Sabal Trail Transmission v. Sunderman Groves (10-22-18) 11th Cir. Appellee Response Brief

Case: 18-11836 Date Filed: 10/22/2018 Page: 1 of 77
No. 18-11836-G
United States Court of Appeals for the Eleventh Circuit
SABAL TRAIL TRANSMISSION, LLC,
Plaintiff-Appellant,
v.
3.921 ACRES OF LAND IN LAKE COUNTY, FLORIDA, SUNDERMAN

GROVES, INC., and UNKNOWN OWNERS, IF ANY,
Defendants-Appellees.
Appeal from the U.S. District Court for the Middle District of Florida
BRIEF FOR APPELLEE SUNDERMAN GROVES, INC.
MARK F. (THOR) HEARNE, II ANDREW PRINCE BRIGHAM

Counsel of Record EDWARD SCOTT COPELAND
ABRAM J. PAFFORD TREVOR SHANE HUTSON
STEPHEN S. DAVIS Brigham Property Rights Law Firm
MEGHAN S. LARGENT 2963 Dupont Avenue, Suite 3
Arent Fox LLP Jacksonville, FL 32217
1717 K Street, NW (904) 730-9001
Washington, DC 20006 (904) 733-7633 (fax)
(202) 857-6000
(202) 857-6395 (fax) Counsel for Appellee Sunderman
thornet@ix.netcom.com Groves, Inc.
SABAL TRAIL TRANSMISSION, LLC v. 3.921 ACRES OF LAND IN LAKE
COUNTY, FLORIDA, et al., No. 18-11836
CERTIFICATE OF INTERESTED PARTIES AND CORPORATE
DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and 11th Circuit Rule
26.1-1, Appellee, Sunderman Groves, Inc., hereby certifies that it has no parent
corporation and no publicly held corporation owns 10% or more of Appellee’s stock.
Appellee - Interested Persons or Corporations
Arent Fox, LLP
Brigham Property Rights Law Firm, PLLC
Brigham, Esq., Andrew Prince
Copeland, Esq., E. Scott
Hearne, II, Esq., Mark F. (Thor)
Hutson, Esq., Trevor S.
Largent, Meghan S.
Pafford, Abram J.
Sunderman Groves, Inc.
Sunderman, Charles
Sunderman, Janice
Appellant - Interested Persons or Corporations
Adorno, Esq., Celeste F.
Bauerle, Esq., Kurtis T.
Duke Energy Corporation (NYSE: DUK)
Page C-1 of 3
Duke Energy Florida, LLC
Duke Energy Sabal Trail, LLC
Enbridge Inc. (NYSE: ENB)
Florida Power & Light Company
Florida Southeast Connection, LLC
Gunster, Yoakley & Stewart, P.A.
Harris Harris Bauerle Ziegler Lopez
Harris, Esq., Bruce M.
Harris, Esq., Gordon H. “Stumpy”
Lopez, Esq., Edgar
NextEra Energy Capital Holdings, Inc.
NextEra Energy Pipeline Holdings, LLC
NextEra Energy Power Marketing, LLC
NextEra Energy Resources, LLC
NextEra Energy, Inc. (NYSE: NEE)
Rogers, Pam f/k/a Herring, Pam
Sabal Trail Transmission, LLC
Spectra Energy Corp
Spectra Energy Partners Sabal Trail Transmission, LLC
Spectra Energy Partners, LP (NYSE: SEP)
Page C-2 of 3
Transcontinental Gas Pipe Line Company, LLC
U.S. Southeastern Gas Infrastructure, LLC
USG Energy Gas Producer Holdings, LLC
Williams Partners L.P. (NYSE: WPZ)
Ziegler, Esq., Felecia G.
Trial Court
Moody, Jr., Judge James S.
Page C-3 of 3
STATEMENT REGARDING ORAL ARGUMENT
Sunderman Groves believes oral argument may be helpful to this Court due
to the importance of the issues in this appeal.
i
TABLE OF CONTENTS
CERTIFICATE OF INTERSTED PERSONS AND

CORPORATE DISCLOSURE STATEMENT .................................................... C-1
STATEMENT REGARDING ORAL ARGUMENT ............................................... i
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF CITATIONS ......................................................................................... v
STATEMENT OF THE ISSUES.............................................................................. 1
STATEMENT OF THE CASE ................................................................................. 2
A. Background .......................................................................................... 2
B. Proceedings below................................................................................ 3
C. The value of the Sunderman family’s property.................................... 5
1. The property Sabal Trail took .................................................... 5
2. Testimony of the pipeline company’s appraiser ........................ 6
3. Testimony of the owners’ appraiser........................................... 7
4. The testimony of the owner, Jan Sunderman............................. 8
D. Standards of review ............................................................................ 12
SUMMARY OF THE ARGUMENT ..................................................................... 12
ARGUMENT .......................................................................................................... 15
I. The District Court properly held that Florida substantive law

supplies the federal rule of decision to determine the
compensation owed to Sunderman as a result of Sabal Trail’s
taking .................................................................................................. 15
ii
A. Georgia Power provides a choice-of-law framework that

led the district court to properly choose Florida law as a
federal rule of decision for determining the compensation
owed to Sunderman .................................................................. 18
B. Sabal Trail offers no valid grounds for distinguishing or

ignoring Georgia Power .......................................................... 24
1. Neither the plain language nor legislative history

of the NGA require that federal common law
displace state property law when determining
compensation in eminent domain cases arising
under Section 717f(h). ................................................... 25
2. The NGA’s references to interstate commerce are

not a basis for distinguishing or ignoring Georgia
Power ............................................................................. 28
3. Sabal Trail’s assertions concerning the supposed

“national interest” in gas pipeline projects are not a
basis to distinguish or ignore Georgia Power ............... 30
C. Sabal Trail has not argued that this case involves an

important federal interest that would be significantly
harmed by Florida’s substantive law concerning eminent
domain compensation .............................................................. 35
D. Sabal Trail wrongly conflates substantive and procedural

law when arguing against application of Florida’s
substantive law governing compensation in eminent
domain cases ............................................................................ 37
II. The District Court correctly allowed Jan Sunderman to testify

about the value of the Sunderman family’s property ......................... 41
A. Jan Sunderman’s testimony was based upon a sound

factual foundation and was consistent with the expert
testimony .................................................................................. 41
iii
B. The District Court was correct to allow Jan Sunderman,

as an owner, to testify about the value of her property ............ 45
C. The District Court’s decision allowing Janice Sunderman

to testify is reviewed under an abuse of discretion
standard .................................................................................... 52
D. Even if the District Court erred by allowing Jan

Sunderman to testify about the value of her property, it
was harmless error ................................................................... 54
CONCLUSION ....................................................................................................... 56
CERTIFICATE OF COMPLIANCE ...................................................................... 58
CERTIFICATE OF SERVICE ............................................................................... 59
iv
TABLE OF CITATIONS
Cases
Alabama Power Co. v. 1354.02 Acres in Randolph County, Ala.,

709 F.2d 666 (11th Cir. 1983) ...................................................................... 12
Ames v. Winnebago Indus., Inc.,

2005 WL 2614614 (M.D. Fla. Oct. 14, 2005) .............................................. 50
Atlantic Coast Line Railroad Co. v. Sandlin,

78 So. 667 (Fla. 1918) .................................................................................. 51
Bank of America National Trust & Savings Ass’n v. Parnell,

352 U.S. 29 (1956)........................................................................................ 22
Berkshire Mutual Insurance Co. v. Moffett,

378 F.2d 1007 (5th Cir. 1967) ................................................................ 47, 51
Bison Pipeline, LLC v. 102.84 Acres,

560 Fed. App’x. 690 (10th Cir. 2013) .................................................... 34, 37
Bonner v. City of Prichard,

661 F.2d 1206 (11th Cir. 1981) .............................................................. 15, 46
Clearfield Trust Co. v. United States,

318 U.S. 363 (1943)...................................................................................... 22
Columbia Gas Transmission Corp. v. Exclusive Natural Gas,

962 F.2d 1192 (6th Cir. 1992) ............................................................... passim
Columbia Gas Transmission, LLC v. Booth,

No. 1:16CV1418, 2016 WL 7439348 (N.D. Ohio Dec. 22, 2016) .............. 39
Dade Cty. v. Brigham,

47 So.2d 602 (Fla. 1950) .................................................................. 24, 37, 40
Dietz v. Consolidated Oil & Gas,

643 F.2d 1088 (5th Cir. 1981) .......................................................... 46, 47, 51
v
Doerr v. Cent. Fla. Expressway Auth.,

177 So.3d 1209 (Fla. 2015) .......................................................................... 38
Eerie R.R. Co. v. Tompkins,

304 U.S. 64 (1938)........................................................................................ 16
Fla. Gas Transmission Co. v. 9.854 Acres,

1999 WL 33487958 (S.D. Fla. May 27, 1999)............................................. 39
Florida Gas Transmission Co. v. 9.854 Acres,

2000 WL 33712491 (S.D. Fla. Aug. 25, 2000) ............................................ 39
General Elec. Co. v. Joiner,

522 U.S. 136 (1997)...................................................................................... 53
Georgia Power Co. v. Sanders,

617 F.2d 1112 (5th Cir. 1980) ............................................................... passim
Gregg v. U.S. Industries, Inc.,

887 F.2d 1462 (11th Cir. 1989) .............................................................. 48, 50
Guardian Pipeline LLC v. 295.49 Acres,

2008 WL 4830138 (E.D. Wis. Oct. 28, 2008).............................................. 39
Hessen for Use & Benefit of Allstate Insurance Co. v. Jaguar Cars, Inc.,
915 F.2d 641 (11th Cir. 1990) ...................................................................... 50
Hill v. Marion County,

238 So.2d 163 (Fla. Ct. App. 1970) ............................................................. 50
Home Savings Bank, F.S.B. v. Gillam,

952 F.2d 1152 (9th Cir. 1991) ...................................................................... 40
Jacksonville Expressway Auth. v. Du Pree Co.,

108 So.2d 289 (Fla. 1959) ............................................................................ 37
Johnson v. Thor Motor Coach, Inc.,

2016 WL 1182792 (M.D. Fla. March 28, 2016) .......................................... 50
vi
Justice v. Pennzoil Co.,

598 F.2d 1339 (4th Cir. 1979), cert. denied, 444 U.S. 967 (1979) .............. 46
Kamen v. Kemper Financial Services,

500 U.S. 90 (1991).................................................................................. 16, 35
Kestenbaum v. Falstaff Brewing Corp.,

514 F.2d 690 (5th Cir. 1975), modified on other grounds en banc,
575 F.2d 464 (5th Cir. 1978), cert. denied, 424 U.S. 943 (1979) ......... passim
Kumho Tire Co., Ltd. v. Carmichael,

526 U.S. 137 (1999)...................................................................................... 53
LaCombe v. A-T-O, Inc.,

679 F.2d 431 (5th Cir. 1982) .................................................................. 51, 52
Meredith v. Hardy,
554 F.2d 764 (5th Cir. 1977) .................................................................. 51, 52
Miree v. DeKalb County, Georgia,

433 U.S. 25 (1977)........................................................................................ 22
Nat’l Fuel Gas Supply Co. v. 138 Acres,

84 F. Supp.2d 405 (W.D.N.Y. 2000)............................................................ 39
National Railroad Passenger Corp. v. Two Parcels,

822 F.2d 1261 (2nd Cir. 1987) ..................................................................... 36
Neff v. Kehoe,
708 F.2d 639 (11th Cir. 1983) .......................................................... 46, 48, 50
Northern Natural Gas Co. v. Approximately 9117 Acres,

114 F. Supp.3d 1144 (D. Kan. 2015) ........................................................... 40
Northern Natural Gas Co. v. Kingman,

2 F. Supp.3d 1174 (D. Kan. 2014) ............................................................... 39
Piamba Cortes v. American Airlines, Inc.,

177 F.3d 1272 (11th Cir. 1999) .................................................................... 53
vii
Preseault v. Interstate Commerce Comm’n,

494 U.S. 1 (1990).......................................................................................... 17
Public Utility District No. 1 v. City of Seattle,

382 F.2d 666 (9th Cir. 1969) ........................................................................ 32
Reliance Ins. Co. v. Pro-Tech Conditioning & Heating,

866 So.2d 700 (Fla. Ct. App. 2003) ............................................................. 50
Richmond Elks Hall Ass’n v. Richmond Redevelopment Agency,

561 F.2d 1237 (9th Cir. 1977) ...................................................................... 40
Rink v. Cheminova, Inc.,

400 F.3d 1286 (11th Cir. 2005) .................................................................... 12
Ruckelshaus v. Monsanto Co.,

467 U.S. 986 (1984)...................................................................................... 17
Ruud v. United States,

256 F.2d 460 (9th Cir. 1958) ........................................................................ 48
Sabal Trail Transmission, LLC v. 1.127 Acres of Land,

2017 WL 2799352 (M.D. Fla. June 15, 2017) ............................................... 4
Sabal Trail Transmission, LLC v. Real Estate,

2017 WL 2783995 (N.D. Fla. June 27, 2017) ................................................ 4
Salem v. United States Lines Co.,

370 U.S. 31 (1962)........................................................................................ 54
Salvage & Surplus, Inc. v. Weintraub,

131 So.2d 515 (Fla. Ct. App. 1961) ............................................................. 50
Sherwood v. Tenn. Valley Auth.,

590 Fed. App’x. 451 (6th Cir. 2014) ............................................................ 36
Southern Natural Gas Co. v. Land, Cullman Cnty.,

197 F. 3d 1368 (11th Cir. 1999) ................................................................... 38
viii
Sparger v. Newmar Corp.,

2014 WL 3928556 (S.D. Fla. Aug. 12, 2014) .............................................. 50
State v. Hawthorne,
573 So.2d 330 (Fla.1991) ............................................................................. 51
Sunray Mid-Con. Oil Co. v. Fed. Power Comm’n,

364 U.S. 137 (1960)...................................................................................... 24
Tampa Bay Water v. HDR Engineering, Inc.,

731 F.3d 1171 (11th Cir. 2013) .................................................................... 12
TDS, Inc. v. Shelby Mutual Ins. Co.,

760 F.2d 1520 (11th Cir. 1985) .................................................................... 50
United States v. 329.73 Acres of Land,

666 F.2d 281 (5th Cir. 1982) .................................................................. 51, 52
United States v. An Easement and Right-of-way Over 6.09 Acres of Land, More or
Less, in Madison County, Alabama,
140 F.Supp.3d 1218 (N.D. Ala. 2015) ......................................................... 50
United States v. Hill,

643 F.3d 807 (11th Cir. 2011) ...................................................................... 46
United States v. Jeri,

869 F.3d 1247 (11th Cir.), cert. denied, 138 S.Ct. 529 (2017) .................... 46
United States v. Kimbell Foods,

40 U.S. 715 (1979)........................................................................................ 35
United States v. Levy,

416 F.3d 1273 (11th Cir. 2005) .................................................................... 37
United States v. Lopez,

514 U.S. 549 (1995)...................................................................................... 16
United States v. Standard Oil Co.,

332 U.S. 301 (1947)...................................................................................... 22
ix
Wallis v. Pan American Petroleum Corp.,

384 U.S. 63 (1966).................................................................................. 16, 22
Webb’s Fabulous Pharmacies, Inc. v. Beckwith,

449 U.S. 155 (1980)...................................................................................... 17
Williams v. Mosaic Fertilizer, LLC,

889 F.3d 1239 (11th Cir. 2018) .................................................................... 53
Rules and Statutes
15 U.S.C. §717 ................................................................................................. passim
16 U.S.C. §797 ........................................................................................................ 29
16 U.S.C. §800(b) ................................................................................................... 30
16 U.S.C. §814 ............................................................................................ 25, 26, 30
16 U.S.C. §817 ........................................................................................................ 29
Fed. R. Evid. 701 .................................................................................. 45, 46, 47, 53
Fed. R. Evid. 702 ................................................................................. 45, 47, 48, 53
Constitutional Amendments
Fla. Const. Art. X, §6(a) ......................................................................................... 37
Other Authorities
https://www.ferc.gov/industries/gas/indus-act/pipelines/approved-projects.asp ... 34
NICHOLS ON EMINENT DOMAIN (3rd ed.) §23.04 .................................................... 49
x
STATEMENT OF THE ISSUES
1. Whether the District Court correctly held that Florida state law supplies
the federal rule of decision concerning compensation owed to owners whose private
property is taken by a private for-profit pipeline company exercising eminent
domain power under Section 717f(h) of the Natural Gas Act.
2. Whether the District Court correctly held that an owner may testify
about the value of her property.
1
STATEMENT OF THE CASE
A. Background.
Sabal Trail Transmission, LLC, (Sabal Trail or the pipeline company) is a
joint venture of Spectra Energy Partners, NextEra Energy, Inc., and Duke Energy,
large private energy companies with a combined value in excess of $100 billion.
Sabal Trail is constructing a 517-mile-long pipeline from Alexander City, Alabama,
to Reunion, Florida, to transport natural gas for Florida Power and Light and Duke
Energy of Florida. Doc.127, pp.82-85. The pipeline is capable of transporting over
one billion cubic-feet per-day or more of natural gas. Id. at 136-39.
Congress granted pipeline companies a limited ability to exercise eminent
domain to acquire pipeline easements through private property. See Natural Gas
Act, 15 U.S.C. §717f (NGA). The NGA allows pipeline companies to file a
condemnation action in state court or federal district court. Id. §717f(h).
Chuck Sunderman’s grandfather came to Florida in 1927 and acquired four
thousand acres in Lake County, Florida, for a citrus grove. Doc.127, pp.93-99;
Doc.127, pp.85-87. The property was later transferred to Sunderman Groves, Inc.,
a holding company the Sunderman family created to manage the property. Id.
Successive freezes in the 1980s damaged the Sundermans’ citrus crop, making citrus
farming financially unfeasible. To remain solvent the Sunderman family needed to
sell some of the land. Doc.127, pp.93-99; Doc.130, pp.87-95. The land was mostly
2
sold as rural residential lots of ten to twenty acres in size. Id. By 2013 the
Sundermans had sold twenty-five separate tracts totaling more than 500 acres. Id.
The Sundermans financed most of these transactions themselves. Id.
One of the remaining tracts the Sundermans still own is a forty-acre parcel on
Lake Erie Road in Groveland, Florida. Sabal Trail wanted to build a gas pipeline
through the Sundermans’ land. The Sundermans didn’t want to sell their property,
so Sabal Trail condemned an easement through the Sundermans’ land. Sabal Trail’s
pipeline bisects the Sunderman property running more than 1,400 feet through the
center of the property. See Addendum (photo and maps of property and pipeline
corridor). Sabal Trail is building a 36-inch diameter pipeline with a maximum
operating pressure of nearly 1,500 pounds-per-square-inch buried four and one-half
feet under the Sunderman’s property. Doc.127, pp.99-104.
B. Proceedings below.
On March 18, 2016 Sabal Trail filed this action in the Middle District of
Florida to condemn an easement through of the Sunderman family’s property.
Doc.1. Two months later, the court granted Sabal Trail immediate possession of the
property. Doc.27. Sabal Trail completed construction and commenced operations
of its pipeline in June 2017. Def. Ex. 173.
This case is one of about 263 such cases concerning the Sabal Trail Project
filed in federal court in Florida, with approximately 190 cases filed in the Middle
3
District and seventy-three cases filed in the Northern District. Doc.152, pp.2-3. The
district courts in the Middle and Northern Districts held Florida substantive law to
be the source of law for the measure of compensation. See Sabal Trail Transmission,
LLC v. Real Estate, 2017 WL 2783995 (N.D. Fla. June 27, 2017); Sabal Trail
Transmission, LLC v. 1.127 Acres of Land, 2017 WL 2799352 (M.D. Fla. June 15,
2017).
Here, there was no similar pretrial briefing or ruling. Thus, the district court
did not rule on the choice-of-law issue until deciding which set of jury instructions
would be given on the measure of compensation. See Docs.106,125,129, pp.240-
55. The district court instructed the jury to award “full compensation,” consistent
with Florida state substantive law. Id. See also Doc.130, pp.172-85.
After entry of the Final Judgment (Doc. 133) which applied Florida’s “full
compensation” measure of compensation that includes reimbursement of the
owner’s attorneys’ fees and costs, Sabal Trail filed a motion for relief from
judgment, to which Sunderman responded by outlining the difference between how
Sabal Trail chose to proceed in seventy other condemnation cases and how it
proceeded in the instant matter. Docs.144,152,152(1)-(12). The district court denied
the motion, noting that Sabal Trail chose to litigate the issue in more than seventy
other cases by pre-trial motion but didn’t raise this issue in this case until trial.
Doc.154, p.2.
4
C. The value of the Sunderman family’s property.
1. The property Sabal Trail took.
The pipeline company’s appraiser, Richard Parham, said the property Sabal
Trail took from the Sunderman family was worth $56,800. Doc.127, pp.190-92.
Matthew Ray, an appraiser the Sunderman family retained, testified that the value
of the property Sabal Trail took was $312,000. Doc.130, pp.40-41. Jan Sunderman
testified the property Sabal Trail took was worth $360,000. Id. at 99-101. The jury
concluded Sabal Trail owed the Sunderman family $309,500. Doc.126. The district
court entered judgment for the Sunderman family, awarding $309,500 in
compensation plus pre-judgment interest, and ordered Sabal Trail to reimburse the
Sundermans’ legal fees and expenses as required by Florida law. Doc.133, pp.2-3.
Both appraisers, Parham and Ray, agreed the 39.1-acre tract of the
Sundermans’ property was 26.8 acres of uplands and 12.3 acres of wetlands.
Doc.127, pp.192-95; Doc.129, pp.177-85. The Sunderman property enjoyed an
aesthetically pleasing topography that slopes in a gradual direction from the road
down to a beautiful wetland and lake with a white-steepled church next door. Id.
See also Def. Ex. 2A, 2B. Both appraisers and Sabal Trail’s expert land planner,
Eric Rahenkamp, agreed the “highest and best use” of the Sundermans’ land was for
rural residential use. Id.
5
Sabal Trail took both permanent and temporary easements. The permanent
easement is fifty feet wide. Doc.127, pp.120-25. The temporary easement is twenty-
five feet on either side of the permanent easement. Id. Where it crosses the
Sundermans’ land, the pipeline is identified by six orange-colored warning signs,
stating, “WARNING Gas Pipeline.” Id. Sabal Trail also installed two above-ground
AC mitigation devices on the Sundermans’ land. Id.
The permanent easement area is 1.535 acres, and the temporary easement area
is 1.476 acres together with an additional .907 acres. Doc.127, pp.139-41. While
the Sundermans retain title to the now-encumbered fee estate, the Sundermans may
no longer exclude others from the land subject to the easement, and the Sundermans
may not use the easement area in any way that interferes with Sabal Trail’s use of
the land. Id. It is now impossible to enter the Sundermans’ property without
crossing the pipeline. Id.
2. Testimony of the pipeline company’s appraiser.
Sabal Trail paid their appraiser’s firm $4.1 million to appraise properties for
its project. Doc.127, pp.180-86. Parham used the sales comparison approach
considering six sales. Doc.127, pp.197-206; Doc.128, pp.13-19. Parham concluded
the property in the “before condition” was worth $7,000/gross acre or $273,800. Id.
Parham did not consider the recent sale the Sundermans sold to the Scarlotta family.
Doc.128, pp.19-21. Considering matched pairs ranging from -5 to -40%, Parham
6
testified that a 25% severance damage applied to the 24.95 acres worth $7,000/gross
acre was $43,700. Doc.128, pp.64-66; Doc.128, pp.50-64. Parham’s estimate in
the “after condition” was, therefore, $217,000. Id. See also Doc.127, pp.190-92. In
short, Parham testified that the value of the property Sabal Trail took from the
Sunderman family was $8,100 for the permanent easement, $5,000 for the temporary
easement, and $43,700 in severance damages for a total of $56,800. Id.
Parham said he has “never found any damages for public fear or stigma” and
has consistently found damages had “always been zero when it comes to the presence
of the pipeline, whether there would be use of the property, damage, aesthetics, loss
of public fear, or stigma.” Doc.129, pp.16-18. Parham also admitted that, over the
past 17 years in pipeline projects, he only represents pipeline companies with the
exception of representing owners on two occasions. Id. at 21-22.
3. Testimony of the owners’ appraiser.
The landowners called Ray as an expert witness. Ray has experience
preparing studies in eminent domain valuing the property with proximity to
undesirable uses such as elevated roads, powerlines, or gas pipelines. Doc.129,
pp.166-73.
Ray used the sales comparison approach considering eight upland and three
wetland sales, with two sales being tracts the Sundermans had actually sold.
Doc.129, pp.184,210-11. Ray concluded the property was worth $18,000 per upland
7
acre and $1,500 per wetland acre, or $500,997. Doc.129, pp.205-11. Ranking
matched pairs ranging from +17 to -78 percent, Ray testified that a sixty-percent
severance damage applied to the 25.27 acres worth $18,000 per upland acre was
$273,777. Doc.130, pp.32-35,38-40. Ray’s estimate in the “after-taken condition”
was, therefore, was $200,971. Id. In short, Ray testified that the value of the
property taken from the Sunderman family was $26,249 for the permanent easement,
$15,013 for the temporary easement, and $273,777 in severance damages for a total
of $315,039. Doc.130, pp.40-41.
4. The testimony of the owner, Jan Sunderman.
Jan Sunderman testified that the land the pipeline company wanted to
condemn has been in the Sunderman family for over ninety years. Doc.130, pp.85-
88. Of the original 4,000 acres Chuck Sunderman’s grandfather owned, she and her
husband received about 860 acres to which they added another 150 acres. Id. Chuck
Sunderman was a citrus grower and approximately 300 acres was used for orange
groves until cold-weather freezes in the 1980s made the groves unprofitable and left
the family with debt. Id. Sunderman testified how the Sundermans successfully
obtained approvals from Lake County. Id. at 88-92. Sunderman testified the upland
portions of the abbreviated parent tract could be subdivided into its platted lots of
record for rural residential development. Id. The Sundermans began selling portions
of the property in the early 1990s in order to stay afloat financially, typically in tracts
8
of 5, 10, and, occasionally, 15 acres. Id. Between 1990 and 2016, the Sundermans
have sold approximately twenty-five tracts for rural residential use, mostly platted
lots. Id.
Sunderman explained the details of the recent sales of the family’s property
to the Scarlotta family and the Quinones family. Doc.130, pp.92-96. Without
objection from Sabal Trail, Sunderman also described how the Sundermans have
been marketing their own property without a broker. Id. Sunderman testified:
We have found that we have our most success not advertising, but by
putting a sign by the road. We have frequent people that just drive
county roads looking for a place to buy in the country, and so they
already know where the property is. …[W]e direct them to our home,
they come into our home, we get acquainted, conversations, we try to
find out what they're looking for. We have, in the past, had maybe two
or three different lots to figure out which one they would prefer most,
and just let them find out what they're looking for. We want them to be
happy that they are going to become our neighbors. We want them to
be successful dwellers -- country dwellers, I should say. So then we
give them a car or truck and drive out and look at the property. We
walk it and see what they're thinking and see their eyes light up if they
like it, and they start asking questions and we try to answer them as best
we can.
Id. at 92-93.
When asked what a prospective purchaser was looking for, Sunderman, again
without objection from Sabal Trail, responded as follows:
They want to have their own piece of land. They want a bigger lot than
regular, bigger portion of land than they have in town. There is
something about owning land that folks seem to yearn for. They want
to get their children out into the country so they can have animals and
maybe a pony or horse. They just want them to be more familiar with
9
nature, to enjoy the beauties of nature, and just the ideal country life.
They want privacy. We have noticed first thing they usually do is build
a fence and put up a gate and sometimes say “no trespassing,” and
security. That’s what they are looking for a nice place to raise their
family.
Doc.130, pp.93-94.
Sunderman testified that it is usually within the first one or two years that the
purchaser builds a home. Doc.130, p.94. Sunderman testified that the amount the
Scarlottas paid ($10,426 per acre) and what the Quinones family paid ($18,763 per
acre) were consistent with the prices she expected today. Id. at 96, 105-09.
Sunderman testified, without objection from Sabal Trail, that the tract through
which Sabal Trail was putting its pipeline had not been put up for sale before the
taking. Doc.130, p.95. She testified that it was “the most beautiful piece” that they
had and that they were holding back from sale anticipating it would appreciate more
in value than the rest and it was the “prettiest” or “our premiere lot.” Id. The
Sundermans tried to persuade Sabal Trail to choose an alternative route. Id. at 96.
Sunderman also testified, without objection from Sabal Trail, that she was
familiar with the easement language used by Sabal Trail and that, as the easement
holder, Sabal Trail has “dominant rights.” Doc.130, pp.97-99. She testified that she
was also familiar with Sabal Trail’s notification letter explaining Sabal Trail’s rights
in the easement land. Id. Sunderman expressed her opinion that when buyers of her
property are moving out to the country, they are trying to get away from an entity
10
like a homeowners’ association governing what they do, that they want to “feel like
it’s their private property.” Id. She testified that these buyers will not like all of the
rules and regulations that go along with Sabal Trail’s easement, how one can use it,
how one cannot use it, unless having permission, and even if having permission
having a representative of Sabal Trail to monitor what one is doing. Id. She further
testified that pipeline markers and above-ground devices are ominous and
objectionable and that, because they warn any buyer about the pipeline, there is no
keeping the pipeline a secret. Id. It is marked, 36 inches around, with a billion cubic
feet a day of natural gas, a volatile combustible substance. Id. Sunderman testified
that because a potential buyer is going to pay more than $100,00 to buy a lot and
then invest more than another $100,000 to build a home, she believes a potential
buyer will be “a very careful astute person.” Id.
Sunderman testified that, in her opinion, she would be able to subdivide the
almost forty-acre tract into three upland lots, two squares in the front and a third
square in the back. Doc.130, pp.99-101. Before the pipeline bisected the land,
Sunderman believed her property was worth $18,000 per acre. Id. But after the
pipeline was built, Sunderman believed the front two square lots have become
undesirable because “the pipeline cuts right diagonally across them” and, because
the pipeline “hits the corner” of the third square lot, it would continue to have some
prospects. Id. On the basis of more than twenty years’ experience selling this land
11
for rural residential use, and considering what she observed to be the motivations of
buyers purchasing her property, Sunderman testified that the front two lots are now
“unsuitable and virtually unmarketable as home sites to raise a family on.” Id. As
such, after the pipeline easement was taken, Sunderman testified, in her opinion, the
front two lots, with the pipeline cutting diagonally, would only sell for agricultural
use at $35,000 each while the back third lot, with the pipeline cutting the corner,
would only sell for $70,000, the total being $140,000. Id. Sunderman believed the
presence of Sabal Trail’s pipeline devalued her property by $360,000. Id.
D. Standards of review.
The choice-of-law issue is reviewed by this Court de novo. See Tampa Bay
Water v. HDR Engineering, Inc., 731 F.3d 1171, 1177 (11th Cir. 2013); Alabama
Power Co. v. 1354.02 Acres in Randolph County, Ala., 709 F.2d 666, 668 (11th Cir.
1983) (citing Georgia Power Co. v. Sanders, 617 F.2d 1112 (5th Cir. 1980) (en
banc)). The district court’s decision to allow Sunderman to testify is reviewed under
an abuse of discretion standard. See Rink v. Cheminova, Inc., 400 F.3d 1286, 1291
(11th Cir. 2005).
SUMMARY OF ARGUMENT
This is a simple case. Sabal Trail, acting pursuant to Section 17f(h) of the
NGA, used eminent domain to take Florida property belonging to Sunderman
Groves. There is no dispute that Sunderman is entitled to be compensated. The only
12
question is whether the measure of compensation should be determined by federal
substantive law or whether, instead, the District Court acted correctly in borrowing
Florida’s substantive law as a federal rule of decision to determine the compensation
owed to Sunderman.
The District Dourt got it right. One of the things that made the District Court’s
job easy, and makes resolution of this appeal simple, is that this Circuit (in its prior
incarnation as part of the old Fifth Circuit) tackled a virtually identical question en
banc in Georgia Power Co. v. Sanders, 617 F.2d 1112 (5th Cir. 1980) (en banc).
That case involved an exercise of eminent domain by a private power company
pursuant to a federal statutory provision in the Federal Power Act (FPA) that in all
material respects parallels the eminent domain provision of the NGA used by Sabal
Trail in this case. The en banc Court engaged in a careful and thorough choice-of-
law analysis, and concluded that basic principles of Constitutional federalism
required the application of Georgia substantive law as the federal rule of decision
for determining the compensation owed to the Georgia landowners.
The District Court here correctly recognized that Georgia Power’s status as
binding en banc precedent in this Circuit provided a clear framework for analyzing
the choice-of-law question, and dictated a clear outcome as a result. Nothing Sabal
Trail has said on appeal undermines the District Court’s rationale or its ruling. Sabal
Trail cannot distinguish Georgia Power by citing general references in the NGA to
13
the interstate commerce nexus that triggers the applicability of that Act, particularly
where the FPA addressed in Georgia Power contained such references in equal
measure. Of greater importance, Sabal Trail cannot show any federal interest that
necessitates displacement of state law in determining the measure of compensation
owed to Sunderman, and indeed Sabal Trail does not even really try to do so
(probably because any hypothetical conflicts between state law and federal interests
that might theoretically exist were explicitly addressed and discounted in Georgia
Power).
Turning to the other issue raised on appeal, Sabal Trail faces the heavy burden
of seeking to set aside a reasonable jury verdict to which considerable deference is
now owed. The thin reed on which Sabal Trail rests its hopes is the assertion that
Jan Sunderman (testifying as a Sunderman representative intimately familiar with
the property that was taken, and possessing two decades of personal experience with
the land during which the land was repeatedly subdivided and sold to residential
purchasers) should not have provided her opinion of the severance damages caused
by Sabal Trail’s taking.
Sabal Trail’s challenge to the District Court’s discretionary ruling admitting
Sunderman’s testimony has no merit. Under both federal and Florida law, there is a
clear presumption in favor of allowing an owner to present testimony addressing the
value of the property she owns, including property taken via eminent domain and
14
remainder property affected by the taking. That general presumption is augmented
in Sunderman’s case by her own knowledge and experience that went well beyond
the limited firsthand knowledge possessed by typical landowners.
Indeed, prior to testifying, Sunderman had nearly two decades of experience
as a sophisticated seller of lots to rural residential buyers in the exact location now
burdened by the presence of the Sabal Trail natural gas pipeline. All parties agreed
that the highest and best use of the Sunderman property at issue in this case was
subdivision into rural residential lots. This juxtaposition of the highest and best use
of the Sunderman property, and Sunderman’s decades of direct market experience
in seeking to achieve profitable sales in the context of that same highest and best
use, confirms that the District Court was well within its discretion when it permitted
Sunderman to testify concerning the value of her property and the likely diminution
in that value traceable to Sabal Trail’s taking.
ARGUMENT
I. The District Court properly held that Florida substantive law supplies
the federal rule of decision to determine the compensation owed to
Sunderman as a result of Sabal Trail’s taking.
The choice-of-law analysis in relation to the measure of compensation Sabal
Trail owes Sunderman should begin and end with the binding en banc decision in
Georgia Power. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.
1981) (en banc) (former Fifth Circuit decisions handed down prior to September 30,
15
1981 are binding precedent within the Eleventh Circuit). With that said, it bears
emphasis that the decision in Georgia Power has deep Constitutional roots, and it is
ultimately structural features of our Constitutional system that establish Florida
substantive law as the appropriate source for a federal rule of decision concerning
the measure of compensation owed to a landowner when a private party such as
Sabal Trail, acting pursuant to a federal statutory delegation of eminent domain
authority, takes private Florida land for use in a privately-owned and operated
infrastructure project.
Starting with the basics, the federal government is one of limited and
enumerated powers, and powers not delegated to the federal government are
reserved to the states. See United States v. Lopez, 514 U.S. 549, 552 (1995). This
system of dual sovereignty is referred to as federalism. Principles of federalism
inform choice-of-law analysis in the federal courts, because federal courts do not
recognize a “general common law,” and the creation and application of “federal
common law” is constrained and guided by the principle that to the extent
practicable, state law should be allowed to operate in substantive spheres that have
traditionally been state rather than federal domains. See, e.g., Kamen v. Kemper
Financial Services, 500 U.S. 90, 98 (1991); Wallis v. Pan American Petroleum
Corp., 384 U.S. 63, 68 (1966); Eerie R.R. Co. v. Tompkins, 304 U.S. 64, 78-80
(1938). Creating and defining the scope of property interests, especially in real
16
property, is a quintessential area in which state law has historically provided the
source of pertinent authority, including in eminent domain cases adjudicated in the
federal courts. See Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 20
(1990) (O’Connor, J., concurring) (“In determining whether a taking has occurred,
we are mindful of the basic axiom that [p]roperty interests...are not created by the
Constitution[, but r]ather, they are created and their dimensions are defined by
existing rules or understandings that stem from an independent source such as state
law.”) (quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001 (1984), and
Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980)) (internal
quotations omitted).
These basic principles of federalism were acknowledged and applied by the
en banc Court in Georgia Power, culminating in analysis that emphasized the
strength of the state interest in avoiding displacement of its laws in settings where a
private entity took land from a private landowner pursuant to a federal statutory
delegation of eminent domain authority:
In analyzing the state’s interests in having its laws of compensation

apply when a licensee exercises the power of eminent domain under
Section 21 of the FPA, we begin with the state’s interest in avoiding
displacement of its laws in the area of property rights, traditionally an
area of local concern. Since property has been viewed as a bundle of
valuable rights and since the question of what constitutes property is
usually determined with reference to state law, we think it consistent
that the value of those rights also be determined with reference to state
law. Since states, as well as the federal government, have an interest in
providing economical energy to their citizens, their laws of
17
compensation, accommodating that interest with that of insuring that

their condemnee-landowner citizens are compensated in accord with
their (states’) views of what is just, are entitled to weight.
Georgia Power, 617 F.2d at 1123.
The analysis in Georgia Power is discussed at greater length below, but the
important point to note at the outset is that Sabal Trail has not identified any reason
why the structural federalism principles undergirding the Georgia Power holding
should be ignored simply because Sabal Trail acted pursuant to an eminent domain
delegation in the NGA, rather than the (strikingly similar) eminent domain
delegation in the FPA.
A. Georgia Power provides a choice-of-law framework that led the

District Court to properly choose Florida law as a federal rule of
decision for determining the compensation owed to Sunderman.
Despite the length of the Georgia Power opinion, the choice-of-law
framework used by the en banc Court can be concisely summarized. The Court
noted that principles of federalism shape the appropriate starting point for the choice-
of-law analysis, resulting in a framework where state law should not be displaced
unless there is clear legislative intent that federal common law supply the rule of
decision, or a significant conflict between state law and the federal interests or
policies implicated in whatever specific issue is being addressed:
Since the statute [the FPA] does not specify the appropriate rule of
decision, the task of interstitial federal lawmaking falls upon the federal
judiciary in this case to declare the governing law in an area comprising
issues substantially related to an established program of government
18
operation. Thus, the question which remains is whether the federal

court should choose federal common law or state law as the applicable
federal rule.
The answer to this question is largely dependent upon whether one
begins with the position that state law should be adopted unless it is
shown that legislative intent or other sufficient reasons exist to displace
state law with federal common law or with the position that federal
common law should be utilized unless it is shown that legislative intent
or other sufficient reasons exist to warrant adoption of state law. Basic
considerations of federalism, as embodied in the Rules of Decision Act,
prompt us to begin with the premise that state law should supply the
federal rule unless there is an expression of legislative intent to the
contrary, or, failing that, a showing that state law conflicts significantly
with any federal interests or policies present in this case.
Georgia Power, 617 F.2d at 1115-16.
After outlining this framework, Georgia Power applied it, and determined that
nothing in the text or legislative history of Section 21 of the FPA revealed an express
congressional intent to have federal common law rather than state law “supply the
federal rule in determining the measure of compensation in condemnation cases
brought under Section 21.” Id. at 1118. Georgia Power went on to address the
power company’s arguments concerning supposed “conflicts” between Georgia’s
substantive compensation law, and the federal interests and policies reflected in the
eminent domain delegation granted to the power company pursuant to Section 21.
In so doing, Georgia Power explicitly rejected as inadequate the supposed conflicts
and federal interests suggested by the power company/condemnor as a basis for
displacing state law concerning the measure of compensation owed to the
19
landowner/condemnee. Points discounted by the en banc Court included a supposed
general interest in applying uniform federal rules to all private eminent domain
actions authorized by federal statute, and a supposed “conflict” arising from the
increased land acquisition costs to which the power company was exposed by virtue
of applying Georgia law rather than federal common law to determine the
compensation owed to the Georgia landowners. See id. at 1121-24.
The District Court’s decision in this case to select Florida law as supplying
the federal rule of decision for determining the measure of compensation owed by
Sabal Trail to Sunderman comports precisely with the framework adopted in
Georgia Power. Sabal Trail has identified nothing in the plain language or
legislative history of the NGA’s eminent domain delegation provision that requires
or even suggests a legislative intent to mandate federal common law rather than state
law as the rule of decision for determining compensation in inverse condemnation
actions arising pursuant to that provision. And Sabal Trail certainly has not
identified any significant conflict with a specific and articulable federal interest that
would warrant displacing state property law in order to reach a result that differs
from that dictated by the binding framework adopted in Georgia Power.
The inadequacy of Sabal Trail’s attempts to distinguish this case from
Georgia Power is addressed in more detail in Section II.B below. But that discussion
is informed by two important aspects of the Georgia Power decision that warrant
20
specific emphasis. First, Georgia Power based its federalism conclusions on a
painstaking and exhaustive survey of prior Supreme Court precedent concerning
choice-of-law issues in settings where federal interests were implicated in federal
civil litigation, but the pertinent federal statutes did not specifically prescribe rules
of decision governing the resolution of important substantive issues arising in the
litigation. See id. at 1116-1117. The results of this survey were described by the en
banc Court:
The foregoing review of Supreme Court decisions leads us to the

conclusion that they do indeed evidence “a growing desire to minimize
displacement of state law,” and that conclusion strongly supports our
position that state law should be adopted as the federal rule of
compensation unless it is shown that legislative intent or other
sufficient reasons exist to displace state law with federal common law.
Id. at 1118 (internal citation omitted).
Sabal Trail does not acknowledge this aspect of the Georgia Power analysis, and
does not distinguish or even address the body of Supreme Court choice-of-law
precedent that “strongly support[ed]” the conclusions reached by the en banc Court.
Second, a notable theme of the Supreme Court choice-of-law jurisprudence
surveyed in Georgia Power is that when the United States is not a party to federal
civil litigation, and the case instead involves a dispute between private parties that
nonetheless may implicate federal interests, there is generally a stronger case for
using state substantive law as the federal rule of decision when resolving the merits
21
of the dispute.1 This theme is reflected in Georgia Power’s clear distinction between
eminent domain cases in which the United States itself is the condemnor, and those
in which a private party condemnor such as Sabal Trail takes a private owner’s land
pursuant to a federal statutory delegation or licensing of eminent domain authority:
Although federal rules have been applied to the determination of just

compensation in federal condemnation cases where the United States is
the party condemning and paying for the land, we do not deem those
decisions controlling since our case arises in the context of a Section 21
proceeding by a licensee where the nature of the federal interests
involved differs markedly from the nature of the federal interests
involved where the United States is the condemnor. Furthermore, while
also not controlling, there is authority for the application of state law to
questions concerning compensation, such as admissibility of evidence
of consequential damages and the propriety of interest on a
compensation award in condemnation actions brought in federal court
under Section 21. See, e.g., Feltz v. Central Nebraska Public Power &
Irrigation Dist., 124 F.2d 578 (8th Cir. 1942).
Georgia Power, 617 F.2d at 1119-20.
1
Compare Clearfield Trust Co. v. United States, 318 U.S. 363, 67 (1943) (federal
common law chosen as rule of decision in action against United States involving
issuance of a federal check), and United States v. Standard Oil Co., 332 U.S. 301,
310-11 (1947) (uniform national treatment via application of federal common law
deemed appropriate in action by United States against third-party tortfeasor arising
from injury to U.S. serviceman) with Bank of America National Trust & Savings
Ass’n v. Parnell, 352 U.S. 29, 33-34 (1956) (state law would supply federal rule of
decision in litigation between private parties involving federal commercial paper),
Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68 (1966) (state law to supply
federal rule of decision in litigation between private parties relating to federal oil and
gas lease issued pursuant to the Mineral Leasing Act of 1920), and Miree v. DeKalb
County, Georgia, 433 U.S. 25, 30 (1977) (state law held applicable to action against
county by survivors of deceased airline passengers attempting to recover as third-
party beneficiaries of contract between county and Federal Aviation
Administration).
22
To say that Sabal Trail fails adequately to engage this analysis is an
understatement. Sabal Trail devotes the first two sections of its choice-of-law
argument (nearly eleven full pages) to repeatedly citing cases in which the United
States was the condemnor, Sabal Trail Br., pp. 27-38, without ever explaining why
those cases are relevant in light of Georgia Power’s clear holding that such cases are
not a proper basis for displacing state law as the rule of decision for compensation
in eminent domain cases involving private condemnors. See Georgia Power, 617
F.2d at 1119. As explained at length by Georgia Power, and later echoed by the
Sixth Circuit in a nearly identical case arising under the NGA, private licensees who
take advantage of the limited delegation of eminent domain authority conferred by
the FPA and the NGA may nonetheless find their compensation obligations
determined under state substantive law, in part because their status as licensees does
not make them interchangeable with the federal government itself, and does not
implicate the same federal interests that arise when the federal government embarks
on direct participation in a federal infrastructure project using federal labor and
public funds. See id. at 1118-24 (FPA case); Columbia Gas Transmission Corp. v.
Exclusive Natural Gas, 962 F.2d 1192, 1197-99 (6th Cir. 1992) (NGA case). The
distinction between cases involving private for-profit condemnors versus direct
action by the federal government is especially pertinent in eminent domain cases
under the NGA, because the NGA’s primary aim was “to protect consumers against
23
exploitation at the hands of natural gas companies.” Sunray Mid-Con. Oil Co. v.
Fed. Power Comm’n, 364 U.S. 137, 147 (1960) (internal quotations omitted).
There is also no merit to Sabal Trail’s odd suggestion that even if Georgia
Power applies, Florida’s substantive law on eminent domain compensation is
somehow obliged to simply mimic federal common law. Sabal Trail Br., p. 44.
Georgia Power and the Georgia state court cases it cites make clear that the
substantive differences between state and federal eminent domain compensation law
arose precisely because Georgia was not bound, in determining “just and adequate
compensation” under the Georgia constitution, to simply mimic federal law. See
Georgia Power, 617 F.2d at 1114-15 & n.4. In addition, contrary to Sabal Trail’s
suggestion, the seminal Florida case establishing entitlement to attorney fees as a
substantive component of the property rights at issue in eminent domain cases
articulated its holding as a required element of “full compensation” and “just
compensation,” using the terms interchangeably with reference to pertinent Florida
constitutional and statutory language. See Dade Cty. v. Brigham, 47 So.2d 602, 604-
05 (Fla. 1950) (en banc).
B. Sabal Trail offers no valid grounds for distinguishing or ignoring

Georgia Power.
Sabal Trail manages to discuss Georgia Power at length without ever
explicitly acknowledging that it is binding en banc precedent in this Circuit.
Nonetheless, Sabal Trail implicitly acknowledges Georgia Power’s precedential
24
force when it tries repeatedly to distinguish or discount its analysis and holding. But
the various arguments proffered by Sabal Trail boil down to the observation that
Georgia Power involved a private condemnor using the eminent domain delegation
in the FPA, whereas this case involves a private condemnor using the element
domain delegation in the NGA. This point, while true as far as it goes, cannot come
even close to sustaining the weight Sabal Trail places on it, and it provides no basis
for distinguishing or ignoring the careful analysis and clear holding of the en banc
Court in Georgia Power.
1. Neither the plain language nor legislative history of the NGA

require that federal common law displace state property law
when determining compensation in eminent domain cases
arising under Section 717f(h).
Georgia Power already establishes that the eminent domain provision found
at Section 21 of the FPA (16 U.S.C. § 814) does not require federal common law to
displace state law when assessing the measure of compensation owed by private
condemnors acting pursuant to Section 21’s eminent domain delegation. This
holding was based in part on the fact that nothing in the plain language or legislative
history of Section 21 states or even suggests that federal common law must supply
the rule of decision for measuring compensation in eminent domain cases involving
private condemnors. See Georgia Power, 617 F.2d at 1118.
Sabal Trail does not point to anything in the language of the NGA’s eminent
domain delegation (Section 717f(h)) that differs in any meaningful way from Section
25
21’s eminent domain delegation under the FPA. This is not surprising, because the
operative delegation language in the two sections is virtually identical (although
obviously the Federal Power Act addresses “dam[s], reservoir[s] and diversion
structure[s]” whereas the NGA addresses “pipelines, . . . compressor stations, [and]
pressure apparatus). Compare 15 U.S.C. §717f(h) (NGA) (private condemnor
needing land or other property for a pipeline project “may acquire the same by the
exercise of the right of eminent domain in the district court of the United States for
the district in which such property may be located, or in the State courts”) with 16
U.S.C. §814 (FPA) (private condemnor needing land for water resource project
“may acquire the same by the exercise of the right of eminent domain in the district
court of the United States for the district in which such land or other property may
be located, or in the State courts”). Both eminent domain delegations also contain
identical language stating that in condemnation actions in the United States district
courts, practice and procedure “shall conform as nearly as may be with the practice
and procedure in similar action or proceeding in the courts of the State where the
property is situated.” See 15 U.S.C. §717f(h) and 16 U.S.C. §814. See also
Columbia Gas, 962 F.2d at 1197 (quoting “practice and procedure” language from
Section 717f(h) of NGA as “raising a strong presumption” that Congress also
intended state law to supply the federal rule of decision for determining just
compensation in NGA eminent domain cases filed in federal court).
26
The absence of any argument from Sabal Trail engaging the nearly identical
language in the pertinent eminent domain delegations is mirrored by the absence of
any argument relating to the legislative history of either section. This, again, is not
surprising. Georgia Power held that nothing in the legislative history of the FPA
suggested an intent to displace state law governing the measure of compensation in
private-condemnor eminent domain actions filed in federal court. See Georgia
Power, 617 F.2d at 1118. Similarly, the Sixth Circuit in Columbia Gas addressed
the exact question presented here in an Ohio eminent domain case arising under
Section 717f(h) of the NGA, and emphasized that the legislative history of Section
717f(h) supported the decision to follow Georgia Power’s choice-of-law analysis
and apply state law in determining the amount of compensation due:
[W]e note that legislative history of § 717f(h) suggests that it was

intended to mirror the parallel provision of the FPA. See H.R.Rep. No.
695, 80th Cong., 1st Sess., reprinted in 1947 U.S.C.C.A.N. 1477, 1477.
The court in Georgia Power concluded that the FPA’s legislative
history warranted the application of state law. 617 F.2d at 1118.
In sum, we conclude that, although condemnation under the NGA is a
matter of federal law, § 717f(h) incorporates the law of the state in
which the condemned property is located in determining the amount of
compensation due.
Columbia Gas, 962 F.2d at 1199.
The bottom line is that nothing in the text or legislative history of the NGA’s
eminent domain delegation suggests an intent to displace state law when determining
the amount of compensation owed by a private condemnor that has taken private
27
property for a pipeline project. Nor does the NGA’s eminent domain delegation
differ from the virtually identical provision in the FPA on which it was based, which
reinforces the inescapable conclusion that the holding in Georgia Power applies with
equal force and in equal measure to private condemnors in federal eminent domain
litigation arising under Section 717f(h).
2. The NGA’s references to interstate commerce are not a basis

for distinguishing or ignoring Georgia Power.
Because nothing in the NGA’s eminent domain delegation suggests or
supports the displacement of state law when determining compensation, Sabal Trail
resorts to combing through other sections of the statute in an effort to come up with
something that will remove this case from the scope of Georgia Power’s binding
analysis and holding. These arguments fail, for two key reasons. First, most of the
NGA language cited by Sabal Trail is simply jurisdictional language establishing the
“interstate commerce” nexus that is a necessary predicate for federal legislation, and
the FPA addressed in Georgia Power contains multiple similar provisions. Second,
notwithstanding the various NGA provisions invoked by Sabal Trail, Sabal Trail has
not even tried to identify any specific federal interests that would be hampered or
harmed if state law rather than federal common law is used as the federal rule of
decision for determining compensation in NGA eminent domain cases.
Sabal Trail cites preamble NGA provisions that reference the propriety of
federal regulation “in matters relating to the transportation of natural gas and the sale
28
thereof in interstate and foreign commerce,” and exempt from the Act certain purely
intrastate gas transportation activities in settings where state regulatory commissions
certify their ongoing regulatory oversight of these intrastate endeavors. Sabal Trail
Br., p. 40 (citing 15 U.S.C. §717(a) & 717(c)). But the presence of these general
provisions does not suggest or require that federal common law displace state law in
determining compensation owed when private condemnors take land pursuant to the
eminent domain delegation in an entirely separate section (§717f(h)) of the NGA.
Nor can these provisions serve to distinguish Georgia Power, because the FPA
contains similar language requiring an interstate commerce nexus, and exempting
local hydrological projects from federal statutory licensing requirements. See, e.g.,
16 U.S.C. §797(a), (e), & (g) (referencing interstate commerce nexus and
Congressional jurisdiction “to regulate commerce with foreign nations and among
the several States” as necessary predicates to federal investigation and licensing
powers created under the Act); 16 U.S.C. §817 (creating exemption to federal
licensing requirements for certain hydrological projects not affecting “the interests
of interstate or foreign commerce,” and allowing such projects to proceed “upon
compliance with State laws.”).
Moreover, one of the few differences between the eminent domain delegations
in the two statutes is that the delegation in the FPA explicitly requires a nexus to
interstate commerce as a predicate for the exercise of eminent domain by a private
29
condemnor, whereas the delegation in the NGA does not. See 16 U.S.C. §814
(permitting use of eminent domain by private licensee if the Federal Power
Commission (now the FERC) first finds the proposed project is “desirable and
justified in the public interest for the purpose of improving or developing a waterway
or waterways for the use or benefit of interstate or foreign commerce[.]”). It thus
makes little sense to suggest, as Sabal Trail does, that state law is fine for
determining compensation in eminent domain cases involving private condemnors
under the FPA, but only federal common law will do when determining
compensation in parallel cases under the NGA.
3. Sabal Trail’s assertions concerning the supposed “national

interest” in gas pipeline projects are not a basis to distinguish
or ignore Georgia Power.
In addition to its arguments concerning the National Gas Act’s periodic
references to interstate commerce, Sabal Trail also makes a somewhat convoluted
argument based on an FPA provision that directed the Federal Power Commission
to gather facts and submit reports to Congress if it identified any water resource
project that “should be undertaken by the United States itself.” 16 U.S.C. §800(b).
This provision was cited in Georgia Power as evidence that a project undertaken by
a private licensee “does not implicate the interests of the United States to the degree
that it is thought desirable that the project should be undertaken by the United States
itself.” 617 F.2d at 1118. Sabal Trail argues that the absence of a similar provision
30
in the NGA somehow implies that gas pipeline projects are inherently national in
scope, and that therefore federal common law was intended to displace state law in
any NGA eminent domain cases litigated in federal court between landowners and
private condemnors. Sabal Trail Br., pp. 41-43.
There are multiple reasons why the FPA’s “investigate and report” provision
for certain potential water resource projects does not negate the applicability of
Georgia Power, and why the absence of such a provision in the NGA does not in
any way imply that federal common law must displace state law in gas pipeline cases
involving private condemnors. First, the primary point being made in the Georgia
Power excerpt cited by Sabal Trail (including in the portion of the Ninth Circuit’s
Public Utility District No. 1 decision quoted in Georgia Power) involves not the size
of the project, but rather the distinction between the interests of the United States
when engaging in direct development of an infrastructure project, versus the more
limited national interest at stake where the federal government licenses a private
company’s limited use of the eminent domain power in service of a private project
meant to generate private profit:
By issuance of a license the United States is not acting in the national

interest through the licensee to the same extent it would if it undertook
the project itself. The United States acts in the public interest on a
national scale; the licensee often on a local scale, on projects thought to
be of insufficient dimensions to warrant the assertion of national power.
In many cases the requirements of federal permission and regulation
are all that the national interest requires. Frequently the licensee is a
privately owned utility or even manufacturer, seeking the license for
31
purposes of profit.
Georgia Power, 617 F.2d at 1118-19.2
In other words, where there is no direct taxpayer responsibility for the cost of a
project, and no direct federal role in deploying labor to execute the project pursuant
to a specific federal budget and timetable, the limited federal interests that remain
are adequately served by the existence of the statutory licensing process, and by
agency oversight over the activities of private companies acting in pursuit of private
profit, which is exactly what Sabal Trail is doing here.
The second flaw in Sabal Trail’s argument is that by Sabal Trail’s own
logic, the FPA’s “investigate and report” provision proves the opposite of what
Sabal Trail claims. The provision in question shows that water resource projects
at least in theory are of sufficient significance to warrant an explicit statutory
foundation for a direct federal role. The NGA, in contrast, does not explicitly
contemplate a need for a similar statutory foundation for direct federal
involvement in gas pipeline projects, likely because profit-based incentives that
exist for private licensees such as Sabal Trail are sufficient to serve domestic
infrastructure needs. In any event, nothing would stop the United States
government from the direct exercise of its eminent domain power and direct
2
Quoting Public Utility District No. 1 v. City of Seattle, 382 F.2d 666, 669-70 (9th
Cir. 1969) (emphasis added).
32
construction of a gas pipeline via federal and contract labor if it wished to do so.
The fact that the federal government seldom if ever makes this choice in the
natural gas pipeline context proves there is no reason why routine pipeline
construction activities by private condemnors require displacement of state law
concerning the compensation owed to private property owners whose land has
been taken pursuant to Section 717f(h) of the NGA. And in this specific case, the
record contains nothing to suggest that the Sabal Trail pipeline project requires
departing from what is otherwise a clear starting presumption in favor of applying
state law as the federal rule of decision on compensation, especially where this
starting presumption is a key component of the binding Georgia Power choice-
of-law framework. See id. at 1115-16.
The third problem with Sabal Trail’s strained attempt to distinguish Georgia
Power by referencing the FPA’s “investigate and report” provision for water
resource projects is that actual practice under the NGA does not support the
distinction Sabal Trail tries to invoke. Sabal Trail insists that all gas pipeline projects
are “national” in scope, and routinely cross multiple state lines. But FERC records
indicate the opposite, and indeed public data from FERC’s website suggests that the
majority of pipeline projects licensed under the NGA are carried out within a single
state:
33
Year Intrastate/Total Percent of Intrastate

Pipelines
2014 21/27 78%
2015 21/35 60%
2016 27/38 71%
2017 20/35 57%
2014-2017 total 89/135 66%
This table confirms that there is no categorical basis for differentiating private exercises
of eminent domain under the NGA from similar private exercises under the FPA.3
This inability to draw any categorical distinction along these lines negates
Sabal Trail’s unsupported assertion that notwithstanding Georgia Power, the NGA
automatically displaces state law in eminent domain cases involving private
condemnors. And in the absence of any categorical distinction between the
strikingly similar eminent domain provisions in the two statutes, only a clear and
significant conflict between state substantive law and the federal interests implicated
under Section 717f(h) of the NGA could justify displacing state law in cases
involving private licensee/condemnors such as Sabal Trail. See, e.g., Georgia
Power, 617 F.2d at 1115-16; Columbia Gas, 962 F.2d at 1198; Bison Pipeline, LLC
v. 102.84 Acres, 560 Fed. App’x. 690, 695-96 (10th Cir. 2013) (rejecting pipeline
company’s assertion that federal common law should displace state law governing
compensation in NGA eminent domain cases). As discussed below, Sabal Trail on
3
The information and data on which this table is based can be found at:
https://www.ferc.gov/industries/gas/indus-act/pipelines/approved-projects.asp.
34
appeal has not identified any such conflict (because there is none), and it is too late
to do so now.
C. Sabal Trail has not argued that this case involves an important
federal interest that would be significantly harmed by Florida’s
substantive law concerning eminent domain compensation.
Under the governing Supreme Court framework in choice-of-law cases
involving whether and in what circumstances federal courts should apply state
substantive law as federal rules of decision, an important component of the inquiry
usually involves assessing whether “application of the particular state law in
question would frustrate specific objectives of the federal programs.” Kamen, 500
U.S. at 98 (quoting United States v. Kimbell Foods, 40 U.S. 715, 728 (1979) (internal
brackets omitted)). This evaluation of the relative state and federal interests was an
important component of the analysis in Georgia Power and Columbia Gas. In both
cases, after a thorough assessment, the courts came down squarely on the side of
applying state substantive law to determine the compensation owed to private
owners by private for-profit condemnors in eminent domain cases filed in federal
court under the eminent domain delegation provisions of the FPA and the NGA. See
Georgia Power, 617 F.2d at 1118-24; Columbia Gas, 962 F.2d at 1198-1199.
Yet despite this, Sabal Trail’s appeal brief does not specifically discuss the
“weighing of interests” portions of the Georgia Power and Columbia Gas
analysis, and Sabal Trail makes no effort to identify any specific interests or
35
objectives of the NGA that would be significantly undermined or compromised
should Florida’s substantive law be applied in determining compensation.4 There
is no need to regurgitate here the lengthy analysis in both of those cases, in which
the courts (a) identified potential federal interests and also described the strong
state interests in applying state law; and (b) explained in detail why potential
interests such as uniformity of rules and minimizing property acquisition costs
for private condemnors did not justify disregarding state interests and displacing
state substantive law on compensation in FPA and NGA eminent domain cases
involving for-profit licensees such as Sabal Trail. See Georgia Power, 617 F.2d
4
The closest Sabal Trail’s brief comes to touching on this issue is a vague reference,
on pages 46-47, to “a federal interest in having a uniform approach in related
condemnation cases.” But both Georgia Power and Columbia Gas contain detailed
discussion of the “uniformity” issue, and in both cases the courts explained that an
abstract desire for uniformity (a) would not necessarily be served by applying federal
common law against a backdrop of existing state property law, especially given that
private condemnors such as Sabal Trail can generally elect to proceed in either state
or federal court; and (b) did not outweigh the compelling state interest in applying
established principles of state substantive property law when determining
compensation for state landowners. See Georgia Power, 617 F.2d at 1121-24;
Columbia Gas, 962 F.2d at 1198-99.
The two cases cited by Sabal Trail on this point are readily distinguishable, as they
involved entities that were in substantial measure federally funded, and in the
Second Circuit’s Amtrak case, involved a situation in which applying Connecticut’s
substantive law would have subjected Amtrak to complex zoning rules requiring
Amtrak to deploy eminent domain in a manner exceededing the limited scope of its
delegated statutory authority. See Sherwood v. Tenn. Valley Auth., 590 Fed. App’x.
451, 461 (6th Cir. 2014) (TVA case); National Railroad Passenger Corp. v. Two
Parcels, 822 F.2d 1261, 1266-67 (2nd Cir. 1987) (Amtrak case).
36
at 1118-24; Columbia Gas, 962 F.2d at 1198-1199. See also Bison Pipeline, 560
Fed. App’x. at 695-96 (applying state substantive law to determine compensation
in NGA case).
The strength of the “weighing of interests” analysis in Georgia Power and
Columbia Gas may explain why Sabal Trail chose not to tackle that angle of the
choice-of-law issue in its brief. And for Sabal Trail to embark on a “weighing of
interests” discussion in its reply brief, when Sunderman has limited ability to
respond, would be the type of improper and unfair tactic forbidden by well-
established appellate rules that prohibit new issues and new matter in reply briefs.
See United States v. Levy, 416 F.3d 1273, 1275-76 (11th Cir. 2005).
D. Sabal Trail wrongly conflates substantive and procedural law when

arguing against application of Florida’s substantive law governing
compensation in eminent domain cases.
Entitlement to fees and costs in condemnation actions as part of the measure of
compensation in Florida eminent domain cases is rooted in Florida’s Constitution and
common law, and was later reflected by statute. See Fla. Const. Art. X, §6(a);
Brigham, 47 So.2d at 604-05 (“[A]n owner forced into court by one to whom he owes
no obligation cannot be said to have received ‘just compensation’ for his property if
he is compelled to pay out of his own pocket the expenses of establishing the fair
market value of the property, the expenses of which could conceivably exceed such
value”); Jacksonville Expressway Auth. v. Du Pree Co., 108 So.2d 289, 290-92 (Fla.
37
1959) (same); Doerr v. Cent. Fla. Expressway Auth., 177 So.3d 1209, 1215 (Fla.
2015) (“[I]t is fundamentally clear that full compensation under the Florida
Constitution includes the right to a reasonable attorney’s fee for the property owner”).
Despite Florida’s well-established substantive rule that incorporates attorney
fees into the compensation owed property owners in eminent domain cases, Sabal
Trail tries to avoid the implications of Georgia Power and Columbia Gas by
claiming that even if Florida substantive law applies, there is still somehow an
independent prohibition against a federal court awarding attorney fees pursuant to
the authority of state law. Sabal Trail Br., pp. 32-38. This argument begs the
question of whether it is state substantive law or federal common law that should
supply the federal rule of decision governing the determination of compensation in
this case. In addition, Sabal Trail tries to support its argument through the flawed
tactic of repeatedly citing cases in which litigants sought to invoke state procedural
provisions, rather than substantive state law, as the basis for recovering attorney fees
in federal litigation. This reflects a basic misunderstanding of the choice-of-law
issue in this case.
Certainly, federal procedural law applies to condemnation actions under the
NGA. See Southern Natural Gas Co. v. Land, Cullman Cnty., 197 F. 3d 1368, 1374-
75 (11th Cir. 1999) (federal procedure governs condemnations bought under the
NGA, and Rule 71A (now 71.1) supersedes Section 717f(h)). But, as already
38
established, under Georgia Power and Columbia Gas, state substantive law provides
the appropriate federal rule of decision for determining compensation in NGA cases
involving private condemnors. Federal district courts that follow Georgia Power
and Columbia Gas clearly understand this distinction, yet it is ignored by Sabal Trail.
See, e.g., Nat’l Fuel Gas Supply Co. v. 138 Acres, 84 F. Supp.2d 405, 411-12
(W.D.N.Y. 2000) (distinguishing between federal procedural law and state
substantive law in relation to choice-of-law issues under NGA); Fla. Gas
Transmission Co. v. 9.854 Acres, No. 96-14-83-CIV, 1999 WL 33487958, *1 (S.D.
Fla. May 27, 1999) (holding in NGA condemnation case that “Florida substantive
law will control the actual determination of compensation,” and awarding fees and
costs in later ruling);5 Columbia Gas Transmission, LLC v. Booth, No. 1:16CV1418,
2016 WL 7439348, *5-6 (N.D. Ohio Dec. 22, 2016) (recognizing that Rule 71.1
superseded NGA “practice and procedure” language, but that state substantive law
controls the measure of just compensation); Northern Natural Gas Co. v. Kingman,
2 F. Supp.3d 1174, 1179 (D. Kan. 2014) (same); cf. Guardian Pipeline LLC v.
295.49 Acres, No. 08-C-0028, 2008 WL 4830138, *1 (E.D. Wis. Oct. 28, 2008)
(inclusion of fees and costs in a NGA condemnation deemed inappropriate, because
5
The ruling awarding attorneys’ fees is Florida Gas Transmission Co. v. 9.854
Acres, No. 96-14-83-CIV, 2000 WL 33712491 (S.D. Fla. Aug. 25, 2000).
39
under Wisconsin law such items were not part of substantive “just compensation,”
but rather procedural litigation expenses).
Sabal Trail jumbles the issue, citing and quoting assorted federal cases from
other jurisdictions in which litigants sought to invoke state procedural laws or rules
in order to recover attorney fees. Sabal Trail Br., pp. 34, 36-37.6 These cases, even
those arising under the NGA, do not have any bearing on the applicability (per
Georgia Power and Columbia Gas) of Florida’s substantive law concerning
compensation in eminent domain cases. Sabal Trail also string cites cases that state
the obvious: the American Rule is that fees and costs are not awardable absent a
legal or contractual basis. These cases, however, have no bearing on the fact that
Florida substantive law applies to determining compensation in this case, and Florida
substantive law as reflected in Brigham and its progeny establishes reasonable
attorney fees and costs as an indispensable component of the compensation to which
6
Procedural cases erroneously invoked by Sabal Trail include Northern Natural Gas
Co. v. Approximately 9117 Acres, 114 F. Supp.3d 1144, 1171 (D. Kan. 2015) (and
the cases cited therein), Home Savings Bank, F.S.B. v. Gillam, 952 F.2d 1152, 1162
(9th Cir. 1991), and Richmond Elks Hall Ass’n v. Richmond Redevelopment Agency,
561 F.2d 1237, 1334 (9th Cir. 1977). Richmond Elks was also specifically addressed
and distinguished by the en banc Court in Georgia Power, because the court in
Richmond Elks relied heavily on an inapt analogy to a case involving Miller Act
remedies for contractors working on federal property, and also because the
redevelopment agency in Richmond Elks (unlike the Georgia Power Company and
unlike Sabal Trail) was a federally funded entity. See Georgia Power, 617 F.2d at
1119 n.10.
40
a landowner is entitled.7
II. The District Court correctly allowed Jan Sunderman to testify about the
value of the Sunderman family’s property.
A. Jan Sunderman’s testimony was based upon a sound factual

foundation and was consistent with the expert testimony.
The Sunderman family’s orange grove failed in the 1980s due to unusually
cold winters. In the 1990s, the Sunderman family began selling portions of the land
they held for their 860-acre orange grove. Doc.130, p.88. The most profitable use
of the Sunderman family’s land was not for a citrus grove but for residential lots. Id.
Over the next twenty-one years, the Sunderman family subdivided their land
into smaller individual tracts, obtained the necessary land use approvals from local
authorities, marketed this property, met with individual buyers, and sold twenty-
three lots. Doc.130, p.104. Jan Sunderman was involved in this process. As such,
Jan Sunderman had experience subdividing the Sunderman family’s property,
marketing individual lots, and negotiating sales with potential buyers. This
experience equipped her with a well-founded perception of the market for the
Sunderman family’s property, and an understanding of what potential buyers
considered to be desirable, or undesirable, features of the property.
7
Section III of Sabal Trail’s brief complains of a supposed lack of opportunity to
fully brief the choice-of-law issue before the District Court. This assertion is
questionable in light of the procedural history described in the “Proceedings Below”
section of the Statement of the Case, supra at 3-4. It is also moot, because this is an
issue of law, subject to de novo review, that has now been fully briefed on appeal.
41
Jan Sunderman explained that, when a potential buyer expressed interest in
the Sunderman properties, the Sundermans would invite them into their home to
discuss what features of land they were interested in and the type and size of home
they wanted to build. Doc.130, pp.93-94. The Sundermans would then show
prospective buyers the Sunderman’s land and discuss which parcel most suited the
buyer’s objective. Id.
More than twenty years of experience subdividing, marketing and selling the
Sunderman family’s land provided Jan Sunderman the skill, experience and
knowledge to determine the market for this property and to perceive and understand
what buyers, and potential buyers, considered when contemplating a purchase. In
2016, the year Sabal Trail condemned the pipeline easement, the Sundermans
negotiated the sale of two properties to the Scarlotta and Quinones families.
In 2013, the Sunderman family still owned a thirty-nine acre parcel.
Sunderman testified the family did not put this land on the market because this tract
was the most desirable portion of the Sunderman’s land, and she reasonably
anticipated the value of this tract of land would increase as other surrounding
properties were sold. Doc.130, p.95. When the Sundermans learned Sabal Trail
wanted to construct a gas pipeline bisecting the thirty-nine acre tract, the
Sundermans tried to persuade Sabal Trail to choose an alternative route. Id. at 96.
Sunderman explained that, had the pipeline not come through her family’s
42
property, the Sundermans planned to divide the parcel into two prime lots, each with
more than three hundred feet of road frontage. This would have maximized the value
of this land. Doc.130, pp.99-100. Jan Sunderman testified that, based upon her
experience selling and marketing the twenty-three other tracts of the Sunderman
land, these lots had a market value of $18,000 per acre.8 Id. at 100.
Sunderman testified that, once the pipeline easement was condemned across
their property, the Sundermans would try to mitigate the damage caused by the
pipeline by subdividing the thirty-nine acre tract into three lots, two in front and one
in back. Doc.130, p.100. This design would segregate almost all of the pipeline-
traversed land to the two front lots and, thereby, preserve at least some value in the
third lot. Id. Sunderman testified the front “two [lots would be] unsuitable and
virtually unmarketable as home sites to raise a family on” due to the pipeline. Id.
Their highest and best use would be agricultural. Id. Sunderman testified she could
likely sell the front two lots for $35,000 each. Id. at 101. Mitigating the effect of
the pipeline in this manner would enable the third lot to retain “some prospects” for
sale. Id. at 100.
Sunderman testified the front two lots would be almost completely devalued
because families interested in buying their lots are “very careful astute persons[s]”
8
Sunderman testified the recent sales of two other lots were for $10,426 and $18,763
per acre. Doc. 130, p. 108.
43
who do not want a 36-inch pipeline with a “billion cubic feet a day” of a “volatile
combustible substance” flowing across their property. Doc.130, p.98. Jan
Sunderman also noted that, in her experience, buyers and potential buyers moving
to the country want to escape city land-use restrictions. Id. at 98-99. She noted that
buyers of Sunderman properties not only value their privacy, but don’t want to have
to ask a large entity for permission to use their property or have that entity monitor
their property. Id. Sunderman stated the “presence of the pipeline overshadows the
whole property.” Id. at 101.
Given all these considerations, Sunderman believed that after Sabal Trail’s
pipeline bisected the thirty-nine-acre tract, the land was worth $140,000. This is a
diminution of value close to $360,000 compared to what the property was worth
without the pipeline. Doc.130, p.101.
Sabal Trail’s appraiser, Parham, said the value of that property Sabal Trail
took from the Sunderman family was worth only $56,800. Doc.127, p.190-92. Ray,
the appraiser the Sunderman family called to testify, determined the value of the
property Sabal Trail took to be worth at least $315,039. Doc.130, pp.40-41. The
jury awarded the Sunderman family $309,500 in total compensation. This is less
than Sunderman testified the property was worth and less than the appraiser called
by the Sundermans said the property was worth.
Sabal Trail didn’t want the jury to hear any testimony by Jan Sunderman about
44
what Sabal Trail called “stigma” related to the gas pipeline. Sabal Trail appeals
because Judge Moody ruled, “I deny your voir dire, and I overrule your objection,
and all of that can be brought out on cross. If she goes out on a limb, the worse her
testimony is.” Doc.127, pp.163-64. And Judge Moody allowed Jan Sunderman to
testify about the value of the property in the “after-taken” condition as now
encumbered by the gas pipeline. Id. See also Sabal Trail Br., pp. 14-25.
Jan Sunderman did not “go out on a limb.” Her testimony was based upon
her personal experience and perception and her specialized knowledge as an
individual who transitioned the Sunderman citrus grove property from agricultural
to large residential lots, marketed this property, and negotiated and financed the sale
of these lots – including the 2013 sales of Sunderman property to the Scarlotta and
Quinones families.
B. The District Court was correct to allow Jan Sunderman, as an

owner, to testify about the value of her property.
Sunderman’s testimony as the owner of the property is admissible under both
Federal Rule of Evidence 701 (as a lay witnesses) and Rule 702 (as a “skilled”
witness). Rule 701 provides,
If a witness is not testifying as an expert, testimony in the form of an

opinion is limited to one that is: (a) rationally based on the witness’s
perception; (b) helpful to clearly understand the witness’s testimony or
to determine a fact in issue; and, (c) not based on scientific, technical,
or other specialized knowledge within the scope of Rule 702.
This Court explained “[o]pinion testimony by lay witnesses is governed by
45
Federal Rule of Evidence 701…. Notably, ‘Rule 701 does not prohibit lay witnesses
from testifying based on particularized knowledge gained from their own personal
experiences.’” United States v. Jeri, 869 F.3d 1247, 1265 (11th Cir.), cert. denied,
138 S.Ct. 529 (2017) (citing and quoting United States v. Hill, 643 F.3d 807, 841
(11th Cir. 2011), and Fed. R. Evid. 701) (emphasis added).
This Court holds the owner of property is competent to testify as to the value
of his or her property. “Cases binding on this court have held that ‘an owner of
property is competent to testify regarding its value.’ Though such testimony may be
‘self-serving and unsupported by other evidence,’ it is ‘subject to attack through
cross-examination or independent evidence refuting the owner's estimate.’” Neff v.
Kehoe, 708 F.2d 639, 644 (11th Cir. 1983). In Dietz v. Consolidated Oil & Gas, 643
F.2d 1088, 1094 (5th Cir. 1981), an oil and gas company objected to the owner
testifying about the value of the owner’s property, arguing that such testimony was
“inadmissible opinion testimony based solely on speculation and conjecture.” The
old Fifth Circuit rejected that argument and held, “We disagree. The general rule is
that ‘an owner is competent to give his opinion on the value of his property.’” Id.9
9
This Court adopted the old Fifth Circuit’s precedent prior to September 1981 as
controlling precedent subject to en banc reversal by the new Eleventh Circuit.
Bonner, 661 F.2d at 1209. The Dietz court also cited Kestenbaum v. Falstaff
Brewing Corp., 514 F.2d 690, 698 (5th Cir. 1975), modified on other grounds en
banc, 575 F.2d 464 (5th Cir. 1978), cert. denied, 424 U.S. 943 (1979). Accord
Justice v. Pennzoil Co., 598 F.2d 1339, 1344 (4th Cir. 1979), cert. denied, 444 U.S.
967 (1979).
46
In Dietz the oil and gas company argued the owner’s
estimate [of the value of the owner’s property] was based solely on
speculative factors. The record does not bear this out. [The owner]
testified that he personally know of standing crops of other farmers that
had been sold, and, also, that value of standing crops is often computed
at twice the amount of growing costs. Thus, his opinion testimony was
based on more than naked conjecture, and we think the district court
acted properly in admitting it. “The weight of such testimony is, of
course, affected by the owner's knowledge of circumstances which
affect value, and as an interested witness, it is for the jury to evaluate
the credibility of his testimony.”
Dietz, 643 F.2d at 1011.10
When the Federal Rules of Evidence were amended to include what is now
Rules 701 and 702, the Fifth Circuit held that, under both the older and modern
version, an owner may testify about the value of his property. “[U]nder both
[versions of the rules] an owner is competent to give his opinion on the value of his
property.” The old Fifth Circuit held, “however, whether present evidentiary rules
or the new Federal Rules are applied, [the owner’s] estimation of the sum of the
above valuation elements will be admissible since under both an owner is competent
to give his opinion on the value of his property. This rule, established by the weight
of present authority, has now been codified in Rule 702[.]” Kestenbaum, 514 F.2d
at 698-99.
As this Court, and the old Fifth Circuit explained, an owner’s opinion of the
10
Citing and quoting Berkshire Mutual Insurance Co. v. Moffett, 378 F.2d 1007,
1011 (5th Cir. 1967) (citations to record omitted).
47
value of his or her property is admissible and should not be excluded from
consideration. Rather, the recourse available to a party challenging the owner’s
testimony is not to prevent the jury from hearing the owner’s testimony, but to cross-
examine the owner and present countervailing testimony. “An owner's opinion on
value, however, is subject to attack through cross-examination or independent
evidence refuting the owner's estimate with the jury as fact-finder shouldering the
responsibility of judging the credibility of the witness, resolving the conflicting
evidence, and assessing the weight of opinion testimony.” Kestenbaum, 514 F.2d at
699. See also Neff, 708 F.2d at 655 (“[t]hough such testimony may be ‘self-serving
and unsupported by other evidence,’ it is ‘subject to attack through cross-
examination or independent evidence refuting the owner's estimate.’”). In Gregg v.
U.S. Industries, Inc., 887 F.2d 1462, 1469 (11th Cir. 1989), “[t]his Court has
recognized that, in Florida, an owner of property is qualified to testify regarding the
value of his property.”
A landowner is also qualified to testify as a “skilled” witnesses regarding the
value of their property under Federal Rule of Evidence 702. See Advisory
Committee Notes to Federal Rule of Evidence 702. See also Ruud v. United States,
256 F.2d 460, 461 (9th Cir. 1958) (holding that a district court erred by excluding a
farmer’s testimony “who knows the property, knows the farming practice in the
vicinity and the values of land in the neighborhood”).
48
In Kestenbaum, the old Fifth Circuit explained that an owner’s testimony
about the value of his property may also be admissible under Rule 702. “Rule 702
provides: ‘a witness qualified as an expert by knowledge, skill, experience, training,
or education, may testify (to specialized knowledge) in the form of opinion or
otherwise.’” Id. at 699. The Fifth Circuit noted that “The Advisory
Committee…construed Rule 702…to include ‘not only experts in the strictest sense
of the word, e.g., physicians, physicists, and architects, but also the large group
sometimes called ‘skilled’ witnesses, such as bankers or landowners testifying to
land values.” Id. (emphasis added).
NICHOLS ON EMINENT DOMAIN (3rd ed.) §23.04 explains that “nonexpert
testimony” is admissible to establish damage to land. “A witness need not be an
expert in a technical sense to be qualified to render an opinion as to values be
received. … If the court is satisfied that such a witness has a proper foundation of
knowledge to offer his appraisal of value to the jury, the witness should be allowed
to state his opinion as to the value of the land.” Id. §23.04. NICHOLS notes that
nonexperts who are “acquainted with the physical surroundings and the character of
the soil… are able to judge the value of the land taken more accurately than any
outsider, however skilled in the appraisal of real estate.” Id. §23.04.
Federal courts applying Florida law have consistently held “an owner of
property can be qualified to state his opinion as to the value of his property.”
49
Johnson v. Thor Motor Coach, Inc., 2016 WL 1182792, at *6 (M.D. Fla. March 28,
2016) (citing Sparger v. Newmar Corp., 2014 WL 3928556, at *6 (S.D. Fla. Aug.
12, 2014); Ames v. Winnebago Indus., Inc., 2005 WL 2614614, at *3 (M.D. Fla. Oct.
14, 2005); Hill v. Marion County, 238 So.2d 163, 166 (Fla. Ct. App. 1970). “A long
line of precedent establishes a general rule in this circuit that an owner of property
is competent to testify regarding its value.” United States v. An Easement and Right-
of-way Over 6.09 Acres of Land, More or Less, in Madison County, Alabama, 140
F.Supp.3d 1218, 1239 (N.D. Ala. 2015) (quoting Neff, 708 F.2d at 644, and citing
Hessen for Use & Benefit of Allstate Insurance Co. v. Jaguar Cars, Inc., 915 F.2d
641, 646 (11th Cir. 1990), Gregg, 887 F.2d at 1469, Electro Services, 847 F.2d at
1526, TDS, Inc. v. Shelby Mutual Ins. Co., 760 F.2d 1520, 1533 (11th Cir. 1985),
and J&H Auto Trim, 677 F.2d at 1369).
Florida state courts follow this long-established rule that an owner is qualified
to testify concerning the value of the owner’s property. “The rule allowing an owner
to testify regarding the value of his property is based on the owner’s presumed
familiarity with the characteristics of the property, his knowledge or acquaintance
with its uses and purposes, and his experience in dealing with it.” Reliance Ins. Co.
v. Pro-Tech Conditioning & Heating, 866 So.2d 700, 702 (Fla. Ct. App. 2003). See
also Salvage & Surplus, Inc. v. Weintraub, 131 So.2d 515, 516 (Fla. Ct. App. 1961)
(“evidence was admissible under the rule which permits an owner of property to
50
testify as to its value though not qualified as an expert”); State v. Hawthorne, 573
So.2d 330, 333 n.6 (Fla.1991) (“We note that an owner of property is generally
qualified to testify as to the fair market value of his property.”). Florida courts have
followed this rule since at least 1918. See Atlantic Coast Line Railroad Co. v.
Sandlin, 78 So. 667, 669 (Fla. 1918) (“in fixing the value of plaintiff’s farm…it was
not error to permit plaintiff to testify as to the price paid for it, since such testimony
at least tended to show the market value of the farm”).
The overwhelming authority and the controlling precedent of this Court hold
an owner is competent to testify as to the value of her property. When trial courts
get into trouble it is when they improperly exclude an owner from testifying. See,
e.g., LaCombe v. A-T-O, Inc., 679 F.2d 431 (5th Cir. 1982).11 LaCombe held, “the
general principle, acknowledged in this circuit [is] that the owner of property is
qualified by his ownership alone to testify as to its value.” Id. at 433.12 In LaCombe,
11
LaCombe is a 1982 decision of the Fifth Circuit issued after this Circuit was
established and is not, therefore, controlling authority in the same manner as
decisions of the old Fifth Circuit issued before September 1981. Lacombe,
nonetheless, provides compelling authority because it relied upon pre-1981
decisions of the Fifth Circuit.
12
LaCombe cited a number of prior Fifth Circuit decisions, including pre-1981
opinions, as authority for this proposition. See United States v. 329.73 Acres of
Land, 666 F.2d 281, 284 (5th Cir. 1982) (land); Dietz 643 F.2d at 1094 (growing
crops); Meredith v. Hardy, 554 F.2d 764, 765 (5th Cir. 1977) (trucks, camper and
personal property); Kestenbaum 514 F.2d at 698 (“good will” value of a business);
and Berkshire Mutual Insurance Co., 378 F.2d at 1011 (personal property).
51
the trial court excluded an owner’s testimony as to the value of his property. The
Fifth Circuit reversed. “We find therefore find the decision of the district court to be
manifestly erroneous.” Id. at 435 (emphasis added).
The Fifth Circuit held the owner “was automatically qualified to give such
testimony by virtue of his being the owner of the property. …In Meredith, supra,
we stated that ‘(a)n owner is always competent to give his opinion’ and in 329.73
Acres, supra, we stated that ‘the opinion testimony of a landowner as to the value of
his land is admissible without further qualification.’ ‘Such testimony is admitted
because of the presumption of special knowledge that arises out of ownership of the
land.’” Id. at 434.13
C. The district court’s decision allowing Janice Sunderman to testify

is reviewed under an abuse of discretion standard.
Judge Moody faithfully followed and applied controlling precedent when he
denied Sabal Trail’s motion to exclude Jan Sunderman’s testimony and held Sabal
Trail’s remedy was to cross-examine Sunderman. And, how could he not? Had
Judge Moody excluded Sunderman’s testimony it would be manifest error. See
LaCombe, 679 F.2d at 431-35.
Judge Moody made exactly the correct decision. The underlying question
goes to the weight versus the admissibility of Sunderman’s testimony. As explained
13
Quoting Meredith, 554 F.2d at 746, and 329.73 Acres, 554 F.2d at 284.
52
above, Sunderman was qualified to offer her testimony under both Federal Rules of
Evidence 701 and 702. This Court has repeatedly held the remedy available to a
party opposing the testimony is not to exclude the testimony but is to rather cross-
examine the witness or offer countervailing testimony. See, e.g., Kestenbaum, 514
F.2d at 699. Judge Moody afforded Sabal Trail opportunity to cross-examine
Sunderman. And, Sabal Trail did cross-examine Sunderman. Doc. 130, pp. 102-12.
The district court’s decision to allow Sunderman to testify is reviewed under
the abuse of discretion standard. In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137, 152 (1999), the Supreme Court held, “the trial judge must have considerable
leeway in deciding in a particular case how to go about determining whether
particular expert testimony is reliable.” And in General Elec. Co. v. Joiner, the
Court held it will affirm the trial court’s decision unless the court has made a clear
error of judgment or has applied an incorrect legal standard. 522 U.S. 136, 143, 146
(1997) (“We hold, therefore, that abuse of discretion is the proper standard by which
to review a district court's decision to admit or exclude scientific evidence.”). See
also Piamba Cortes v. American Airlines, Inc., 177 F.3d 1272, 1305-06 (11th Cir.
1999). Similarly, this Court held, “[w]e review the District Court’s exclusion of lay
opinion testimony pursuant to the Federal Rules of Evidence for abuse of
discretion.” Williams v. Mosaic Fertilizer, LLC, 889 F.3d 1239, 1250 (11th Cir.
2018). “The admission or exclusion of expert testimony is a matter within the sound
53
discretion of the trial judge. Only if we determine that his decision is ‘manifestly’
erroneous may we find that he has abused his discretion and that reversal is required.
Salem v. United States Lines Co., 370 U.S. 31, 35 (1962). Sabal Trail fails to
demonstrate that the District Court’s decision allowing Sunderman to testify was
“manifest error” and an “abuse of discretion.”
D. Even if the district court erred by allowing Jan Sunderman to

testify about the value of her property, it was harmless error.
Parham, the appraiser Sabal Trail hired, testified the value of the property
Sabal Trail took from the Sunderman family was worth $56,800. Doc.128, pp.64-
66; Doc.127, pp.190-92. Ray, the appraiser the Sunderman family called, testified
that the property taken from the Sunderman family was worth $315,039. Doc.130,
pp.40-41. Sunderman testified that the property was worth $360,000. Doc.130,
p.101.
Sabal Trail complains because, “the jury’s severance damage award exceeded
the range opined by the appraisers [and] the approximately $9,000 difference
between the award and appraiser’s highest opinion of substantial damages
constitutes a substantial impact.” Sabal Trail Br., p. 23. Sabal Trail asserts that Jan
Sunderman’s “improperly admitted or excluded evidence affected the [jury] verdict”
by $9,000. Id. at 24. Sabal Trail asks this Court to reverse the district court and
remand for a new trial.
The principal case upon which Sabal Trail relies for its contention that the
54
district court should have excluded Sunderman’s testimony is Williams. But
Williams provides Sabal Trail no succor. Rhonda Williams sued a fertilizer
company for a toxic tort claiming that the factory generated toxic substances that
“exacerbated various medical conditions from which she suffers.” Id. at 1242. She
also contended that these toxic fumes rendered her home unsalable and of no value.
The district court excluded her testimony and entered summary judgement for the
fertilizer company. Williams appealed, and this Court affirmed the district court’s
decision, finding “the District Court did not abuse its discretion in excluding Ms.
Williams’ lay valuation testimony.” Id. at 1250. This Court noted that “Ms.
Williams does not allege she tried to sell her home or spoke with an appraiser or real
estate agent to ascertain its value. Indeed, she concedes she did not.” Id. This Court
found William’s claim that her property had zero value to be “pure speculation.” Id.
“In fact, Ms. Williams testified from her own knowledge that homes in her
neighborhood, including one on the same block as hers, had recently been sold. This
directly refuted her contention that the value of her home was zero.” Id. at 1251.
This Court affirmed the district court’s decision to exclude Williams’ testimony
because her lay opinion “would not have been based on [William’s] personal
knowledge,” and thus, lacked a foundation.
Jan Sunderman’s testimony, which Judge Moody allowed, is nothing like the
testimony Rhoda Williams proposed to provide and which the district court in Williams
55
rightly excluded. As discussed above, Sunderman’s testimony is based upon her
personal experience, perception and knowledge as the owner of the property who has
marketed, negotiated and sold tracts of the Sunderman property to buyers – including
two sales in the year the pipeline company condemned its easement.
CONCLUSION
This Court should affirm the jury’s verdict and the district court’s entry of
judgment.
Respectfully submitted,
/s/ Mark F. (Thor) Hearne, II

Mark F. (Thor) Hearne, II
Abram J. Pafford
Stephen S. Davis
Meghan S. Largent
Arent Fox LLP
1717 K Street, NW
Washington, DC 20006
(202) 857-6000
(202) 857-6395 (fax)
thornet@ix.netcom.com
Andrew Prince Brigham

Edward Scott Copeland
Trevor Shane Hutson
Brigham Property Rights Law Firm
2963 Dupont Avenue, Suite 3
Jacksonville, FL 32217
(904) 730-9001
(904) 733-7633 (fax)
Counsel for Appellee Sunderman

Groves, Inc.
56
CERTIFICATE OF COMPLIANCE
I certify this brief complies with the type-volume and word limit requirements
of Fed. R. App. P. 32(a)(7)(B)(i) because, excluding the parts of the brief exempted
by Fed. R. App. P. 32(f), this brief contains 12,974 words. This brief complies with
the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style
requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a
proportionally-spaced typeface using Microsoft Word 2013 in 14-point Times New
Roman font.

Counsel for Appellee
57
CERTIFICATE OF SERVICE
I certify that on October 22, 2018, I electronically filed the foregoing with the
Clerk of the Court using the Court’s CM/ECF system.

Counsel for Appellee
58
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Case: 18-11836 Date Filed: 10/22/2018 Page: 1 of 77

United States Court of Appeals for the Eleventh Circuit

SABAL TRAIL TRANSMISSION, LLC,

3.921 ACRES OF LAND IN LAKE COUNTY, FLORIDA, SUNDERMAN

BRIEF FOR APPELLEE SUNDERMAN GROVES, INC.

MARK F. (THOR) HEARNE, II ANDREW PRINCE BRIGHAM

Appellee - Interested Persons or Corporations

Arent Fox, LLP

Brigham Property Rights Law Firm, PLLC

Brigham, Esq., Andrew Prince

Copeland, Esq., E. Scott

Hearne, II, Esq., Mark F. (Thor)

Hutson, Esq., Trevor S.

Sunderman Groves, Inc.

Appellant - Interested Persons or Corporations

Adorno, Esq., Celeste F.

Bauerle, Esq., Kurtis T.

Duke Energy Corporation (NYSE: DUK)

Duke Energy Sabal Trail, LLC

Enbridge Inc. (NYSE: ENB)

Florida Power & Light Company

Florida Southeast Connection, LLC

Gunster, Yoakley & Stewart, P.A.

Harris Harris Bauerle Ziegler Lopez

Harris, Esq., Bruce M.

Harris, Esq., Gordon H. “Stumpy”

Lopez, Esq., Edgar

NextEra Energy Capital Holdings, Inc.

NextEra Energy Pipeline Holdings, LLC

NextEra Energy Power Marketing, LLC

NextEra Energy Resources, LLC

NextEra Energy, Inc. (NYSE: NEE)

Rogers, Pam f/k/a Herring, Pam

Sabal Trail Transmission, LLC

Spectra Energy Corp

Spectra Energy Partners Sabal Trail Transmission, LLC

Spectra Energy Partners, LP (NYSE: SEP)

U.S. Southeastern Gas Infrastructure, LLC

USG Energy Gas Producer Holdings, LLC

Williams Partners L.P. (NYSE: WPZ)

Ziegler, Esq., Felecia G.

Moody, Jr., Judge James S.

STATEMENT REGARDING ORAL ARGUMENT

to the importance of the issues in this appeal.

CERTIFICATE OF INTERSTED PERSONS AND

STATEMENT REGARDING ORAL ARGUMENT ............................................... i

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF CITATIONS ......................................................................................... v

STATEMENT OF THE ISSUES.............................................................................. 1

STATEMENT OF THE CASE ................................................................................. 2

C. The value of the Sunderman family’s property.................................... 5

1. The property Sabal Trail took .................................................... 5

2. Testimony of the pipeline company’s appraiser ........................ 6

3. Testimony of the owners’ appraiser........................................... 7

4. The testimony of the owner, Jan Sunderman............................. 8

D. Standards of review ............................................................................ 12

SUMMARY OF THE ARGUMENT ..................................................................... 12