Judge Rules Rail Company Must Pay Tribe

By Isaac White

BNSF Railway has been ordered to pay nearly $400 million to the Swinomish Indian Tribal Community for intentionally violating an easement agreement by running oversized crude oil trains through tribal lands, U.S. District Judge Robert Lasnik determined.

The decision follows a detailed four-day trial that scrutinized BNSF's profits from trespassing on the Swinomish reservation from 2012 to 2021. The railway, one of North America's largest, has been found to have significantly exceeded the 25-car limit set by a 1991 agreement, instead operating 100-car trains carrying volatile crude oil from the Bakken Formation to a nearby refinery.

The controversy began in 2015 when the tribe sued BNSF after it increased the number of railcars crossing the reservation without permission. This increase posed a heightened risk to the tribe's land and adjacent marine ecosystems, crucial for the Swinomish people who hold treaty-protected fishing rights in the region.

Environmental concerns exacerbated the case last year after two BNSF engines derailed, spilling approximately 3,100 gallons of diesel near Padilla Bay, an area of significant ecological sensitivity.

"The railway's actions not only breached our agreed terms but threatened our lands and waters," stated a Swinomish representative. "This ruling acknowledges the severe impact of BNSF's trespass and the need for accountability."

Judge Lasnik's ruling calculated that BNSF earned $362 million in ill-gotten profits, with an additional $32 million accrued from post-tax investment incomes. While acknowledging the total sum could be higher, Lasnik capped the damages to prevent "exorbitant" penalties.

Historically, the railroad tracks were laid in 1889 by a BNSF predecessor without proper consent from the Swinomish Tribe, leading to decades of legal disputes. The 1991 easement settlement was supposed to resolve past trespasses by limiting the train size and requiring transparency about cargo nature.

“We know that this is a large amount of money. 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," Steve Edwards, chairman of the Swinomish Indian Tribal Community, said in a statement. "When there are these kinds of profits to be gained, the only way to deter future wrongdoing is to do exactly what the Court did today — make the trespasser give up the money it gained by trespassing.”

"BNSF has not only disregarded the legal boundaries set forth in the easement but has also ignored the potential for serious environmental damage from their operations," noted environmental law expert Dr. Helena Margolis. "The crude oil carried by these trains is highly volatile, and any spill could have catastrophic effects on the local ecosystem."

The 2014 federal agency warning about the volatility of Bakken crude came after several explosive derailments in North America, underscoring the risks associated with transporting such materials across sensitive environments.

This ruling comes at a time of increasing legal scrutiny over the intersection of corporate operations and indigenous rights. It underscores the challenges tribes face in protecting their lands from unauthorized and potentially hazardous industrial activities.

Furthermore, the case reflects broader environmental and safety concerns related to the transportation of fossil fuels, prompting calls from various stakeholders for more stringent regulations and oversight of railroad operations across the United States.

The Swinomish tribe has expressed hope that this ruling will serve as a precedent for other tribes facing similar issues, emphasizing the importance of upholding legal agreements and protecting indigenous lands from exploitation.