                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 02-3734
NORTHERN BORDER PIPELINE COMPANY,
                                              Plaintiff-Appellee,
                               v.

64.111 ACRES OF LAND IN WILL COUNTY,
ILLINOIS, et al.,
                                Defendants-Appellants.
                     ____________
       Appeal from the United States District Court for the
         Northern District of Illinois, Eastern Division.
           No. 00 C 3122—Paul E. Plunkett, Judge.
                         ____________
ARGUED SEPTEMBER 4, 2003—DECIDED SEPTEMBER 19, 2003
                    ____________


 Before FLAUM, Chief Judge, and EASTERBROOK and
MANION, Circuit Judges.
   EASTERBROOK, Circuit Judge. Federal law permits a
natural-gas pipeline to condemn private land in order to
assemble a transportation corridor, if the owner and the
pipeline cannot agree on a price for the acquisition. See 15
U.S.C. §717f. Northern Border Pipeline Co., which has been
licensed by the Federal Energy Regulatory Commission to
build and operate an extension to an existing pipeline, filed
a complaint seeking the condemnation of 16 tracts of
land in Will County, Illinois. The owners wanted a jury (or
perhaps 16 juries) to determine “just compensation” for
2                                              No. 02-3734

these takings. They observed that §717f(h) requires federal
courts in gas-pipeline-condemnation cases to follow state
practice, and that Illinois affords owners jury trials in
condemnation proceedings. But the court concluded that
Fed. R. Civ. P. 71A(h) supersedes §717f(h) and permits
it to choose among a bench trial, a jury trial, and valua-
tion by a commission. The district judge appointed a com-
mission, which set values that the owners do not now
contest. Nonetheless, they contend, the case should be
remanded so that one or more juries can make independent
awards, which the owners hope will be higher.
  When concluding that Rule 71A(h), which was adopted
in 1951, supersedes §717f(h), which was enacted in 1938,
the district judge relied not only on the language of Rule
71A but also on the dictum in Kirby Forest Industries, Inc.
v. United States, 467 U.S. 1, 4 n.2 (1984), that Rule 71A
creates a nationally uniform practice, and the holding
of Southern Natural Gas Co. v. Land in Cullman County,
197 F.3d 1368 (11th Cir. 1999), that Rule 71A(h) displaces
the conformity clause of the Natural Gas Act, in particular.
According to the owners, however, §717f(h) should be
applied because repeals by implication are disfavored, and
Rule 71A, which does not mention §717f(h), thus should
not be treated as repealing the statute.
  That’s not a helpful way to think about the interac-
tion between procedural rules found in statutes and those
in the national rules. The Rules of Civil Procedure, which
are established by the Supreme Court under the Rules
Enabling Act, cannot “repeal” any statute; the Constitution
does not give the Judicial Branch any power to repeal
laws enacted by the Legislative Branch. But Congress
may itself decide that procedural rules in statutes should
be treated as fallbacks, to apply only when rules are
silent. And it has done just this, providing in what has
come to be called the supersession clause of the Rules
Enabling Act that “[a]ll laws in conflict with such rules
No. 02-3734                                                3

shall be of no further force or effect after such rules have
taken effect.” 28 U.S.C. §2072(b). Any doubts about the
force and validity of the supersession clause were laid
to rest in Henderson v. United States, 517 U.S. 654 (1996).
Thus Rule 71A(h) prevails: its nationally uniform ap-
proach conflicts with the conformity-to-state-practice ap-
proach of §717f(h), and under §2072(b) the statutory rule
“shall be of no further force or effect”.
  Of course, the supersession clause does not trump the
seventh amendment, which says that in “suits at common
law” exceeding $20, “the right of trial by jury shall be
preserved”. But the Supreme Court held long ago that
condemnation actions filed by the United States and its
instrumentalities are not “at common law” because the
obligation to pay is undisputed, and only valuation is
required. See, e.g., Bauman v. Ross, 167 U.S. 548, 593
(1897); Shoemaker v. United States, 147 U.S. 282, 300,
301 (1893); United States v. Jones, 109 U.S. 513, 519
(1883). The owners have not argued that things are other-
wise when federal condemnation power has been delegated
to a private entity. The only appellate decision mention-
ing the subject says (in dictum) that there is no difference.
See Atlantic Seaboard Corp. v. Van Sternkenburg, 318
F.2d 455, 459 (4th Cir. 1963). Given the owners’ litigation
strategy, we need not decide whether that perspective is
correct.
  There remains the question whether the district court
erred in deciding that a commission would be the best
way to ascertain the land’s value. The judge gave several
reasons. First, one commission is better than 16 juries.
The owners have been coy about whether they want one
jury trial, or one per parcel. Sixteen trials would be too
many (other litigants, waiting in the queue to have their
own cases resolved, would be sorely inconvenienced), and
one mega-trial would be too complex, the judge thought.
Second, a commission proceeds less formally than does
4                                              No. 02-3734

a trial, so the commissioners can visit the parcels and
learn facts about them (and their market value) more
readily than can a jury, which would sit in Chicago, more
than 100 miles from the parcel farthest from the court-
house. Any evidentiary hearings likewise could be con-
ducted near the parcels and so would be more convenient
to the parties, counsel, and witnesses. Third, the commis-
sion could be (and was) staffed with experts in evaluat-
ing market prices for land, while lay jurors likely would
be at a loss to evaluate the inevitable disagreement
among experts hired by the litigants. Commissions thus
are less likely than juries to split the difference in the
parties’ valuations (a tendency that encourages litigants to
take extreme positions in jury trials). Appellate review
of the decision to entrust this dispute to a commission is
deferential, and we do not see any clear error or abuse
of discretion.
                                                 AFFIRMED

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—9-19-03
