Wells v. Bnsf Railway Company

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACKSON WELLS, as Personal No. 24-4802

Representative for the Estate of

D.C. No.

Thomas E. Wells, deceased; JUDITH

4:21-cv-00097-

HEMPHILL, as Personal

BMM

Representative for the Estate of Joyce

H. Walder, deceased,

OPINION

Plaintiffs - Appellees,

v.

BNSF RAILWAY COMPANY, a

Delaware corporation,

Defendant - Appellant.

Appeal from the United States District Court

for the District of Montana

Brian M. Morris, Chief District Judge, Presiding

Argued and Submitted October 21, 2025

Portland, Oregon

Filed February 24, 2026

Before: Consuelo M. Callahan, Morgan B. Christen, and

Andrew D. Hurwitz, Circuit Judges.

2 WELLS V. BNSF RAILWAY CO.

Opinion by Judge Christen;

Concurrence by Judge Callahan

SUMMARY*

Common Carrier Exception / Montana Law

The panel reversed the district court’s judgment in favor

of Plaintiffs, former residents of Libby, Montana who

developed mesothelioma from asbestos exposure, on their

strict liability claims against BNSF Railway Company

arising from BNSF’s transportation of asbestos-containing

vermiculite.

BNSF was required by federal law to transport asbestos-

containing vermiculite from the world’s largest vermiculite

mine to its railyard in Libby, Montana, and from there to

destinations nationwide.

Recently, in another case against BNSF for personal

injuries caused by asbestos exposure in Libby, the Montana

Supreme Court adopted § 521 of the Restatement (Second)

of Torts, which provides for an exception to strict liability

for abnormally dangerous activities. BNSF Ry. Co. v. Eddy,

459 P.3d 857 (Mont. 2020). The common carrier exception

bars the imposition of strict liability for an abnormally

dangerous activity if the activity is undertaken pursuant to a

public duty imposed upon the actor as a common carrier.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

WELLS V. BNSF RAILWAY CO. 3

The panel held that the district court erred by interpreting

the common carrier exception too narrowly when it held that

BNSF was ineligible for the common carrier exception on

the grounds that it did not act pursuant to a public duty when

it failed to maintain its railyard and tracks where asbestos

collected. The dangerous condition here—accumulated

asbestos dust—arose solely from BNSF’s operation as a

common carrier executing its federally mandated duty to

transport vermiculite. Montana caselaw strongly supported

the conclusion that BNSF was entitled to the protection

afforded by the common carrier exception. Accordingly, the

panel held that BNSF was protected from strict liability by

the common carrier exception.

The panel concluded that certification to the Montana

Supreme Court on the question of whether the common

carrier exception applied to BNSF’s actions was

unwarranted because there was sufficient Montana state law

to answer the question.

The panel reversed the district court’s judgment and

remanded with instructions to enter judgment for BNSF.

Concurring, Judge Callahan joined the opinion in full

because it correctly concluded that under Montana law the

common carrier exception protects BNSF from plaintiffs’

strict liability claims. She wrote separately to stress that the

Interstate Commerce Commission Termination Act

separately preempts plaintiffs’ strict liability claims.

4 WELLS V. BNSF RAILWAY CO.

COUNSEL

Kevin P. Parker (argued), C. Alfred Mackenzie, Megan M.

Waida, and W. Mark Lanier, The Lanier Law Firm PC,

Houston, Texas; Jinnifer J. Mariman and John F. Lacey,

McGarvey Law, Kalispell, Montana; for Plaintiffs-

Appellees.

Dale Schowengerdt (argued) and Timothy Longfield,

Landmark Law PLLC, Helena, Montana; Chad Knight,

Knight MacKay Morrow LLC, Kansas City, Missouri; for

Defendant-Appellant.

OPINION

CHRISTEN, Circuit Judge:

From 1922 to 1990, BNSF Railway Company was

required by federal law to transport asbestos-containing

vermiculite from the world’s largest vermiculite mine to its

railyard in Libby, Montana, and from there to destinations

nationwide. Thomas Wells and Joyce Walder were former

residents of Libby who developed mesothelioma from

asbestos exposure. Their estates asserted negligence and

strict liability claims against BNSF arising from its

transportation of vermiculite and sought compensatory and

punitive damages. After a ten-day trial, the jury returned a

verdict for Plaintiffs on their strict liability claims but in

favor of BNSF on Plaintiffs’ negligence claims. The jury

did not award punitive damages.

On appeal, BNSF argues that the common carrier

exception shields it from strict liability. Plaintiffs counter

WELLS V. BNSF RAILWAY CO. 5

that BNSF was not acting as a common carrier when it

allowed vermiculite that contained asbestos to accumulate in

its railyard. In the alternative, Plaintiffs ask us to certify to

the Montana Supreme Court the question whether the

common carrier exception applies to BNSF’s actions.

We conclude that BNSF is protected from strict liability

by the common carrier exception. Plaintiffs’ claims arose

from activities BNSF engaged in while pursuing its

statutorily imposed duty as a common carrier. Separately,

we conclude that certification is unwarranted. We therefore

reverse the district court’s judgment and remand with

instructions to enter judgment for BNSF.

I.

A.

Between 1922 and 1990, the world’s largest source of

vermiculite was a mine located approximately seven miles

outside of Libby, Montana. Vermiculite is a mineral that

was commonly used during that period for fireproof roofing,

insulation, and wallpaper.

For the most part, two companies were involved in the

extraction, processing, and shipment of vermiculite from

Libby: W.R. Grace & Company and BNSF. W.R. Grace

extracted vermiculite from a mine outside of Libby from

1963 to 1990, and processed raw vermiculite ore to remove

impurities. This created vermiculite concentrate and leftover

waste, or tailings.

It is now known that the concentrate contained asbestos

fibers. Processing the vermiculite ore into concentrate

decreased the amount of asbestos in the material, but the

exact extent of this reduction was contested at trial. By one

measure, the raw vermiculite ore contained up to twenty-six

6 WELLS V. BNSF RAILWAY CO.

percent asbestos, and evidence showed that the tailings could

contain up to eighty percent.

BNSF was required by federal law to transport W.R.

Grace’s vermiculite concentrate upon request. 49 U.S.C.

§ 11101(a). W.R. Grace filled empty railcars with

concentrate at the mine site and sealed them before BNSF

hauled the cars to its Libby railyard. The railyard spanned

approximately twenty acres in the northern downtown area.

From the railyard, BNSF shipped the railcars nationwide.

Initially, W.R. Grace certified on bills of lading prepared

for each railcar that the vermiculite concentrate shipments

were not hazardous. The Montana Department of

Environmental Quality reported as late as 1974 that asbestos

was removed by processing vermiculite ore into concentrate.

However, evidence at trial showed that by 1977, W.R. Grace

posted placards on at least some railcars stating that the

vermiculite concentrate inside contained asbestos. It was not

until decades later, in 2000, that the Environmental

Protection Agency (EPA) began an extensive cleanup in

Libby pursuant to the Comprehensive Environmental

Response, Compensation and Liability Act, 42 U.S.C.

§ 9601 (CERCLA). United States v. W.R. Grace & Co., 429

F.3d 1224, 1232 (9th Cir. 2005) (summarizing the EPA’s

response to the “truly extraordinary” situation in Libby as

“no mere run-of-the-mill CERCLA cleanup,” but rather, “a

unique removal action of a size and cost not previously

seen”).

At trial, the evidence showed that asbestos-containing

vermiculite escaped from railcars during the regular course

of transportation and also during railcar switching operations

in the railyard. The evidence further demonstrated that

vermiculite pervaded downtown Libby. W.R. Grace stored

WELLS V. BNSF RAILWAY CO. 7

vermiculite in an export plant in the downtown area and

donated tailings to spread over a local baseball field to

absorb rainwater. Unaware of the danger, many Libby

residents used vermiculite in a variety of ways in their homes

and on their lawns.

Thomas Wells worked for the Forest Service in Lincoln

County, Montana from June through September and most of

November in 1978 and also from July to August in 1981.

Between June to November in 1978, he lived in a trailer

home abutting BNSF’s railyard. Joyce Walder lived in

Libby from 1954 to 1972 and from 1976 to 1978, then visited

periodically through 2009. During her childhood, Walder

frequented the baseball and football fields and the running

track near the railyard. She also walked across the railyard

and swam in the city pool, which was located near the

railyard.

The jury found that Plaintiffs had been exposed to

asbestos. Both Wells and Walder were diagnosed with

mesothelioma, a cancer caused by exposure to asbestos that

affects tissues surrounding the lungs. See Norfolk & W. Ry.

Co. v. Ayers, 538 U.S. 135, 142 & n.4 (2003). Tragically,

each died within months after receiving this diagnosis.

B.

In 2021, the personal representatives of Plaintiffs’ estates

filed this action against BNSF in the United States District

Court for the District of Montana, asserting negligence and

strict liability claims.

Two divergent narratives of BNSF’s activities in Libby

emerged. Before trial, BNSF sought summary judgment on

Plaintiffs’ strict liability claims, arguing that it had acted

pursuant to its statutorily imposed duty as a common carrier

8 WELLS V. BNSF RAILWAY CO.

when it transported vermiculite concentrate. Plaintiffs

argued that BNSF had not acted as a common carrier when

it stored “‘reservoirs’ of asbestos and asbestos contaminated

materials at [its] Libby railyard.” The district court denied

BNSF’s motion, reasoning that if Plaintiffs could establish

their allegations at trial, “harbor[ing] a toxic asbestos dump

in the Libby railyard” would be “removed from BNSF’s role

as a [common] carrier of vermiculite.”

A ten-day jury trial commenced in Helena in April 2024.

In contrast to their opposition to BNSF’s motion for

summary judgment, Plaintiffs’ opening statement made no

mention of BNSF storing vermiculite or reservoirs of

asbestos on its property. After opening statements, the

district court expressed “serious questions about the viability

of [Plaintiffs’] strict liability claim,” because its initial

understanding that “the material was . . . stored at the

railyard, and then loaded on railcars” now “seem[ed] to be

erroneous.” As trial progressed, testimony showed that

BNSF did not store vermiculite ore or concentrate at its

Libby railyard, but asbestos dust had nonetheless

accumulated on BNSF’s property. At the close of Plaintiffs’

case, the district court questioned whether Plaintiffs’ theory

of BNSF’s liability was actually premised on BNSF’s

“inactivity” for failing to properly maintain the railyard.

BNSF moved for judgment as a matter of law on Plaintiffs’

strict liability claims, again invoking the common carrier

exception. The court denied the motion, explaining its view

that “[n]othing under BNSF’s duty as a common carrier

prevented [BNSF] from periodically cleaning the railyard, or

from improving its facilities to capture vermiculite dust for

safe disposal.” During closing argument, Plaintiffs’ counsel

characterized BNSF’s conduct underlying their lawsuit as

“the condition of [BNSF’s] yard.”

WELLS V. BNSF RAILWAY CO. 9

The jury rejected Plaintiffs’ negligence claims and

request for punitive damages, but it found in Plaintiffs’ favor

on their strict liability claims and awarded $4,000,000 in

compensatory damages to each estate. The district court

denied BNSF’s renewed motion for judgment as a matter of

law on Plaintiffs’ strict liability claims, and BNSF timely

appealed.

This lawsuit is one of many concerning asbestos

exposure in Libby. Initially, many individuals who claimed

to have been exposed to asbestos in the Libby area sued W.R.

Grace, but in 2001, W.R. Grace declared bankruptcy and

placed $2.9 billion in an irrevocable trust to settle all present

and future claims. According to BNSF, after W.R. Grace

declared bankruptcy, hundreds of lawsuits were filed against

BNSF. See, e.g., BNSF Ry. Co. v. Eddy, 459 P.3d 857 (Mont.

2020); Gallegos v. BNSF Ry. Co., No. 22-68, 2023 WL

8187923 (D. Mont. Nov. 27, 2023). This is the first such

lawsuit to go to trial.1

II.

The district court had jurisdiction to hear Plaintiffs’

claims in this diversity action pursuant to 28 U.S.C. § 1332.

We have appellate jurisdiction pursuant to 28 U.S.C. § 1291

and review de novo the district court’s interpretation of state

law. Casun Inv., A.G. v. Ponder, 119 F.4th 637, 642 (9th

Cir. 2024), cert. denied sub nom. NVWS Props., LLC v.

Casun Inv., A.G., 145 S. Ct. 1927 (2025).

1

Another has been stayed pending the resolution of this appeal. See Moe

v. BNSF Ry. Co., No. 9:22-cv-00068-DLC, Stay Order, ECF # 141 (D.

Mont. May 1, 2024).

10 WELLS V. BNSF RAILWAY CO.

III.

A.

Decades ago, Montana adopted §§ 519 and 520 of the

Restatement (Second) of Torts, which outline strict liability

for abnormally dangerous activities. See Matkovic v. Shell

Oil Co., 707 P.2d 2, 4 (Mont. 1985). Section 519 provides:

(1) One who carries on an abnormally

dangerous activity is subject to liability for

harm to the person, land or chattels of another

resulting from the activity, although he has

exercised the utmost care to prevent the harm.

(2) This strict liability is limited to the kind

of harm, the possibility of which makes the

activity abnormally dangerous.

Restatement (Second) of Torts § 519 (A.L.I. 1977). Section

520 provides six factors to consider when determining

whether an activity is abnormally dangerous:

(a) existence of a high degree of risk of some

harm to the person, land or chattels of

others;

(b) likelihood that the harm that results from

it will be great;

(c) inability to eliminate the risk by the

exercise of reasonable care;

(d) extent to which the activity is not a matter

of common usage;

(e) inappropriateness of the activity to the

place where it is carried on; and

WELLS V. BNSF RAILWAY CO. 11

(f) extent to which its value to the community

is outweighed by its dangerous attributes.

Though a court must consider all factors, all factors “need

not be present” for an activity to qualify as abnormally

dangerous. Covey v. Brishka, 445 P.3d 785, 792 (Mont.

2019).

Recently, in another case against BNSF for personal

injuries caused by exposure to asbestos in Libby, the

Montana Supreme Court also adopted § 521 of the Second

Restatement, which provides for an exception to strict

liability for common carriers. See Eddy, 459 P.3d at 873–

74. The common carrier exception bars the imposition of

“strict liability for abnormally dangerous activities . . . if the

activity is carried on in pursuance of a public duty imposed

upon the actor . . . as a common carrier.” Restatement

(Second) of Torts § 521 (A.L.I. 1977). This exception

addresses concerns that “it would be unjust to subject a

common carrier to strict liability for any danger done by a

material the carrier is required to transport by law.” Eddy,

459 P.3d at 873. Accordingly, Montana law applies the

exception to abnormally dangerous activities “carried on in

pursuance of a public duty” when “that public duty is

imposed on the actor as a common carrier.” Id. at 874.

B.

We begin from the premise that BNSF’s transportation

of vermiculite concentrate was an abnormally dangerous

activity. The district court ruled that BNSF was precluded

from arguing otherwise by the Montana Supreme Court’s

decision in Eddy, 459 P.3d at 868–73, and BNSF does not

challenge that ruling on appeal. Rather, BNSF argues only

that the common carrier exception exempts it from strict

12 WELLS V. BNSF RAILWAY CO.

liability. BNSF contends that the district court construed the

common carrier exception too narrowly, interpreting it to

apply only to “public-duty-imposed common carrier

activities.” More specifically, BNSF argues that the district

court erred by ruling that it was ineligible for the common

carrier exception on the grounds that BNSF did not act

pursuant to a public duty when it failed to maintain its

railyard and tracks where asbestos collected.

We agree that the district court interpreted the scope of

the common carrier exception too narrowly.2 As adopted by

Montana and the vast majority of states, the exception

shields common carriers from strict liability for harm caused

2

The concurrence addresses preemption of the strict liability claims by

the Interstate Commerce Commission Termination Act of 1995

(ICCTA), Pub. L. 104-88, 109 Stat. 803, an issue we do not reach

because we can resolve this appeal on the common carrier exception and

the scope of ICCTA’s potential preemption was not adequately briefed.

As the concurrence notes, the parties did not address whether the ICCTA

would preempt other state law claims, such as negligence, because the

jury did not find BNSF negligent and Plaintiffs did not appeal that

adverse finding. At oral argument before our court, BNSF equivocated

on the scope of the ICCTA’s proposed preemption; specifically, whether

it might apply to negligence. The common carrier exception provides a

simpler ground for resolution of this appeal and does not implicate the

same federalism concerns that attend preemption of state laws of general

applicability. See Wyeth v. Levine, 555 U.S. 555, 565 (2009); Bates v.

Dow Agrosciences LLC, 544 U.S. 431, 449 (2005); see also Moore v.

Trader Joe’s Co., 4 F.4th 874, 880 (9th Cir. 2021) (affirming dismissal

of state law claims on the basis that the complaint failed to state a claim

and declining to reach federal preemption). By declining to reach

preemption, we adhere to the principle of judicial restraint that “if it is

not necessary to decide more, it is necessary not to decide more.” Morse

v. Frederick, 551 U.S. 393, 431 (2007) (Breyer, J., concurring in the

judgment in part and dissenting in part) (quoting PDK Labs., Inc. v. Drug

Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J.,

concurring in part and concurring in judgment)).

WELLS V. BNSF RAILWAY CO. 13

during transport “because common carriers must accept,

carry, and deliver all goods offered to them for transport

within the scope of the operating authority set forth in their

permits.” In re Hanford Nuclear Rsrv. Litig., 534 F.3d 986,

1006 (9th Cir. 2008). 3 Unlike private shippers, common

carriers “cannot discriminate against customers or refuse to

accept commodities that may be dangerous for transport.”

Id. Eddy explained that a common carrier is not strictly

liable for dangers inherent in “a material the carrier is

required to transport by law.” 459 P.3d at 873. Eddy also

held that as a rail carrier, BNSF qualifies as a common

carrier for the purposes of the common carrier exception. Id.

at 874.

The parties do not dispute that the “asbestos-

contaminated vermiculite entered the Libby railyard via

BNSF’s transport.” The jury heard testimony that

vermiculite dust fell “along the tracks and within the

railyard” after it escaped from railcars during car switching

operations and during transport along the railroad. Federal

law defines “transportation” broadly to include “delivery,”

“storage,” “handling,” and “services related to [the]

movement” of property. 49 U.S.C. § 10102(9). Plaintiffs’

theory of liability thus stems directly from BNSF’s statutory

3

Eddy recognized that this exception has been broadly adopted. 459

P.3d at 873; see, e.g., Pecan Shoppe of Springfield, Inc. v. Tri-State

Motor Transit Co., 573 S.W.2d 431, 435 (Mo. Ct. App. 1978); Town of

East Troy v. Soo L. R.R. Co., 409 F. Supp. 326, 330 (E.D. Wis. 1976);

Christ Church Parish v. Cadet Chem. Corp., 199 A.2d 707, 708 (Conn.

Super. Ct. 1964); Albig v. Mun. Auth. of Westmoreland Cnty., 502 A.2d

658, 663 (Pa. Super. Ct. 1985); Ruiz v. S. Pac. Transp. Co., 638 P.2d

406, 412 (N.M. Ct. App. 1981); Peneschi v. Nat’l Steel Corp., 295 S.E.2d

1, 5 (W. Va. 1982); Cairl v. St. Paul, 268 N.W.2d 908, 911 (Minn. 1978);

Voelker v. Delmarva Power & Light Co., 727 F. Supp. 991, 994 (D. Md.

1989).

14 WELLS V. BNSF RAILWAY CO.

duty to transport vermiculite concentrate. See id. at

§ 11101(a).

Plaintiffs attempt to distinguish the condition of BNSF’s

railyard from BNSF’s role as a common carrier, because

escaped asbestos that accumulated in BNSF’s railyard was

no longer in transit. Plaintiffs argue that the escaped

asbestos constituted an abnormally dangerous condition on

the land for which BNSF should be strictly liable as a

property owner. In support, Plaintiffs cite Covey, a case in

which the Montana Supreme Court concluded that

maintaining a man-made fishpond on a mountainside was an

abnormally dangerous condition that triggered strict

liability. 445 P.3d at 790–91. This analogy is inapt. Covey

involved the voluntary maintenance of a man-made 4.5-

million-gallon fishpond for private purposes, upslope from

other property owners. Id. at 789. The Covey defendant was

held strictly liable after his “pond breached its banks

and . . . [t]he water carried boulders, trees, and other debris

downhill[,] . . . carv[ing] large channels into the hillside.”

Id. In contrast, the dangerous condition here—accumulated

asbestos dust—arose solely from BNSF’s operation as a

common carrier executing its federally mandated duty to

transport vermiculite. Cf. Anderson v. BNSF, No. ADV-

2008-101, 2010 Mont. Dist. LEXIS 73, at *4 (Mont. Dist.

Feb. 2, 2010) (concluding that the common carrier exception

immunized BNSF from strict liability for diesel fuel stored

at BNSF’s railyard that leaked to surrounding property

because storing fuel “is an integral part of its operation as a

common carrier”).

The result we reach today is consistent with Town of East

Troy v. Soo Line Railroad Company, 409 F. Supp. 326, 328

(E.D. Wis. 1976), which the Eddy court cited with approval.

See Eddy, 459 P.3d at 873. Town of East Troy involved a

WELLS V. BNSF RAILWAY CO. 15

train that derailed while transporting hazardous acid. 409 F.

Supp. at 328. The railroad company waited nine days before

attempting to remove acid-contaminated soil from the

derailment site, and that delay allowed the spill to foul the

surrounding community’s groundwater supply. Id. at 330.

The plaintiff in Town of East Troy alleged that the railroad

company “knew or should have known” that it was engaged

in an abnormally dangerous activity by transporting

hazardous acid. Id. But the district court dismissed the

claim because it concluded that the common carrier

exception shielded the company from strict liability. Id.; see

also Walsh v. Mont. Rail Link, 2001 ML 1418, 2001 Mont.

Dist. LEXIS 3033, at *21–22 (Mont. Dist. May 8, 2001)

(holding that the common carrier exception immunized a rail

company from strict liability for injuries resulting from toxic

chemicals spilled when a train derailed); Griffin v. Mont.

Rail Link, 2000 ML 2438, 2000 Mont. Dist. LEXIS 1331, *2

(Mont. Dist. Aug. 29, 2000) (same).

This caselaw strongly supports the conclusion that BNSF

is entitled to the protection afforded by the common carrier

exception because it is uncontested that the asbestos dust that

accumulated in BNSF’s railyard leaked or escaped from rail

cars during BNSF’s required transportation of vermiculite

concentrate. The fact that the dust accumulated gradually

along the railroad tracks and in BNSF’s railyard, rather than

spilling abruptly, does not alter our analysis because the

gradual spillage still occurred during BNSF’s shipment of

vermiculite.

In reaching the opposite conclusion, the district court

emphasized that Montana does not apply the common carrier

exception when a common carrier engages in “abnormally

dangerous activit[ies] for ‘its own purposes’” rather than in

“pursuance of a public duty,” Eddy, 459 P.3d at 875 (quoting

16 WELLS V. BNSF RAILWAY CO.

Murphy-Fauth v. BNSF Ry. Co., No. 17-79, 2018 WL

3601235, at *2 (D. Mont. July 27, 2018)). 4 The court

reasoned that no public duty obligated BNSF to “maintain[]

uncontained asbestos-containing material open air on its

property,” and that BNSF allowed accumulated dust to

remain in the railyard for its own gain because foregoing

maintenance of the yard increased revenue and prevented

transportation delays. The district court analogized this case

to In re East Palestine Train Derailment, a case decided by

the United States District Court for the Northern District of

Ohio in which a railroad company “transport[ed] over a

million pounds of hazardous chemicals and,” after a

derailment, “intentionally set[] fire to them in a residential

neighborhood.” No. 4:23-cv-0242-BYP, 2024 WL

1096064, at *10 (N.D. Ohio Mar. 13, 2024). Crucial to the

East Palestine court’s conclusion that the common carrier

exception did not apply was the fact that, in responding to

the spill, the railroad company “voluntarily undertook

activities for [its] own purpose; namely to release and burn

vinyl chloride in order to get the derailed cars out of the way

to start . . . trains running through East Palestine again to

earn revenue.” Id. at *11. Unlike the situation in East

Palestine, here the district court cited no evidence, and on

appeal Plaintiffs point to no evidence, that BNSF aimed to

save money by not cleaning its railyard. Indeed, for decades,

4

The plaintiff in Murphy-Fauth alleged injury from asbestos exposure

as a result of BNSF’s activities in Libby. See Murphy-Fauth, 2018 WL

3601235, at *1–2. The plaintiff’s allegations extended beyond just the

transport of vermiculite and included allegations that “BNSF played a

central role in the vermiculite operations in Libby” by collaborating with

W.R. Grace to “develop[] new uses for vermiculite products and assist[]

in marketing.” See D. Mont. No. 17-cv-00079-BMM-JTJ, Dkt. No. 63

¶ 23. The district court denied BNSF’s motion to dismiss, but the parties

settled shortly thereafter. Id. at *4.

WELLS V. BNSF RAILWAY CO. 17

even the Montana Department of Environmental Quality

advised that vermiculite concentrate did not contain

asbestos.

The district court adopted Plaintiffs’ characterization of

BNSF’s “abnormally dangerous activity” as “maintain[ing]

asbestos on its property.” Plaintiffs framed BNSF’s conduct

as an affirmative act (“maintaining”), but their theory of

strict liability was actually premised on BNSF’s alleged

“fail[ure] to take measures to prevent toxic dust from

collecting upon and escaping from its property.” That

theory, which assumes that the risk of harm would have been

eliminated if BNSF had “adequately clean[ed]” its railyard,

effectively treats Plaintiffs’ strict liability claims as

negligence claims. To be sure, the Montana Supreme Court

has explained that the common carrier exception would not

have shielded BNSF from a negligence claim, Eddy, 459

P.3d at 874, but the jury expressly rejected Plaintiffs’

negligence theory and found that BNSF “exercise[d]

reasonable care in its handling of asbestos.”

C.

Plaintiffs chose to file this action in federal court, but on

appeal they urge us to certify to the Montana Supreme Court

the question whether Montana’s common carrier exception

for strict liability encompasses BNSF’s failure to maintain

its railyard.5 We decline to do so.

5

Specifically, Plaintiffs ask this panel to certify the following question:

Does Montana’s common carrier exception to strict

liability for an abnormally dangerous activity or

condition immunize BNSF from strict liability for

harm caused by asbestos in or on its Libby railyard,

when the prolonged presence of this toxic substance in

18 WELLS V. BNSF RAILWAY CO.

A federal court sitting in diversity is empowered “to

decide questions of state law.” Abraham v. Corizon Health,

Inc., 985 F.3d 1198, 1202 (9th Cir. 2021). “However, if state

law permits it, we may exercise our discretion to certify a

question to the state’s highest court.” Murray v. BEJ

Minerals, LLC, 924 F.3d 1070, 1071 (9th Cir. 2019) (en

banc). The Montana Supreme Court permits certification of

questions of law from federal courts when “[t]he answer may

be determinative of an issue in pending litigation in the

certifying court” and “[t]here is no controlling appellate

decision, constitutional provision, or statute of this State.”

Mont. R. App. P. 15(3).

In deciding whether to certify a question, we consider

“(1) whether the question presents ‘important public policy

ramifications’ yet unresolved by the state court; (2) whether

the issue is new, substantial, and of broad application; (3) the

state court’s caseload; and (4) ‘the spirit of comity and

federalism.’” Murray, 924 F.3d at 1072 (quoting Kremen v.

Cohen, 325 F.3d 1035, 1037 (9th Cir. 2003)). Because

certification burdens state courts and the parties and can

prolong litigation, we do not invoke it lightly. Id. Moreover,

we have explained that “[w]hen there is little reason to doubt

the answer to a state-law question, we ought not outsource

our work to a state court.” Bliss Sequoia Ins. & Risk

Advisors, Inc. v. Allied Prop. & Cas. Ins. Co., 52 F.4th 417,

423 (9th Cir. 2022).

In Eddy, the Montana Supreme Court applied the

common carrier exception to “the manner in which [BNSF]

conducted the transport of vermiculite,” reasoning that

“BNSF is entitled to the common carrier exception for strict

and on its Libby railyard was not required by BNSF’s

statutory duties as a common carrier?

WELLS V. BNSF RAILWAY CO. 19

liability imposed as a result of its transporting of vermiculite,

which it was required to do by law.” Id. at 874. Eddy

remanded to the trial court to determine whether BNSF’s

other activities fell within the scope of the exception. Id. at

875. The complaint in Eddy alleged that BNSF’s other

actions included “industrial activities” such as disturbance

of asbestos and collaboration with W.R. Grace to “strategize

regarding distribution of the product and geologic

sampling,” as well as other undertakings “not required of a

common carrier.” Eddy, 459 P.3d at 864 & n.1, 873. Eddy

leaves little doubt that the outcome of this case is controlled

by the common carrier exception because Plaintiffs

complain about the deposit of asbestos-containing

vermiculite along the tracks and in the Libby railyard, and

the asbestos-containing vermiculite fell on the tracks and

entered the railyard during the course of BNSF’s

transportation of vermiculite concentrate. In other words,

Plaintiffs attempt to hold BNSF strictly liable “for the

manner in which it conducted the transport of vermiculite,”

which the Montana Supreme Court specifically foreclosed in

Eddy. Id. at 874.

We therefore conclude that certification is unwarranted

because there is sufficient Montana state law to answer the

question presented. See Syngenta Seeds, Inc. v. Cnty. of

Kauai, 842 F.3d 669, 681 (9th Cir. 2016). These claims have

been pending since 2021 and involve alleged exposure to

asbestos dating back to 1954. See Riordan v. State Farm

Mut. Auto. Ins. Co., 589 F.3d 999, 1009 (9th Cir. 2009)

(“[W]e do not find it necessary to further prolong these

proceedings [by certifying questions to the Montana

Supreme Court] where the state law is clear.”).

REVERSED and REMANDED with instructions.

20 WELLS V. BNSF RAILWAY CO.

CALLAHAN, J., concurring:

I join the opinion in full because it correctly concludes

that under Montana law the common carrier exception

protects BNSF from Plaintiffs’ strict liability claims. I write

separately to stress that, in my view, the Interstate

Commerce Commission Termination Act separately

preempts Plaintiffs’ strict liability claims.

I

A

To substantially reform excessive economic regulation

of the Nation’s transportation industries, Congress adopted

the Interstate Commerce Commission Termination Act of

1995 (ICCTA). Pub. L. 104-88, 109 Stat. 803. ICCTA

grants the Surface Transportation Board jurisdiction over

specific modes and locations of “transportation by rail

carrier.” 49 U.S.C. § 10501(a). For that transportation and

certain related activities, the Board has exclusive

jurisdiction. Id. § 10501(b). ICCTA also provides a

comprehensive remedial scheme for enforcing regulations of

rail transportation, holding rail carriers liable, and providing

remedies to persons injured by rail carriers. Id. §§ 11701-

11707. Remedies provided by ICCTA “with respect to

regulation of rail transportation are exclusive and preempt

the remedies provided under Federal or State law.” Id.

§ 10501(b).

We first interpreted ICCTA’s preemptive scope in City of

Auburn v. United States, observing that “[i]t is difficult to

imagine a broader statement of Congress’s intent to preempt

state regulatory authority over railroad operations.” 154

F.3d 1025, 1030 (9th Cir. 1998) (quoting CSX Transp., Inc.

v. Ga Pub. Serv. Comm’n, 944 F. Supp. 1573 (N.D. Ga.

WELLS V. BNSF RAILWAY CO. 21

1996)). There, we held that ICCTA preempts not only

nominal “economic” regulations but also other regulations

that “will in fact amount to ‘economic regulation.’” Id. at

1031; see also Or. Coast Scenic R.R., v. Or. Dep’t of State

Lands, 841 F.3d 1069, 1076-77 (9th Cir. 2016). We have

also held that ICCTA preemption applies both to laws

targeting railroad operations, City of Auburn, 154 F.3d at

1031, and to laws of general applicability that would have

the “effect of managing or governing rail transportation,”

Ass’n of Am. R.R.s v. S. Coast Air Quality Mgmt. Dist., 622

F.3d 1094, 1097 (9th Cir. 2010).

B

Montana, like many states, has adopted Sections 519,

520, and 521 of the Restatement (Second) of Torts. See

Majority Op. at 10-11. Section 519 provides for strict

liability for abnormally dangerous activities; Section 520

lays out a multifactor test for courts to use to determine

whether an activity should be deemed abnormally

dangerous; and Section 521 grants an exception to strict

liability for abnormally dangerous activities undertaken by

common carriers pursuant to a public duty. Id.

In 2020, decades after BNSF stopped transporting

vermiculite for W.R. Grace & Company, the Montana

Supreme Court applied Section 520 to hold that BNSF’s past

“handling of asbestos under the facts presented here

constitutes an abnormally dangerous activity for which

BNSF is strictly liable.” BNSF Ry. Co. v. Eddy, 459 P. 3d

857, 873 (Mont. 2020). The Montana Supreme Court ruled

that BNSF, as a common carrier, is protected by Section 521

from “strict liability imposed as a result of its transporting

vermiculite,” but further stated that BNSF could face strict

liability for its asbestos-handling “activities other than

22 WELLS V. BNSF RAILWAY CO.

transportation of vermiculite.” Id. at 874-75 (emphasis

added). The court further noted that “BNSF may still be

found liable under a theory of ordinary negligence for the

manner in which it conducted the transport of vermiculite

ore.” Id. at 874.

In 2021, Plaintiff estates sued BNSF in federal district

court for personal injuries, resulting in death, caused by

BNSF’s handling of vermiculite. Majority Op. at 7.

Plaintiffs’ suit asserted state law causes of action for both

negligence and strict liability. Id. Plaintiffs premised these

claims on the central proposition that BNSF failed to prevent

toxic vermiculite residuals from “collecting upon and

escaping from” its Libby, Montana railyard.

In 2024, a jury found for BNSF on Plaintiffs’ negligence

claims but found BNSF liable on Plaintiffs’ strict liability

claims. Id. at 8-9. In obtaining their favorable jury verdict

on the strict liability claims, Plaintiffs relied on a fine-

grained distinction between BNSF’s “transportation of

vermiculite” and its “other activities” dealing with

vermiculite. The district court accepted this distinction,

rejecting both BNSF’s common carrier exception argument

and ICCTA preemption argument in BNSF’s renewed

motion for judgment as a matter of law. BNSF also

asserted—and the district court also rejected—an argument

that the Hazardous Materials Transportation Act (HMTA),

49 U.S.C. § 5101 et seq., separately preempts Plaintiffs’

WELLS V. BNSF RAILWAY CO. 23

strict liability claims.1 BNSF timely appealed. 2 Majority

Op. at 9.

II

We review de novo the district court’s legal conclusion

about the scope of ICCTA preemption. Or. Coast Scenic

R.R., 841 F.3d at 1072 (citing In re Korean Air Lines Co.,

642 F.3d 685, 691 n.3 (9th Cir. 2011)).

III

To determine whether ICCTA preempts Plaintiffs’ strict

liability claims, we first consider whether “the activity in

question” comes “within the statutory grant of jurisdiction to

the Surface Transportation Board.” Id.; see 49 U.S.C.

§ 10501(a). If the Board possesses jurisdiction, then we next

assess whether its jurisdiction is exclusive. Or. Coast Scenic

R.R., 841 F.3d at 1073; see 49 U.S.C. § 10501(b). An

affirmative answer to both inquiries follows from the

reasoning supporting our unanimous opinion today

regarding the common carrier exception.

BNSF’s handling of vermiculite falls within ICCTA’s

grant of jurisdiction to the Surface Transportation Board.

ICCTA grants jurisdiction to the Board over particular

1

HMTA is the Nation’s primary law regulating the transportation of

hazardous materials and seeks “to protect against the risks to life,

property, and the environment that are inherent in the transportation of

hazardous material in intrastate, interstate, and foreign commerce.” 49

U.S.C. § 5101.

2

Plaintiffs have not appealed the jury’s adverse finding on their

negligence claims. I therefore do not reach the question of whether

ICCTA would preempt Plaintiffs’ attempt to recover damages from

BNSF based on negligence. I also do not address BNSF’s alternative

argument that HMTA preempts Plaintiffs’ strict liability claims.

24 WELLS V. BNSF RAILWAY CO.

modes and locations of “transportation by rail carrier.” 49

U.S.C. § 10501(a). This case concerns only whether

BNSF’s handling of vermiculite counts as “transportation by

rail carrier,” as defined by 49 U.S.C. § 10501(a). Our

opinion makes clear that it does. See Majority Op. at 11-17.

In applying the Montana Supreme Court’s precedential

holding that the common carrier exception protects BNSF

from “strict liability imposed as a result of its transporting

vermiculite,” Eddy, 459 P. 3d at 874, we utilized ICCTA’s

definition of “transportation.” Majority Op. at 13 (citing 49

U.S.C. § 10102(9)). Using ICCTA’s definition, we

determined that BNSF’s handling of vermiculite qualifies as

“transportation,” and thus the common carrier exception

protects BNSF from Plaintiffs’ strict liability claims. Id.

That conclusion also answers the first question of the ICCTA

preemption analysis.

Further, the Board’s jurisdiction over BNSF’s

transportation of vermiculite is exclusive. 49 U.S.C.

§ 10501(b) makes the Board’s jurisdiction exclusive over

“transportation by rail carriers.” That Section also expressly

states that “the remedies provided under this part with

respect to regulation of rail transportation are exclusive and

preempt remedies provided under Federal or State law.” Id.

Thus, because our opinion makes clear that BNSF’s

handling of vermiculite falls within ICCTA’s definition of

“transportation,” the Board has exclusive jurisdiction and

Section 10501(b) facially preempts Plaintiffs’ attempt to

recover on a Montana strict liability cause of action. See

Majority Op. at 11-17.

But the preemption analysis does not end there.

Montana’s strict liability law is a common law tort claim of

general applicability, and we have held that “ICCTA does

not preempt state or local laws if they are laws of general

WELLS V. BNSF RAILWAY CO. 25

applicability that do not unreasonably interfere with

interstate commerce.” Ass’n of Am. R.R.s, 622 F.3d at 1097.

So this case requires determining whether the application of

Montana’s strict liability law to BNSF’s transportation of

vermiculite “may reasonably be said to have the effect of

managing or governing rail transportation,” or instead has

only “a more remote or incidental effect on rail

transportation.” Id. at 1097-98 (internal quotation marks

omitted).

Here, applying Montana’s strict liability law to BNSF’s

transportation of vermiculite would have the effect of

managing or governing rail transportation; ICCTA

preemption therefore applies. Several related reasons

support this conclusion.

First, allowing strict liability for BNSF’s transportation

of vermiculite would impose severe compliance costs.

Recall that in this case, Plaintiffs seek to hold BNSF strictly

liable for all injuries resulting from BNSF’s failure to use

equipment and practices that would have prevented the

release of vermiculite residuals from its railyard. To ensure

future compliance with this sky-high standard of care, BNSF

would have to adopt a variety of new equipment and

practices—including possibly redesigning its railcars,

altering switching operations in its railyard, purchasing new

equipment, and implementing new training and operating

procedures. Adopting these measures would impose a

serious financial burden. And BNSF would have to

implement these onerous compliance measures despite the

fact that under HMTA, vermiculite does not qualify as a

hazardous material warranting federal regulation of its

transportation by rail carriers—even when the vermiculite

contains toxic asbestos. See 49 U.S.C. § 5101 et seq.; 49

C.F.R. § 172.102(c)(1)(156) (stating that “[a]sbestos that is

26 WELLS V. BNSF RAILWAY CO.

immersed or fixed in a . . . mineral ore . . . is not subject” to

HMTA regulatory requirements). Plaintiffs’ strict liability

claims, regardless of whether separately preempted by

HMTA, function as regulations akin to those issued under

HMTA authority.

Second, permitting strict liability here would allow for

unpredictable and unfair penalties for noncompliance.

Under a strict liability regime, the remedy provided by

Montana law for any harmful release of vermiculite residuals

is damages, as awarded by a jury. And as the Supreme Court

has recognized, “state regulation can be . . . effectively

exerted through an award of damages, and the obligation to

pay compensation can be, indeed is designed to be, a potent

method of governing conduct and controlling policy.”

Kurns v. R.R. Friction Prods. Corp., 565 U.S. 625, 637

(2012) (citation modified). In this case, Plaintiffs’ damage

awards totaled to eight million dollars, not including

additional taxable costs or interest. This suggests the

magnitude of BSNF’s potential exposure in the many other

pending claims against it. See Majority Op. at 9. These

damage awards resemble financial penalties for

noncompliance similar to (1) remedies provided by ICCTA

for regulatory violations and for persons injured by rail

carriers, see 49 U.S.C. §§ 11701-11704, and (2) fees and

penalties assessed for noncompliance with HMTA

regulations, see id. §§ 5122-5124.

Third, applying strict liability here can be expected to

increase rates that BNSF and other rail carriers charge

customers. Based on the facts of this case, liability would

show rail carriers that they can face future liability for

transporting materials that are not considered to be

hazardous at the time of transport. So carriers may

reasonably seek to hike rates to account for the costs and

WELLS V. BNSF RAILWAY CO. 27

penalties associated with a strict liability standard for

transporting not only vermiculite but also an unforeseen

range of other materials.

In sum, the application of strict liability to BNSF’s

transportation of vermiculite would have tremendous

economic consequences, effectively governing BNSF’s

railroad operations and unreasonably interfering with

interstate commerce. In this regard, Montana’s generally

applicable strict liability law appears similar to state and

local regulations that we have previously held to be

preempted by ICCTA. See City of Auburn, 154 F.3d at 1027-

31 (invalidating county review of the environmental impact

of proposed operations on railway line); Ass’n of Am. R.R.s,

622 F.3d at 1095-98 (nullifying local rules “aimed at limiting

the air pollution created by idling trains”); Or. Coast Scenic

R.R., 841 F.3d at 1076-77 (enjoining application of Oregon’s

“‘remove-fill law,’ which, among other things, require[d] a

state permit for the removal of any amount of material from”

designated waters).

* * *

Today we correctly hold that BNSF is entitled to the

common carrier exception to strict liability for its

transportation of vermiculite. Majority Op. at 11-17. I

would further hold that ICCTA preempts Plaintiffs’ attempt

to recover damages from BNSF, based on strict liability

under Montana law, for injuries resulting from BNSF’s

transportation of vermiculite.