Judge orders BNSF to pay $400 million to WA tribe for trespassing on oil train

U.S. District Court Judge Robert Lasnik on Monday ordered BNSF Railway to pay the Swinomish Indian Tribal Community just under $400 million for trespassing on the reservation.

BNSF operates a rail line through the Swinomish Reservation under a 1991 easement agreement that allows trains to carry a maximum of 25 rail cars in each direction per day. It also required BNSF to inform the tribe of “the nature and identity of all goods” crossing the easement, which is less than a mile long.

Last year, Lasnik ruled that BNSF willfully, knowingly and knowingly trespassed when it transported about a quarter of a million cars carrying crude oil onto the reservation beyond what was called for in the agreement with the tribe. BNSF transported the crude oil to nearby oil refineries.

A four-day trial began earlier this month, during which BNSF had to show how much of the revenue from crude oil transportation it would have earned without violating the easement agreement. BNSF and Swinomish each provided experts to testify on how the judge should calculate the proportion of BNSF’s “ill-gotten” profits to be paid to the tribe.

BNSF and Swinomish agreed on the number of cars – 266,877 – that were brought in without permission. They agreed that the revenue generated by these cars was approximately $900 million. Swinomish and BNSF ultimately disagreed on how much net profit the court should order to be paid.

Lasnik calculated that BNSF earned about $362 million in net profits, plus $32 million in after-tax profits, such as investment income, for a total of about $395 million from the intrusion.

“We know this is a lot of money. But this only reflects the enormous unjustified profits that BNSF has made using the tribe’s land day after day, week after week, year after year, over our objections,” Swinomish President Steve Edwards said in a written declaration. “When there are these kinds of profits to be made, the only way to deter future wrongdoing is to do exactly what the Court did today: force the trespasser to forfeit the money he has gained in intrusion. »

The ruling follows a 2015 lawsuit that claimed BNSF was operating six 100-car trains per week on the right-of-way, four times the number of cars allowed under the easement agreement.

In 2020, the Ninth Circuit Court of Appeals upheld a federal court ruling that BNSF violated the easement agreement and that the tribe had the right to enforce it.

Edwards said he expects BNSF to appeal the latest decision to the Ninth Circuit. “But we have confidence and look forward to defending Judge Lasnik’s decision to protect our homeland.”

A BNSF spokesperson declined to comment on the decision.

The history of the railway is broken.

In 1889, BNSF’s predecessor built it illegally through the Swinomish Reservation. The tribe objected, and court documents show the railroad failed to obtain authorization by treaty or act of Congress before completing the railroad.

The railroad used the tracks without permission for decades, and in 1970 the Swinomish Indian tribal community objected again. When the tribe and the railroad failed to reach an agreement, the tribe asked the United States to file a lawsuit against the railroad for trespassing and removing the railroad track in 1977.

That fall, the federal Bureau of Indian Affairs denied the railroad a right-of-way request because it had not obtained consent from the tribe. The tribe and BNSF entered into an easement agreement in 1991.

Swinomish is the legal successor to the signatories of the Point Elliott Treaty of 1855 and today has more than 1,000 members. The preserve is located 65 miles north of Seattle on Fidalgo Island.

The railway crosses sensitive marine ecosystems via a swing bridge at the Swinomish Channel and a trestle across Padilla Bay within the preserve. These bodies of water are connected to other marine waters in the Salish Sea, where the tribe has treaty-protected fishing rights.

In a 2020 deposition, Jeremy “JJ” Wilbur, a senator from Swinomish, said he fished “for everything the Salish Sea has to offer” in the tribe’s fishing grounds.

“I also worry that one day there could be — God forbid — some sort of wagon accident that could happen in the Swinomish Canal,” he said. “And that being said, this could be disastrous not only for me and my livelihood and my family, but also for many families here in Swinomish.”

Swinomish only learned that a nearby refinery – now Marathon – would begin receiving crude oil trains through a Skagit County planning document in 2011. It wasn’t until the following year that Swinomish received a letter from BNSF specifically addressing current track usage, according to court documents. .

The tribe and BNSF began discussions on a modified easement agreement, but “at no time did the tribe approve of 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 wrote in a 2023 decision.

Meanwhile, 100-car trains carrying crude oil from the Bakken Formation in and around North Dakota continued to pass through the reservation. The intrusion persisted from 2012 to 2021.

Bakken oil is a type of crude oil that is easier to refine into the fuels sold at the pump – and is more easily ignited. After tank 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 .

Just days before the first phase of the Swinomish-BNSF civil trial begins in 2023, two BNSF engines derailed March 16 on Swinomish land, leaking approximately 3,100 gallons of diesel near Padilla Bay.

The tracks carry trains just a few hundred yards from the tribe’s economic assets: a casino, hotel and restaurants.

“This land is what we have,” President Edwards said in a statement Monday, “it is what we kept as our homeland when we signed the Treaty of Point Elliott. We have always protected it and we will always do.

All of Washington State’s oil refineries are on or near tribal reservations.

Leave a Comment