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SEATTLE – BNSF Railway will pay nearly $400 million in compensation to a Native American tribe of Washington State, a federal court ruled on June 17, after finding that it had intentionally trespassed by running 100-car trains with crude oil across a tribe’s reservation.
U.S. District Court Judge Robert Lasnik ruled initially last year that the railway intentionally violated the terms and conditions of a 1991 easement north of Seattle with the Swinomish Tribe that limits trains to carrying no more than 25 vehicles per day. The judge held a court trial earlier this month in order to determine the amount of profits BNSF made from trespassing between 2012 and 2021, and how much they should be required disgorge.
“We know this is a lot of money.” Steve Edwards, Chairman of the Swinomish Indian Tribal Community said in a press release that this amount reflects the enormous wrongful profit that BNSF made by using the land of the tribe day after day, every week, and year after year, despite our objections. “When there is money to be made, the only way to prevent future wrongdoings is to do what the court did today – make the trespasser pay back the money they gained by trespassing.”
In an email, the company, based in Fort Worth (Texas), said it had no comments.
The tribe, which has around 1,400 members, filed a lawsuit in 2015 when BNSF increased dramatically, without the tribe’s consent, the number cars it ran across the reservation to ship crude oil from and around the Bakken Formation, in North Dakota, to a nearby refining facility. The route crosses sensitive marine ecologies along the coast and over water that connects to the Salish Sea where the tribe has treaty protected rights to fish.
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Bakken oil is more easily refined into fuels sold at gas pumps and ignites easier. In 2014, after train cars carrying Bakken crude exploded in Alabama and North Dakota, a federal agency warned that the oil is more volatile than other crudes sold in the U.S.
Two BNSF engines derailed last year on Swinomish Land, leaking approximately 3,100 gallons diesel fuel near Padilla Bay.
The tribe pointed out that a predecessor company of BNSF had laid the tracks over its objections in the late nineteenth century. The tribe sued BNSF in the 1970s for decades of trespassing. Only in 1991 did the lawsuit settle, when the tribe granted a limited easement to allow use of the tracks.
The easement restricted rail traffic to 25 cars per train in each direction. The easement required BNSF tell the tribe the “nature and identification of all cargo” that was transported across the reservation. It also stated that the tribe would not arbitrarily deny permission to increase the number or trains.
A 2011 Skagit County planning report informed the tribe that a nearby refinery was going to start receiving crude oil trains. Court documents show that it wasn’t until 2012 that the tribe was informed by BNSF about the current track usage.
The tribe and BNSF discussed amending their agreement. However, “at no point did tribe approve BNSF unilateral decision to transport unit train across the reservation or agree to increase the limit of trains or cars or waive its contractual rights of approval”, Lasnik said in last year’s decision.
Lasnik stated that “BNSF failed the tribe to inform them of the nature of the cargo crossing the reservation, and unilaterally increased both the number of trains as well as the number cars without their written consent. This was a violation of the conditions imposed on BNSF to enter the property.”
The four-day trial was held this month to provide the court with information and expert testimony that would guide the judge in complex calculations to determine how much “ill-gotten” profits BNSF must disgorge. Lasnik estimated that the figure was $362 million, and added an additional $32 million for post-tax profits like investment income to make a total of over $394 million.
The judge stated that BNSF had made much more than $32 millions in post-tax profit, but adding it all up would have added hundreds and millions to the already large judgment against the railroad.
The tribe expects BNSF will appeal the ruling.