and even the government’s appraiser acknowledged the rapid 

growth Beaufort was experiencing. J.A. 190–93, 232–34, 256, 270, 280–81, 845. And 

the Landowners’ appraiser testified that development of the Residential Parcel could occur 

within five to fifteen years. See 69.1 Acres, 942 F.2d at 293–94; Wateree Power, 220 F.2d 

230–32. This potential industrial and residential demand in the near future was supported 

by demand for other land with similar physical attributes. Wateree, 220 F.2d at 230–31. 

We cannot say that this evidence, taken as a whole, can only be interpreted to show 

speculative demand. So even if we would have found differently in the first instance, the 

district court acted within its bounds in finding that this evidence was enough to rebut a 

presumption of current usage and establish demand in the reasonably near future that 

affected the Property’s value. Accordingly, we affirm the district court’s award of 

compensation.
25

B. Attorney’s fees and litigation expenses

Generally, parties pay their own litigation costs. But the Equal Access to Justice 

Act deviates from this rule by rendering “the United States liable for attorney’s fees for 

which it would not otherwise be liable.” Ardestani v. I.N.S., 502 U.S. 129, 137 (1991). 

Under the Act, the court must award attorney’s fees and other litigation costs to the private 

party if: (1) the claimant is an eligible individual with a net worth of less than “$2,000,000 

at the time the civil action was filed” and (2) the claimant is the “prevailing party” in the 

litigation unless (3) the district court finds that the government’s position was 

“substantially justified” or “special circumstances make an award unjust.” 28 U.S.C. § 

2412(d)(1)(A), (d)(2)(B). The parties here agree that only William Trask is eligible to 

receive attorney’s fees and costs given the net worth of the other Landowners. Their 

dispute instead centers on whether the Landowners were the “prevailing party.”

In an eminent-domain proceeding, the “prevailing party” is “the party whose highest 

trial valuation of the property is closest to the final judgment.” United States v. 515 

Granby, LLC, 736 F.3d 309, 314 (4th Cir. 2013) (citing 28 U.S.C. § 2412(d)(2)(H)).9

 Put 

another way, to receive attorney’s fees, the Landowners’ highest valuation of the Property

at trial must be as close to the final compensation awarded as the government’s highest 

9 “Prevailing party” is statutorily defined for eminent-domain proceedings as “a 

party who obtains a final judgment (other than by settlement), exclusive of interest, the 

amount of which is at least as close to the highest valuation of the property involved that 

is attested to at trial on behalf of the property owner as it is to the highest valuation of the 

property involved that is attested to at trial on behalf of the Government.” 28 U.S.C. 

§ 2412(d)(2)(H).
26

valuation. See id. We review this determination de novo. Goldstein v. Moatz, 445 F.3d 

747, 751 (4th Cir. 2006).

The government argues that it was the “prevailing party” because the Landowners’

requested compensation of $9,680,580 is farther from the $4,441,410 award than the 

government’s proposed compensation of $937,800. But the district court rejected this 

simple math because the Landowners’ request of $9,680,580 was for the “entire property” 

and not just the “property involved.” 269 Acres, 2020 WL 219792, at *6. As a result, it 

regarded the requested $9,680,580 as irrelevant. Id. at *6 & n.5. The district court instead 

relied on the Landowners’ expert Hartnett’s valuation of $3,936,802, which was the closest

valuation to the actual award. Id. at *6. That reliance was misplaced. 

“[T]he highest valuation of the property involved that is attested to at trial” is the 

highest amount that the party requests for just compensation at trial. 28 U.S.C. 

§ 2412(d)(2)(H); see United States v. 50.50 Acres of Land, 931 F.2d 1349, 1358–59 (9th 

Cir. 1991); United States v. 5,507.38 Acres of Land, 832 F.2d 882, 883 (5th Cir. 1987). It 

is not limited to valuations of the property interests that the district court ultimately 

concludes require compensation. Rather, any property interest a party seeks just 

compensation for at trial is “the property involved.” See Wateree, 220 F.2d at 231 (noting 

that the devaluation of attached land is relevant). 

It is clear from the record that the Landowners asked for $9,680,580 in just 

compensation for the easement on the entire property, including the unencumbered portion. 

They reached this figure by considering the encumbered property to be worthless and the 

unencumbered property devalued by 20%. That estimate was used by the Landowners in 
27

their closing argument to show their total damages. And indeed, in asking the commission 

for attorney’s fees, the Landowners themselves argued that their highest valuation at trial

was $9,680,580. So $9,680,580 is the highest valuation of the Property the Landowners 

put forth at trial, which is farther from the district court’s award of $4.4 million than the 

government’s valuation of $937,800. 

In arguing $9,680,580 is not the appropriate valuation to consider, the Landowners 

now ask us to consider this issue at each stage separately. They contend that before the 

commission they had the closest valuation to that adopted by the commission. Then, before 

the district court, they adopted the commission’s value ($5,311,313), which was the closest 

to the district court’s award. But we do not consider the commission and the district court 

to be separate stages for determining who prevailed. The statute requires us to compare 

the “final judgment” to the highest valuation “attested to at trial.” § 2412(d)(2)(H). The 

final judgment was the district court’s award of $4.4 million in compensation, so the 

relevant trial must be the proceedings that led to that final judgment. And in eminentdomain cases involving commissions, it is common for proceedings before the commission

to be considered part of the trial, just as the district court did here. 269 Acres, 2020 WL 

219792, at *6 n.3; see United States v. Harrell, 642 F.3d 907, 911, 916 (10th Cir. 2011).

The Landowners insist Harrell, 642 F.3d 907, supports their novel contention. In 

that case, the property owners argued that they should not be held to the $33 million 

valuation used before the land commission for awarding attorney’s fees because they had 

since adopted the commission’s $6.1 million valuation in briefing before the district court. 

Id. at 910. The Tenth Circuit explicitly rejected the owners’ argument based on “[a] strict 
28

construction of § 2412(d)(2)(H).” Id. at 915–16. The court noted, however, that even if it

discounted the property owners’ testimony before the commission, the property owners 

had still testified to a valuation as high as $33 million before the district court. Id. at 916.

That alternative argument does not persuade us to consider the two stages separately. We 

instead find the Tenth Circuit’s explicit rejection of the Landowners’ argument to be more 

persuasive.

Based on Harold and John Trask’s testimony, the Landowners attested before the 

commission that the just compensation owed for the easement was around $9.6 million. 

Because the government’s $937,800 value is closer to the district court’s final award of 

$4.4 million, the government, not the Landowners, is the “prevailing party” in this 

litigation. So we reverse the district court’s award of attorney’s fees and costs to the 

Landowners. As a result, we need not decide whether the district court erred in 

apportioning the attorney’s fees based on the eligibility of the Landowners.

C. Commission fee

In their cross appeal, the Landowners argue that the district court abused its 

discretion by dividing the cost of the commission between them and the government. 

Although there is very little law in this area, the district court retains great discretion in 

splitting commission costs. The district court did not abuse that discretion.10

10 The practice of sharing the costs, however, appears to be exceedingly rare, as the 

government can only marshal a handful of district court cases doing so and the Landowners 

ably distinguish them. See United States v. 400 Acres of Land, No. 2:15-cv-01743-MMDNJK, Dkt. 523 (D. Nev. Sept. 26, 2019) (ordering the government to pay 75% and the 

landowners to pay 25% of the commission costs and rejecting an argument based on 

Federal Rule of Civil Procedure 71.1(l) like that asserted by the Landowners in our case); 
29

The governing rule is Federal Rule of Civil Procedure 71.1(l), which merely states

that “[c]osts are not subject to Rule 54(d).” Rule 54(d) explains that costs are generally 

awarded to the prevailing party but may only be imposed against the federal government 

“to the extent allowed by law.” But while those rules tell us how commission costs should 

not be treated, they tell us little about how commission costs are to be treated. 

The advisory note for Rule 71.1(l) arguably suggests that commission fees should 

be paid by the government, especially when the government is the prevailing party (as it is 

here).

11 But the advisory note says that it seeks to summarize existing caselaw pertaining 

to the rule’s topic. It does not state the rule. See United States v. Carey, 120 F.3d 509, 512 

United States v. 275.81 Acres of Land, No. 3:09-cv-00233-DWA, Dkt. 144, at 2 (W.D. Pa. 

July 9, 2013) (splitting costs equally but per a consent agreement); United States v. 

99,223.7238 Acres, No. 2:06-933 RB/RHS, Dkt. 128, at 1–2 (D.N.M. June 19, 2008)

(splitting costs equally but by joint stipulation). 

11 The advisory committee’s note states:

Since the condemnor will normally be the prevailing party and since he 

should not recover his costs against the property owner, Rule 54(d), which 

provides generally that costs shall go to the prevailing party, is made 

inapplicable. Without attempting to state what the rule on costs is, the effect 

of subdivision (l) is that costs shall be awarded in accordance with the law 

that has developed in condemnation cases. This has been summarized as 

follows: “Costs of condemnation proceedings are not assessable against the 

condemnee, unless by stipulation he agrees to assume some or all of them. 

Such normal expenses of the proceeding as bills for publication of notice, 

commissioners’ fees, the cost of transporting commissioners and jurors to 

take a view, fees for attorneys to represent defendants who have failed to 

answer, and witness’ fees, are properly charged to the Government, though 

not taxed as costs. 

Fed. R. Civ. P. 71.1 advisory committee’s note to subdivision (l) (emphasis added).
30

(4th Cir. 1997) (“[T]he Advisory Committee Note is not the law; the rule is.”). So because 

the rule sets outer bounds as to what may not be done, the district court is left with 

discretion over what should be done.

Using that discretion, the district court turned to Rule 53(g), which addresses

compensation for masters. Under that rule, masters may be compensated by either or both 

parties. See Fed R. Civ. P. 53(g) (“The compensation must be paid either . . . by a party or 

parties[] or from a fund or subject matter of the action within the court’s control.”). The 

Landowners argue that the canon of expressio unius ext exclusio makes reliance on that 

rule misplaced because Rule 71.1 explicitly references specific parts of Rule 53, but does 

not reference subpart (g). See Fed. R. Civ. P. 71.1. We reject that argument. Rule 71.1(l) 

excludes reliance on Rule 54; its silence about reliance on Rule 53(g) therefore implies that 

it may be considered. Nothing in Rule 71.1 displaces reliance on relevant rules other than 

Rule 54. So the district court was within its authority to look to Rule 53(g) for guidance

on how to split the commission costs. See, e.g., Guardian Pipeline, L.L.C. v. 295.49 Acres 

of Land, No. 08-C-0028, 2008 WL 2482005, at *4 (E.D. Wis. June 18, 2008). 

The Landowners argue that even if the district court may rely on Rule 53(g), it

abused its discretion by not considering the various equitable factors listed in Rule 

53(g)(3). See Fed. R. Civ. P. 53(g)(3) (“The court must allocate payment among the parties 

after considering the nature and amount of the controversy, the parties’ means, and the 

extent to which any party is more responsible than other parties for the reference to a 

master.”). But the court’s use of Rule 53(g) as a guide to resolving this issue does not bind 

it to all of the rule’s requirements. It has broad discretion to determine which portions of 
31

Rule 53(g) it finds persuasive in answering this question. So we hold that the district court

acted within its discretion in dividing the commission costs.

* * *

Determining “just compensation” often turns on highly factual determinations, such 

as the identification of comparable land sales, the state and growth potential of the local 

economy, and the credibility of dueling experts and various reports. Comparing and 

weighing this mountain of evidence can be difficult. Those closest to the ground, who live 

near the relevant areas and can hear the witnesses’ testimony firsthand, are in the best

position to evaluate the evidence. Commissions and district courts are there. We are not. 

Although we may not have resolved the question of the Property’s future demand 

the same way, the district court was within its discretion to weigh the evidence and 

conclude that the Landowners had shown a non-speculative demand for industrial and 

residential development in the reasonably near future. So we cannot say that the district 

court clearly erred in calculating its award of just compensation. Similarly, the district 

court has broad discretion in apportioning commission costs, and we uphold its decision to 

do so. But identifying the “prevailing party” for awarding attorney’s fees is a legal question

that we review de novo. And we find that the district court erred in making that 

determination. Accordingly, the district court’s judgment is

AFFIRMED IN PART AND REVERSED IN PART.