.

Mike structures acquisitions, navigates bankruptcy proceedings, and resolves commercial disputes for Alaska businesses and Alaska Native Corporations (ANC) — turning complicated transactions into closed deals and contested claims into workable resolutions.

Mike has built his practice around the full arc of business life: getting deals done, restructuring when things go sideways, and litigating when they go wrong. He advises companies ranging from multinational corporations to emerging companies on mergers and acquisitions (M&A), corporate restructurings, complex financings, and commercial disputes — often serving as outside general counsel on strategic matters well beyond any single transaction.

On the transactional side, Mike has guided buyers and sellers through stock sales, asset purchases, and multi-jurisdictional financing arrangements. His M&A work spans industries, including— aviation, seafood processing, construction, healthcare, technology services, and hospitality — as well as the ANC sector, where he has represented corporations in dozens of acquisitions over many years. He also advises clients on corporate governance, debt restructurings, and buy-out arrangements when ownership or capital structures need to change.

Mike's bankruptcy practice covers the full range of stakeholder positions. He has represented debtors, creditors' committees, individual creditors, and bankruptcy trustees — in Alaska courts and in proceedings filed in Delaware, Colorado, Maryland, Illinois, Texas, Washington, and Oklahoma. That breadth gives him a practical understanding of how each party at the table thinks, which makes him an effective advocate whether he is confirming a reorganization plan, defending a preference action, or pursuing a 363 acquisition of distressed assets.

When disputes arise, Mike litigates and negotiates resolutions in the Alaska Superior Court and federal courts. His commercial litigation experience includes breach of contract claims, complex lease disputes, wrongful death matters arising from aviation incidents, and ownership disputes. He approaches litigation with the same business-practical lens he brings to transactions: understanding what a client needs out of a proceeding, not just what the pleadings demand.

Mike's long-standing relationships with clients across the business community reflect a practice built on repeat engagements — from a single acquisition to decades of ongoing counsel. Clients in the ANC community, the healthcare sector, the fishing industry, and the auction and remarketing industry return to him because he understands their industries and the specific legal landscape of doing business in Alaska and beyond.

Select Experience

  • Represented Geneva Woods Pharmacy shareholders in the stock sale of the business to CVS Pharmacy, with the durable medical equipment division spun out to shareholders prior to closing.
  • Represented The Chenega Corporation in numerous multi-million dollar acquisitions over more than a decade, including one transaction exceeding $50,000,000, and the sale of several hotels.
  • Represented VECO Corporation's major shareholder in the $463,000,000 sale of an oil and gas related engineering and construction company to CH2M HILL.
  • Represented Janicki Industries as borrower in three successive financings totaling $129,000,000, including a $52,000,000 facility, a $15,000,000 Utah plant expansion financing, and a $62,000,000 facility.

Education

  • University of Michigan Law School (J.D., 1987)
  • University of Queensland, Australia (1984)
    • Rotary Foundation Fellowship
  • University of Notre Dame (B.A., 1983)

Professional Affiliations

  • Policy Committee Member (Board), Dorsey & Whitney LLP, 2020-2026
  • Co-Chair, Bankruptcy Section of Alaska Bar, 1995-1997

Accolades

  • Chambers USA, Corporate/M&A; Bankruptcy/Restructuring, Alaska, 2005-2026
  • Best Lawyers® Lawyer of the Year, Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law, Anchorage, 2022-2023, 2026
  • Best Lawyers in America®, Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law, 2003-2026
  • Alaska Super Lawyers®, 2013-2015, 2026
  • Business Law, Alaska Business Legal Elite, 2023-2024
  • IFLR1000, Highly Regarded – State, 2019-2023

Bar Admissions

  • Alaska

Court Admissions

  • U.S. Court of Appeals for the Ninth Circuit
  • U.S. District Court for the Districts of Alaska and Colorado
  • U.S. Bankruptcy Appellate Panel for the Ninth Circuit
  • U.S. Bankruptcy Court for Alaska, Colorado, Delaware, Maryland, the Northern District of Illinois, the Eastern District of Texas, the Western District of Washington, the Northern District of Oklahoma

Charitable & Civic Involvement

  • Iditarod Trail Committee
    • President, 2018-2026
    • Board of Directors, 2018-present
  • Covenant House Alaska
    • Board Member, 2008-present
    • Chair, 2014-2016
  • Anchorage Community Development Authority
    • Board Member, 2012-present
    • Chair, 2015 – 2021, 2024-present
  • Stadium Committee, South Anchorage High School

Insights

Client Alert

Trump Administration’s Anti-DEI Effort Comes for Section 8(a) Program—Small Businesses and Alaska Native Corporations May be the Next Targets of Significant Federal Change and Scrutiny

January 27, 2026

Recent SBA directives and statements by senior leaders suggest a fundamental shift in the viability and risk associated with the Small Business Administration’s Section 8(a) contracting program. Federal contractors who are participants of the Section 8(a) Program, as well as those who utilize 8(a) vendors as subcontractors, should reassess risk, compliance strategies, and program viability. On January 22, 2026, SBA announced: (1) new guidance to agency program officials seeking to dramatically reshape admission qualifications for the 8(a) Business Development Program; and (2) the suspension of over 1,000 current 8(a) Program participants—nearly one-fourth of the total program participants. Further, senior officials, including Secretary of War Pete Hegseth, have publicly expressed hostility toward the 8(a) Program, which has been a cornerstone of Federal contracting for decades. These steps are the clearest signals yet that 8(a) participants and ANCs may have significant change to navigate in the near and long term. In this client alert, Dorsey identifies several announced—and likely forthcoming—steps that the Administration may undertake over the coming months. Changes to SBA Admission Qualifications Consistent with “President Trump’s broader effort to eliminate DEI across the federal government,”1 SBA’s new guidance provides that “[n]o applicant to the 8(a) Program shall be denied, nor given any presumptive preference, based solely on his or her race,” and all applicants shall be treated “fairly and equally in compliance with” President Trump’s anti-DEI executive orders: EO 14151 and EO 14173. In addition, “SBA will not approve admissions to the program based on the Biden-era ‘social disadvantage narratives,’ nor will SBA utilize in any way or refer applicants to the related ‘Guide for Demonstrating Social Disadvantage.’” Instead, when considering whether 8(a) Program applicants are socially disadvantaged, SBA “shall consider, for example, such factors as whether such individual has been the victim of illegal or radical DEI policies or illegal affirmative action policies or has otherwise been the victim of discriminatory practices such as race-based quotas, set asides, or hiring targets, in each case, whether by governmental or non-governmental actors.”  This guidance appears to revise key qualifications for program admission in a way that may expand dramatically the pool of entities that could be eligible for participation in the 8(a) program.2 At the same time, traditionally socially disadvantaged individuals and groups may find it difficult to gain access to the program and its suite of benefits.  Suspensions of Current Contractors As Dorsey discussed in a December client alert, SBA directed all entities in SBA’s 8(a) Business Development Program to “provide financial documents for the last three fiscal years, including bank statements, financial statements, general ledgers, payroll registers, contracting and subcontracting agreements, and employment records” by January 5. Following that deadline, SBA announced that over 1,000 8(a) Program participants have already been suspended from the program, the effects of which SBA has not publicly clarified, but appears to mean they are ineligible to receive forthcoming 8(a) awards. SBA explained the suspension was because “they failed to submit the documents SBA requested in December.”3 SBA has reportedly said the suspended firms have 45 days to appeal the suspension and it will release further information in coming days.  What’s Next for the 8(a) Program The 8(a) Program is both statutory, see 15 U.S.C. § 637(a) (authorizing subcontracts to “disadvantaged small business concerns”), and regulatory, see 13 C.F.R. § 124.101 (describing the 8(a) Program). And while some may take comfort in those legal bases for the program, as we have seen for other efforts by the Trump Administration, the existence of statutory appropriations or other provisions has not stopped the Administration from termination of thousands of grants and contracts across a wide spectrum of Federal programs and agencies.  If the Administration follows that playbook, then 8(a) Participants and ANCs should prepare for terminations for convenience. As Dorsey has written elsewhere, although most Federal contracts include express rights for government termination, the exercise of those rights can be challenged in court. Further, to the extent that a contractor accepts the termination for convenience, the contractor is typically entitled to its incurred costs and reasonable profit at the time of the termination, plus reasonable settlement expenses (including attorney fees and consultant costs). A good system to track costs, familiarity with the termination settlement proposal, and good termination project management will be important for contractors to maximize recovery.  Program participants should also prepare for fraud investigations, including by SBA Office of Inspector General and by the Department of Justice. Given recent Administration rhetoric about “widespread fraud and abuse” in the 8(a) Program, we anticipate significant investigations and audit activity.4 Contractors should be aware of the False Claims Act, its treble damages provision, and the qui tam mechanism, which awards to a whistleblower a sizable percentage of any government recovery in a False Claims Act case. Should the Administration maintain its position that the 8(a) Program is subject to fraud and abuse, participants must be prepared to defend FCA claims and should review their compliance programs.  Given the likelihood of further actions by the Administration targeting the 8(a) Program, Program participants such as ANCs should develop a comprehensive legislative, political, and legal strategy to preserve the program. In addition, participants might consider diversification strategies to avoid drawing the ire of the administration.  Dorsey has significant experience advising government contractors, including 8(a) Program participants and ANCs, in analyzing compliance programs, responding to contract terminations, handling FCA-based investigations and complaints, and diversification strategies.  1 SBA ISSUES CLARIFYING GUIDANCE THAT RACE-BASED DISCRIMINATION IS NOT TOLERATED IN THE 8(A) PROGRAM, SBA News Release 26-23, available at https://www.sba.gov/article/2026/01/22/sba-issues-clarifying-guidance-race-based-discrimination-not-tolerated-8a-program (last visited January 25, 2026). 2 Applicants still must satisfy the remaining 8(a) Program admission standards.   3 See SBA News Release 26-23, supra. 4 Id.

Client Alert

Does My Business Qualify for Federal Funding under the CARES Act?

April 1, 2020

Updated April 21, 2020 What small business owners need to know The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act” or “Stimulus Act”), signed into law on March 27, 2020, includes a program administered through the Small Business Administration (SBA) that will assist small businesses, non-profits, and other concerns that have reduced staff, missed payroll, or are simply struggling to make payroll in response to COVID-19 (known as the Paycheck Protection Program). Generally, the Stimulus Act will provide up to $10 million in federal assistance to eligible businesses to pay for a wide range of business expenses incurred through June 30, 2020, without the usual collateral or personal guarantee requirements.  For businesses that retain their employees and hold salaries steady during this time, the federal assistance may be forgiven in its entirety.  Apply for this loan program through your local bank or credit union—most will be authorized to facilitate these loans. Below are the questions that small business owners should consider when determining whether their business qualifies for federal assistance under the Stimulus Act, and a hypothetical applying the legislation as drafted.  A more detailed list of the requirements of the Paycheck Protection Program as set forth in the Stimulus Act may be found here. Note: Federal agencies, such as the U.S. Treasury and the SBA, and local lenders are continuing to promulgate rules, regulations, and guidelines further refining and providing guidance on the Stimulus Act.  Given the fluid and dynamic regulatory landscape at the time of publication, businesses should consult their counsel and local lenders for any additional rules or regulations that may impact their business decisions related to the Paycheck Protection Program.  We hope that this article will help you craft an overall loan strategy. 1. Is my business eligible for federal assistance through the SBA loan program (administered by your local bank or credit union)? For your business to be eligible for federal assistance through the SBA loan program, your business must be the right size and have been in operation at the right time. Is my business the right size? Otherwise eligible businesses that employ less than 500 employees and, as of February 15, 2020, was in existence and had employees will qualify. Nonetheless, if a business has more than 500 employees, it may still qualify for federal assistance under the Stimulus Act as a “small business concern.”  Specifically, the SBA determines whether a business is a “small business concern” using either its total number of employees or its annual receipts.  These standards can vary by industry, so it is important to check the specific rule that applies to your business, but “[m]ost manufacturing companies with 500 employees or fewer, and most non-manufacturing businesses with average annual receipts under $7.5 million, will qualify as a small business.”1 Regardless, a business the employs less than 500 employees and was in operation with at least one employee as of February 15, 2020 is eligible to receive federal assistance under the Stimulus Act.  Importantly, the business’s legal form can be a limited liability company, a sole proprietorship, partnership, corporation, non-profit, or tribal entity. Alaska Native Corporations (ANCs) that are eligible under the SBA’s Section 8(a) business development program are eligible to receive federal assistance under the Stimulus Act.  ANCs that are not Section 8(a) eligible – such as non-profits – may still be eligible if they employ no more than 500 employees or if they otherwise satisfy the requirements for a “small business concern.” Notwithstanding the foregoing, a business concern (excluding non-profits) described under 13 CFR §120.110 remain ineligible. Such concerns include financial businesses primarily engaged in the business of lending, life insurance companies, businesses located in a foreign country (businesses in the U.S. owned by aliens may qualify), pyramid sale distribution plans, businesses engaged in any illegal activity among others. Was my business in operation at the right time? The business must have been in operation on February 15, 2020, and had employees for whom the business paid wages or salaries and payroll taxes or paid independent contractors as of that date. 2. How much federal assistance can I ask for? The amount of federal assistance that your business may be eligible for is based on a calculation tied to your business’s payroll costs, and cannot exceed $10 million.  Generally, the SBA will average your payroll costs over the 12 month period before the loan application is made and multiply that monthly average by 2.5.  However, you do not need to borrow the maximum amount. The intent of the Stimulus Act is to provide a loan that will cover your payroll expenses for about 8 weeks, but it can be used for other qualifying expenses (as further discussed below).  To qualify for a loan, you will need to certify that your business needs financial assistance for ongoing operations in light of COVID-19 disruptions and acknowledge that the loan proceeds you receive from the Stimulus Act will be used to retain workers, maintain payroll or pay other permitted expenses. What if my business ramps up during the summer tourist season? If you are a seasonal employer (as determined by the SBA), the SBA will average your payroll from, at the election of the business, February 15, 2019 or March 1, 2019 and, in either case, ending June 30, 2019, and multiply that monthly average by 2.5. If your business ramps up during the summer tourist season, you may want to elect to have the SBA use your March 1 through June 30, 2019, payroll numbers because it will likely result in a higher average, and thus a higher potential loan amount for your business. 3. Will I have to provide a personal guarantee or collateral for the federal assistance I receive? No.  A business seeking federal assistance through the SBA under the Stimulus Act will not have to provide a personal guarantee or collateral for the loan.  This usual requirement for receiving loans through the SBA has been waived by the Stimulus Act. Similarly, the usual SBA requirement that businesses demonstrate that they cannot obtain credit elsewhere before seeking a loan from the SBA and the application fee for seeking SBA assistance have been waived. 4. How can I use the federal assistance I receive? You can use the Stimulus Act loan to pay for the following business expenses incurred from February 15, 2020, through June 30, 2020: Payroll costs Rent (including rent under a lease agreement) Utilities Payments of interest on any mortgage obligation (but this cannot be used toward the payment of any principal on a mortgage obligation) Costs related to the continuation of group health care benefits, including insurance premiums and the costs of paid sick leave, medical leave, or family leave, and insurance premiums Employee compensation (wages, salaries, commissions, or similar) Interest on any other debt obligations incurred prior to February 15, 2020 If you cannot use the entirety of the loan for eligible expenses incurred on or before June 30, 2020 or if you do not use the loan for forgivable expenses (as further explained below), the remainder becomes a loan with a maximum maturity date of 10 years (unless shortened by additional rules or regulations promulgated by federal agencies) with an interest rate not to exceed 4%.2  The Stimulus Act requires that payments on the principal, interest, and fees on the loan be made on a monthly basis but are deferred for at least 6 months, and up to 1 year, at the discretion of the lenders. 5. Will I have to pay back the federal assistance I receive? It depends.  The intent of the Stimulus Act is to forgive a portion or all of the loan where businesses have retained their employees and maintained wage levels.  However, the loan forgiveness analysis and calculation is complicated. My business has retained its employees and maintained wages – how much of my loan can be forgiven? For businesses that have retained their employees and maintained wages, the loan – up to the principal amount – may be forgiven in the amount equal to certain business expenses incurred and paid in the eight weeks following the disbursement of the loan (the “Forgiveness Expenses Period”).  Those qualifying business expenses are: Payroll costs (including salaries, wages, commissions, or similar compensation) Rent (obligated under a rental/leasing agreement in force before February 15, 2020) Utilities for a service for the distribution of electricity, gas, water, transportation, telephone, or internet access for which the service began before February 15, 2020 Interest on any mortgage obligation (obligated under a debt instrument for a mortgage on real or personal property incurred before February 15, 2020), but not the payment of any principal on a mortgage obligation It is important to note that, although you are permitted to use the loan toward a variety of business expenses, only some of those expenses qualify for loan forgiveness.  Therefore, there is a difference between eligible expenses and eligible forgivable expenses. Another important distinction to note is that eligible forgivable expenses must be incurred and paid in the eight weeks following the disbursement of the loan.  The loan can also be used toward eligible expenses that are incurred from February 15 through June 30 (rather than just the eight weeks following the disbursement of the loan); however, these expenses would not qualify for loan forgiveness. My business has had to reduce the number of its employees – can my loan still be forgiven? Yes.  If your business laid off employees on or after February 15, 2020, the amount of your loan forgiveness may be reduced. The SBA calculates whether you have reduced the number of your employees by comparing: numerator: the average number of full-time employees per month in your employment during the Forgiveness Expenses Period to denominator:  either (at your option): (a) the average number of full-time employees per month in your employment from January 1, 2020, to February 29, 2020, or (b) the average number of full-time employees per month in your employment from February 15, 2019, to June 30, 2019. These numbers will form a fraction, which will then be multiplied by the amount of eligible expenses you have paid during the Forgiveness Expenses Period.  In order to obtain the greatest loan forgiveness possible, you will want this fraction to be as close to 1 as possible. For example, if you employ 90 full-time employees during the Forgiveness Expenses Period, but employed 100 full-time employees during the same period last year, your calculation should look like this: 90 full-time employees per month during Forgiveness  X  qualifying costs   =   90% costs forgiven 100 full-time employees per month Feb. 15-June 30, 2019     If, however, you employed fewer employees in the beginning of 2020 than you did from February to June last year, you would likely want to elect to use the number of employees you had at the beginning of 2020: 90 full-time employees per month during Forgiveness X  qualifying costs   =   94.7% costs forgiven 95 full-time employees per month Jan. 1-Feb. 29, 2020 My business has had to reduce employee salaries – can my loan still be forgiven? Yes.  If your business has been unable to maintain the salaries of its employees from February 15, 2020, to June 30, 2020, the amount of your loan forgiveness may be reduced. The amount of the loan forgiveness will be reduced by the amount of any reduction in total salary or wages of any qualifying employee (under $100,000 in annualized wages for any pay period in 2019) of more than 25% of the total salary or wages the employee received during the most recent full quarter during which the employee was employed before February 15, 2020 (presumably Q4 in 2019). Can I rehire employees or raise salaries to have a greater percentage of my loan forgiven? Yes.  If, prior to June 30, 2020, you rehire your employees or raise salaries that were previously reduced, you can increase the amount of loan forgiveness. The SBA will use the number of full-time employees or salaries of the employees your business employed on February 15, 2020, as a baseline.  If you reduce or have reduced the number of full-time employees or salaries of employees between February 15, 2020, and April 26, 2020, you can rehire those employees or raise those salaries to their previous levels by June 30, 2020, without having that brief reduction impact your loan forgiveness calculation. For example, if you had 90 full-time employees on February 15, 2020, and had to let go 60 employees on March 12, 2020, you could rehire some or all of those 60 employees on or before June 30, 2020, without having the brief reduction in payroll negatively impact your loan forgiveness calculation (in other words, the rehired employees are considered to have worked during the Forgiveness Expenses Period so they are included in the “average monthly” employee count).  As previously noted, however, only eligible forgivable expenses incurred and paid during the Forgiveness Expenses Period, may be utilized in the loan forgiveness calculation. HYPOTHETICAL ABC LLC had a monthly average of 300 employees for the look-back period chosen by the borrower and a monthly average payroll of $1 million for the 12 month period prior to the loan application.  On March 15, 2020, ABC LLC laid off 250 employees due to COVID-19. ABC LLC could be eligible for a loan of up to $2.5 million (2.5 x $1 million monthly payroll average).  ABC LLC applies for the full $2.5 million loan, which is funded on May 1, 2020. Scenario A: Full Forgiveness ABC LLC applies all $2.5 million toward eligible forgivable expenses incurred and paid from May 1 through June 30, 2020.  These eligible forgivable expenses include $2 million in payroll and $500,000 in rent and utilities. Because ABC LLC laid off its employees between February 15 and April 26, 2020, it is eligible for loan forgiveness calculated as though it had not laid off its employees if it rehires the employees before June 30, 2020. Therefore, if ABC LLC hires back all of the employees before June 30, 2020, its entire loan would be forgiven.  This forgiveness calculation would be as follows: 300 (monthly avg. full-time employees during Forgiveness Expenses Period)   X    qualifying costs = 100% forgiven 300 (monthly avg. full-time employees Feb. 15-June 30, 2019)       Because this fraction equals 1, the full loan amount would be forgiven based on the requirements set forth in the Stimulus Act. Scenario B: Partial Forgiveness  During the Forgiveness Expenses Period commencing May 1, ABC LLC spends $1 million of its $2.5 million Stimulus Act loan toward eligible forgivable expenses (e.g., payroll costs, rent, and utilities) and $500,000 toward other eligible (but not forgivable) expenses (e.g.,  utility expenses other than for electricity, gas, water, transportation, telephone or internet).  Although ABC LLC received $2.5 million under the Stimulus Act, it only had $1.5 million in eligible expenses, leaving a remainder of $1 million from the disbursement. ABC LLC rehires only 85 of its laid-off employees effective on May 1, 2020 (perhaps because the remaining 165 laid-off employees would prefer to stay on the increased unemployment benefits).  With these rehired employees, ABC LLC’s monthly employee average is 135 (50 retain employees plus 85 rehired employees) because ABC LLC is eligible for loan forgiveness calculated as though it had not laid off those employees.  The forgiveness calculation would be: 135 (monthly avg. full-time employees during Forgiveness Expenses Period)   X    qualifying costs = 45% forgiven 300 (monthly avg. full-time employees Feb. 15-June 30, 2019)   Under these facts and the requirements set forth in the Stimulus Act, the $1 million spent on forgivable expenses would be forgiven at 45% equaling $450,000.  The remaining $550,000 would not be forgiven.  Additionally, the $500,000 spent toward eligible but not forgivable expenses would not be forgiven. Therefore, the $1,050,000 in non-forgivable expenses ($550,000 plus $500,000) plus the remaining $1,000,000 of the Stimulus Act disbursement, would become a loan for $2,050,000.  The loan would have a maximum maturity date of 10 years (unless shorted by federal agencies’ additional rules or regulations) with an interest rate no higher than 4% interest rate and monthly payments becoming due only after the mandatory minimum 6 month deferral period (which could be extended up to a year at the discretion of the lender). CONCLUSION The small business relief provisions of the CARES Act provide small businesses with powerful tools to help them stay in business and maintain employee continuity.  The loan and loan forgiveness programs of the Act, which are currently being refined by additional rules and regulations promulgated by federal agencies, are intended to keep local economies going by providing small businesses with access to low interest funding and potentially broad loan forgiveness provided the money is used for payroll expenses (for current or rehired employees) and other eligible forgivable expenses. 1 Basic Requirements, U.S. Small Business Administration, https://www.sba.gov/federal-contracting/contracting-guide/basic-requirements. 2 For example, the U.S. Treasury disseminated an information sheet for Paycheck Protection Program borrowers which indicates that the maturity of the loan will be 2 years at a fixed interest rate of 1.00%.  However, at the time of publication of this article, it is unclear whether this guidance from the U.S. Treasury is final or will be further revised.  

Firm Highlights

Insights

The Supreme Court Update - October 8, 2026

On September 29, 2026, the Supreme Court granted certiorari in one case: Department of Homeland Security v. D.V.D., No. 26-426: This case concerns the Trump Administration’s “third-country removal” procedures, where immigrants are deported to countries not listed in the removal orders. In granting certiorari, the Court granted the Government’s application to stay a lower court decision halting the practice, which will allow third-country removals to continue pending resolution of the case. The issues presented are: (1) Whether the district court had jurisdiction over respondents’ claims; (2) whether the district court had authority to enter class-wide declaratory relief and APA vacatur under 8 U.S.C. § 1252(f)(1); (3) whether the Government’s guidance on third-country removals is unlawful under 8 U.S.C. § 1231(b), the due process clause, or FARRA/CAT and its implementing regulations; and (4) such other questions that the Government determines are appropriate for the proper disposition of the case. On October 1, 2026, the Court granted certiorari in three additional cases: Rhoney v. Barbosa da Cunha, No. 26-104: Immigration officials detained Ricardo Aparecido Barbosa da Cunha—a Brazilian citizen who had lived in the United States for approximately twenty years after entering without inspection—and denied him a bond hearing under 8 U.S.C. § 1225(b)(2)(A). The Second Circuit held that his detention was instead governed by § 1226(a), which permits release on bond, because § 1225(b)(2)(A)’s mandatory-detention requirement applies only to noncitizens apprehended while entering the country or shortly thereafter. The question presented is: Whether 8 U.S.C. § 1225(b)(2)(A) mandates the detention pending removal proceedings of aliens who, like Barbosa da Cunha, are present in the United States without having been admitted. Missionaries of St. John the Baptist, Inc. v. Frederic, No. 25-113: A Catholic religious organization sought to build a shrine to the Virgin Mary on land the organization owned adjacent to its church in Park Hills, Kentucky. Local zoning restrictions prohibited the proposed construction. The question presented is: Whether a land-use regulation that prohibits a religious institution from building a religious structure on its own property constitutes a “substantial burden” on religious exercise under the Substantial Burden Provision of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a). Marschner v. Marschner, No. 25-1349: Under the Uniformed Services Former Spouses’ Protection Act (“USFSPA”), a veteran’s longevity-based retirement pay can be divided in a divorce, but retirement pay based on disability and retirement pay that was waived to receive disability pay are indivisible. The question presented is: Does the USFSPA require state courts to refuse enforcement of indemnification provisions in a divorce settlement agreement?

Insights

EPA Limits Title V Re-Litigation of NSR Permits

Overview On September 25, 2026, the U.S. Environmental Protection Agency (“EPA”) published a final rule that significantly limits the ability of third parties to use the Clean Air Act (“CAA”) Title V permitting process to revisit New Source Review (“NSR”) permitting decisions years after those decisions were made. The rule establishes that NSR permitting determinations generally must be challenged during the original permitting proceeding, thereby providing regulated sources with greater permitting certainty and finality for major capital projects. Published in the Federal Register titled Clarifying the Scope of “Applicable Requirements” Under State Operating Permit Programs and the Federal Operating Permit Program (Docket ID No. EPA-HQ-OAR-2023-0401), the rule amends 40 C.F.R. Parts 70 and 71 to codify EPA’s interpretation regarding when requirements established under other CAA programs may be reviewed, modified, or implemented through the Title V operating permit program. The rule becomes effective 30 days after publication. The rule addresses two principal issues: (1) the relationship between NSR preconstruction permitting and Title V operating permits, and (2) the treatment of the General Duty Clause under CAA section 112(r)(1). Most significantly, the rule provides greater certainty for sources navigating the NSR permitting process. EPA’s amendments are intended to ensure that NSR permitting decisions made through an approved public process are generally not revisited later through Title V permit proceedings. The rule responds to a circuit split between the U.S. Courts of Appeals for the Fifth and Tenth Circuits. In Environmental Integrity Project v. EPA, 969 F.3d 529 (5th Cir. 2020), the Fifth Circuit upheld EPA’s interpretation, concluding that it was consistent with the text, structure, and purpose of Title V. In contrast, the Tenth Circuit reached the opposite conclusion in Sierra Club v. EPA, 964 F.3d 882 (10th Cir. 2020), finding that the then-existing regulatory definition of “applicable requirement” did not support EPA’s position. By amending the regulatory language on which the Tenth Circuit relied and codifying the interpretation approved by the Fifth Circuit, EPA has established a nationwide framework governing the interaction between NSR and Title V. NSR and Title V: EPA Establishes a Uniform Nationwide Framework At the core of the rule is EPA’s effort to define the respective roles of NSR and Title V. The rule codifies the approach EPA has applied since 2017: once a source obtains an NSR permit under an EPA-approved permitting program, and that permit was issued following public notice with an opportunity for comment and judicial review, the permit establishes the NSR-related “applicable requirements” of the State Implementation Plan (“SIP”) or Federal Implementation Plan (“FIP”) for Title V purposes. Under this framework, Title V is not a vehicle for re-examining underlying NSR permitting decisions. EPA does not intend to use the Title V process to revisit applicability determinations, emissions calculations, control technology determinations, permit conditions, or other issues resolved through the NSR permitting process. This principle applies regardless of the stage of the Title V proceeding; whether the NSR permit was issued pursuant to a SIP or FIP; the type of NSR issue involved; or whether the NSR permit is incorporated into Title V sequentially or concurrently. Limited Exceptions EPA recognizes several circumstances in which NSR issues may still be reviewed through the Title V program: No NSR permit was issued at all; The permit was issued without public notice and an opportunity for comment and judicial review; or The issue involves substantive overlap between Title V and NSR requirements, such as the adequacy of monitoring provisions. As a result, the rule does not insulate unpermitted projects or foreclose review of matters that independently arise under Title V. Key Regulatory Amendments The rule revises the definition of “applicable requirement” in 40 C.F.R. §§ 70.2 and 71.2. Paragraph (1): Where an NSR permit is issued with public notice and an opportunity for comment and judicial review, the permit establishes and defines the applicable SIP or FIP requirements for Title V purposes. Paragraph (2): All NSR permit terms, including terms contained in minor NSR permits, constitute applicable requirements that must be incorporated into Title V permits. Paragraph (4): CAA section 112(r)(1) (the General Duty Clause) is expressly excluded from the definition of “applicable requirement,” while section 112(r)(7) Risk Management Program requirements remain included. EPA also amended 40 C.F.R. §§ 70.8 and 70.12 to clarify that alleged defects in requirements established outside the Title V process generally do not provide a basis for EPA objection to a Title V permit or for a Title V citizen petition. General Duty Clause Exclusion The rule also codifies EPA’s longstanding position that the General Duty Clause in CAA section 112(r)(1) is not an “applicable requirement” for Title V purposes. EPA points to several considerations supporting that conclusion, including the distinction between the General Duty Clause and Title V permit terms, the provision’s origins in the Occupational Safety and Health Act’s general duty clause, and the different enforcement structures applicable to the General Duty Clause and Title V permit requirements. Importantly, excluding section 112(r)(1) from the definition of “applicable requirement” does not eliminate EPA’s authority to enforce the General Duty Clause independently of the Title V program. The final rule instead clarifies that the General Duty Clause need not—and should not—be incorporated into Title V permits as an applicable requirement. Practical Implications for Regulated Sources Greater Finality for NSR Permits  For projects requiring PSD, nonattainment NSR, or minor NSR permits, the permitting process becomes the primary forum for resolving disputes regarding applicability determinations, emissions calculations, control technology requirements, offsets, and permit conditions. Once an NSR permit is issued through a qualifying public process, regulated sources should face substantially reduced risk that those same issues will be challenged years later through Title V permit proceedings. Reduced Risk of Collateral Permit Challenges Stakeholders have sometimes sought to use Title V permit issuance, renewal, revision, or citizen-petition proceedings to challenge underlying NSR determinations. The final rule makes clear that Title V is not the appropriate vehicle for challenging whether an applicable requirement was correctly established in the first instance. This should reduce the risk of permit delays and uncertainty associated with collateral challenges to previously issued NSR permits. The rule does not, however, eliminate all Title V challenges relating to an NSR permit. Challenges concerning the Title V permit itself—including whether it appropriately incorporates applicable requirements or contains adequate compliance provisions—remain possible. Increased Importance of the Initial NSR Proceeding Because Title V generally will not provide a second opportunity to challenge the substantive validity of an NSR determination, the administrative record developed during the NSR process becomes increasingly important. Permit applicants should ensure that applicability analyses, emissions calculations, control technology evaluations, modeling demonstrations, and supporting technical documentation are thoroughly developed during the original permitting proceeding. For significant projects, applicants may therefore have an additional incentive to identify and resolve potential permitting issues before the NSR permit is issued rather than assuming that unresolved issues can be addressed during a subsequent Title V proceeding. Potential Incentive for Broader Public Participation EPA also notes that permitting authorities may choose to provide public notice and an opportunity for comment for a broader range of NSR permits because permits issued through a qualifying public process receive the benefit of the finality framework established by the rule. Some permitting authorities may conclude that greater public participation at the NSR stage is preferable to uncertainty during subsequent Title V proceedings. Conclusion The final rule is principally a permitting-certainty measure. For sources that obtain NSR permits through a public process, EPA has substantially limited the ability of third parties to revisit underlying NSR determinations through the Title V program. As a result, regulated entities should benefit from greater finality regarding key permitting decisions, reduced risk of collateral permit challenges, and increased certainty when planning and implementing capital projects.

Insights

Construing Congressional Silence: With the Natural Gas Act’s Not Addressing Compensation in Pipeline Condemnations, Can Courts Use State Law to Award Attorney Fees?

On November 9, 2026, the Supreme Court will hear oral arguments in Leonard W. Hoffmann v. WBI Energy Transmission, Inc. to determine: “In private condemnations under the Natural Gas Act, should just compensation be determined by reference to state law?” North Dakota ranchers litigated the price of a natural gas pipeline easement during three years of condemnation proceedings, settled on the easement price, and were awarded attorney fees based on state law, but the fees were denied by Eighth Circuit, which held that because the Natural Gas Act (“NGA”) provision authorizing pipelines to use of eminent domain does not address compensation, the Fifth Amendment standard must necessarily apply, that is, “just compensation” for property, but not attorney fees.1 Four other circuits disagree. The Court will resolve the circuit split, likely making some pipeline condemnations less expensive and quicker or, alternatively, more expensive and take longer. Whatever the result, Congressional action could follow. Background Section 7(c) of the NGA requires the Federal Energy Regulatory Commission (“FERC”) to issue a certificate of public convenience and necessity, before new interstate natural gas pipeline facilities can be constructed and operated.2 Significantly, only a private party – not the federal government, not a state, nor a municipality – can obtain certificate authorization.3 The NGA did not initially address property acquisition, leaving certificate holders to rely on state condemnation law to secure necessary property rights to develop their projects, rendering some with “only an illusory right to build.”4 Congress resolved that by enacting NGA Section 7(h), which vests certificate holders with the ability to exercise eminent domain in a federal or state court where the property is located.5 Yet Section 7(h) does not address compensation: it does not indicate whether attorney fees can be recovered; “it does not even expressly require that just compensation be provided.”6 Litigation over the meaning of the Congressional compensation silence ensued. After Years of Litigation, Parties Agreed on Easement Price, but Not Attorney Fees In February 2018, WBI Energy Transmission, Inc. (“WBI”) received certificate authorization to construct and operate approximately 12 miles of 24-inch diameter pipeline through ranch land in western North Dakota, in the heart of the oil and gas producing Bakken formation of the Williston Basin.7 WBI and the ranchers could not agree on an easement price: the ranchers had recently negotiated easement prices with oil pipelines (which do not have eminent domain rights and must pay “market” prices to obtain easements) and sought a similar deal,8 but WBI was unwilling, instead offering only what it paid for a parallel natural gas line easement years earlier.9 So WBI filed in federal district court a complaint to take by eminent domain a permanent easement and temporary rights-of-way to construct the pipeline. Shortly thereafter, with the agreement of the ranchers, the court ordered that WBI could have immediate use and possession of the easements necessary for construction, leaving for trial the amount of compensation.10 The Fifth Amendment guarantees that private property shall not be taken for public use without just compensation.11 WBI and the ranchers disagreed on what constitutes “just compensation.” WBI maintained that compensation should be determined solely by the “before and after rule” – i.e., the difference between the market value of the land free of the easement and the market value burdened with the easement.12 The ranchers argued that other factors should also be considered, such as market rate paid by oil pipelines for easements on the properties.13 WBI filed a motion in limine to exclude evidence and testimony of such payment information, which the trial judge denied,14 leading to a confidential settlement on the value of the easement, with the ranchers’ reserving their right to seek attorney fees and expenses and WBI’s reserving its right to contest. After three years of litigation, the ranchers sought to recover $383,375.76 – that is, $332,274.96 in legal fees and $50,650.86 in costs and expenses.15 WBI claimed that the amount was unreasonable and should be limited to $220,625.52.16 The trial court, recognizing that the NGA was silent on compensation issues, relied on United States v. Kimbell Foods, Inc.17 to analyze whether to “fill in the gap” with North Dakota condemnation law and ultimately concluded it could award attorney fees and costs.18 WBI appealed. Four Circuits Rely on Kimbell Foods and State Law to Award Attorney Fees Courts have recognized the difference between condemnations by the federal government and a private party: “the sovereign need only pay for what it actually takes rather than for all that the owner has lost.”19 “[W]here the federal government is the condemnor there exists a significant concern about the spending of federal dollars, one that does not exist when a private entity is the condemnor . . . pursuing the condemnation ‘for purposes of profit.’”20 As such, four circuit courts have applied federal common law to allow recovery of attorney fees and costs in condemnations under the NGA.21 “In crafting such federal common law, courts need not inevitably … resort to federal rules,”22 but rather, after weighing various considerations set forth in the Supreme Court’s 1979 opinion in Kimbell Foods, can apply state law.23 In particular, the four circuits answered “no” to each of the following three questions posed in Kimbell Foods: “(1) whether the federal program, by its very nature, required uniformity; (2) whether application of state law would frustrate specific objectives of the federal program; and (3) whether application of uniform federal law would disrupt existing commercial relationships predicated on state law.”24 The Eighth Circuit took a different tack. Eighth Circuit Reversed and Barred Attorney Fees, Breaking with Sister Circuits The Eighth Circuit framed the issue this way: “Under North Dakota law, as the district court points out, attorney fees are available in condemnation proceedings. WBI’s view is that federal law applies because it was exercising the eminent-domain power of the United States, which would owe no attorney fees if it did the condemning.”25 The court then held: “Just compensation” under the Fifth Amendment has a well-established legal meaning that usually equates to “market value,” the “full monetary equivalent of the property taken.” * * * But the focus is always on the value of the property itself, not what the owner spends trying to keep it. * * * Under the Fifth Amendment, property owners cannot recover for “indirect costs” like attorney fees and expenses. Only a statute can require more. * * * [T]he Natural Gas Act says nothing about the measure of compensation due to a property owner.  It does not even use the words “just compensation,” let alone say that attorney fees are available or that an agency or state law can provide them. Without such an exercise of “legislative grace,” the default rules applies: “just compensation” under the Fifth Amendment.26 The Eighth Circuit recognized “that different concerns are at stake when the United States is exercising its own power under the Fifth Amendment…. But these are policy arguments better addressed to Congress.”27 Petition For Writ of Certiorari Granted to Resolve Circuit Split The ranchers filed with the Supreme Court a petition for a writ of certiorari to resolve the split between the Eighth Circuit and four other circuits.28 WBI initially opposed the petition,29 but relented after the Solicitor General urged the court to grant petition and uphold the Eighth Circuit opinion.30 The attorneys general of ten states31 and a national network of eminent domain and property lawyers filed amici curiae (friends of the court) briefs in support of the ranchers’ petition.32 Shortly after WBI and ranchers filed supplemental briefs,33 the Supreme Court granted the petition for certiorari on June 26, 2026.34 Ranchers Focused on Statutory Interpretation, Six Amici on Economic Fairness Rather than rely primarily on Kimbell Foods, the ranchers’ merits brief used statutory interpretation to argue that private condemnation lawsuits under the NGA should use state law compensation rules.35 They contend that, in contrast to various ways that the federal government can take land,36 NGA Section 7(h) grants a limited “delegation of power to take property through a condemnation lawsuit – to file what is sometimes called “a straight condemnation,”37 where authorization to take property is not sought, but instead for the court to adjudicate the value of the property: “If the condemnor wants to buy the property at the court’s price, it tenders payment; if not, it can abandon the condemnation.”38 Thus, the ranchers submit that their rights to compensation under the NGA flow not from the Fifth Amendment, but rather from the NGA’s authorizing “the filing of a lawsuit whose purpose is to adjudicate how much they must be paid for their land.”39 If the condemnor were the federal government, compensation would not be greater than the Fifth Amendment minimum, absent statutory authorization;40 but that does not require the same to result in a private condemnation. The ranchers suggest that several additional reasons support using state law to resolve property compensation issues. First, given that real property law “lies at the core of traditional state authority”,41 compensation should consider “North Dakota’s rule that property owners cannot be made to bear the cost of their condemnation….”42 Second, based on the “Court’s longstanding practice of borrowing state substantive law,” the issue is not whether NGA Section 7(h) incorporates state land valuation rules, but “whether the statute preempts them.”43 Third, unless an easement’s value is above a statutory minimum,44 the condemnor can only file in state court: “If Congress expected those state courts to look to a source of law other than the one they would ordinarily look to in a property case, one could expect it to have left some hint to that effect in the text. But there isn’t one.”45 Fourth, awarding attorney fees under state law is consistent with the purpose of NGA Section 7(h): Respondent suggests that Congress, out of a desire to fix a problem in Missouri (where interstate natural-gas companies lacked an eminent-domain cause of action), also decided to take some money away from farmers and ranchers in places like Iowa (where the companies already had a cause of action). Surely not.46 Six groups filed amicus briefs supporting the ranchers.47 Among them, Florida property owners, who were involved in a different condemnation proceeding,48 contend that (1) compensation rules for federal government acting in its own name should not apply to private, for-profit companies acting under a limited delegation of eminent domain,49 and (2) “property owners who are without economic wherewithal proceed in an unrepresented fashion and are typically forced to accept a compromise close to the amount of the private licensee company’s low offers because they are not otherwise with the means to prepare their own valuation estimates and defend their respective constitutional entitlement to compensation.”50 This was reinforced by a group of property lawyers: In 2016, under the auspices of the Natural Gas Act (“NGA”), the Sabal Trail natural gas pipeline project in Florida took land from Ryan B. Thomas and offered him $6,800 in exchange. A Florida jury later determined that the measure of compensation for Sabal Trail’s taking was $463,439. Sabal Trail had thus initially offered Mr. Thomas 1.4% of his land’s value. Between the initial offer and the jury’s determination of compensation lay months of litigation work by Mr. Thomas and his attorney.51 The property lawyers also argued that affirming the Eighth Circuit’s decision would strip property owners of state law protections in 21 states.52 WBI Argued NGA Silence on Attorney Fees Intentional, Supported by Three Amici WBI’s merits brief contends that condemnation by a private party is nothing new and does not require a different set of rules from the Federal government’s condemning land: “For as long as the eminent domain power has been exercised by the United States, it has also been delegated to private parties.”53 These private delegatees “knitted together the expanding nation by building railroads, bridges, roads, and telegraph and telephone lines”54 and, absent a Congressional directive, paid the fair market value of the property taken, as required by the Fifth Amendment.55 WBI points to a 1943 case, United States ex rel. Tennessee Valley Auth. v. Powelson,56 which summarized then existing law: “[i]n the absence of a statutory mandate, the sovereign must pay only for what it takes, not for the opportunities which the owner may lose”.57 Indeed, Congress knew how to depart from the Fifth Amendment’s fair-market-value measure of condemnation compensation: “One year before enacting Section 717f(h), in the General Bridge Act of 1946, Congress authorized private parties to condemn land for bridges and expressly required that compensation ‘be ascertained and paid according to the laws of [the] State’ where the property sits.”58 Additionally, WBI argues that the ranchers essentially urge the court to adopt a patchwork of individual state compensation laws, which would undermine what Congress did in enacting NGA Section 7(h) --“eliminate state-by-state variation in NGA condemnations so that certificate-holders could efficiently construct interstate pipelines.”59 Three amicus briefs were filed in support of WBI, including one from the Attorney General, who reiterated: “Just compensation under the Fifth Amendment ‘is for the property, and not the owner. Accordingly, ‘indirect costs to the property owner caused by the taking of his land,’ such as ‘attorneys fees’ are ‘generally not part of the just compensation to which his is constitutionally entitled.’”60 Another amicus brief filed by trade associations claimed that interstate natural gas pipelines are responsible stewards of eminent domain, exercising it only as a last resort, as evinced by a survey indicating that, over a recent nine-year period FERC-certificated pipeline projects more than ten miles in length (25,268 tracts) resulted in only 10% of the tracts requiring condemnation and less than one percent (1%) required litigation.61 Finally, the US Chamber of Commerce emphasized the importance of natural gas to businesses,62 and urged the Court not to create obstacles that would “chill investment in essential infrastructure….”63 Crystal Ball Judicial Tension between “Strict Construction” and Support for Property Rights? Hoffmann could set up a clash between a favored method of the Supreme Court for resolving conflicts and a centuries’ long commitment to protecting a fundamental right. Questions during oral arguments could foreshadow which way the Court will lean. On one hand, the Court could rely on NGA Section 7(h)’s “’plain meaning’ derived from an ordinary understanding of the words and structure of the statutory text.”64 Consider the Supreme Court’s rationale in Dobbs v. Jackson Women’s Health Organization,65 which overruled the landmark Roe v. Wade:66 “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provisions including . . . the Due Process Clause of the Fourteenth Amendment.”67 This type of “strict construction”68 aligns most closely with WBI’s argument that Section 7(h) does not specifically provide for attorney fees, and the silence was intentional, given that Congress expressly permitted recovery of attorney fees in eminent domain actions under the General Bridge Act of 1946, the year before enactment of NGA Section 7(h).69 On the other hand, the ranchers’ arguments resonate with a long line of cases protecting property rights. More than 130 years ago, the Court in Monongahela Nav. Co. v. U.S.70 explained that in condemnation cases the courts should adhere to “the rule that constitutional provisions for the security of person and property should be liberally construed.  A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right….”71 Half a century ago, the Supreme Court, in Lynch v. Household Fin. Corp,72 emphasized: “Property does not have rights. People have rights.”73 Three years ago, all nine justices, in Tyler v. Hennepin County, Minnesota,74 ruled for a property owner, holding that a local government cannot keep the surplus profit after selling a seized home for unpaid taxes.75 The policies in these (and other cases cited by the ranchers) would appear to support landowners’ recovering the costs incurred to defend their property in condemnation proceedings. Whether a strict construction of NGA Section 7(h) permits those policies to be realized in Hoffmann remains to be seen. Implications and Possible Congressional Action The amount of compensation offered by pipelines and the length of condemnation proceedings may change, depending on how the Supreme Court rules. If the Court upholds the Eighth Circuit opinion – and concludes that attorney fees and costs cannot be recovered –a landowner may be presented with an unsavory decision: accept the pipeline’s offer or, alternatively, refuse the offer, go to court, and watch legal fees erode any compensation ultimately received. Worse yet, with litigation unlikely, pipelines may submit “low ball” offers, believing that the landowner will not likely want to risk costly litigation. Conversely, if the Supreme Court reverses the Eighth Circuit and holds that attorney fees and costs can be recovered, the number of condemnation cases could increase, as landowners’ eyeing large payouts reject pipeline offers and take their chances in court. This in turn could increase pipeline costs (that are passed on to ratepayers). In short, depending on the Supreme Court rules, pipeline condemnations could become less expensive and quicker or, alternatively, more expensive and take longer. No matter how the Supreme Court rules, Congressional action could (and arguably should) follow. If the Eighth Circuit opinion is affirmed, Congress may be pressured to protect landowner property rights by amending NGA Section 7(h) to provide for the recovery of attorney and fees and costs. Under similar circumstances in 1954, Congress responded to an unpopular Supreme Court opinion on federal regulatory jurisdiction by amending the NGA.76 But even if the Eighth Circuit opinion is reversed, the result would be a geographical crazy quilt of federal common law stitched together from applicable state condemnation statutes, tying recovery of attorney fees in NGA condemnations to the state law in which the property is located, possibly leading to disparate cost recovery by landowners for the same pipeline project, prompting calls for a clear, uniform rule. 1 Click on the hyperlink in the body to access all motions and briefs submitted in the Supreme Court proceeding. 2 NGA § 7(c), 15 U.S.C. § 717(c)(1)(A) (“No natural-gas company … shall … undertake construction of extension of facilities … unless there is in force with respect to such natural gas-company a certificate of public convenience and necessity….). 3 Id. § 2, 15 U.S.C. § 717a (“’Natural-gas company’ means a person engaged in the transportation of natural gas in interstate commerce….; ‘Person’ includes an individual or a corporation.”). 4 PennEast Pipeline Co. v. New Jersey, 594 U.S. 482, 489 (2021). 5 NGA § 7(h), 15 U.S.C. § 717f(h), Pub. Law No. 80-245, 61 Stat. 459 (1947). Section 7(h), in pertinent part, provides: When any holder of a certificate of public convenience and necessity cannot acquire by contract, or is unable to agree with the owner of property to the compensation to be paid for, the necessary right-of-way to construct, operate, and maintain a pipe line or pipe lines for the transportation of natural gas, and the necessary land or other property . . . , it 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. Id. 6 Tennessee Gas Pipeline Company, LLC v. Permanent Easement for 7.053 Acres, 931 F.3d 237, 243 (3d Cir. 2019). 7 Under FERC’s regulations, once issued a “blanket certificate,” an interstate natural gas pipeline may file a “prior notice” for certificate authorization to construct and operate facilities of limited cost, which, if not protested within 60 days after publication in the Federal Register, is authorized by operation of law. 18 C.F.R. § 157.205. On November 30, 2017, WBI filed a prior notice request to construct and operate certain facilities in McKenzie County, North Dakota; because no protests were filed, certificate authorization for the pipeline project was granted by operation of law. WBI estimated the project cost to be $27.2 million (WBI’s Prior Notice Request, Docket No. CP18-21-000 (Nov. 30, 2017) at 8), including $1,115,153 in pipeline right-of-way costs. WBI’s Supplemental Prior Notice Filing, Docket No. CP18-21-000, Exhibit K (Dec. 7, 2017) (Estimated Cost of Facilities). 8 “Leonard Hoffman was offered roughly half the market rate for gas pipeline access across his pastureland….” Chris Bennett, “Lowballed by Eminent Domain, ND Farmers Appeal Landmark Case to Supreme Court,” AG Web (Sept. 16, 2025) https://www.agweb.com/news/business/farmland/lowballed-eminent-domain-nd-farmers-appeal-landmark-case-supreme-court. 9 The pipeline at issue would run parallel to an existing pipeline on the ranchers’ land, which WBI uses to transport gas from the Wild Basin and Garden Creek processing plants to an interconnection with the pipeline system of Northern Border Pipeline Company. Brief of Respondent, Leonard W. Hoffman v. WBI Energy Transmission, Inc., No. 25-159 (filed Sept. 14, 2026) (“Respondent’s Brief”) at 7; id. (“Despite having earlier reached voluntary agreements for WBI’s immediately parallel pipeline at substantially lower rates, petitioners rejected WBI’s compensation offers.”) (citation omitted). 10 WBI Energy Transmission Inc. v. Easement and Right-of-Way Across, 189.9 rods, more or less, Case No. 1:18-cv-078, slip op. (D.N.D. May 7, 2018) (order adopting stipulation). 11 U.S. Const. amend. V (takings clause). 12 See United States v. 1129.75 Acres of Land, 473 F.2d 996, 998 (8th Cir. 1973) (“When land is taken by eminent domain, and the title acquired is not a fee, but merely an easement, the proper measure of damages is the difference between the market value of the land free of the easement and the market value burdened with the easement.”). 13 WBI Energy Transmission, Inc., v. Easement and Rights-of-Way Across 189.9 rods, more less, Case No. 1:18-cv-078, slip op. at 3 (D. ND, April 1, 2021) (Order Denying Plaintiff’s Motion in Limine to Exclude Evidence of Other Transactions). 14 Id. at 17 (“In this case, it may be appropriate for the fact finder to consider comparable pipeline easement transactions, particularly based on the unique natura of pipeline development in the Bakken oil field development occurring in McKenzie County, North Dakota.”). 15 The legal fees were “based upon a total of 1,295.4 hours, billed at hourly rates ranging from $115 to $350.” WBI Energy Transmission, Inc. v. Easement and Right-of-Way Across 189.9 rods, more or less . . . ., 2024 WL 1477719 (D. ND March 5, 2024). “The expenses include payments for court fees, travel expenses, legal research, and expert witness fees.” Id. 16 Each party and various amici curiae have expended considerable time and money to resolve the slightly more than $150,000 difference between the attorney fees and costs actually incurred ranchers and what WBI considered reasonable, underscoring that from the start this appeal has been about whether attorney fees should be awarded, not whether the ranchers’ attorney fees were reasonable. 17 440 U.S. 715 (1979). 18 WBI Energy Transmission, Inc., 2024 WL 1477719. 19 Tennessee Gas Pipeline, 931 F.3d at 244 (citations omitted); cf. Georgia Power, 617 F.2d at 1118 (“Thus by definition a licensed project does not implicate the interests of the United States to the degree that is thought desirable that the project be undertaken by the United States itself.”). 20 Tennessee Gas Pipeline, 931 F. 3d at 249 (citation omitted). 21 See Tennessee Gas Pipeline Company, LLC v. Permanent Easement for 7,053 Acres, 931 F.3d 237, 245 (3d Cir. 2019). The court explained: “Federal common law refers to the development of legally binding federal rules articulated by a federal court which cannot be easily found on the face of a constitutional or statutory provision.” The need for common lawmaking “stems from the inability of legislators to anticipate every possible contingency and the impracticality of judges[‘] returning all unanswered questions to the legislature.” Id. (citations omitted). The Third Circuit explained that “when Congress has not spoken in an area comprising issues substantially related to an established program of government operation, … the Supreme Court has direct[ed] federal courts to fill the interstices of federal legislation according to their own standards.” Id. (internal quotations and citations omitted). 22 Id. (citation omitted). 23 Id. The Supreme Court in Kimbell Foods was tasked with either crafting a uniform, national rule or, alternatively, utilizing state law, to determine whether contractual liens under federal loan programs take precedence over private liens. After establishing and applying a three-part test, the Court ultimately decided that nondiscriminatory state laws should be utilized. 440 U.S. at 740. The 3rd Circuit in Tennessee Gas Pipeline ruled that Kimbell Foods “and its progeny reflect a presumption in favor of state law, one not rebutted here.” 931 F.3d at 255. 24 The 5th Circuit applied Kimbell Foods first in a condemnation involving the Federal Power Act (Georgia Power Co. v. 138.30 Acres of Land, 617 F.2d 1112 (5th Cir. 1980)) and later in an NGA condemnation. Mississippi River Transmission Corp. v. Goerge S. Tabor, 757 F.2d 662 (5th Cir. 1985). The 6th Circuit (Columbia Gas Transmission Corp. v. Exclusive Natural Gas Storage Easement, 962 F. 2d 1192 (6th Cri. 1992), 3rd Circuit (Tennessee Gas Pipeline Co., 931 F. 3d at 245-46), and 11th Circuit also followed suit. Sabal Trail Transmission, LLC v. 18.27 Acres of Land in Levy County, 59 F.4th 1158 (11th Cir. 2023). The geographic footprint of each of these four circuits include significant oil and gas formations and, therefore, associated pipeline transportation systems: Third Circuit (Marcellus Formation), Fifth Circuit (Eagle Ford, Haynesville, and Permian Formations), Sixth (Devonian, Marcellus, and Utica Formations), and Eleventh Circuit (transmission from Marcellus and Utica Formations). These formations account for approximately 75% of the natural gas produced in the U.S. Ryan Bellafontaine, “Mapped: Where is U.S. Natural Gas Produced?” (Aug. 17, 2026) (Sources: EIA 2026) https://www.visualcapitalist.com/sp/sc02-mapped-where-is-u-s-natural-gas-produced/. 25 WBI Energy Transmission, Inc. v. 189.9 Rods, More or Less, 1332 F.4th 1058, 1060 (8th Cir. 2025). 26 Id. at 1060-61. 27 Id. at 1062. 28 Leonard W. Hoffmann v. WBI Energy Transmission, Inc., petition for cert. filed, No. 25-159 (U.S. Aug. 7, 2025) at 8-11. The petition was a long shot. Each year, the Court reportedly receives more than 7,000 petitions for a writ of certiorari, but only hears oral argument for 100 or less. Nora Collins, “The serious decline in petitions before the Supreme Court,” SCOTUS Blog (May 11, 2026) https://www.scotusblog.com/2026/05/the-serious-decline-in-petitions-before-the-supreme-court/. 29 WBI argued that “this case is a poor vehicle for review of the question presented” because North Dakota does not require, but merely allows the award of attorney fees (Brief in Opposition of WBI Energy Transmission, Inc. No. 25-159 (Oct. 2025) at 2) and urged the Court to wait and see if other courts agree with the 8th Circuit. Id. 30 Brief for the United States as Amici Curiae, No. 25-159 (May 22. 2026) at 2. 31 The ten states on brief included North Dakota, Alabama, Arkansas, Florida, Idaho, Indiana, Louisiana, Nebraska, South Carolina, South Dakota, Tennessee, and Texas. Brief of North Dakota, as Amici Curiae in Support of Petitioners, No. 25-159 (Sept. 8, 2025) at 4 (“just compensation” should be determined under state law because, among other things, the NGA “was not intended to displace traditional state authority for assessing real property value.”). 32 Owners’ Counsel of America as Amici Curiae in Support of Petitioners, No. 25-159 (Sept. 10, 2025) at 8 (presenting a survey showing that property owners in nearly half the states “would be stripped of their guaranteed rights if the Eighth Circuit’s choice-of-law analysis were adopted nationwide.”). 33 Respondent’s Supplemental Brief, No. 25-159 (June 8, 2026) at 1 (agreeing that cert should be granted, but “reserv[ing] the right to argue on remand, should it become relevant, that North Dakota law does not in fact include attorneys’ fees in the state’s measure of just compensation.”); Petitioners’ Supplemental Brief, No. 25-159 (June 5, 2026) at 2 (contrary to the Attorney General’s argument, requiring condemnors to pay for attorney fees would not incentivize landowners to draw out disputes to increase a potential fee award, any more than the status quo encourages condemnors to make unreasonable compensation offers). 34 https://www.supremecourt.gov/qp/25-00159qp.pdf; Sup. Ct. R. 16. (if a petition for certiorari is granted, “[t]he case then will be scheduled for briefing and oral argument.”). 35 The ranchers’ merits brief argues that the Kimbell Foods analysis leads to the same result as the statutory interpretation analysis. Brief of Petitioner, Leonard W. Hoffman v. WBI Energy Transmission, Inc., No. 25-159 (filed August 13, 2026) (“Petitioners’ Brief”) at 37-42. 36 Id. at 13-14 (unlike private parties, the federal government can take property by (1) seizing private property directly, leaving the owners to sue for compensation or (2) invoking the Declaration of Taking Act, where a condemnor takes immediate title to property, leaving compensation litigation for another day). 37 Id. at 14, citing Kirby Forest Indus., Inc. v. U.S., 467 U.S. 1, 3 (1984). 38 Petitioners’ Brief at 14. 39 Id. at 15. 40 Petitioners’ Brief at 15-16, citing Library of Congress v. Shaw, 478 U.S. 310, 317 & n.5 (1986). 41 Petitioner’s Brief at 17, quoting Sackett v. EPA, 598 U.S. 651, 679 (2023). 42 Petitioners’ Brief at 18; see also id. at 24 (arguing that, for nearly two centuries, Congress has known that the Supreme Court routinely interpreted federal claims by applying substantive state law), citing McCluny v. Silliman, 3 Pet. 270, 276, 278 (1830 (applying state limitations period to plaintiff’s rights under federal law). 43 Petitioners’ Brief at 26; see Agency Holding Corp. V. Malley-Duff & Associates, Inc., 483 U.S. 143, 158 (1987) (Scalia concurring). Thus, for example, “congressional silence on the [statute of] limitations issue is ordinarily insufficient to pre-empt state statutes….” Agency Holding Corp., 483 U.S. at 162. 44 See NGA § 7(h), 15 U.S.C. § 717f(h) (“the United States district courts shall only have jurisdiction of cases when the amount claimed by the owner of the property to be condemned exceeds $3,000.”). 45 Petitioners’ Brief at 29. 46 Id. at 32. 47 Six amicus briefs supporting the ranchers were filed on August 13, 2026 in Leonard W. Hoffman v. WBI Energy Transmission, Inc., No. 25-159: Brief of Florida Property Owners Ryan Thomas, Lee Thomas Trust, and Sunderman Groves, Inc. (“Florida Property Owners Brief”); Brief of Gary R. Erb and Lynda Like (“Pennsylvania Property Owners’ Brief”); Brief of Owners Counsel of America (“Owners Counsel Brief”); Brief of Landowner Groups, (“Landowner Groups’ Brief”); Brief of Pacific Legal Foundation (“PLF Brief”); Brief of National Association of Realtors, American Farm Bureau Federation, and Realtors Land Institute (“Realtors Brief”). 48 The Florida property owners report that ten years ago Sabal Trail Transmission, LLC (“Sabal Trail”) filed 263 condemnation cases in federal courts for a 247-mile corridor to construct a 36-inch pipeline to transport 1 Bcf/day. Florida Property Owners Brief at 13-14. In August 2026, the Florida property owners received notice that Sabal Trail is evaluating expansion pipeline project running near or along the current route for 482 miles, (id. at 14) increasing the stakes at issue in Hoffmann. 49 Id. at 8-9 (“Federal actors are ultimately accountable to federal officials, sworn to uphold the Constitution, charged with promoting the public good, and held accountable by the voters on Election Day. * * * And, in direct federal condemnations, the federal government retains a continued ownership interest in the property taken . . . .”); see Pennsylvania Property Owners’ Brief” at 2 (while NGA § 7(h) delegates the power to condemn, “it does not transfer every rule or governmental protection that accompanies condemnation by the United States.”); id. at 7, citing U.S. v. Carmack, 329 U.S. 230, 243, n.13 (1946) (distinguishing federal officers acting for the sovereign from private entities authorized to condemn “on behalf of themselves”, whose grants “are, in their very natural grants and of limited powers” that “do not include sovereign powers greater than those expressed or necessarily implied.”). 50 Florida Property Owners’ Brief at 4; id. at 5 (for private licensee companies exercising eminent domain rights under the NGA, “the Fifth Amendment’s measure of compensation should serve as a floor and not a ceiling” -- to do otherwise, “state created rights to attorneys’ fees will be stricken in six of the seven states of the Eighth Circuit, and will be at serious risk in at least 15 other states if the Eighth Circuit’s new-fashioned split widens.”). 51 Owners Counsel Brief at 2 (internal citations omitted). “In the Sabal Trail pipeline litigation, condemnors spent a combined $8.3 million on appraisal work alone across the project.” Id. at 6 (citation omitted); see also Landowner Groups’ Brief at 5 (“The Eighth Circuit’s decision threatens to alter that bargaining framework well before any condemnation proceedings begin. If a company exercising eminent domain … may disregard state compensation protections and pay only the federal constitutional minimum, its fallback position becomes less costly, changing the baseline against which voluntary easement negotiations occur.”). 52 Owners Counsel Brief at 10-17 (list of 21 state statutes providing condemnation protection); see PLF Brief at 4 (distinguishing cases relied on by the 8th Circuit); see also Realtors Brief at 5 (cautioning that the 8th Circuit’s reasoning could incentivize “advocates for more public control of private interests….”) (citation omitted). 53 Respondent’s Brief” at 2, quoting PennEast, 594 U.S. at 495; see Respondent’s Brief at 2, quoting Luxton v. North River Bridge Co., 153 U.S. 525, 530 (1894) (Congress “may at its discretion, use its sovereign powers, directly or through a corporation * * * for the accommodation of interstate commerce.”). 54 Respondent’s Brief at 4. 55 Id. at 2, United States v. Miller, 317 U.S. 369, 374 (1943) (“[T]he courts early adopted, and have retained the concept of fair market value” as the appropriate compensation); United States v. New River Collieries Co., 262 U.S. 341 344 (1923) (“More would be unjust to the United States, and less would deny the owner what he is entitled to.”). 56 United States ex rel. Tennessee Valley Auth. v. Powelson, 391 U.S. 266 (1943). 57 319 U.S. at 281-82. 58 Respondent’s Brief at 2, quoting 33 U.S.C. § 532. 59 Respondent’s Brief at 28 (citation omitted). 60 Brief for the United States, Leonard W. Hoffman v. WBI Energy Transmission, Inc., No. 25-159 (filed Sept. 21, 2026) at 12 (citations omitted). The Attorney General also noted that the Supreme Court had recently ruled that eminent domain power delegated to a certificate holder is “categorical,” that is, absolute and unconditional. Id. at 10, citing PennEast Pipeline Co., 594 U.S. at 498. 61 Brief of the Interstate Natural Gas Association of America and American Petroleum Institute, Leonard W. Hoffman v. WBI Energy Transmission, Inc., No. 25-159 (filed Sept. 21, 2026) at 11. “INGAA” is the natural gas pipeline trade association, while “API” represents all aspects of the oil and gas industry. Id. at 1. 62 Brief of the Chamber of Commerce of the US, Leonard W. Hoffman v. WBI Energy Transmission, Inc., No. 25-159 (filed Sept. 21, 2026) at 4-6. 63 Id. at 9. 64 Bradley C. Karkkainen, “Plain Meaning”: Justice Scalia’s Jurisprudence of Strict Statutory Construction,” 17 Harv. J.L. & Pub. Pol’y 401 (1994). 65 597 U.S. 215 (2022). 66 410 U.S. 113 (1973). 67 Id. at 231. 68 See id. at n.9 (strict construction “refers to a construction that narrows the scope of coverage or application of a statute….”). 69 See West Virginia v. EPA, 597 U.S. 697, 723 (2022) (“We presume that ‘Congress intends to make major policy decisions itself, ….”) (citation omitted). In applying the “major question doctrine,” the Court explained: “The question there [American Elec. Power. Co. v. Connecticut, 564 U.S. 131 (2011)] however, was whether Congress wanted district court judges to decide, under unwritten federal nuisance law, ‘whether and how to regulate carbon dioxide emissions from powerplants. We answered no….”’ 597 U.S. at 731. Another reason supports the efficacy of WBI’s argument: the Roberts Court has been labeled “business friendly,” with business winning on average 71% of the cases before the Supreme Court from 2010-20. Lee Epstein and Mitu Gulati, “A Century of Business in the Supreme Court, 1920-2020,” 107 Minn. L. Rev. 49, 59 & n.36-37 (2022). 70 148 U.S. 312 (1893). 71 Id. at 325. The Court concluded that if the government condemns a series of locks and dams built by a company to make a river navigable, whose passage is compensated with tolls, it must compensate a company not just for the value of the tangible property, but also for the franchise to take tolls. Id. at 344-45. 72 405 U.S. 538 (1972). 73 Id. at 552. After lower courts allowed a credit union to seize a woman’s savings account (without notice) for failure to repay a loan, the Court remanded and explained: “The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a ‘personal’ right ….” Id. (emphasis added). 74 598 U.S. 631 (2023) (J. Gorsuch and J. Jackson concurring). 75 After Hennepin County sold her condominium $40,000 to satisfy a $15,000 tax bill and kept the surplus, a 94-year-old woman filed claims (under the takings clause of the Fifth Amendment and Excessive Fines Clause of the 8th Amendment) against the county, which the trial court dismissed for failure to state a claim, and the 8th Circuit affirmed. 598 U.S. at 635-36. In a companion case, Sackett v. EPA, 598 U.S. 651 (2023), landowners wanting to build a house used sand and gravel to fill in a lot next to a ditch, but the Environmental Protection Agency (“EPA”) considered their land protected wetlands under the Clean Water Act, told the landowners that they could not build, directed them to remove the sand and gravel or face $40,000/day fines. Id. at 662. The Supreme Court reversed the underlying opinion siding with the EPA and limited the scope of the “waters of the United States,” allowing the landowners to build their house. Id. at 684. 76 NGA § 1(c), P.L. 83-323, 68 Stat. 36 (1954) (exempting from federal regulation natural gas companies operating entirely within a single state, effectively overturning FPC v. East Ohio Gas Co., 338 U.S. 464 (1950) that had ruled an otherwise local, in-state gas company was subject to federal regulation because it crossed state lines to receive gas).

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Dorsey & Whitney Advises Beijing Xunzhong on Two Consecutive H Share Placings Raising HK$418.5 Million

International law firm Dorsey & Whitney LLP acted as Hong Kong legal advisors to Beijing Xunzhong Communication Technology Co., Ltd. (“Xunzhong”) as to Hong Kong law in connection with two consecutive placings of new H shares under general mandate (the “First Placing” and the “Second Placing”, respectively, and together, the “Placings”). Xunzhong’s H shares are listed on the Main Board of the Hong Kong Stock Exchange (Stock Code: 2597). Winbull Securities International (Hong Kong) Limited acted as sole overall coordinator and placing agent on both Placings. The First Placing of 11,190,000 new H shares at HK$28.20 each was completed on September 17, 2026, followed by the Second Placing of 3,550,000 new H shares at HK$29.00 each on October 30, 2026. The Placings raised approximately HK$315.56 million and HK$102.95 million in gross proceeds, respectively, or approximately HK$418.51 million in aggregate (approximately HK$415.96 million in aggregate net proceeds). Both Placings were conducted under the same general mandate granted by shareholders at Xunzhong’s 2025 annual general meeting, and each was completed within one week of the signing of its placing agreement. Completing placings in consecutive months is relatively uncommon in the Hong Kong market, and doing so called on the technical depth of Dorsey’s Hong Kong Capital Markets team. Working closely with Xunzhong to understand its business needs and prepare the transaction documents, the team addressed in quick succession the remaining capacity under the general mandate, disclosure of the use of proceeds and the maintenance of Xunzhong’s public float, enabling both Placings to be completed seamlessly. “We are pleased to have advised Xunzhong on both Placings,” said Rachel Han, Partner and Co-Head of Dorsey’s Asia Capital Markets practice. “We appreciate the trust placed in our team and the close collaboration among all parties involved. We look forward to supporting Xunzhong as it continues to execute its growth strategy and pursue future capital markets opportunities.” Xunzhong is principally engaged in cloud-based communications services and enterprise digitalization services in the PRC. As disclosed in its announcements, the net proceeds of the First Placing are allocated to developing Xunzhong’s new computing power operation services business, while those of the Second Placing will be used to integrate model-as-a-service (MaaS) and AI agent capabilities into its existing cloud communications platform-as-a-service (PaaS) platform and software-as-a-service (SaaS) products. Approximately 55% of the net proceeds of the Second Placing will be used for computing power equipment upgrades for the MaaS system, approximately 35% for MaaS, PaaS and SaaS platform upgrades, and approximately 10% for working capital and general corporate purposes. With a single MaaS platform and shared computing power supporting its PaaS and SaaS offerings, Xunzhong intends for its MaaS, PaaS and SaaS capabilities to complement and reinforce one another, and to address customer needs from multiple angles, from embedding AI in customer communications and business workflows to maintaining stable performance at scale and keeping customer data within controlled environments. Partner and Co-Head of Dorsey’s Asia Capital Markets practice Rachel Han and Of Counsel in the Capital Markets and Corporate Compliance group Carlton Ng, along with Associate Kristy Ting, led the Dorsey Hong Kong Capital Markets & Corporate Compliance group in advising Xunzhong on both Placings.