[00:00:03] Speaker 01: Good morning, and may it please the court, Dale Schoengritt for BNSF Railway Company. [00:00:08] Speaker 01: Aspirationally, I'd like to reserve five minutes for rebuttal, if I may. [00:00:12] Speaker 01: All right, please proceed. [00:00:13] Speaker 01: There are several issues in this appeal, but the Interstate Commerce Commission Termination Act makes it the simplest to resolve. [00:00:21] Speaker 01: ICTA gave the Surface Transportation Board exclusive authority over rail transportation by rail carriers and preempts state rules [00:00:33] Speaker 01: that have the effect of managing or governing that transportation. [00:00:37] Speaker 02: So if you're right about that, [00:00:39] Speaker 02: Would a negligence cause of action be preempted? [00:00:42] Speaker 01: It could be. [00:00:44] Speaker 01: That's what I'm worried about. [00:00:45] Speaker 02: I'd like your view on it. [00:00:47] Speaker 01: Under these facts, I think it would be. [00:00:49] Speaker 01: If it's telling the railroad how to run its yard, how to maintain its yard, how to improve its equipment. [00:00:55] Speaker 02: Well, negligence is typically based on a standard of care from which the party being sued has departed. [00:01:04] Speaker 02: So it seems to me your argument necessarily means not only that strict liability claims would be prevented, but negligence claims also. [00:01:13] Speaker 01: I think there could be a situation set of facts where negligence was not. [00:01:19] Speaker 01: Judge Posner in the Indiana Harbor Belt case talked about strict liability. [00:01:25] Speaker 01: Strict liability has more of a feel of a regulation. [00:01:28] Speaker 02: It is. [00:01:29] Speaker 02: Well, I understand. [00:01:30] Speaker 02: But here's my concern. [00:01:31] Speaker 02: The act doesn't seem to provide a remedy. [00:01:35] Speaker 02: to injured parties. [00:01:36] Speaker 02: The government agency might find somebody or sanction them. [00:01:42] Speaker 02: So what you're saying is that the state causes of action are preempted by a federal law which leaves plaintiffs with no remedy at all. [00:01:52] Speaker 02: And that's why I don't find this the simplest way to arrive at the case because I'm having trouble finding a field preemption [00:02:01] Speaker 02: Doctrine that says you have no state remedy and you also have no federal remedy. [00:02:06] Speaker 01: Well the plaintiffs plaintiffs would have a straight remedy if Let's say it's you know, there were similar issues of as Emerson, you know, we're you know, let's say BNSF had dumped Yeah, but that's aren't there aren't There are not but I think this goes to Why ICTA preemption? [00:02:26] Speaker 01: I mean this court is called [00:02:27] Speaker 01: Icta preemption sweeping and comprehensive and the reason is that Uniformity is vital to railroad operations the railroad can't have differing rules from state to state on how it runs the rail yard how it improves its equipment And that's why most most cases what in in tort claims or regulation that face icta is [00:02:50] Speaker 01: have fallen. [00:02:51] Speaker 01: I think every time it's been in front of this court, it has. [00:02:54] Speaker 03: This theory wasn't advanced in Eddie, right? [00:02:56] Speaker 03: Not this theory of preemption. [00:02:57] Speaker 01: Not this theory of preemption. [00:03:00] Speaker 03: That's correct. [00:03:01] Speaker 03: The factors that you just mentioned, the circumstances you just mentioned, also fit within the common carrier argument. [00:03:06] Speaker 03: Are you going to pivot to that next? [00:03:08] Speaker 01: I'm sorry. [00:03:09] Speaker 03: Are you going to pivot to that next? [00:03:12] Speaker 01: I certainly can if you'd like me to. [00:03:14] Speaker 01: Sure, we can. [00:03:16] Speaker 04: Well, before we go there, you can continue your questions, but before you go there, I do have some preemption questions. [00:03:24] Speaker 03: Why don't we take those up first? [00:03:25] Speaker 04: Sure. [00:03:26] Speaker 04: Okay. [00:03:27] Speaker 04: So we're here on two different, on the state causes of action, the jury was instructed on strict liability and you're contesting that regarding state law. [00:03:38] Speaker 04: And so there's been, I think, some interest in certifying it to the Montana Supreme Court. [00:03:46] Speaker 04: However, we don't have to. [00:03:49] Speaker 04: We can decide it on state law if we feel like we have enough and we believe that we know what's going to happen. [00:03:57] Speaker 04: And then you have the preemption issue. [00:04:00] Speaker 04: You said that's the easiest issue, but you've already gotten a little pushback on whether it's the easiest issue. [00:04:07] Speaker 04: My question is more, let's say that [00:04:12] Speaker 04: And I'm only saying this hypothetically, because we have not conferenced on the case. [00:04:16] Speaker 04: We do that after we hear oral argument. [00:04:20] Speaker 04: Let's say we agree with you on your state law claims, and we agree with you that the court erred in saying that it was strict liability, and we don't certify it. [00:04:34] Speaker 04: Do we need to decide the preemption issue? [00:04:37] Speaker 01: I don't think you do. [00:04:38] Speaker 01: I mean, the Supreme Court has said in the Spreetsima case [00:04:41] Speaker 01: pre-emption is kind of a threshold issue. [00:04:44] Speaker 01: But if BNSF, I mean, we're here challenging strict liability. [00:04:48] Speaker 01: I mean, the jury found the railroad not negligent. [00:04:52] Speaker 01: And so that, I think, would. [00:04:54] Speaker 04: It would take care of this case. [00:04:56] Speaker 01: It would take care of this case. [00:04:58] Speaker 04: But I know that there's a whole lot of other cases out there that are waiting for this case, right? [00:05:06] Speaker 04: But since we're interpreting state law here, it's only going to be binding on this case, right? [00:05:13] Speaker 01: That's correct. [00:05:15] Speaker 04: So it's not going to affect all those other cases. [00:05:18] Speaker 04: Now, if we decided the preemption issue, if hypothetically, let's say the panel said that it is preempted, what effect does that have on other cases? [00:05:31] Speaker 01: For other federal cases, obviously, they'd be bound by that. [00:05:35] Speaker 01: In this circuit. [00:05:37] Speaker 01: In this circuit. [00:05:38] Speaker 01: In this circuit on strict liability. [00:05:41] Speaker 01: And then the other state cases, it wouldn't [00:05:44] Speaker 01: The state cases would not be bound by that. [00:05:46] Speaker 01: They would likely find it persuasive, but it would not be bound by that strict liability preemption ruling. [00:05:54] Speaker 04: So could the court do what I would call, and I'm just saying this all hypothetically. [00:06:00] Speaker 04: I'm trying to think through, and I'll ask questions of the other side as well, what we call the belt and suspenders. [00:06:06] Speaker 04: Say, OK, hypothetically, will you win on the state claims, but then say, [00:06:14] Speaker 04: Even that being said, it's also preempted. [00:06:20] Speaker 04: Could the court do that? [00:06:22] Speaker 04: And what would be the advantage of that for you representing BNSF? [00:06:28] Speaker 01: I think you could do that. [00:06:30] Speaker 01: And the court has done something similar before. [00:06:33] Speaker 01: And I think the advantage is because, one, these doctrines are related. [00:06:37] Speaker 01: I mean, ICTA flows from the common carrier obligation. [00:06:40] Speaker 01: This is a federal obligation that railroads have. [00:06:43] Speaker 01: the HMTA flows from that obligation. [00:06:47] Speaker 01: The purpose of HMTA and ICTA is uniformity of rail regulation, realizing that railroads can't just switch how they do things from one state to the other. [00:06:59] Speaker 01: They're crossing states all the time. [00:07:01] Speaker 01: And so that common carrier obligation, the obligation that they have to carry whatever is presented to them, whether it's dirt or nuclear waste, that [00:07:13] Speaker 01: That is motivated, or the ICTA and HMTA are motivated by that obligation. [00:07:21] Speaker 01: And so the... A state rule to the effect that [00:07:49] Speaker 01: I don't think it would. [00:07:57] Speaker 01: I think that's correct. [00:07:58] Speaker 01: If you wouldn't need to. [00:08:02] Speaker 04: I have one more question. [00:08:03] Speaker 04: Go ahead. [00:08:03] Speaker 04: No, you go ahead and then I'll go ahead after. [00:08:19] Speaker 02: Right. [00:08:45] Speaker 01: I think the court could resolve it on that issue. [00:08:47] Speaker 01: We obviously raised that in the brief, that that was a problem that the Montana Supreme Court talked about. [00:08:53] Speaker 01: You go to strict liability when negligence doesn't solve the issue. [00:09:21] Speaker 01: We'd be happy to have the case disposed that way. [00:09:25] Speaker 01: We do think that's a problem. [00:09:32] Speaker 01: I do think that was a pretty significant error and I think it's sort of a little bit enmeshed with the common carrier issue. [00:09:44] Speaker 01: And that goes to the point of strict liability in the first place. [00:09:47] Speaker 01: We impose strict liability [00:09:49] Speaker 01: Because it's a deterrent. [00:09:53] Speaker 01: It's to discourage ultra-hassler disactivity. [00:09:57] Speaker 01: It makes no sense when, at the same time, we tell the railroad. [00:10:00] Speaker 03: Counsel, I couldn't agree with you more, but you didn't appeal the district court's ruling that Eddie really foreclosed this. [00:10:07] Speaker 03: And I was quite puzzled by that. [00:10:09] Speaker 01: Well, because the common carrier obligation, that's when the common carrier obligation comes in. [00:10:14] Speaker 01: I mean, excuse me, the common carrier exception. [00:10:17] Speaker 03: Eddie said that on the facts of that case, [00:10:19] Speaker 03: There was an abnormally dangerous activity. [00:10:22] Speaker 03: And then, as you know, strict liability kicks in and away we go. [00:10:24] Speaker 03: But we don't know much about the facts of that case. [00:10:28] Speaker 03: And there are a couple of really important premises there that I don't know that are applicable here. [00:10:33] Speaker 03: One was that BNSF knew that this was an abnormally dangerous activity, knew that the vermiculate had asbestos in it, or at what time. [00:10:42] Speaker 03: We don't know the temporal component there. [00:10:44] Speaker 03: So there isn't a limitation. [00:10:46] Speaker 03: That's not appealed here. [00:10:48] Speaker 01: That BNSF didn't know? [00:10:51] Speaker 03: You argue strenuously you didn't know, but the district court made a ruling that Eddie foreclosed the argument that strict liability didn't apply. [00:11:00] Speaker 01: I think we didn't appeal that, because the district court found that this was, you know, the Monteserrant court found that this was ultra hazardous activity. [00:11:08] Speaker 01: But it doesn't matter if the common carry exception applies. [00:11:11] Speaker 03: I agree with you there, too. [00:11:12] Speaker 03: But I'm just kind of signposting that that wasn't your argument. [00:11:17] Speaker 03: the district court read Eddie to foreclose that and that's not an appeal, correct? [00:11:21] Speaker 01: Well, whether it's abnormally dangerous, but whether the common carrier exception applies. [00:11:28] Speaker 01: I mean, that's really the meat of the argument. [00:11:30] Speaker 03: I'm only responding. [00:11:31] Speaker 03: I don't want to derail you, pardon the pun, too much here. [00:11:34] Speaker 03: But to the extent you're arguing about why strict liability doesn't fit here and that it doesn't make a whole lot of sense to be talking about an abnormally dangerous activity during a period of time when Burlington Northern, as far as I can tell, didn't know this had asbestos or that asbestos was dangerous. [00:11:51] Speaker 03: is a fertile ground for inquiry. [00:11:55] Speaker 03: But it's not going to happen in this case, because that wasn't appealed. [00:11:58] Speaker 01: Well, I think they're related. [00:12:00] Speaker 01: In the very first case to come to the comment to accept or to really come up with the common carrier exception in the first place, Tissel Skabot, Ingrid, 1914 Second Circuit decision. [00:12:13] Speaker 01: And they talk about strict liability generally, Ryland Du Fletcher, the English common law doctrine. [00:12:19] Speaker 01: It's like, OK, whatever utility that has in the normal course, it doesn't make any sense for railroads. [00:12:24] Speaker 03: Well, I don't know that I agree on that point. [00:12:26] Speaker 03: And again, now we really are kind of going off on. [00:12:28] Speaker 03: I'm so tempted to make another pun, but I'm not going to about a spur track. [00:12:32] Speaker 03: But that ship has sailed here, because that, you're shaking your head no. [00:12:41] Speaker 01: I don't think that ship has sailed, because that's what the Exisil Cevat. [00:12:44] Speaker 01: They said, OK, yeah, this may be ultra hazardous activity. [00:12:48] Speaker 01: It's that was the the dawn of the common carrier exception. [00:12:51] Speaker 01: They said it makes no sense to apply that to this to this situation. [00:12:55] Speaker 03: Okay, so we're not communicating very well. [00:12:57] Speaker 03: I think the issue, but your time is ticking down. [00:12:59] Speaker 03: So the issue on appeal is whether or not this what we're talking about here fits within the common carrier exception. [00:13:05] Speaker 03: And so I'm afraid it's a very interesting case and we could talk about it a lot, but I don't want to telescope it. [00:13:11] Speaker 03: And I'm not what I'm not sure and distracted by is whether we have [00:13:15] Speaker 03: finish. [00:13:16] Speaker 03: Judge Kellan had one more question I think about preemption. [00:13:18] Speaker 03: I did have one more question. [00:13:18] Speaker 03: So let's finish that because otherwise we're not going to get to common grade. [00:13:21] Speaker 04: Yeah, the very active panel. [00:13:24] Speaker 04: So my other question is, hypothetically, if we were to agree with you that it's preempted, we would really have to publish on that issue, would we not, for it to have any teeth for BNSF? [00:13:41] Speaker 04: Correct. [00:13:42] Speaker 04: Because if it were just in a MemDISPO, then it really is a presidential. [00:13:49] Speaker 01: It would apply to this case, but no other is correct. [00:13:52] Speaker 04: All right. [00:13:53] Speaker 03: Since you want to talk about preemption, maybe I should tell you the reasons I think that preemption is not such a close call here. [00:13:59] Speaker 03: Please. [00:13:59] Speaker 03: And I'm surprised that you led with it. [00:14:01] Speaker 03: The district court had a theory, and he cited the Guild case, right, and the Emerson case. [00:14:07] Speaker 03: And one of them, it seems to me, Emerson, is somewhat analogous, and that's a Fifth Circuit case where they talked about basically about maintenance. [00:14:15] Speaker 03: It could be construed that way, right? [00:14:16] Speaker 03: Disposing of brush, disposing of rail ties, and that that didn't necessarily involve transportation. [00:14:24] Speaker 03: So they wanted to narrowly construe this exception, which I think the Montana Supreme Court would do, [00:14:29] Speaker 03: I think that's what the district court was aiming at and why it cited these cases, right? [00:14:33] Speaker 03: Because we're talking about whether, I think the district court's theory is that we're talking about whether BNSF failed to maintain its rail yard. [00:14:43] Speaker 01: Thank you. [00:14:43] Speaker 01: Thank you for the question. [00:14:45] Speaker 01: So I think Emerson's important, and I think Emerson's obviously not binding. [00:14:49] Speaker 01: We don't think it's wrong, though. [00:14:51] Speaker 03: Well, I appreciate that. [00:14:52] Speaker 03: My question is, I think it's a closer call. [00:14:54] Speaker 03: And hence, I was curious that you're relying on that rather than the Montana law. [00:14:58] Speaker 01: The distinction is, and I think it's consistent with Montana law. [00:15:01] Speaker 01: I think it's consistent with this court's precedent. [00:15:05] Speaker 01: The distinction is, in Emerson, they weren't taking railroads ties from the rail bed. [00:15:11] Speaker 01: They weren't cutting vegetation. [00:15:13] Speaker 01: Along the along the rail bed it didn't affect the operations of the yard here That's completely different here the yard shuts down if any asbestos is spilled especially if this is ultra hazardous They can't run a train through that yard. [00:15:27] Speaker 01: They cannot put any personnel in the yard until Special personal specialized personnel clean it up, and that's the problem. [00:15:34] Speaker 01: That's the dividing line in Nick two cases and [00:15:37] Speaker 01: Is it affecting the flow of train traffic, slowing trains? [00:15:40] Speaker 01: Is it requiring maintenance of the yard? [00:15:42] Speaker 01: Is it requiring equipment modification? [00:15:44] Speaker 01: None of that was at issue in Emerson. [00:15:46] Speaker 01: It was just where they dumped their trash. [00:15:47] Speaker 01: The court said under the defendant's argument there, they could have dumped it in the middle of town, and that would have been preempted. [00:15:54] Speaker 01: Obviously, that's how it is. [00:15:55] Speaker 02: How is that different than the common carrier exception? [00:15:58] Speaker 02: It seems to me that kind of activity would be outside the common carrier exception. [00:16:04] Speaker 02: And so I'm having trouble figuring out why there's a necessity to preempt state law. [00:16:10] Speaker 02: Because that's trash disposal. [00:16:13] Speaker 02: Well, I understand. [00:16:14] Speaker 02: Trash disposal is not covered by the common carrier exception. [00:16:18] Speaker 02: Normal carriage and storage is. [00:16:21] Speaker 02: And so I'm still having difficulty figuring out why the common carrier exception [00:16:28] Speaker 02: at properly applied would need to be preempted by federal law. [00:16:32] Speaker 01: Because none of that, none of that vermiculite in the yard, it was long tracks, came off trains while they were traveling. [00:16:40] Speaker 02: In your case, I understand that. [00:16:41] Speaker 02: Yeah. [00:16:41] Speaker 02: And I understand that's why you argue the common carrier exception should apply. [00:16:46] Speaker 02: What I'm having a harder time figuring out is why [00:16:51] Speaker 02: Application of state law here, which recognizes the common carrier exception, conflicts, makes you run your yard in any different way than you would have in the absence of that law. [00:17:03] Speaker 01: Because they have to shut down the yard when it falls to the ground from the tracks. [00:17:07] Speaker 01: And I may be misunderstanding. [00:17:08] Speaker 02: No, not if the common carrier exception applies. [00:17:12] Speaker 02: Oh, if the common carrier exception applies. [00:17:14] Speaker 02: What you're saying is if we lose under the common carrier exception, we're going to have a problem because we'll have to shut down the yard and do stuff. [00:17:21] Speaker 02: And that might conflict with federal law. [00:17:23] Speaker 02: And I'm saying if you prevail under the common carrier exception, there is no reason to consider federal law. [00:17:29] Speaker 02: That's a fair point. [00:17:30] Speaker 04: So how many of these cases are there out there? [00:17:33] Speaker 04: where you're being sued. [00:17:34] Speaker 04: My understanding is the person that, the company that created all of this stuff that turns out to have a best-os is can't pay any money. [00:17:43] Speaker 04: So you're the deep pocket, right? [00:17:45] Speaker 01: That's right. [00:17:46] Speaker 01: There is a $2.9 billion trust that the bankrupt, or Grace Manufacturing put that money in trust to settle all future past claims. [00:17:57] Speaker 04: All right, but then you're next in line. [00:17:59] Speaker 04: You were next in line. [00:18:01] Speaker 04: So how many cases do you have to litigate? [00:18:03] Speaker 01: I think there are over 200 right now. [00:18:06] Speaker 04: In Montana? [00:18:07] Speaker 01: In Montana. [00:18:08] Speaker 03: I have a question to follow up on your statement in response to Judge Hurwitz. [00:18:11] Speaker 03: You just said that the, you said that stuff, the asbestos came off, I think, while the train cars were traveling down the tracks. [00:18:21] Speaker 03: And I have a different understanding of the record. [00:18:24] Speaker 03: I think there was evidence introduced that the cars were sealed by WR Grace before they came in, right, before BNS have hauled them. [00:18:32] Speaker 03: I think there was evidence that some of the cars may have been leaky, some of the cars may have, and that there was switching operations that caused some escapement, I think. [00:18:42] Speaker 03: And then there was a separate theory about, which is what the district court relied upon, about allowing the asbestos to remain on the ground. [00:18:51] Speaker 01: Well, I think, yeah. [00:18:52] Speaker 03: First of all, do I have that right? [00:18:53] Speaker 01: You have it right. [00:18:54] Speaker 01: I don't think we don't separate those two. [00:18:56] Speaker 01: I mean, all the species that was lying on the ground came from those two points. [00:19:00] Speaker 01: You're right. [00:19:01] Speaker 03: But it goes to how much it would interfere with railroad operations to prevent it, right? [00:19:07] Speaker 03: I can imagine, and the district court was concerned about whether or not you were, that was an argument at trial. [00:19:13] Speaker 03: I read that part of the transcript that BNSF wasn't required to use, allow its rail cars to leak, that was the word they used, or to allow this stuff to fly off during switching operations. [00:19:24] Speaker 03: I don't know that much about switching operations, but that sounds a whole lot like it's encompassed in transporting asbestos to me. [00:19:31] Speaker 03: And then of course there's this separate theory about maintenance. [00:19:34] Speaker 03: It just goes to this point about, I think there's some problems, perhaps, with your preemption theory. [00:19:39] Speaker 03: I'm not so sold that it is as much as you are, that it's as solid. [00:19:46] Speaker 03: And hence my curiosity about your not starting with a common carrier exception. [00:19:51] Speaker 01: Well, like I said, I think they're closely related, because they all flow from that obligation. [00:19:56] Speaker 01: And I do think that they're both strong. [00:19:59] Speaker 01: I do think that the dividing line in ICT cases [00:20:02] Speaker 01: when the claim would affect operations, would slow chain traffic, would require... Right, and that's why the maintenance issue, I think, is tough for you under those cases. [00:20:12] Speaker 03: The district court relied upon the Fifth Circuit case in particular. [00:20:15] Speaker 03: But can I ask you this? [00:20:16] Speaker 03: Because I want to ask both parties and make sure I haven't missed anything. [00:20:19] Speaker 03: And that is, what evidence... I have a lot of questions, but I'm not going to get to all of them today. [00:20:24] Speaker 03: What evidence supported plaintiff's contention that the asbestos at the downtown rail yard accumulated as a result of something other [00:20:31] Speaker 03: than transportation activities? [00:20:33] Speaker 01: There is no evidence on that point. [00:20:37] Speaker 01: I mean, ER 525, 526, plaintiff's expert, Dr. Staggs, discussed his understanding of how that came all from the rail traffic. [00:20:48] Speaker 01: And you mentioned it, either leaking cars and the switching, it's so violent. [00:20:52] Speaker 03: Are they crammed together? [00:20:53] Speaker 01: Yeah. [00:20:53] Speaker 01: So when they loaded that, they loaded it up on top because they were hopper cars, so they had those top [00:20:59] Speaker 01: Some of the dust still stayed on. [00:21:00] Speaker 01: When they switched them together, the impact knocked some of it off. [00:21:05] Speaker 01: Those are the only two ways. [00:21:07] Speaker 01: ER 619, 625, 627. [00:21:10] Speaker 01: Doug Hale, who worked at the railroad yard, described that as well. [00:21:14] Speaker 01: Those are the only ways that were identified that vermiculite into the yard, other than what blew in from Grace's expansion plant, which was right next door. [00:21:24] Speaker 04: Right. [00:21:24] Speaker 04: Okay. [00:21:25] Speaker 04: All right. [00:21:25] Speaker 04: If you have other questions, you can ask them. [00:21:29] Speaker 03: Thank you. [00:21:30] Speaker 03: I think I'll let it go for now. [00:21:32] Speaker 03: We'll see what happens. [00:21:32] Speaker 04: All right. [00:21:33] Speaker 04: Well, we used all your time and more, so you don't have five minutes left, but I'm going to give you two minutes for rebuttal. [00:21:39] Speaker 04: Thank you. [00:21:39] Speaker 04: All right. [00:21:39] Speaker 04: Thank you. [00:21:47] Speaker 04: Good morning. [00:21:50] Speaker 00: He's taller than me. [00:21:51] Speaker 00: Good morning, Your Honors. [00:21:52] Speaker 04: Well, everyone's taller than I am, so don't feel bad. [00:21:55] Speaker 04: Me too. [00:21:57] Speaker 00: It may please the court. [00:21:58] Speaker 00: My name is Kevin Parker, and I represent the families of Tom Well and Tom Wells and Joyce Walder, who are the plaintiffs in the court below. [00:22:07] Speaker 00: And let me just turn right to the common carrier exception, since the court is interested in that. [00:22:12] Speaker 00: And I'll deal with preemption as well. [00:22:15] Speaker 00: The parameters of the common carrier exception to strict liability and its application to this case are questions of Montana law [00:22:24] Speaker 00: And in this case, we have a Montana Supreme Court case right on point. [00:22:29] Speaker 00: Of course, it's BNSF versus Eddie from 2020 involving the same rail yard, the same practices, the same town. [00:22:39] Speaker 02: No, very different questions, different facts in Eddie. [00:22:43] Speaker 02: And I'm interested in your response to the question that Judge Christen just asked. [00:22:51] Speaker 02: It seems to me the record in this case shows that the dangerous substance was deposited on the tracks wholly as a result of transportation activities. [00:23:05] Speaker 02: In Eddy, there's joint ventures, they're doing other stuff together. [00:23:11] Speaker 02: A different set of facts. [00:23:13] Speaker 02: So I'm trying to figure out, given the explication of the doctrine in Eddie, which the Montana Supreme Court adopts and says it follows the restatement, why aren't all the, why isn't all the asbestos here deposited on the tracks as a result of the common carriers [00:23:35] Speaker 02: carriage or storage activities. [00:23:37] Speaker 02: If it is, that seems to be different than Eddie, where there's other stuff going on. [00:23:42] Speaker 00: Eddie certainly included those facts, but Eddie focused on those facts as well. [00:23:48] Speaker 00: And under Eddie, the court focused on what is transportation. [00:23:53] Speaker 00: And allowing asbestos to accumulate on your rail yard is not transportation because... Even if it's a [00:24:01] Speaker 02: A consequence of transporting the asbestos in and out of the railroad? [00:24:06] Speaker 00: It's not transportation because the common carrier exception defines transportation according to a public duty, which in Eddie was a statute. [00:24:17] Speaker 00: A statute which requires the railroad to transport goods from point A to point B. A statute which has nothing about how to take care of your railroad [00:24:27] Speaker 00: for decades and decades and decades while this material is building up. [00:24:33] Speaker 02: Let me ask you this question I posed before, because it troubles me about this case. [00:24:38] Speaker 02: The district judge said, and presumably you're seeking to uphold that ruling, that there can be strict liability when there's negligence. [00:24:47] Speaker 02: Let's put aside for a second whether he was right or wrong in that reading of the law. [00:24:53] Speaker 02: What do we do with the jury's finding that there was no negligence in this case? [00:24:57] Speaker 00: I don't think it affects the outcome at all. [00:25:00] Speaker 00: There were two alternative theories. [00:25:02] Speaker 00: And of course, the front is a matter of fact. [00:25:05] Speaker 02: The jury has found that there wasn't a departure from the applicable standard of care. [00:25:11] Speaker 02: And if there wasn't a departure from the applicable, because there's clearly injury to your clients. [00:25:15] Speaker 02: It wasn't a case where it said, well, there was negligence, but no injury. [00:25:19] Speaker 02: So if there's no departure from the applicable standard of care, [00:25:23] Speaker 02: And there's no negligence. [00:25:25] Speaker 02: And the only way you can prove strict liability is that the railroad was somehow negligent. [00:25:30] Speaker 02: How do I get there? [00:25:31] Speaker 00: I disagree with the premise that the only way we can prove strict liability is that the railroad was negligent. [00:25:36] Speaker 02: Well, that's what the district court said. [00:25:38] Speaker 02: The district court said, I'm not going to throw out the strict liability theory, because as I understand the law, [00:25:46] Speaker 02: strict liability doesn't apply when there's negligence. [00:25:49] Speaker 02: And that's a question that the jury gets to resolve. [00:25:54] Speaker 02: And Mike, I'm still back to this point. [00:25:56] Speaker 02: The jury resolved that question in this case. [00:25:58] Speaker 02: So let's assume for a moment that these guys were not negligent. [00:26:03] Speaker 02: Because I have to assume that that's what the jury found. [00:26:05] Speaker 02: Of course. [00:26:06] Speaker 04: And you didn't appeal that, correct? [00:26:07] Speaker 04: No, we did not. [00:26:08] Speaker 04: You did not appeal the negligence and you did not appeal no punitive damages. [00:26:14] Speaker 00: We did not appeal either of those points. [00:26:15] Speaker 02: Your theory is that even in the absence of negligence, it's not what the district court said, there's strict liability here simply because they were transporting a hazardous substance. [00:26:28] Speaker 00: Yes, Your Honor, that's what the law of Montana is. [00:26:32] Speaker 00: And that's what strict liability is. [00:26:33] Speaker 02: Why don't we certify this to the Montana Supreme Court then? [00:26:35] Speaker 00: Well, we asked the court to do that. [00:26:38] Speaker 00: We think that would be a very good idea. [00:26:39] Speaker 02: How did this case end up in federal court? [00:26:41] Speaker 00: We filed it in federal court. [00:26:43] Speaker 00: You wanted a state court ruling. [00:26:45] Speaker 00: Why didn't you file it in state court? [00:26:47] Speaker 00: It was many, many years ago, Judge Berwitz. [00:26:49] Speaker 00: We filed it in state court in the middle of COVID when state courts weren't really operating. [00:26:55] Speaker 00: We felt like we could get the trial quicker. [00:26:57] Speaker 02: My concern about giving extra work to the state Supreme Court, having served on one once, is that once you opt not to use the state system, and then you come to us and perhaps you're worried that it might come out differently, [00:27:11] Speaker 02: It's a little unfair to bring the state Supreme Court back into it. [00:27:14] Speaker 00: I would respectfully disagree with that premise for a couple reasons. [00:27:18] Speaker 00: First, there are over 200 cases pending in Montana's state court. [00:27:23] Speaker 00: And they're depending on the resolution of this common carrier question. [00:27:28] Speaker 00: And so this court, certainly capable of deciding questions of Montana state law, I'm sure you do it all the time, but this court is not capable of rendering an opinion that is binding [00:27:40] Speaker 00: on all the Montana state courts. [00:27:42] Speaker 04: So you can do that in any of the other cases. [00:27:44] Speaker 00: If we think we can do it, we can do it. [00:27:46] Speaker 00: But those cases are on hold right now, waiting a ruling. [00:27:50] Speaker 00: And so a ruling from this... Waiting a ruling in this case? [00:27:53] Speaker 00: Waiting a rule on the common carrier exception. [00:27:56] Speaker 02: Yes, Your Honor. [00:27:57] Speaker 02: I think we all agree that no matter how we interpret Montana law, it does not bind the Montana Supreme Court. [00:28:06] Speaker 02: Even if we agree with you or agree with the other side, you're both able to go to the Montana Supreme Court and say, well, those three non-Montana judges just don't understand our ways. [00:28:17] Speaker 00: And that's why we're asking for certification, so it can be decided by the Montana Supreme Court now. [00:28:22] Speaker 04: Well, what if we decide the preemption and we publish on the preemption and we say that it's preempted, what effect does that have on all of those cases? [00:28:34] Speaker 00: Well, that decision wouldn't be binding on the Montana Supreme Court, but it would be persuasive. [00:28:41] Speaker 00: Certainly, the common carrier issue. [00:28:43] Speaker 04: Because they think that we might know something about federal law. [00:28:46] Speaker 00: Well, of course you do. [00:28:46] Speaker 04: As opposed to that we might not know anything about Montana law. [00:28:49] Speaker 00: We wouldn't be persuasive to the extent we talked about state law. [00:28:52] Speaker 00: Of course, it's not what you know about and what you don't know about. [00:28:55] Speaker 00: It's the binding nature of the opinion. [00:28:58] Speaker 02: So let's go back to Montana state law for a moment. [00:29:01] Speaker 02: As I understand it, the Montana [00:29:04] Speaker 02: Montana adopts the restatement second of torts. [00:29:07] Speaker 02: They've said so. [00:29:08] Speaker 02: Right. [00:29:09] Speaker 02: We all agree that BNSF is a common carrier. [00:29:13] Speaker 00: Yes. [00:29:14] Speaker 02: We all agree that under the restatement, particularly under Section 521 first comment, that means that it's exempted from liability that arises from the transportation or storage of hazardous materials. [00:29:33] Speaker 00: Yes. [00:29:35] Speaker 02: So why in this case doesn't your theory involve the transportation or storage of hazardous materials? [00:29:42] Speaker 00: Because the hazardous materials, the materials that caused the harm, were no longer in transport. [00:29:48] Speaker 02: So you think the theory only applies during the moments they're in transport? [00:29:55] Speaker 00: Yes, I think the common carrier theory, the policy behind it is if a railroad is required by federal law to transport anything from one point to another and then a derailment occurs and the substance causes harm, then there shouldn't be strict liability. [00:30:13] Speaker 00: But that's not the case here. [00:30:15] Speaker 02: You think the theory is limited to incidents that occur [00:30:21] Speaker 02: during moments of transportation. [00:30:23] Speaker 02: Yes, Your Honor. [00:30:24] Speaker 00: That's what the Montana Supreme Court said. [00:30:26] Speaker 02: Well, assuming that is the theory, Judge Christen asked you before, part of the theory of liability in this case, as I understand it, is that when cars were coupling, something came out. [00:30:39] Speaker 02: Isn't that during transportation? [00:30:42] Speaker 00: But we're not suing for what happened when they coupled. [00:30:45] Speaker 00: We're suing for the presence over decades. [00:30:48] Speaker 00: This is from the 20s, asbestos containing vermiculite building up on their property for years. [00:30:55] Speaker 03: Sorry, I appreciate the second theory. [00:30:58] Speaker 03: So this goes to town of East Troy, which the Montana Supreme Court cited. [00:31:04] Speaker 03: And as you know, that's a case, and there's a couple bookend cases involving transportation until derailment. [00:31:09] Speaker 03: So it's not just [00:31:10] Speaker 03: taking the substance down the tracks, right? [00:31:13] Speaker 03: And I don't know if you read the opinion differently, but it seems to me the Montana Supreme Court cited town of East Troy with approval, and that's a case where there's a derailment. [00:31:25] Speaker 03: And just for the benefit of our listeners, I'm sure you know the facts of the case, but there was hazardous substance, there was a derailment, the chemicals spilled, and then there was a delay of about nine days, I think. [00:31:37] Speaker 03: Well, the railroad did not take action. [00:31:39] Speaker 03: Nothing was moving down the track. [00:31:41] Speaker 03: They didn't take action. [00:31:42] Speaker 03: And that substance was allowed to migrate and contaminate local groundwater. [00:31:47] Speaker 03: The other bookend case is a derailment. [00:31:49] Speaker 03: Nothing's moving down the track anymore. [00:31:51] Speaker 03: More hazardous substances, unfortunately, that derailed. [00:31:54] Speaker 03: In that case, in the second case, town of East Palestine or in Ray East Palestine, the railroad took steps in the aftermath of the derailment to clear the tracks that were [00:32:06] Speaker 03: I think it's fair to say patently unreasonable. [00:32:08] Speaker 03: They set a fire in a residential neighborhood, these chemicals, and caused significant additional damage. [00:32:15] Speaker 03: I don't think that case is a problem for the application here. [00:32:19] Speaker 03: But the first one sure is, because there was a derailment. [00:32:22] Speaker 03: And I want to hear your response. [00:32:24] Speaker 03: First of all, I think the Montana Supreme Court cited town of East Troy with approval. [00:32:30] Speaker 03: And there, the railroad was granted this common carrier exception, even though, [00:32:36] Speaker 03: the harm resulted from this nine-day delay in cleaning up the spill. [00:32:41] Speaker 03: What's your best response to that case, please? [00:32:43] Speaker 00: My response is that's a derailment case. [00:32:46] Speaker 00: I know there was a delay of nine days, but the incident happened during the transportation. [00:32:53] Speaker 00: The incident here happened over decades and decades of asbestos buildup. [00:32:58] Speaker 00: In addition to the asbestos falling off the trains, there's evidence in the record, the EPA, when they cleaned this up, found that [00:33:06] Speaker 00: It was dumped in some places. [00:33:08] Speaker 00: It was manipulated while it was there. [00:33:10] Speaker 03: And so that... Well, part of the record... I've looked hard at that, sir. [00:33:14] Speaker 03: And part of the record that you're referring to now, I think, pertains to W.R. [00:33:19] Speaker 03: Grace's activities at the baseball field and whatnot. [00:33:22] Speaker 03: But if we look at what BNSF knew and what BNSF did, I think the district court summary judgment was left with the impression that BNSF had maintained a large stockpile. [00:33:34] Speaker 03: And then he realized that wasn't shown at trial. [00:33:38] Speaker 03: So if we're just looking at what BNSF did and really looking at what resulted just from the transportation, I just want to hear your best response to this. [00:33:46] Speaker 00: BNSF owned a rail yard that it used for transportation. [00:33:51] Speaker 00: During the course of that transportation, the rail yard became toxic over the decades. [00:33:57] Speaker 03: And on this point, forgive me for interrupting, but my understanding is that [00:34:01] Speaker 03: For a long time, people didn't know, I think, the hazards of asbestos. [00:34:05] Speaker 03: But what I understand from the record is that there was evidence that BNSF did know that what it was hauling, which was the concentrate, had asbestos as of 1977. [00:34:16] Speaker 03: Is that right? [00:34:17] Speaker 00: I think that's right, Your Honor. [00:34:18] Speaker 00: That was disputed at trial. [00:34:19] Speaker 03: I know, but I'm doing my best here. [00:34:21] Speaker 03: But I think the jury heard evidence that there's a one-year overlap of 1977 with both plaintiff's exposures. [00:34:27] Speaker 03: Is that right? [00:34:29] Speaker 00: I think that's right, Your Honor. [00:34:31] Speaker 00: Go ahead. [00:34:32] Speaker 00: to get back to what they did. [00:34:34] Speaker 00: The asbestos was no longer in transport when it came off the train. [00:34:40] Speaker 00: It's not on its way anywhere. [00:34:43] Speaker 00: It's just sitting there. [00:34:44] Speaker 00: So now we have BNSF. [00:34:47] Speaker 02: I just want to, if I may. [00:34:50] Speaker 00: Sure, Your Honor. [00:34:52] Speaker 02: Your theory is that they're subjected to strict liability for not cleaning up the asbestos off the tracks, right? [00:35:00] Speaker 00: They are subjected to strict liability because they had an abnormally dangerous condition, i.e. [00:35:06] Speaker 00: asbestos. [00:35:07] Speaker 02: That's my question. [00:35:08] Speaker 02: I understand the state Supreme Court to have held that the transportation of these materials [00:35:15] Speaker 02: Subjects one to strict liability because it's an ultra hazardous activity. [00:35:20] Speaker 02: Is it an ultra hazardous activity not to clean your rails? [00:35:26] Speaker 02: See, it seems to me that's a negligence theory on which you lost. [00:35:30] Speaker 02: So I'm trying to figure out why the strict liability theory applies. [00:35:34] Speaker 02: to the failure to clean up the yard, as opposed to the transportation? [00:35:39] Speaker 00: Two answers, Your Honor. [00:35:40] Speaker 00: In Montana, there's strict liability for ultra-hazardous activities and for conditions. [00:35:47] Speaker 00: And so that's right out of the Montana cases we cited in our brief. [00:35:51] Speaker 00: And so the buildup of this asbestos on their yard was an ultra-hazardous, ultra-dangerous, abnormally dangerous [00:36:00] Speaker 00: condition subjecting it to strict liability. [00:36:03] Speaker 00: And if I can get back to the courts or to the judge's negligence question, when you have strict liability, you don't need negligence. [00:36:11] Speaker 00: So the absence of negligence. [00:36:12] Speaker 02: I understand. [00:36:14] Speaker 02: And that's why I have some difficulty with the district court's ruling in your favor, because the district court seemed to say, well, you can't have strict liability when there is negligence. [00:36:24] Speaker 02: And that conflates two different theories. [00:36:28] Speaker 00: I don't read the court. [00:36:29] Speaker 00: I'm not sure what you're talking about there. [00:36:31] Speaker 00: But I think the point is that the absence of negligence is not a defense to strict liability. [00:36:37] Speaker 02: We all understand that. [00:36:40] Speaker 02: My concern is that what you're really urging in this case is a negligence theory. [00:36:47] Speaker 02: What you're really saying is we'll have no trouble with your common carriage. [00:36:50] Speaker 02: Your common carriage was terrific. [00:36:53] Speaker 02: And if, as a result of your common carriage, something occurred, you should have cleaned it up. [00:36:58] Speaker 02: And that strikes me as a negligence theory, not a strict liability theory. [00:37:02] Speaker 00: It's not a negligence theory under Montana law. [00:37:04] Speaker 00: Or it may be, but that's not how we're proceeding. [00:37:07] Speaker 00: Because Montana law has a six factor determination it uses to determine if something is an abnormally dangerous condition. [00:37:16] Speaker 00: And Montana law, the Montana Supreme Court decided that it was. [00:37:19] Speaker 04: Hey, Eddie, you say Eddie is exactly on point. [00:37:23] Speaker 04: I don't think I agree with you as being exactly on point. [00:37:27] Speaker 04: It may be your best case, and it may be a confusing case, but I don't agree with you that it's exactly on point. [00:37:35] Speaker 04: I think there's room to argue why Eddie is not on. [00:37:42] Speaker 04: If Eddie were exactly on point, we would all agree that, OK, that's Montana law on this. [00:37:51] Speaker 00: Eddie left open the question of what activities fall within the common carrier exception. [00:37:57] Speaker 00: And that is the issue. [00:38:00] Speaker 04: And that's what we're talking about here, right? [00:38:02] Speaker 00: That's before this court. [00:38:03] Speaker 04: OK, but if it left it open, how is it exactly on point? [00:38:07] Speaker 00: Well, the activities might have been different. [00:38:10] Speaker 00: And recall that the courts below in Eddie didn't adopt the common carrier exception. [00:38:15] Speaker 00: So that really hadn't been litigated in that case, like it had been in this case. [00:38:19] Speaker 00: Eddie defined. [00:38:20] Speaker 03: It resolved that. [00:38:21] Speaker 03: But I think there's even more that Eddie leaves open. [00:38:24] Speaker 03: It's just that they're not on appeal here. [00:38:26] Speaker 03: Eddie begins with this premises on the facts here, basically, that this was an ultra hazardous activity. [00:38:34] Speaker 03: And then it goes on from there and adopts the restatement. [00:38:38] Speaker 03: And so that's why we're talking about this exception, the common carrier exception. [00:38:42] Speaker 03: But it does relate back to your earlier question about what the ultra hazardous answer to Judge Hurd, what's his question about what the ultra hazardous activity is. [00:38:53] Speaker 03: Because I think your response to him was that under Montana law, allowing dust, the condition of having the dust in the [00:39:02] Speaker 03: rail yard is an ultra-hazardous activity. [00:39:05] Speaker 03: The district court ruled in this case that Burlington Northern was foreclosed from contesting that what we're talking about here is an ultra-hazardous activity. [00:39:14] Speaker 03: I don't know that Eddie did that. [00:39:17] Speaker 03: I'm just taking it as unappealed here. [00:39:19] Speaker 00: It's not appealed here. [00:39:21] Speaker 00: And Eddie did go through the facts of this case considering the buildup of the dust. [00:39:26] Speaker 00: And it found, it affirmed the determination that this was an unreasonably dangerous condition. [00:39:32] Speaker 03: Okay, so on the facts of that case, I don't know what time period Eddie encompassed. [00:39:36] Speaker 03: And as we know here, we're talking about one sliver one year when BNSF was on notice that it was engaging in an ultra hazardous activity. [00:39:43] Speaker 03: The premise of that doctrine doesn't fit. [00:39:45] Speaker 03: period of time before people realize they're engaging in an ultra-hazardous activity. [00:39:50] Speaker 00: Recall that knowledge is not part of the calculus. [00:39:53] Speaker 03: I know, but it is part of the determination that something is an ultra-hazardous activity in the first place. [00:39:59] Speaker 03: That's in the restatement third, actually. [00:40:01] Speaker 03: But we're not going to go into that today. [00:40:03] Speaker 03: Again, it's a very interesting case. [00:40:05] Speaker 03: But it's also profoundly important to the parties involved. [00:40:07] Speaker 03: And we're really mindful of that and trying to get to the best answer here. [00:40:12] Speaker 03: I think we've pushed back on whether or not there's [00:40:15] Speaker 03: viable preemption argument or if that's the best way to go. [00:40:19] Speaker 03: We have this other problem with the common carrier doctrine and trying to get your best answer to why this isn't about harm, your client's harm doesn't really arise from the transportation of this material and for me at least I'm only one of three but that is pivotal to this argument here today and your best argument I think is that [00:40:40] Speaker 03: There was evidence about the, I reviewed it with opposing counsel, there was evidence about this escapement as the cars were moving. [00:40:50] Speaker 03: And you're not going forward on that theory today. [00:40:53] Speaker 03: You're going on the theory that there was an ultra-hazardous condition. [00:40:57] Speaker 03: And basically, this is why it sounds a whole lot like negligence, that Burlington Northern failed to maintain its premises. [00:41:05] Speaker 03: What's your best argument that that's not a negligent theory? [00:41:09] Speaker 00: My best argument, number one, is it's been decided, right? [00:41:13] Speaker 03: The jury said there's no negligence. [00:41:15] Speaker 00: Is that what you mean? [00:41:16] Speaker 00: No, that's not what I'm talking about. [00:41:17] Speaker 00: I'm talking about the fact that the Montana state courts have decided it's an ultra hazardous activity. [00:41:24] Speaker 03: Wait, I don't know that they did, sir. [00:41:25] Speaker 03: That's what I'm trying to push back on. [00:41:27] Speaker 00: No, I think they did. [00:41:28] Speaker 03: OK, I don't. [00:41:30] Speaker 03: But we're not going to answer that today because they didn't appeal it. [00:41:33] Speaker 03: So you're asking me, is that what you really mean? [00:41:35] Speaker 03: Because I don't think we need to discuss whether Eddie really forecloses that if it's not on appeal. [00:41:40] Speaker 00: That's right. [00:41:41] Speaker 00: I think it's established. [00:41:42] Speaker 03: That's right. [00:41:43] Speaker 03: So what they're appealing is that they fit within the common carrier exception. [00:41:47] Speaker 03: And your best argument, I think, the one you're announcing today, is that they don't because they engaged in another activity. [00:41:54] Speaker 03: And Montana certainly left that open. [00:41:56] Speaker 03: right, is if there's another activity that they weren't statutorily obliged to undertake. [00:42:02] Speaker 03: And I think what the district court ruled and what you're arguing today is they weren't obligated by statute to not maintain their rail yard. [00:42:09] Speaker 00: That's exactly right. [00:42:10] Speaker 00: My time has expired. [00:42:11] Speaker 00: Can I answer that question? [00:42:13] Speaker 00: Yes. [00:42:14] Speaker 03: Go ahead. [00:42:15] Speaker 00: So under Montana law, the parameters, the duty arising under the common carrier exception, the parameters of that are defined by the federal statutes, which say nothing about how to maintain a rail yard. [00:42:29] Speaker 00: They don't require BNSF to do anything or not to do anything. [00:42:33] Speaker 00: And so under the Montana Supreme Court's test, we're looking at what the statute requires. [00:42:38] Speaker 00: There is no public duty, one way or another, for a common carrier to maintain or not maintain the rail yard. [00:42:47] Speaker 00: That's the test for common carrier in Montana, and they haven't met it here. [00:42:52] Speaker 02: Well, if you're right about that, [00:42:55] Speaker 02: doesn't it give some extra force to their preemption theory? [00:42:59] Speaker 02: Because if they face different state standards throughout the country about how to maintain their rail yards, then there really is a preemption issue, is there not? [00:43:12] Speaker 00: there isn't, Your Honor, because under the basic, and I haven't touched on preemption at all, but the basic rule addresses whether the law affects the way the railroad is managed or regulated. [00:43:25] Speaker 00: And this case is very similar to a case this Court decided [00:43:29] Speaker 00: uh... the uh... uh... american association of railroads case the facts are different but in that case this court said that dumping hazardous property on your rail yard is an example of a non-preempt laws prohibited that prohibiting the hazardous dumping is or would not be preempted and that's essentially what this case is like and the Emerson case as well. [00:43:53] Speaker 02: What you're saying in this case is that they're liable for not [00:43:57] Speaker 02: cleaning up the asbestos for not maintaining their rail yard in a particular way. [00:44:03] Speaker 02: And it seems to me once you start talking about maintaining the rail yard, we do have to start worrying about conflicting state standards. [00:44:11] Speaker 04: Well, and you've got, I mean, there's a whole line of cases that whether a railroad's activity is inseparable from transportation. [00:44:20] Speaker 04: For example, in Emerson, the discretionary discarding of waste was separate from transporting. [00:44:27] Speaker 04: But, and that's, I think, a 10th Circuit case. [00:44:30] Speaker 04: But in Pace, smoke emitting from the train was not. [00:44:35] Speaker 04: And then similarly in rushing versus Kansas City, that court found noise from the railroad car vibrations was integral to train transportation. [00:44:48] Speaker 04: So isn't the accumulation of asbestos more like the emission of smoke or noise from rail car vibrations and less [00:44:56] Speaker 04: than like discarding in the foliage? [00:45:01] Speaker 00: Absolutely not, Your Honor, and here's why. [00:45:02] Speaker 00: Emissions involve the actual running of the train. [00:45:08] Speaker 00: The cases where preemption is found involves running the actual train or railroad infrastructure like bridges. [00:45:18] Speaker 00: But that's not this case. [00:45:19] Speaker 00: This case is cleaning up your property, something that every property owner should do. [00:45:24] Speaker 00: And BNSF is seeking to escape from that, claiming it's a railroad owner. [00:45:31] Speaker 00: And as I sit down, let me make one more factual point. [00:45:33] Speaker 04: I think we understand your argument. [00:45:36] Speaker 04: Let me see if my colleagues, we've taken you quite a bit over. [00:45:38] Speaker 04: Do you have any additional questions? [00:45:41] Speaker 03: May I beg your indulgence to just hear this last point that Council is trying to make? [00:45:44] Speaker 00: Yes. [00:45:44] Speaker 03: Because I think he's going to the one question I have left. [00:45:47] Speaker 04: OK, go ahead. [00:45:48] Speaker 00: Thank you, your honor. [00:45:49] Speaker 00: There is no evidence in this record of the effect that requiring them to clean this up would have on railroad operations. [00:45:58] Speaker 00: Council, my friend, suggested it would require them to shut down, but that's just not in this record. [00:46:03] Speaker 00: They have the burden of proving that interference, and it's not in this record. [00:46:07] Speaker 00: And that's the point I wanted to make. [00:46:09] Speaker 00: And did you have another question? [00:46:11] Speaker 04: That'll conclude argument on your side, and you have two minutes. [00:46:17] Speaker 00: We would ask the court to affirm the judgment. [00:46:20] Speaker 04: I understand that. [00:46:24] Speaker 01: I'd like to start in the last point, if I may. [00:46:26] Speaker 01: You have two minutes to do what you're going to do. [00:46:29] Speaker 01: Thank you, Your Honor. [00:46:31] Speaker 01: ER 795-800 talks about the procedures that would be and SF would be required to undertake [00:46:37] Speaker 01: to clean up vermiculite concentrate if it's a ultra hazardous material. [00:46:41] Speaker 01: ER628 is an employee of BNSF describing those procedures. [00:46:46] Speaker 01: I'd like to talk about the issue that you raised, Judge Christen, on the cases, the bookend. [00:46:54] Speaker 01: The very first common carrier exception case, that did not involve material on the train while it was being transported. [00:47:04] Speaker 01: It had been on the dock, I think, six days, and bombs were being carried onto a ship. [00:47:09] Speaker 01: And the court there said, [00:47:10] Speaker 01: We're not going to hold a railroad liable for harm caused by material that it is required to carry. [00:47:16] Speaker 01: And that's consistent with the federal definition of transportation. [00:47:19] Speaker 01: That's 49 USC 101 02 sub 9. [00:47:22] Speaker 01: And it's that broad definition of transportation that covers yards, facilities, handling of freight, transfer, and delivery of freight. [00:47:32] Speaker 03: In Hanford, they were liable. [00:47:35] Speaker 03: They weren't subject. [00:47:36] Speaker 03: Is that because they volunteered? [00:47:37] Speaker 01: That's correct. [00:47:38] Speaker 01: That's because they volunteered, and it was not a duty. [00:47:40] Speaker 01: During the war effort? [00:47:41] Speaker 01: Correct, yes. [00:47:43] Speaker 01: And then there are a couple other cases, too. [00:47:44] Speaker 01: There's Johnson v. CSX out of the Western District of Kentucky. [00:47:49] Speaker 01: We cite that in the briefs. [00:47:50] Speaker 01: That was after a spill. [00:47:51] Speaker 01: And the plaintiff's argument was that, oh, no, this is a separate event. [00:47:56] Speaker 01: It's just carrying it on the track. [00:47:58] Speaker 01: And the court said there, [00:48:00] Speaker 01: No, it wouldn't be in there but for the common carrier obligation, and that's consistent with how the Montana Supreme Court decided that in Eddy. [00:48:12] Speaker 01: This is a negligence case under the guise of strict liability. [00:48:17] Speaker 01: I think that's right, Judge Hurwitz, and that is not a fit. [00:48:22] Speaker 01: BNSF was not negligent. [00:48:24] Speaker 01: They did everything they were supposed to do and were required to carry this material [00:48:29] Speaker 01: without knowledge that it was harmful. [00:48:32] Speaker 01: We'd ask that you reverse the district court. [00:48:34] Speaker 01: Thank you. [00:48:34] Speaker 04: All right. [00:48:35] Speaker 04: Thank you both for your argument in this matter. [00:48:37] Speaker 04: It was helpful. [00:48:38] Speaker 04: And I think students will still be interested in the law. [00:48:41] Speaker 04: We'll ask them later. [00:48:43] Speaker 04: So this matter will stand submitted.