Burlington Northern & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont.

408 F.3d 1142 BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY, Petitioner, v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, Respondent, Brian Kapsner and Ryann Kapsner, Real Parties in Interest. No. 04-72134. United States Court of Appeals, Ninth Circuit. Argued and Submitted January 12, 2005. Filed March 31, 2005. Amended May 19, 2005. John C. Berghoff, Jr. (Argued), Mayer, Brown, Rowe & Maw LLP, Chicago, IL; Oliver Goe (On the Briefs), Browning, Kaleczyc, Berry & Hoven, P.C., Helena, MT, for the petitioner. Julieann G. McGarry (Argued), Cok, Wheat, Brown & McGarry PLLP, Bozeman, MT; D. Anthony West (On the Briefs), Morrison & Foerster LLP, San Francisco, CA, for the real parties in interest. Appeal from the United States District Court for the District of Montana (Billings); Richard F. Cebull, District Judge, Presiding. D.C. No. CV-02-00116-RFC. Before: MARY M. SCHROEDER, Chief Judge, ALFRED T. GOODWIN and SUSAN P. GRABER, Circuit Judges. ORDER AND AMENDED OPINION ORDER 1 The opinion filed March 31, 2005, slip op. 3893, and appearing at 403 F.3d 1042 (9th Cir.2005), is amended as follows: 2 At 403 F.3d 1047 (slip op. 3903, 3rd line from the bottom…