Tubbs v. STB, No. 14-3898 (8th Cir. 2015)
Annotate this CasePetitioners filed suit against BNSF and its contractor, Massman, alleging that the loss they suffered when their family farm was flooded was caused by BNSF's maintenance of a railway embankment running across their farm. The Board concluded that the Interstate Commerce Commission Termination Act (ICCTA), 49 U.S.C. 10501(b), preempted petitioners' state law claims but that they retained a federal claim based on BNSF's alleged violation of federal regulations. The court concluded that petitioner failed to properly challenge the Board's use of the unreasonable-burden-or-interference test for as-applied preemption. Therefore, the court declined to overturn the Board's use of the test. The court also concluded that petitioners' state law claims unreasonably burden or interfere with rail transportation and the Board's determination is supported by substantial evidence. Accordingly, the court denied the petition for review.
Court Description: Smith, Author, with Murphy and Melloy, Circuit Judges] Petition for Review - Surface Transportation Board. Where plaintiffs alleged the BNSF Railway's maintenance caused flood damage to their property, the Surface Transportation Board did not err in concluding the Tubbses' state-law claims were preempted by the Interstate Commerce Commission Termination Act, 49 U.S.C. Sec. 10501(b) as the decision was supported by substantial evidence in the record; the Tubbses did not properly challenge the Board's use of the unreasonable-burden-or-interference test for as-applied challenges to preemption under the Act, and the court would not overturn it.
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