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Judge rules BNSF intentionally violated terms of easement with Swinomish tribe

By Isabella Breda, The Seattle Times
Published: March 28, 2023, 7:36am

SEATTLE — BNSF intentionally violated the terms of an easement agreement with the Swinomish Indian Tribal Community when the railway company ran 100-car trains carrying crude oil over the reservation, a federal judge ruled Monday.

The ruling in the civil case comes after two BNSF engines derailed March 16 on Swinomish land, leaking an estimated 3,100 gallons of diesel near Padilla Bay.

BNSF has operated a rail line over the Swinomish Reservation under a 1991 easement agreement that permits trains traveling in each direction to carry no more than 25 cars per day. It also required BNSF to tell the tribe about the “nature and identity of all cargo” transported across the reservation.

In a written order Monday, U.S. District Court Judge Robert Lasnik said the railway made a unilateral decision in increasing the number of trains and cars crossing the reservation without the tribe’s consent. Lasnik ruled that BNSF “willfully, consciously and knowingly exceeded the limitations on its right of access” from September 2012 to May 2021 “in pursuit of profits.”

A BNSF spokesperson declined to comment on the ruling.

The railroad easement 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 other waters of the Salish Sea, where the tribe has treaty-protected rights to fish.

In a 2020 deposition, Jeremy Wilbur, now Swinomish vice chair, 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.”

The tribe only learned that a nearby refinery would begin receiving crude oil trains through a copy of a Skagit County planning document in 2011. It wasn’t until the following year that the tribe 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.

Meanwhile, 100-car trains hauling crude oil from the Bakken Formation in and around North Dakota continued to run through the reservation.

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.

In 2013, BNSF’s in-house counsel cited the railway’s “common carrier obligation to serve its customers” in a meeting with the Swinomish. Under federal law, rail companies are required to provide reasonable freight transportation upon request.

At last week’s trial, an attorney for BNSF said the duty to serve is “baked in the DNA of BNSF,” and something that is communicated in training and reinforced in practice.

And in the 2013 meeting, Swinomish counsel pushed back, “pointing out that this was not the typical right of way case involving state or local regulation,” Lasnik wrote, “but rather involved limitations arising from a federally-approved easement crossing tribal trust lands established by treaty, the supreme law of the land.”

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. Later that year, BNSF requested permission to move 16 Bakken crude unit trains each month in each direction across the easement during 2021. The request was denied.

Lasnik found prior intentional easement crossings by BNSF exceeded what was outlined in the agreement, and therefore, the railway “trespassed on Indian lands and is liable for the damages caused by its overburdening of the easement.”

In 1889, BNSF’s predecessor, the Seattle and Northern Railroad Company, constructed a railroad through the Swinomish Reservation. The tribe objected, and court documents say the railway failed to obtain permission by treaty or congressional approval before completing the railroad.

The railway had used the tracks without permission for decades, and in 1970, the Swinomish Indian Tribal Community objected. When the tribe and railway were unable to come to an agreement, the tribe asked that the United States 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.

“Railroads also had a history of taking land from Indian tribes or from local government,” Lasnik said while questioning a witness last week. “And basically, the expression ‘I got railroaded’ existed for a reason.”

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“Could you see how the Swinomish Tribe might feel that, after telling you — the predecessor of Burlington Northern — in 1889 ‘no, you can’t build the track,’ “ Lasnik continued, “and they went ahead and built it anyway, and never paid a dime to the tribe for almost 100 years, that they might feel a little bit like they’ve been railroaded?”

A second phase of the trial will evaluate the tribe’s claim for damages.