Subject: Re: $400M judgement against BNSF
BRK didn't own BNSF in '91. Is this called 'tail risk'?

The agreement that was violated dates from 1991.
But the violation itself dates from a period long after Berkshire acquired BNSF, starting in 2012. Bakken shale oil was not a thing in 1991.

The railway's side of the story probably ties into a stipulation in the agreement that the tribe not “arbitrarily withhold permission” if there should be a future BNSF request to increase the number of trains or cars. I guess that either BNSF didn't ask permission, or the denial of BNSF's request was not deemed to have been arbitrary.

Jim