Thomas Tubbs, Trustee of the Thomas Tubbs Revocable Trust and Individually; Dana Lynn Tubbs, Trustee of the Dana Lynn Tubbs Revocable Trust and Individually, Petitioners
Surface Transportation Board; United States of America Respondents BNSF Railway Company; Massman Construction Company, Intervenors
Submitted September 21, 2015
Petition for Review of an Order of the Surface Transportation Board.
For Thomas Tubbs, Trustee of the Thomas Tubbs Revocable Trust and Individually, Dana Lynn Tubbs, Trustee of the Dana Lynn Tubbs Revocable Trust and Individually, Petitioners: Robert Edward Murphy, Murphy & Taylor, Saint Joseph, MO.
For Surface Transportation Board, Respondent: Theodore Leonard Hunt, Associate General Counsel, Craig M. Keats, Evelyn Goldsmith Kitay, Deputy General Counsel, Surface Transportation Board, Office of General Counsel, Washington, DC.
For United States of America, Respondent: Katherine J. Barton, Robert Nicholson, Shana Marie Wallace, Esq., U.S. Department of Justice, Environment & Natural Resources Division, Appellate Section, Washington, DC.
For BNSF Railway Company, Massman Construction Company, Intervenors: David Coburn, Douglas Royce Dalgleish, Christopher L. Falcone, Alice Elizabeth Loughran, Steptoe & Johnson, Washington, DC.
Before MURPHY, MELLOY, and SMITH, Circuit Judges.
SMITH, Circuit Judge.
Flood waters from the Missouri River heavily destroyed the family farm of Thomas and Dana Lynn Tubbs in 2011. The Tubbses attribute the total loss to BNSF Railway Company's maintenance of a railway embankment running across their farm. The Surface Transportation Board (" Board" ) concluded that the Interstate Commerce Commission Termination Act, 49 U.S.C. § 10501(b), (ICCTA) preempts the Tubbses' state-law claims. We deny the Tubbses' petition for review.
The Tubbses own a 550-acre farm near the Missouri River. BNSF owns and operates a railroad track over an earthen embankment that bisects the Tubbses' farm. Because of its height, the embankment blocks the free flow of water across the landscape even though BNSF maintains drainage conduits through the embankment to avoid excess buildup of water. On occasion, BNSF has raised the embankment to prevent water from spilling over the tracks and interrupting rail traffic. But as the height of the embankment increased, BNSF did not provide additional drainage capacity or buttress the structural foundation of the embankment to support the increased volume of dammed water. In anticipation of the 2011 flood season, BNSF elevated the embankment. Unfortunately, record-setting flood waters breached the freshly raised embankment later that summer. The resulting rapid flow of water washed away the fertile soil on the Tubbses' farm.
The Tubbses filed suit in state court against BNSF and its contractor, Massman Construction Company, seeking damages for state-law torts, including trespass, nuisance, negligence, inverse condemnation, and statutory trespass. The state court stayed the litigation and permitted the Tubbses to seek clarification ...