Judge rules BNSF owes Swinomish Tribe $395M

BNSF Railway Co. must pay the Swinomish tribe $395 million for violating the terms of an agreement that allowed the railroad to run trains across a strip of the tribe's land in northwest Washington, a federal judge ruled Monday.

U.S. District Judge Robert Lasnik ruled last year against the railroad for trespassing between 2012 and 2021 as it sent trains carrying crude oil from North Dakota through the Swinomish Reservation, en route to refineries near Anacortes.

Determining what amount of money the railroad owed the tribe was left for another phase of the proceedings, which included a bench trial Lasnik oversaw earlier this month.

The tribe argued that the unauthorized rail traffic resulted in around $450 million in ill-gotten gains that should be handed over – or "disgorged" – to remedy the situation.

BNSF contended the tribe was entitled to a fraction of that total because the violation involved just a three-quarter mile segment along a 1,500-mile route and because of various costs that needed to be weighed against profits.

"We knew that we were in the right and we are thankful that the Court has ruled that BNSF must give up the wrongful profits it earned from trespassing on our Reservation again and again for nearly a decade," Steve Edwards, chairman of the Swinomish Indian Tribal Community, said in a statement.

"We know that this is a large amount of money," he added. "But that just reflects the enormous wrongful profits that BNSF gained by using the Tribe's land day after day, week after week, year after year over our objections."

"This land is what we have," concluded Edwards, "this is what we kept as our homeland when we signed the Treaty of Point Elliott. We have always protected it and we always will."

A BNSF spokesperson said Monday that the railroad had no comment on the ruling. Edwards said the tribe expects BNSF to appeal this ruling to the 9th U.S. Circuit Court of Appeals.

The lawsuit dates back to 2015 and hinges on an easement agreement the railroad and the tribe brokered in the 1990s following earlier litigation. The Seattle and Northern Railroad originally built tracks through the area, which is along Padilla Bay, in 1889.

Under the easement agreement, BNSF and the tribe agreed that only one train with no more than 25 cars should travel in each direction across the Swinomish lands each day and that the number of trains and cars "shall not be increased unless required by shipper needs."

Lasnik ruled last year that the railroad "willfully, consciously and knowingly exceeded the limitations" between September 2012 and May 2021, as BNSF sent 100-car trains carrying crude oil through the corridor.

Crude oil shipments by rail surged in the U.S. between 2008 and 2014, as hydraulic fracturing, or "fracking," raised oil production to levels that exceeded pipeline capacity.

This trend stirred widespread safety concerns, particularly after a train carrying crude oil crashed and exploded in 2013 in Lac-Mégantic, Quebec, leaving 47 people dead.

A BNSF train transporting crude oil derailed near Custer, Washington, north of Bellingham, in 2020, with cars leaking and catching fire.

Figures in court documents indicate that upwards of a quarter million tanker cars carrying oil crossed through the Swinomish easement during the period covered by the lawsuit.

First published June 17, 2024. Copyright 2024 Washington State Standard. Reprinted with permission. More at: washingtonstatestandard.com.