A federal appeals court on Tuesday sided with railroad giant BNSF Railway in a case filed by the estates of two Libby asbestos victims who died from cancer after living near the company’s contaminated rail yard decades ago.

In the unanimous finding, an Oregon-based panel of three judges from the 9th U.S. Circuit Court of Appeals reversed a 2024 Montana federal court ruling that asbestos contamination at BNSF’s rail yard had contributed to the 2020 deaths of Joyce Walder and Thomas Wells. BNSF shipped asbestos-tainted vermiculite products nationwide from the 20-acre site in downtown Libby throughout much of the 20th century. 

The decision, authored by Judge Morgan B. Christen, cited federal “common carrier” laws that broadly shield railroad companies from liability related to the products they are contracted to transport.

“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,” the opinion read. “We therefore reverse the district court’s judgment and remand with instructions to enter judgment for BNSF.”

The appellate court decision dealt a victory to BNSF Railway, a Texas-based subsidiary of Warren Buffett’s Berkshire Hathaway empire since 2010, and delivered a blow to plaintiffs who sought to establish for the first time in federal court that the railroad company is liable for its part in the broad public health disaster in Libby. Public health experts have estimated that hundreds of people died and thousands were sickened from asbestos-related illnesses related to widespread vermiculite mining operations.

In the lead-up to the court’s decision, legal experts said the fate of the Libby case at the 9th Circuit could bolster or undermine hundreds of other asbestos cases against BNSF pending in Montana courts. 

Speaking to Montana Free Press about the case in October, state District Court Judge Amy Eddy, who oversees the state’s Asbestos Claims Court, said that a victory for BNSF at the 9th Circuit could lead the railway to “move to dismiss all pending cases in the Asbestos Claims Court related to its activities in Libby during this period of time.”

A BNSF spokesperson declined to comment to MTFP about the ruling.

In a written statement to MTFP, an attorney for the estates of Wells and Walder criticized the court’s ruling and said they were considering next steps.

“We respect the Court but disagree with its decision and believe it misapplied Montana law,” said Jinnifer Mariman, an attorney with the Kalispell-based McGarvey Law Firm. “We are talking with our clients and evaluating our options for an appeal.”

BNSF spent much of the 20th century shipping asbestos-tainted vermiculite products from Libby to locations nationwide — materials that had been extracted from a vermiculite mine owned by W.R. Grace. The plaintiffs’ attorneys argued in court in 2024 that the byproducts of those materials, also contaminated with asbestos, built up in the soil around the company’s rail yard.   

In legal filings, BNSF attorneys strongly denied that the railway knew of the toxic effects of asbestos until after journalists and federal health regulators unveiled Libby’s widespread contamination in the 1990s. The Environmental Protection Agency designated much of the town and the surrounding area a Superfund site in 2002. 

W.R. Grace filed for bankruptcy in 2001, establishing a trust for injured residents sickened by asbestos. The company emerged from bankruptcy in 2014. 

BNSF Railway’s liability has been argued extensively in Montana courts, where the company has faced waves of lawsuits from former Libby residents. But the question of the extent of the federal common carrier protections had been largely untested until the Wells and Walder case was filed in 2021. 

During the case’s 2024 trial, the jury rejected the claim that the railway company had acted negligently in the management of its rail yard, but agreed that BNSF was “strictly liable” for the harm caused by that contamination. The jury awarded each of the plaintiff’s estates $4 million in damages. 

In its appeal, BNSF argued that the lower federal court had incorrectly interpreted the “common carrier” protections afforded to railroads. The condition of its rail yard, attorneys said, was inherently connected to its transportation duties protected under federal law.

In its Tuesday ruling, the panel of judges from the 9th Circuit endorsed that part of BNSF’s argument.

“Federal law defines ‘transportation’ broadly to include ‘delivery,’ ‘storage,’ ‘handling,’ and ‘services related to [the] movement’ of property. Plaintiffs’ theory of liability thus stems directly from BNSF’s statutory duty to transport vermiculite concentrate,” the ruling said. 

The lower federal court opinion from U.S. District Court Judge Brian Morris in Montana concluded in 2024 that BNSF’s failure to maintain its rail yard was an action taken in its own corporate interest, rather than as a part of its duties to the public as a common carrier. But the panel of 9th Circuit Court judges found that attorneys for the plaintiffs offered no evidence to prove that point — an argument of wrongdoing that would have veered closely to prior claims about the company’s alleged negligence, which a jury rejected.

Federal and state caselaw, the appellate court concluded, supported the finding that BNSF is entitled to federal common carrier protections. 

“[I]t is uncontested that the asbestos dust that accumulated in BNSF’s rail yard 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 rail yard, rather than spilling abruptly, does not alter our analysis because the gradual spillage still occurred during BNSF’s shipment of vermiculite,” the ruling said.

Attorneys for plaintiffs and BNSF could file new motions in other state and federal asbestos cases in the coming weeks based on the 9th Circuit Court ruling. 

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Montana public health officials and advocacy groups said Wednesday that local suicide prevention, addiction recovery and other mental health programs had lost millions of dollars in federal funding, citing a letter from the Trump administration announcing that grant money that had already been distributed would be clawed back.

The existence of the letter sent Jan. 13 from the U.S. Substance Abuse and Mental Health Services Administration, also known as SAMHSA, was reported on Wednesday by national news outlets. As news began to trickle through county public health agencies and advocacy groups in Montana, many local grant administrators responded with shock and confusion, scrambling to assess the extent of the budget cuts.

Drenda Niemann, the health officer for Lewis and Clark County, told Montana Free Press that her department was notified about the termination of a $125,000 suicide prevention grant “effective immediately, without prior notice,” by the same letter, which her office received just before 8 p.m. Tuesday evening. The grant term was originally supposed to end in September of this year.

“We were actively planning for sustainability when this sudden termination occurred — eight and a half months early. This decision is not only disruptive but inhumane to staff who have dedicated their careers to reducing suicide rates in our community,” Niemann said.

According to a copy of the letter distributed to state partners by the National Council for Mental Wellbeing and reviewed by MTFP, federal authorities said that the terminated grants no longer aligned with SAMHSA’s priorities to promote “innovative programs and interventions” that reduce mental illness, substance use disorder and suicide.

“As a result, SAMHSA is adjusting its discretionary award portfolio, which includes terminating some of its awards, in order to better prioritize agency resources towards the above-mentioned priorities,” the letter said. “Although in its discretion SAMHSA may suspend (rather than immediately terminate) an award to allow the recipient an opportunity to take appropriate corrective action before SAMHSA makes a termination decision, after review and consideration, no corrective action is possible here since no corrective action could align the award with current agency priorities.”

A White House spokesperson for the region of states that includes Montana did not respond to a request for comment.

Lisa Dworak, the executive director of a statewide alliance of public health directors, Confluence Public Health Alliance, said in a Wednesday email to MTFP that Missoula County, in addition to Lewis and Clark, was among those assessing the loss of federal grants. 

Two Missoula County programs were notified Tuesday that their SAMHSA funding was ending, effective immediately, said Allison Franz, the county’s communications manager. 

One was the county’s Systems of Care program, which last year received a four-year, $4 million grant to expand and coordinate mental health and supportive services for youth and families. The grant provided about $1 million per year for Partnership Health Center, Providence Montana, Youth Homes Montana and AWARE and served more than 540 youth last year, according to the county. Missoula Public Health and Frenchtown Community Coalition’s program to prevent and reduce substance use and improve mental health among Frenchtown youth also lost its funding. The program received two four-year grants totaling $310,000, which funded one position in the Missoula Public Health Department. 

County leadership and staff members are working to assess immediate impacts of the cuts, engaging Montana’s congressional delegation and exploring possible avenues to restore funding, Franz said. 

In a Wednesday evening statement, a spokesperson for Gallatin County told MTFP that it “doesn’t appear” the county had been impacted by the cuts.Tribal health departments and urban clinic organizations were also trying to make sense of the news about grant cuts on Wednesday. 

Tribal health departments and urban clinic organizations were also trying to make sense of the news about grant cuts on Wednesday. 

Johns Hopkins Center for Indigenous Health, which partners with tribal communities nationwide, announced on Wednesday that a grant to address and prevent substance use among youth on the Rocky Boy’s Reservation in north-central Montana was terminated. The program was expected to serve about 1,600 young people, according to the Center for Indigenous Health. 

In a press release, the National Indian Health Board, a nonprofit organization representing tribal governments and advocating on behalf of tribes, said it had learned that several tribal nations and health groups had received the same termination letter, “impacting critical mental health, behavioral health, and substance use programs.”

The NIHB directed anyone impacted by the cuts to complete a survey on its website about the change in grants. 

In Lewis and Clark County, Niemann said that the county had received the annual $125,000 suicide prevention grant for seven years. The grant funded a full-time staff position “who leads a coalition of engaged community partners implementing our suicide prevention training action plan,” Niemann said. She added that the county had worked to deliver suicide awareness and prevention training to community members, employees at the local hospital and to “hundreds of middle and high school students.”

Dworak with Confluence Public Health Alliance said her organization was still working to assess the scope of potential lost funds and how the clawback could impact community members.

“I anticipate Confluence will reach out to our federal delegation about the impacts and urge them to consider this as they finalize [fiscal year 2026] funding,” Dworak said.

Spokespersons for Rep. Ryan Zinke, Rep. Troy Downing, Sen. Tim Sheehy and Sen. Steve Daines did not respond to inquiries Wednesday about the reported grant cuts. 

A spokesperson for the state health department, Jon Ebelt, did not respond to a question about state-level grant cuts Wednesday afternoon.

Nora Mabie and Matt Hudson contributed reporting.

This story was updated Jan. 14, 2026, to include a comment from a Gallatin County spokesperson.

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On Monday, Jan. 5, the Centers for Disease Control and Prevention announced it would downgrade six vaccines on the routine schedule for childhood immunizations. The changes scale back recommendations for hepatitis A and B, influenza, rotavirus, RSV and meningococcal disease. 

That decision — shared by top officials at the federal Department of Health and Human Services — took many public health experts by surprise, in part because of how the administration of President Donald Trump departed from the CDC’s typical process for changing childhood vaccine recommendations. 

Montana Free Press spoke to Atty Moriarty, a Missoula-based pediatrician and president of the Montana Chapter of the American Academy of Pediatrics, about her perspective on the CDC’s changes. The interview has been edited for length and clarity.

MTFP: What happened in this most recent change and how does that differ from the CDC’s normal process for adjusting childhood vaccination schedules?

Moriarty: The way that vaccines have traditionally been recommended in the past is that vaccines were developed, and then they traditionally went through a formal vetting process before going to the [CDC]’s Advisory Committee on Immunization Practices, or ACIP, which did a full review of the safety data, the efficacy data, and then made recommendations based on that. Since November 2025, that committee has completely been changed and is not a panel of experts, but it is a panel of political appointees that don’t have expertise in public health, let alone infectious disease or immunology. So now, this decision was made purely based unilaterally on opinion and not on any new data or evidence-based medicine. 

MTFP: Can you walk through some of the administration’s stated reasons for these changes?

Moriarty: To be honest, these changes are so nonsensical that it’s really hard. There’s a lot of concern in the new administration and in the Department of Health and Human Services and the CDC that we are giving too many immunizations. That, again, is not based on any kind of data or science. And there’s a lot of publicity surrounding the number of vaccines as compared to 30 years ago, and questioning why we give so many. The answer to that is fairly simple. It’s because science has evolved enough that we actually can prevent more diseases. Now, some comparisons have been made to other countries, specifically Denmark, that do not give as many vaccines, but also are a completely different public health landscape and population than the United States and have a completely different public health system in general than we do.

MTFP: Where is the American Academy of Pediatrics [AAP] getting its guidance from now, if not ACIP?

Moriarty: We really started to separate with the [CDC’s] vaccine recommendations earlier in 2025. So as soon as they stopped recommending the COVID vaccine, that’s when [AAP] published our vaccine schedule that we have published for the last 45 years, but it’s the first time that it differed from the CDC’s. We continue to advocate for immunizations as a public health measure for families and kids, and are using the previous immunization schedule. And that schedule can be found on the [AAP’s] healthychildren.org website.

MTFP: Do any of the recent vaccine scheduling changes concern you more than others?

Moriarty: I think that any pediatrician will tell you that 20-30 years ago, hospitals were completely full of babies with rotavirus infection. That is an infection that is a gastrointestinal disease and causes severe dehydration in babies. I’m nervous about that coming roaring back because babies die of dehydration. It’s one of the top reasons they’re admitted to the hospital. I’m nervous about their recommendation against the flu vaccine. [The U.S. is] in one of the worst flu outbreaks we’ve ever seen currently right now and have had many children die already this season. 

MTFP: Do you think, though, that hearing this changed guidance from the Trump administration will change some families’ minds about what vaccines they’ll elect to get for their children?

Moriarty: Oh, absolutely. We saw that before this recommendation. I mean, social media is such a scary place to get medical information, and [listening to] talking heads on the news is just really not an effective way to find medical information, but we see people getting it all the time. I meet families in the hospital that make decisions for their kids based on TikTok. So I think that one of the effects of this is going to be to sow more distrust in the public health infrastructure that we have in the United States that has kept our country healthy.

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Like most grocery stores around the holidays, some items sell out faster than others: prime rib, eggnog and gingerbread cookies, to name a few. But at the Rosauers in Libby, one item is outpacing them all: bottled water. 

Two weeks before Christmas, Lincoln County was struck by some of the worst flooding in decades following massive storms that wreaked havoc across the Pacific Northwest. The flooding also impacted the city of Libby’s drinking water reservoirs, resulting in an order for residents to boil their water that has continued into the new year and is expected to remain in place for weeks, according to local officials. 

Bernadette Place, the store manager at Rosauers, said this week that the store typically sells two or three pallets of water each week, but in the month since the flood, the store has gone through more than 50 pallets. Each pallet holds 84 cases, each with 24 bottles. It all adds up to a lot of water. 

But water flying off the shelves isn’t the only impact the boil order has had on the store. While public health officials have advised the public that the city’s tap water is only safe to consume after it’s brought to a rolling boil for at least one minute, that isn’t always possible, Place said. For example, the grocery store’s coffee maker is connected to the building’s water supply, so the deli hasn’t been able to sell coffee. The misters that keep produce fresh are also directly tied to the building’s water supply, so that system has had to be turned off. Place said workers go around every hour to spray the fruits and vegetables with bottled water, but that method isn’t always as efficient, particularly at night. As a result, Place said, some produce has gone bad and had to be discarded. 

“You don’t realize how much water you actually go through until you stop and think about it,” Place said. 

Tammy Brown, owner of Diane’s Restaurant in downtown Libby, said that she constantly has two massive pots of boiled water on the stove in the kitchen so that her crew can wash produce and perform other tasks around the kitchen. She’s been buying a few bags of ice and cases of bottled water every day for patrons and to make coffee and tea. 

It’s a similar story around the corner at Cabinet Mountain Brewing Company, which opened in 2014 and has been known as “Libby’s Living Room” ever since. 

“It’s been challenging,” said owner Kristin Smith. “It’s definitely cost us money.”

Like Diane’s, the brewery has been offering customers bottled water and using treated water in the kitchen. Because the bar rinser (used to freshen up pint glasses before receiving what Smith calls “the nectar of the gods”) is connected to the city’s water supply, bartenders haven’t been able to use it since last month. Smith said they were also unable to brew beer for about two weeks after the flood because it was unclear whether the brewery could safely use the city water to clean its tanks, Smith said. The brewery subsequently learned, however, that it could resume operations because the water used is boiled and treated during the brewing process. 

With the boil order likely to continue for a few more weeks, the state of Montana has been covering the cost of bottled water distributed at the VFW in downtown Libby, said Boyd White, head of the Lincoln County Emergency Management Agency. That water is available daily from 9 a.m. to 12 p.m. 

Boyd has been coordinating much of the recovery effort and is particularly focused on figuring out how the local community can secure state and federal funding. Shortly after the flood, the federal government released $5 million for the recovery, but that money did not go directly to the local community. Instead, those funds were allocated to the federal agencies responding to the incident, like the Federal Emergency Management Agency. Last week, staff members from FEMA visited Libby to assess the damage.

Boyd said if the damage and clean-up effort exceeds $2 million — and it likely will — the county would be able to apply for additional funding. Boyd said he’s also in the early stages of working with the state to identify funding to help individuals and businesses, possibly through low-interest loans, to help with the costs incurred from the incident, like having to buy pallets of bottled water. 

In-depth, independent reporting on the stories impacting your community from reporters who know your town.

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The city of Billings’ move to allow law enforcement to burn 188 pounds of methamphetamine at its publicly run animal control center in September did not violate clean air laws, according to the outcome of a recent state investigation.

The state Department of Environmental Quality confirmed Tuesday that Billings’ use of the animal incinerator for drug burns “is permissible on a case-by-case basis.” But the agency’s investigation found that inadequate operations of the crematorium had led to poor pollution control and multiple instances of low temperatures during burns. Those errors did constitute violations of state regulations, the investigation found.  

The city could face civil fines and penalties up to $10,000 for each violation, according to a Nov. 19 letter from the state obtained by Montana Free Press through a public records request. The state said it would notify the city of Billings “before proceeding with a formal enforcement action,” and gave the city 15 days to provide a response. 

DEQ spokesperson Madison McGeffers said the agency had not received a reply from the city as of Tuesday afternoon. The city also did not immediately respond to a request for comment from MTFP about the outcome of the investigation. 

DEQ’s inquiry was prompted by a September law enforcement drug burn mishap at the city’s animal crematorium. The malfunction spewed incinerator fumes throughout the building, forcing evacuations and hospitalizing several people. 

Most of the sickened people were employees of the Yellowstone Valley Animal Shelter, a nonprofit animal rescue center that rented space in the same building as the animal crematorium. The organization announced in October that it would not be returning to that location, citing smoke damage from the drug burn. 

According to the DEQ, the violation related to the September drug burn had to do with the “operational conditions” at the city’s incinerator that caused the release of emissions. While the letter did not specify what type of drugs were burned, McGeffers later confirmed to MTFP that county officials had informed DEQ “that all of the 188 lbs of illegal drugs was methamphetamine.”  

The Sept. 10 burn of materials was requested by the Billings Police Department and the Federal Bureau of Investigation and overseen by the Billings Animal Control division, the state investigation said. 

“During the burning of these materials, operational conditions creating a negative pressure environment resulted in the back-flow of crematory emissions into the [Billings Animal Control] building,” the DEQ letter said. “This event exposed a number of personnel and animals within the building to potentially harmful emissions.”

One of the city’s violations had to do with the operations that created the “negative pressure environment” on Sept. 10, the DEQ report found. Instead of being funneled through the incinerator’s secondary burn chamber, the emissions flowed back into the building. 

“Such operations did not satisfy the requirement to operate the equipment to provide the maximum air pollution control for which it was designed,” the state said.

But two other categories of violations had to do with inadequate temperature controls dating back to 2023. In 17 instances involving both animal and drug incineration, the state found that the Billings animal crematorium failed to use auxiliary fuel burners to heat up the incinerator’s second chamber. In turn, the temperature in the secondary chamber fell below the required 1400-degree Fahrenheit during operations. 

Those 17 instances of temperature violations did not include the burn on Sept. 10, the DEQ report showed. But at least one low-temperature event occurred during a burn of 61 pounds of unspecified drugs on July 23, 2025. 

McGeffers, with DEQ, said the state had also looked into the process for approving alternative burns at registered incinerators, such as drug burns at the animal crematorium. The state had contracted out that oversight responsibility to RiverStone Health, the county health department. 

RiverStone was the agency that authorized the animal crematorium to be used for the illegal drug burn in September. In this instance, McGeffers said, “DEQ did not identify violations” related to RiverStone Health’s actions.

In a statement after the September malfunction, RiverStone said that local law enforcement and animal control officials had properly requested approval “and safely completed the destruction of ‘illegal drugs’ several times a year, without incident.”  

But the health department said it had not been told that the illegal drugs to be burned in September included methamphetamine. 

In response to Tuesday questions from MTFP, RiverStone Health CEO Jon Forte said that the county was in the process of revising its contract with DEQ and that the state would be handling the approval of alternative burn requests going forward.

“DEQ found no issues or errors in our inspection protocol or reports. The results of the investigation focused on burning of materials and the operation of the incinerator,” Forte said in an emailed statement. 

“Although the findings did not identify any lapses in protocol at RiverStone Health, we have done a thorough review of our contractual pollution control obligations with DEQ,” Forte added. “… We will continue to inspect air pollution sources in Yellowstone County, and our staff are certified biannually by a third party to inspect emissions.”

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A panel of federal judges on Tuesday appeared skeptical of arguments from lawyers for two deceased plaintiffs that railroad giant BNSF Railway is liable for past asbestos contamination at its rail yard in Libby.

BNSF appealed the case to the 9th U.S. Circuit Court of Appeals after a federal jury in Helena in 2024 found the company legally responsible for asbestos toxicity at its rail yard that likely caused the deaths of two plaintiffs, Thomas Wells and Joyce Walder. Both plaintiffs lived adjacent to the site decades ago and died of mesothelioma — a lung cancer often linked to asbestos exposure — in 2020.

The jury awarded each plaintiffs’ estates $4 million in compensatory damages, but did not find that BNSF had knowingly acted with negligence by failing to clean up its rail yard. BNSF, a Texas-based subsidiary of Berkshire Hathaway, has argued that mine owner W.R. Grace never notified it that the vermiculite products it was hauling were tainted with toxic asbestos fibers.

W.R. Grace, a specialty chemical company, faced thousands of lawsuits in the early 2000s after the facts about Libby’s contamination first became public. The company declared bankruptcy in 2001 and established a multi-billion-dollar trust for people injured by the company’s asbestos contamination. Seeking a trust payment does not prohibit Libby residents from also suing BNSF.

Members of the three-judge appeals panel based in Portland, Oregon, made up of Judges Consuelo M. Callahan, Morgan Christen and Andrew D. Hurwitz, raised a number of questions during Tuesday’s arguments over how the railroad could still be found liable for harm if it was not negligent. Each side had roughly 20 minutes to present its case and answer the judges’ queries.

“Your theory is that they’re subjected to strict liability for not cleaning up the asbestos off the tracks?” Hurwitz posed to Kevin Parker, one of the attorneys representing the plaintiffs.

“They are subjected to strict liability because they had an abnormally dangerous condition,” Parker replied, speaking about the rail yard.

“Well, that’s my question,” Hurwitz continued. “… Is it an ultra-hazardous activity not to clean your rails? See, it seems to me that’s a negligence theory, on which you lost.”

Judges also raised questions about how, exactly, the contamination of the rail yard site occurred. If residue was released from the vermiculite products in the normal course of transportation activities, judges said, federal law might shield BNSF from liability. 

The company, like other railroads, is considered a “common carrier,” a status that bars it from discriminating against companies that need goods shipped across state lines, but also protects BNSF from actions it takes in service of that transportation.

If the asbestos contamination on the ground around the railroad lines happened during routine switching of train cars, or even from leaking from cars themselves, BNSF attorney Dale Schowengerdt said, the company cannot be held legally responsible for any harm caused.

Parker pushed back against that conclusion, pointing out that the asbestos contamination in the soil built up over decades and was not remediated by BNSF until after the creation of a federal Superfund site in and around Libby.

“The asbestos was no longer in transport when it came off the train. It’s not on its way anywhere. It’s just sitting there,” Parker said. 

The judges also raised questions about how their ruling could affect approximately 200 other lawsuits filed against BNSF in the Montana state court system, which attorneys have said are waiting to proceed based on the outcome of this case. Attorneys for both sides said that the outcome would have a direct impact on a few cases pending in federal court, but would not necessarily dictate how state courts can consider other lawsuits. 

Some judges weighed the possibility of a ruling that finds that the state law issues debated in this case are preempted by federal laws and regulations, including the Interstate Commerce Commission Termination Act and the Hazardous Material Transportation Act. 

Schowengerdt, the BNSF attorney, appeared to endorse that possibility. He emphasized the importance of ensuring that railroad companies follow one rulebook rather than changing operations to comply with unique conditions in each state.

“Uniformity is vital to railroad operations. The railroad can’t have differing rules from state to state on how it runs the rail yard, how it improves its equipment,” Schowengerdt said.

The court will likely not rule on the case for several months. If the appellate court reverses the jury’s findings about the railroad’s liability, the plaintiffs’ $8 million award from 2024 could become nothing. 

The post BNSF Railway fights Libby asbestos case in federal appeal appeared first on Montana Free Press.

LIBBY — Long before she joined a major legal case for asbestos victims, Joyce Walder had a bold streak, according to her sister, Judith Hemphill.

On a recent Monday in October, walking through the forests of northwest Montana, Hemphill recalled how she and Walder would put their ears to the railroad tracks to check for oncoming trains. If all was quiet, they’d dart across to explore the woods that surround the town of Libby, population just shy of 3,000. She remembered the way they’d dangle their legs over the edge of the swinging bridge bouncing perilously above the charging waters of the Kootenai River. 

That was the 1960s, before Libby became known as the site of one of the country’s worst public health contaminations. In the early 2000s, swaths of Hemphill and Walder’s hometown, including the baseball fields, the rail yard, and household gardens, were found to be heavily contaminated with asbestos. Decades of local vermiculite mining, packing and shipping had let loose dangerous asbestos fibers. 

Local and federal health officials have said that asbestos-related diseases and cancers arising from those industrial operations have killed hundreds of current and former residents and sickened thousands more. The toxicity led to the creation of a vast federal Superfund site in 2002. From 1999-2020, death rates from underlying asbestos conditions in Lincoln County, which includes Libby, were more than 10 times higher than in Montana’s most populated counties, according to data from the Centers for Disease Control and Prevention.

Like many Libby residents, Walder spent years not knowing about the town’s toxicity. She moved to Idaho, and later California. She spent a stint working on a sailboat in the Bahamas, Hemphill recalled, chasing warm weather and life experiences that would have been hard to come by in her hometown.

“Joyce couldn’t wait to shake the dust of this place off her,” Hemphill said while walking a path toward the Kootenai River, about a 10-minute drive west of town.  

But the consequences of Libby’s dust stayed with Walder for years to come, her lawyers say. She died of mesothelioma, a cancer often caused by asbestos exposure, in 2020, at the age of 66.

On Tuesday in Portland, Oregon, a panel of three federal appeals court judges will hear arguments over whether one of the companies involved in the industrial operation, BNSF Railway, can be held liable for the wrongful deaths of Walder and another mesothelioma victim, Thomas Wells. The case, filed in 2021, alleges that the Texas-based company operated a dusty, toxic rail yard site in downtown Libby that likely caused Walder and Wells’ illnesses. 

The lawsuit triggered a bellwether federal trial over whether the railroad company should be legally responsible for its part in Libby’s contamination. A federal jury in Helena in 2024 sided with the plaintiffs, directing BNSF to pay each estate $4 million in compensatory damages. Over a year later, the railroad, a subsidiary of Berkshire Hathaway since 2010, has yet to pay either family anything. Depending on the outcome of the appeal, it’s possible it never will.

Attorneys for Walder and Wells, as well as their family members, say the case is about more than obtaining a payout for the estates of the two plaintiffs. More than 200 other cases involving other victims with similar claims against the railway are lined up in the state and federal court system, waiting to proceed until the legal questions raised in Walder and Wells’ case are settled.

Montana state District Court Judge Amy Eddy oversees the state’s special court for asbestos claims, where many cases against BNSF are sitting. If the 9th U.S. Circuit Court of Appeals reverses the jury’s finding, she anticipates the railway would “move to dismiss all pending cases in the Asbestos Claims Court related to its activities in Libby during this period of time.” 

At the heart of the federal appeal, as in the previous 2024 jury trial, Eddy said, is the question of whether BNSF should be protected from liability by “common carrier immunity,” a federal regulation that shields railroad companies from lawsuits about the goods they transport, even if they are toxic. Part of that question stems from the company’s operations at its physical rail yard in downtown Libby. The federal jury, like state courts that have weighed in on the issue previously, found that the federal protections do not apply to all of BNSF’s actions, Eddy said.

“Every court to consider the issue has found BNSF was not simply hauling asbestos out of Libby, but was instead working essentially as a business partner with W.R. Grace,” Eddy added. “Common carrier immunity does not shield BNSF from strict liability when working for its own purposes.”

A spokesperson for BNSF declined an interview request from Montana Free Press about the pending appeal and did not respond to a list of questions about other lawsuits against the railway related to Libby’s asbestos contamination.

LUNG CANCER AND LAWSUITS

Walder began exploring legal action with attorneys representing asbestos victims before she died, Hemphill said. Like many current and former Libby residents, Walder got regular screenings to check for illnesses related to asbestos exposure. At one of those check-ups years ago, Walder was diagnosed with asbestos-related disease, according to Hemphill. 

Walder, like many of her former neighbors who faced later diagnoses, reached out to local plaintiffs’ attorneys for representation. Those lawyers helped her apply for a payout from the bankruptcy trust established by W.R. Grace, the company behind the vermiculite mining operation, money that her attorneys say has not yet been delivered to Walder’s estate. 

A couple of states away, at the end of 2019, Thomas Wells received a doctor’s diagnosis he never wanted to hear. A Washington state resident who had spent two summers in the 1970s living in downtown Libby and working for the Forest Service in Montana, Wells had stayed active after he retired from a career of teaching. But, in his mid-60s, Wells began experiencing chest pains and trouble breathing, according to trial testimony provided by his two sons. A doctor told him he had mesothelioma — a fatal lung cancer. The disease, like other illnesses related to asbestos, can take decades to appear. 

Wells’ health declined rapidly. He also sought a payout from the W.R. Grace bankruptcy trust but didn’t receive anything before he died. Through further conversations, his lawyers learned that he had lived very close to the BNSF rail yard during his time in Libby — in a trailer that Thomas Wells said shook as trains went by and quickly filled with dust from the asbestos-tainted ground, kicked up by passing railcars. They realized that Wells’ exposure could have been linked to the rail yard. 

Wells died in March of 2020 at the age of 65, less than four months after his diagnosis. Two months later, Walder learned that she had developed mesothelioma and passed the information along to her attorneys, Hemphill recalled. Walder had also spent time living and playing near the downtown rail yard as a child. Her lawyers identified her as another plaintiff who could have been exposed by the site’s contamination. 

Walder’s health, too, spiraled quickly. Hemphill and other family members traveled to see her in California, visits that were painfully complicated by hospital restrictions during the ongoing pandemic. While she was in the hospital, well-wishes and notes poured in from the schools where Walder worked and from people who remembered her service in the Air Force, loading cargo. She died in October, less than six months after she was first diagnosed.  

After their deaths, Hemphill and Jackson Wells, one of Thomas Wells’ sons, signed onto a 2021 lawsuit against BNSF as representatives of their estates. Jackson Wells said his father had pursued the lawsuit, even as he was dying, to try to make change for other current and former residents of Libby. 

“It wasn’t about money at all. He felt a connection with Libby, even though he wasn’t there for that long,” Jackson Wells said, speaking in an October phone interview from his home in western Washington. “So whatever he could do to help out the community was what it was about for him.”

THE EXTENT OF ‘COMMON CARRIER’ PROTECTIONS

At the case’s 2024 jury trial, lawyers for the two estates sought to explain how tainted vermiculite product shipped by W.R. Grace contaminated BNSF’s rail yard, creating a wellspring of toxic asbestos fibers that blew around the community for years. 

Attorneys for the plaintiffs, as well as the judge, repeatedly told members of the jury that the case before them was strictly about BNSF’s conduct in Libby. The role of vermiculite mine owner W.R. Grace in the town’s environmental disaster was not to overshadow evidence about the rail yard, they said. The specialty chemical manufacturer, faced with thousands of lawsuits, declared bankruptcy in 2001 after facing thousands of asbestos-related lawsuits. The company, which emerged from bankruptcy roughly a decade ago, was valued at $7 billion in 2021.  

Again and again, attorneys for Wells and Walder returned to the rail yard location they wanted the jury to focus on. They described its proximity to the town’s baseball fields and homes. They showed a picture of a boy on a bicycle right next to the railroad tracks, a stone’s throw away from train cars. They brought in industrial hygiene experts to speak about how widespread the asbestos contamination was around the rail yard, displaying exhibits about the soil removal and containment that BNSF conducted as part of the Libby Superfund project.

According to trial transcripts, lawyers for the Wells and Walder estates pointed to the downtown rail yard location as the reason why BNSF could not use federal “common carrier” law, which creates protections for the company’s transportation activities, to protect itself from liability.

“We’re not suing them for driving the train. We’re suing them for the condition of their yard. We’re suing them for what’s left behind,” said Mark Lanier, one of the attorneys who tried the case, during his closing arguments to the jury. 

In their trial arguments, attorneys for BNSF stressed that the company did not know about the toxicity of asbestos at the time it was transporting vermiculite. The two sides debated the issue exhaustively, arguing over archival letters, reports and train car labels that showed a growing awareness about asbestos toxicity among national mining and shipping figures. 

Witnesses for the plaintiffs testified that W.R. Grace began labeling some train cars with warning labels about asbestos toxicity in 1977. The railway presented testimony from other former BNSF workers who said they hadn’t seen such warnings. Attorneys for BNSF ultimately cast the exhibit as inconclusive, saying that any “labels” were not the same as federally required “placards” that W.R. Grace would have needed to officially notify BNSF that the vermiculite was hazardous.

More than any other argument, BNSF’s representatives repeatedly returned to a core defense. The railroad company, they said, was obligated to transport the vermiculite products produced by W.R. Grace. Under federal common carrier laws, attorneys argued that the railway could not be held liable for contamination created by the entity that decided to ship the product.

After the two-week trial, jury members found that the railroad’s contamination of its rail yard was a “substantial factor” in the deaths of the plaintiffs, awarding each estate $4 million. Its handling of the tainted vermiculite, the jury said, was “outside its duties as a common carrier.”

But the jury sided with BNSF on several other legal questions. Members did not agree that BNSF had acted negligently, based on the evidence presented. The jury also did not find that the company “had knowledge of facts or intentionally disregarded facts” that contributed to Walder and Wells’ deaths. Those findings led to the jury not awarding the plaintiffs any punitive damages.

PREPARING THE APPEAL

In the lead-up to Tuesday’s oral arguments, BNSF has doubled down on its stance that federal common carrier laws protect it from the plaintiffs’ allegations of harm. Attorneys for the railroad have said that if the appeals court allows the verdict to stand, courts would be permitting plaintiffs to tread on federal regulations governing railroad activities. 

The plaintiffs cannot tell the railroad “how to manage its rail operations or activities in the rail yard,” BNSF attorneys argued in a July legal brief. “But this is precisely what plaintiffs are seeking to do here.”

The railroad has not directly challenged the link between asbestos exposure and the plaintiffs’ diagnoses of mesothelioma. But attorneys have suggested in legal filings that the contamination could have come from elsewhere, noting the widespread intentional usage of the vermiculite, an absorbent material that locals used on baseball fields and in their home gardens before they knew it was toxic. 

In filings, the railroad has also maintained that it had no knowledge of just how toxic asbestos was at the time. That fact, attorneys say, was a secret closely guarded by W.R. Grace.

The appellate court’s decision to affirm or reverse any part of the 2024 verdict will likely not be released for several months following Tuesday’s oral arguments. Lawyers for the plaintiffs acknowledge that if the court finds that the railway is not liable in this context, the $8 million award from the previous jury verdict could become nothing. 

In mid-October, a few weeks before the scheduled court appearance, the town of Libby bore many links to its challenging past. Train horns blared throughout the day as cargo loads rolled over the same railroad tracks that once carried contaminated vermiculite. A memorial to asbestos victims could be seen at a riverside park. Blocks away, a health care clinic that screens for asbestos-related diseases has reopened at a new location as it tries to survive the financial fallout of a 2021 fraud lawsuit successfully brought by BNSF Railway — a case that clinic’s leader said was an attempt to prevent it from helping injured residents. 

Standing on the edge of one swath of wilderness she and Walder once explored, Hemphill said that she does not anticipate a resolution anytime soon — perhaps not before her and other older family members die. 

“If there’s any money, it won’t be in our lifetime,” Hemphill said. She chalked the delay up to “corporate America’s” legal tactics.

In an October interview, Jackson Wells said he doesn’t think about the case often, and tries not to fixate on the next step in a legal process that feels “a little overwhelming.” He plans to attend Tuesday’s oral arguments in Portland, a few hours’ drive south of his home. 

More often, the 37-year-old said, he thinks about his dad, dead for five years now. Those thoughts and memories come to mind, he said, “pretty much every day.”

The post Why two Libby asbestos victims may never receive an $8 million judgment appeared first on Montana Free Press.

At a memorial service in 2022, veteran Air Force Capt. Monte Watts bumped into a fellow former Minuteman III nuclear missile operator, who told him that she had non-Hodgkin lymphoma.

Watts knew other missileers with similar cancers. But the connection really hit home later that same January day, when the results of a blood test revealed that Watts himself had chronic lymphocytic leukemia, a type of non-Hodgkin lymphoma.

“I don’t know if it was ironic or serendipitous or what the right word is, but there it was,” Watts said.

Within the community of U.S. service members who staff nuclear missile silos scattered across the Northern Rockies and Great Plains, suspicions had long been brewing that their workplaces were unsafe. Just months after Watts was diagnosed in 2022, Lt. Col. Danny Sebeck, a former Air Force missileer who had transferred to the U.S. Space Force, wrote a brief on a potential cancer cluster among people who served at Minuteman III launch control centers on Malmstrom Air Force Base in Montana.

Sebeck identified 36 former workers who served primarily from 1993 to 2011 and had been diagnosed with cancer, including himself. Of those, 11 had non-Hodgkin lymphoma; three had died. The Air Force responded swiftly to Sebeck’s findings, launching a massive investigation into cancer cases and the environment at three intercontinental ballistic missile bases and a California launch facility. The goal is to complete the research by the end of 2025.

The service has released portions of the studies as they conclude, holding online town halls and briefings to highlight its findings. But while former missileers say they are heartened by the rapid response, they remain concerned that the research, which crosses decades and includes thousands of ICBM personnel and administrative workers, may address too large a population or use statistical analyses that won’t show a connection between their illnesses and their military service.

They need that tie to expedite benefits from the Department of Veterans Affairs.

Historically, the Department of Defense has been slow to recognize potential environmental diseases. Veterans sickened by exposure to Agent Orange in Vietnam, Marines who drank contaminated water at Camp Lejeune, North Carolina, and service members who lived and worked near burn pits in Iraq and Afghanistan fought for years to have their illnesses acknowledged as related to military service.

In the case of the missileers, the Air Force already had studied potential contamination and cancer at Malmstrom in 2001 and 2005. That research concluded that launch control centers were “safe and healthy working environments.” But with Sebeck’s presentation and the decision to pursue further investigation, Air Force Global Strike Command — the unit responsible for managing nuclear missile silos and aircraft-based nuclear weapons — said the earlier studies may not have included a large enough sampling of medical records to be comprehensive.

Sebeck, who serves as co-director of the Torchlight Initiative, an advocacy group that supports ICBM personnel and their families, told congressional Democrats on April 8 that the Defense Department has not accurately tracked exposures to the community, making it difficult for veterans to prove a link and obtain VA health care and disability compensation.

“I had to go to a VA person and pull some papers,” Sebeck said, referring to the government system for recording service members’ environmental risks. “It says that I visited Poland once. It doesn’t mention that I pulled 148 alerts in a launch control center with polychlorinated biphenyls and with this contaminated air and water.”

PCBs are synthetic chemicals once used in industry, including missile control electrical components such as display screens, keyboards and circuit breakers. They have been banned for manufacture since 1979, deemed toxic and a likely carcinogen by the Environmental Protection Agency.

The Air Force’s Missile Community Cancer Study compares 14 types of common cancers in the general U.S. population and the missile community and also studies the environments at Malmstrom Air Force Base in Montana, F.E. Warren Air Force Base in Wyoming, Minot Air Force Base in North Dakota and Vandenberg Space Force Base in California to determine whether they may have contributed to the risk of developing cancer.

The Malmstrom, Warren and Minot bases together field 400 Minuteman III missiles, the land-based leg of the U.S. nuclear triad, which also includes submarine- and aircraft-launched nuclear weapons. The missiles are housed in silos spread across parts of Montana, North Dakota, Wyoming, Colorado and Nebraska, staffed around the clock by missileers operating from underground, bunkerlike launch control centers.

So far, the Air Force investigation has found no “statistically elevated” deaths from cancer in the missile community compared with the general population, and it found that the death rates for four types of common cancers — non-Hodgkin lymphoma, lung, colon and rectum, and prostate cancer — were significantly lower in missileers than in the general population.

Non-Hodgkin lymphoma accounted for roughly 5.8% of all cancer deaths among people who worked in launch control centers from January 1979 to December 2020.

Early results, derived from Defense Department medical records, found elevated rates of breast and prostate cancers in the missile community, but a later analysis incorporating additional data did not support those findings. The studies also did not find increased rates of non-Hodgkin lymphoma. Air Force officials noted during a June 4 online town hall, however, that these assessments are based on roughly half the data the service expects to review for its final epidemiological reports and cautioned against drawing conclusions given the limitations.

The final incidence report will include federal and state data, including information from civilian cancer registries, and delve into subgroups and exposures, which may “provide deeper insights into the complex relationship” between serving in the missile community and cancer risk, wrote Air Force Col. Richard Speakman in a September 2024 memo on the initial epidemiology results.

Gen. Thomas Bussiere, commander of Air Force Global Strike Command, said during the June town hall that only the final results will determine whether the missile community’s cancer rates are higher than the general population’s.

Some lawmakers share the concern of missileers about the Air Force study. Following the release of a University of North Carolina review of Torchlight Initiative data that showed higher rates of non-Hodgkin lymphoma — at younger ages — among Malmstrom missileers, Rep. Don Bacon (R-Neb.) introduced an amendment to a defense policy bill calling for the National Academies of Sciences, Engineering, and Medicine to review health and safety conditions in the facilities.

“Let’s make sure that we have some outside experts working with the Air Force studying cancer rates with our ICBM missions,” Bacon posted July 30 on the social platform X. “We want to ensure credibility and that whatever results come out, we’ve done total due diligence.”

Regarding additional studies on the working environments at the installations and a possible relationship between exposures and cancer risk, Speakman, who commands the Air Force School of Aerospace Medicine, said Malmstrom had two types of PCBs that the other two missile wing bases did not.

He added that benzene, found in cigarette smoke, vehicle exhaust and gasoline fumes, was the largest contributor to cancer risk in reviews of the bases.

The assessment concluded that health risks to missileers is “low, but it’s not zero,” Speakman said. He said it would be appropriate to monitor the health of launch control workers.

Watts, whose story has been highlighted by the Torchlight Initiative, has asked the Defense Department’s inspector general to investigate — the watchdog agency referred his request to Global Strike Command — and is closely watching the Air Force research. He said the bulk of the cancer cases reported to Torchlight occurred in the 2000s, when ICBM personnel still used technology that contained PCBs, burned classified material such as treated paper and plastic coding devices indoors, and possibly were exposed to contaminated water.

“I open the door and there’s guys standing there in pressurized suits with sampling equipment,” Watts recalled. “They said, ‘We’re here to check for contaminated water.’ I look at my crew commander, and we’re standing there in cotton uniforms. I said, ‘Do you see anything wrong with this?’”

Launch control operators no longer burn code tapes indoors, and the Air Force has made improvements to air circulation in the centers. Sebeck wants Congress to consider including missileers and others sickened by exposure to base contamination in the PACT Act, landmark legislation that mandates health care and benefits for veterans sickened by burn pits and other pollutants.

“It’s documented that there is a large cancer cluster in Montana, probably also in Wyoming. People act surprised, but all they have to do is go to the oncology office in Denver. I can find my missileer buddies there. We are sitting in the same chairs getting chemotherapy,” Sebeck said.

Air Force Global Strike Command spokesperson Maj. Lauren Linscott said in response to Sebeck’s remarks that the unit understands the impact of cancer on its personnel and is committed to supporting them.

“While current findings are preliminary and no conclusions can yet be drawn, we are dedicated to a rigorous, peer-reviewed, data-driven process to better understand potential health risks because the safety of our airmen is our top priority,” Linscott said.

Bills introduced in the House and Senate would address the situation. In addition to Bacon’s amendment, the Senate version of an annual defense policy bill would require a “deep cleaning” of launch control centers every five years until the sites are decommissioned as a new ICBM, the Sentinel, replaces the Minuteman IIIs.

The Air Force aims to release its final epidemiological report by the end of the year.

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