Railway company forced to pay Washington tribe over $380 million for unauthorized use of land with oil trains
Seattle (AP)— BNSF Railway has been ordered to pay approximately $394 million by a federal judge, following a ruling that the railway intentionally overstepped boundaries by repeatedly running prolonged oil trains, consisting of 100 cars, across the Swinomish Tribe's reservation in Washington state.
Judge Robert Lasnik made this decision in 2020, determining that BNSF, based in Fort Worth, Texas, intentionally breached the terms of a 1991 easement with the Swinomish Tribe, permitting only 25 train cars per day. The trial, held earlier in 2022, focused on calculating the profits BNSF gained through their trespassing between 2012 and 2021.
BNSF chose not to comment on the judgment, whereas the Swinomish Tribe, with around 1,400 members, did not respond promptly to a request for comment.
The lawsuit was filed by the tribe in 2015 as a response to BNSF increasing, without consent, the number of cars transported across the reservation to facilitate the shipping of crude oil from the Bakken Formation in North Dakota to a nearby refinery. This route crosses delicate marine ecosystems along the coast, impacting areas with treaty-protected fishing rights for the tribe.
Bakken oil is simpler to refine into fuels sold at gas stations and ignites more easily. Following explosions in Alabama, North Dakota, and Quebec involving train cars carrying Bakken crude oil, a federal agency issued a warning in 2014, stating that this oil has a higher degree of volatility compared to other crudes in the U.S.
Two BNSF engines derailed on Swinomish property in 2021, spilling an estimated 3,100 gallons (11,700 liters) of diesel fuel near Padilla Bay.
The 1991 easement specified limitations on rail traffic, requiring BNSF to notify the tribe about the "nature and identity of all cargo" transported across the reservation and stating that the tribe could not arbitrarily deny permission to increase the number of trains or cars.
The tribe learned of the nearby refinery's plan to receive crude oil trains through a 2011 Skagit County planning document. It wasn’t until the following year that the tribe received information from BNSF regarding current track usage, as shown in court documents.
Negotiations between the tribe and BNSF concerning amending the agreement occurred, but the tribe never consented to BNSF’s unilateral decision to transport extended trains and increase the number of cars without written approval, according to Judge Lasnik's decision in 2020.
"BNSF failed to keep the tribe informed about the nature of the cargo crossing the reservation and made unilateral increases in the number of trains and cars without the tribe's written agreement, thus breaching the conditions that permitted BNSF to enter the property," Lasnik stated in his decision.
This month's four-day trial provided the court with specific details and expert testimony to guide the judge through intricate calculations regarding the "ill-gotten" profits BNSF should forfeit. Lasnik calculated the figure at $362 million, adding $32 million in post-tax profits such as income from investments, totaling over $394 million.
However, the judge noted that BNSF likely earned far more than $32 million in post-tax profits, but including all of that would have significantly increased an already substantial judgment against the railway.
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The Swinomish Tribe, composed of around 1,400 members, will receive approximately $394 million from BNSF Railway due to the railway's unauthorized use of their land for oil trains. This payment is a result of Judge Robert Lasnik's decision in 2020, as he determined that BNSF intentionally breached the 1991 easement with the Swinomish Tribe.
