concurs.
¶57 I concur in the Court’s opinion. The Court correctly reverses the District Court’s grant of summary judgment because the requirements of M. R. Civ. P. 56 were not met, for the reasons stated. However, so as to not be misleading I am constrained to state my opinion that Smith’s success on appeal may yet prove to be a hollow victory.
¶58 The Court’s holding is contrary to Smith’s position that most of her state law claims are not preempted by federal law, even if BNSF can prove that double reflectorized crossbucks were installed at the Hesper crossing using federal funds. As a fail-back position, Smith goes on to argue that in order to establish its preemption defense BNSF must conclusively prove that double reflectorized crossbucks were installed using federal funds. Such is not the case.
¶59 There is no rule of evidence or law in Montana that would require that BNSF prove conclusively that double reflectorized crossbucks were installed using federal funds, notwithstanding Smith’s citation to Mo. Pacific v. Limmer, 180 S.W.3d. 803 (Tex. App. 2005), which case *299is inapposite.1 Section 26-1-102(2)(b), MCA. The standard of proof is by a preponderance of the evidence, §§ 26-1-402, 26-1-403(1), MCA, and circumstantial evidence can be sufficient for proof of any fact. Dalbey v. Equitable Life Assur. Socy. of U.S., 105 Mont. 587, 599, 74 P.2d 432, 435 (1937); In re Bragg’s Est., 106 Mont. 132, 139, 76 P.2d 57, 60-61 (1938); Jacques v. Mont. Natl. Guard, 199 Mont. 493, 496-97, 649 P.2d 1319, 1321 (1982).
¶60 As Smith has presented nothing sufficient to raise a material issue of fact concerning the matter, should BNSF satisfy evidentiary and foundational requirements noted by the Court, after further proceedings on remand it might be entitled to summary judgment or a directed verdict on the issue of preemption.
In Appellant’s brief, Mo. Pacific v. Limmer is mis-cited as Union Pacific v. Limmer.