Tubbs v. Surface Transp. Bd., No. 14–3898.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtSMITH, Circuit Judge.
Citation812 F.3d 1141
Parties 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 v. SURFACE TRANSPORTATION BOARD; United States of America, Respondents BNSF Railway Company; Massman Construction Company, Intervenors.
Decision Date28 December 2015
Docket NumberNo. 14–3898.

812 F.3d 1141

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
v.
SURFACE TRANSPORTATION BOARD; United States of America, Respondents

BNSF Railway Company; Massman Construction Company, Intervenors.

No. 14–3898.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 21, 2015.
Filed: Dec. 28, 2015.


812 F.3d 1143

Robert Edward Murphy, argued, Saint Joseph, MO, for Petitioners.

Theodore Leonard Hunt, argued, Washington, DC, for Respondents.

David Coburn, argued, Washington, DC, (Douglas Royce Dalgleish, Kansas City, MO., Alice Elizabeth Loughran, Christopher L. Falcone, of Washington, DC, on the brief), for Intervenors.

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.

I. Background

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 from the Board with respect to whether the ICCTA preempts their state-law claims.

Upon review, the Board concluded that the ICCTA preempted the Tubbses' state-law claims but that they retained a federal claim based on BNSF's alleged violation of federal regulations under the Federal Railroad Safety Act (FRSA). The Board's preemption analysis noted that "[s]ection 10501(b) categorically preempts states or localities from intruding into matters that are directly regulated by the Board," and that "state and local actions may be preempted ... if they would have the effect of unreasonably burdening or interfering with rail transportation." The Board reasoned that the Tubbses' state-law tort claims are preempted because "they would have the effect of managing or governing rail transportation." The Board followed precedent from a number of courts that have applied the unreasonable-burden-or-interference analysis. Additionally, the Board rejected the Tubbses' contention that preemption applies only when there is a federal equivalent of the preempted state-law remedy. Finally, the Board concluded that section "10501(b) does not preempt the FRSA regulations on drainage under railroad tracks. [The Tubbses'] tort claims based on alleged violations by BNSF of these regulations are therefore also not preempted by § 10501(b)."

812 F.3d 1144

The Tubbses appealed. We have jurisdiction to review the Board's final order pursuant to 28 U.S.C. §§ 2321, 2342(5).

II. Discussion

This appeal raises two questions—one of law and one of fact. The first is whether the Board's unreasonable-burden-or-interference test is the appropriate test for determining if the Tubbses' state-law claims are preempted under the ICCTA. The second is whether the facts support state-law claims that would unreasonably burden or interfere with rail transportation.

A. Standard of Review

This case comes to us as a petition for review of the decision of the Board; it is not an appeal from a district court. "Because Congress has entrusted the Board with interpreting and administering the [ICCTA], in reviewing its decisions we ask only whether they are based on a permissible construction of the statute." MidAmerican Energy Co. v. Surface Transp. Bd., 169 F.3d 1099, 1106 (8th Cir.1999) (quotations and citations omitted). This review standard notwithstanding, the Tubbses assert that we should review the Board's order de novo. For support, they cite the Fifth Circuit's opinion in Franks Investment Co. LLC v. Union Pacific Railroad Co., 593 F.3d 404, 407 (5th Cir.2010) (en banc). But this case, unlike Franks, involves an appeal directly from an administrative decision of the Board.See id. at 406. Instead, because the ICCTA "is silent or ambiguous with respect to the specific issue [of testing for as-applied preemption], the question for [this] court is whether the [Board's] answer is based on a permissible construction of the statute." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81...

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18 practice notes
  • Minton v. Paducah & Louisville Ry., Inc., CIVIL ACTION NO. 4:19CV-00074-JHM
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • October 28, 2019
    ...preemption); Maynard v. CSX Transp., Inc., 360 F. Supp. 2d 836, 840 (E.D. Ky. 2004) (ordinary preemption); Tubbs v. Surface Transp. Bd., 812 F.3d 1141, 1145 (8th Cir. 2015) (ordinary preemption); CSX Transp., Inc. v. Georgia Public Service Com'n, 944 F. Supp. 1573, 1581 (N.D. Ga. 1996) (ord......
  • Gordon v. New England Cent. R.R., Case No. 2:17-cv-00154
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • October 10, 2019
    ...with [the railroad's] ability to uniformly design, construct, maintain and repair its railroad line[,]" Tubbs v. Surface Transp. Bd., 812 F.3d 1141, 1146 (8th Cir. 2015), and for that reason, "state tort claims . . . that involve second-guessing of decisions made by railroads" are preempted......
  • Fox v. Norfolk S. Corp., A17A0319
    • United States
    • United States Court of Appeals (Georgia)
    • June 23, 2017
    ...applicable statutory or common law that is not directed specifically at railroads or their property. See Tubbs v. Surface Transp. Bd. , 812 F.3d 1141, 1144-1145 (II) (A) (8th Cir. 2015) (using the as-applied analysis to determine whether plaintiff's numerous state law claims, including a cl......
  • Griffioen v. Cedar Rapids & Iowa City Ry. Co., No. 16-1462
    • United States
    • United States State Supreme Court of Iowa
    • June 22, 2018
    ...railroads to keep their rail lines open are expressly preempted by Title 49 § 10501(b) of the ICCTA. See Tubbs v. Surface Transp. Bd. , 812 F.3d 1141, 1144–46 (8th Cir. 2015) (quoting § 10501(b) and then concluding that it preempts the plaintiffs’ tort claims "as applied"); Jones Creek Inv’......
  • Request a trial to view additional results
19 cases
  • Minton v. Paducah & Louisville Ry., Inc., CIVIL ACTION NO. 4:19CV-00074-JHM
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • October 28, 2019
    ...preemption); Maynard v. CSX Transp., Inc., 360 F. Supp. 2d 836, 840 (E.D. Ky. 2004) (ordinary preemption); Tubbs v. Surface Transp. Bd., 812 F.3d 1141, 1145 (8th Cir. 2015) (ordinary preemption); CSX Transp., Inc. v. Georgia Public Service Com'n, 944 F. Supp. 1573, 1581 (N.D. Ga. 1996) (ord......
  • Gordon v. New England Cent. R.R., Case No. 2:17-cv-00154
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • October 10, 2019
    ...with [the railroad's] ability to uniformly design, construct, maintain and repair its railroad line[,]" Tubbs v. Surface Transp. Bd., 812 F.3d 1141, 1146 (8th Cir. 2015), and for that reason, "state tort claims . . . that involve second-guessing of decisions made by railroads" are preempted......
  • Fox v. Norfolk S. Corp., A17A0319
    • United States
    • United States Court of Appeals (Georgia)
    • June 23, 2017
    ...applicable statutory or common law that is not directed specifically at railroads or their property. See Tubbs v. Surface Transp. Bd. , 812 F.3d 1141, 1144-1145 (II) (A) (8th Cir. 2015) (using the as-applied analysis to determine whether plaintiff's numerous state law claims, including a cl......
  • Griffioen v. Cedar Rapids & Iowa City Ry. Co., No. 16-1462
    • United States
    • United States State Supreme Court of Iowa
    • June 22, 2018
    ...railroads to keep their rail lines open are expressly preempted by Title 49 § 10501(b) of the ICCTA. See Tubbs v. Surface Transp. Bd. , 812 F.3d 1141, 1144–46 (8th Cir. 2015) (quoting § 10501(b) and then concluding that it preempts the plaintiffs’ tort claims "as applied"); Jones Creek Inv’......
  • Request a trial to view additional results

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