The article in the Mountain Ear condemning the Ninth Circuit Court of Appeals for its February 24, 2026 decision in Wells v. BNSF Railway Company was thought-provoking. In that decision, three judges of the Ninth Circuit held Burlington Northern Santa Fe Railway (“BNSF”) not responsible for the deaths of two Libby residents, Thomas E. Wells and Joyce H. Walder, from mesothelioma, a deadly cancer caused by asbestos exposure. My problem with the article is simple. None of the reasons Ms. Emery uses to explain why the Ninth Circuit decided this case as it did are correct. Those judges didn’t deny the pain inflicted on Libby by the asbestos disaster. They didn’t deny that BNSF played a role in this environmental disaster. They didn’t deny the suffering and deaths of Wells and Walder. But they were limited in what they could decide by Montana law and the evidence presented at trial. Those limits were responsible for this decision, not geographical distance, a desire to protect corporations over people, brains over heart, or any other failure of compassion.
How do I know this? I have lived in both worlds. I am a Eureka/Roosville native, definitely “rural Montana.” I grew up in Lincoln County and have visited Libby many times, most memorably as a cheerleader for elementary school basketball games. I might even have been in the Libby gym with Joyce Walder! But I am also a federal appellate attorney who had the incredible privilege of being chosen as a law clerk for the Ninth Circuit Court of Appeals at Pioneer Courthouse in Portland, Oregon early in my legal career (a fellow law clerk is now Supreme Court Justice Brett Kavanaugh). I spent eight years in that capacity, far beyond the usual one-year clerkship. During that time, I researched and analyzed hundreds of decisions and wrote draft opinions for the Court, pending approval (or not!) by the three-judge panels ultimately deciding each appeal. I had to know how to decide a case to help the Ninth Circuit in its work, and that is how I know what really happened with BNSF, Mr. Wells, and Ms. Walder by reading the opinion Ms. Emery criticizes.
This case began in federal court in Helena with a ten-day jury trial. That is where attorneys for both sides presented their cases and evidence. The attorneys for Wells and Walder argued that BNSF was liable for Well’s and Walder’s deaths because they let asbestos dust accumulate over the years on their tracks and in their railyard, which was right in downtown Libby. Wells lived near the tracks. During her childhood, Walder walked across the tracks; swam in the city pool located near the railyard, and was on the running track, also near the railyard. She was also on the baseball and football fields, where W.R. Grace, the mining company, donated tailings of vermiculate concentrate, which could contain as much as 80% asbestos according to the Ninth Circuit’s review of the evidence.
The Montana law the jury had to apply was this: when a “common carrier” such as BNSF is required by law to engage in an abnormally dangerous activity, such as transporting asbestos dust in railway cars containing vermiculite concentrate, that carrier is exempt from strict liability. Strict liability is when you don’t get to defend yourself at all; in short, you are toast. Here’s why Montana law gives BNSF the exemption: “it would be unjust to subject a common carrier [like BNSF railway] to strict liability for any danger done by a material the carrier is required to transport by law,” as the Montana Supreme Court stated. Not just Montana, but many other states follow this law as well. It is known as the “public duty” law. If a public duty is imposed on you as a common carrier where you don’t have a choice, you are exempt. You are not toast.
The jury decided BNSF was liable for the deaths, because it saved money by not cleaning the asbestos dust off its tracks and railyard that accumulated there over the years. According to the jury’s thinking, what BNSF should have done in those circumstances was not tied to its requirement to transport vermiculite concentrate – a legally imposed public duty – but rather something it should have done when the asbestos dust was no longer in transit. Thus BNSF should be strictly liable. Toast.
The Ninth Circuit disagreed (after BNSF appealed the jury’s verdict). The Ninth Circuit said: “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.” This is just like observing that gravel flying out of a gravel truck and cracking your windshield wouldn’t have happened unless it was being hauled in that gravel truck. Whether the trucker decided to stop and sweep up all the spilled gravel on the highway to avoid cracking other windshields does not change the fact that the gravel was there in the first place because it was being “transported.”
What’s more, the idea that BNSF should have cleaned the tracks and railyard is to say BNSF was negligent. But, the jury had already decided BNSF wasn’t negligent. They couldn’t have it both ways! (and the Plaintiffs never appealed the verdict the BNSF wasn’t negligent). Further, the Ninth Circuit said, there was no evidence at all that BNSF “aimed to save money by not cleaning its railyard. Indeed, for decades even the Montana Department of Environmental Quality advised that vermiculite concentrate did not contain asbestos.” That alone certainly goes against any idea that there was a duty to clean the tracks, which there never was, even if the Montana DEQ was dead wrong, which it was.
That is the dime on which this case turned. Nothing else but critical thinking on the judges’ part as they applied Montana law to the evidence at trial. They don’t get to decide cases on their feelings.
As the great economist Thomas Sowell puts it: “The problem isn’t that Johnny can’t read. The problem isn’t even that Johnny can’t think. The problems is that Johnny doesn’t know what thinking is; he confuses it with feeling.” Courts can’t do that – they have to apply the law in front of them whichever way it cuts. And that’s exactly what the Ninth Circuit did in this case.
A final note: the opinion’s author is Morgan Christen. She is the Ninth Circuit’s first woman judge appointed from Alaska. I do think Judge Christen understands “rural.”
Leave a Reply