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 has operated a rail line through the Swinomish Reservation under a 1991 easement agreement that permits trains to carry no more than 25 cars each direction per day. It also required BNSF to tell the tribe about the “nature and identity of all cargo” crossing the easement, which is less than a mile long.
Last year, Lasnik ruled that BNSF willingly, consciously and knowingly trespassed when it ran about a quarter-million cars carrying crude oil over the reservation beyond what was outlined in the agreement with the tribe. BNSF transported the crude oil to nearby oil refineries.
A four-day bench trial began earlier this month, in which BNSF had to show what portion of revenue from the transportation of crude oil it would have earned without violating the easement agreement. BNSF and Swinomish each provided experts to testify about 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 trespassed. They agreed the revenue those cars generated was about $900 million. Swinomish and BNSF ultimately disagreed on how much of the net profits the court should order be paid.
Lasnik calculated that BNSF made about $362 million in net profits, plus $32 million in post-tax profits, like investment income, for a total of about $395 million earned from the trespass.
“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,” Swinomish Chairman Steve Edwards said in a written 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.”
The ruling stems from a lawsuit filed in 2015 that alleged BNSF was running six 100-car trains per week over the right of way, four times the number of cars permitted under the easement agreement.
In 2020, the Ninth Circuit Court of Appeals affirmed a federal court ruling that found BNSF had breached the easement agreement, and the tribe has the right to enforce it.
Edwards said he expects BNSF will appeal the latest ruling to the Ninth Circuit. “But we have faith and we look forward to defending Judge Lasnik’s decision to protect our homeland.”
A BNSF spokesperson declined to comment on the ruling.
The history of the rail line is fraught.
In 1889, BNSF’s predecessor illegally constructed it through the Swinomish Reservation. The tribe objected, and court documents show the railway failed to obtain permission by treaty or an act of Congress before completing the railroad.
The railway used the tracks without permission for decades, and in 1970, the Swinomish Indian Tribal Community again objected. When the tribe and railway were unable to come to an agreement, the tribe asked the United States to bring a lawsuit against the railway for trespass and removal of the rail line in 1977.
That fall, the railway was denied a right-of-way application from the federal Bureau of Indian Affairs because it lacked consent from the tribe. The tribe and BNSF reached an easement agreement in 1991.
Swinomish is a legal successor to signatories of the 1855 Treaty of Point Elliott and today has more than 1,000 members. The reservation is located 65 miles north of Seattle on Fidalgo Island.
The railroad crosses sensitive marine ecosystems over a swing bridge at the Swinomish Channel and a trestle across Padilla Bay within the reservation. These water bodies connect with other marine waters of the Salish Sea, where the tribe has treaty-protected rights to fish.
In a 2020 deposition, Jeremy “JJ” Wilbur, a Swinomish senator, said he fishes “for everything that the Salish Sea has to offer” in the tribe’s fishing grounds.
“I’m also concerned that someday there may be — heaven forbid — some sort of railcar accident that could happen in the Swinomish Channel,” he said. “And with that being said, that could be disastrous for not just me and my livelihood and my family, but for many families here at 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, court documents show.
The tribe and BNSF began discussions over an amended easement agreement, but “at no point did the Tribe approve BNSF’s unilateral decision to transport unit trains across the Reservation, agree to increase the train or car limitations, or waive its contractual right of approval,” Lasnik wrote in a 2023 ruling.
Meanwhile, 100-car trains hauling crude oil from the Bakken Formation in and around North Dakota continued to run through the reservation. The trespass persisted from 2012 to 2021.
Bakken oil is a type of crude that is easier to refine into the fuels sold at the pump — and ignites more easily. After tank cars carrying Bakken crude oil exploded in Alabama, North Dakota and Quebec, a federal agency warned in 2014 that the oil has a higher degree of volatility than other crudes in the U.S.
Just days before the first phase of the Swinomish-BNSF civil trial was set to begin in 2023, two BNSF engines derailed March 16 on Swinomish land, leaking an estimated 3,100 gallons of diesel near Padilla Bay.
The tracks carry trains just a few hundred feet away from the tribe’s economic assets: a casino, hotel and restaurants.
“This land is what we have,” Chairman Edwards said in a statement Monday, “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.”
All of Washington state’s oil refineries are on or near tribal reservations.