Judge orders BNSF to pay Swinomish Tribe nearly $400 million for trespassing with oil trains

SEATTLE (AP) — BNSF Railway must pay nearly $400 million to a Native American tribe in Washington state, a federal judge ordered Monday after finding the company intentionally trespassed when it ran trains to several times 100-car trains carrying crude oil across the tribe’s reservation.

U.S. District Judge Robert Lasnik initially ruled last year that the railroad deliberately violated the terms of a 1991 easement with the Swinomish tribe north of Seattle that allows trains to carry no more than 25 rail cars per day. The judge held a trial earlier this month to determine how much profit BNSF made from the trespass from 2012 to 2021 and how much it should be required to return.

The Fort Worth, Texas-based company said in an email that it had no comment on the ruling. The tribe, which has about 1,400 members, did not immediately respond to an email seeking comment.

The tribe filed a lawsuit in 2015 after BNSF significantly increased, without the tribe’s consent, the number of cars it drove across the reservation so it could ship crude oil from the Bakken formation in and around the North Dakota to a nearby refinery. The route passes through sensitive marine ecosystems along the coast, over waters that connect to the Salish Sea, where the tribe has treaty-protected fishing rights.

Bakken oil is easier to refine into the fuels sold at the gas pump and ignites more easily. After rail cars carrying Bakken crude oil exploded in Alabama, North Dakota and Quebec, a federal agency warned in 2014 that the oil had a higher degree of volatility than other crudes in the United States.

Last year, two BNSF engines derailed on Swinomish Lands, releasing approximately 3,100 gallons (11,700 liters) of diesel fuel near Padilla Bay.

The 1991 easement limited rail traffic to one 25-car train per day in each direction. It demanded that BNSF inform the tribe of “the nature and identity of all goods” transported across the reservation, and asserted that the tribe would not arbitrarily deny permission to increase the number of trains or cars .

The tribe learned through a 2011 Skagit County planning document that a nearby refinery would begin receiving trains of crude oil. It wasn’t until the following year that the tribe received information from BNSF regarding current use of the tracks, according to court documents.

The Tribe and BNSF discussed changing the agreement, but “at no time did the Tribe endorse BNSF’s unilateral decision to transport unit trains across the reservation, nor did it agree to increase the limitations of trains or cars, nor waived its contractual right of approval,” Lasnik said in his ruling last year.

“BNSF failed to inform the tribe of the nature of the cargo passing through the reservation and unilaterally increased the number of trains and the number of cars without the written consent of the tribe, thereby violating the conditions imposed on the authorization BNSF to enter the property,’” Lasnik said.

This month’s four-day trial was intended to provide the court with details and expert testimony to guide the judge through complex calculations on how much “ill-gotten” profits BNSF should have to return. Lasnik estimated that figure at $362 million and added $32 million in after-tax profits, such as investment income, for a total of more than $394 million.

In reality, the judge wrote, BNSF made well over $32 million in after-tax profits, but adding it all up would have added hundreds of millions more to what was already a large judgment against the railroad.

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