BNSF violated rail agreement with Swinomish Tribe

 


Fidalgo Island — The United States District Court for the Western District of Washington issued a decision concluding the liability phase of trespass litigation filed by the Swinomish Indian Tribal Community against BNSF Railway March 27, ruling that “BNSF willfully, consciously and knowingly exceeded” limitations in an easement to cross the Tribe’s land.

Swinomish Chairman Steve Edwards stated in a press release that “the Tribe takes its agreements very seriously and it expects them to be honored and we are thankful that BNSF is being held to the promises it made. We look forward to proceeding with the compensation phase of this case and finally concluding this dispute with BNSF.”

The court ruled:

BNSF willfully, consciously and knowingly exceeded the limitations on its right of access from September 2012 to May 2021. It failed to acknowledge, much less evaluate, the unique circumstances impacting its ability to provide the service requested. BNSF did not show that it had good faith belief that its common carrier obligations overrode the easement limitations at any point after the unit trains started running.


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BNSF intentionally trespassed and breached the easement by running more trains and cars than the easement allowed. The court held that BNSF had willfully, consciously and knowingly exceeded the easement’s limitations and that BNSF could not rely on its claimed belief that its common carrier duty to its shipping customers allowed it to do so. The case now enters a phase determining compensation for the trespass.

Historical and legal background

A 1991 easement agreement between the Tribe and BNSF allows rail traffic to cross the Swinomish Reservation in Skagit County but limits train size and frequency. In September 2012, BNSF began exceeding the easement’s limitations by shipping hundred-car “unit trains” of Bakken crude oil across the Reservation without the Tribe’s required consent. The Tribe filed suit against BNSF for violating the easement in April 2015.


The District Court had ruled in 2017 that BNSF’s common carrier duty under federal law was “not a defense to any of the claims asserted in this litigation” and did not allow it to ignore the requirements of the easement agreement. BNSF appealed and in March 2020, the United States Court of Appeals for the Ninth Circuit affirmed the District Court and held that the Tribe’s lawsuit against BNSF was not precluded by the Interstate Commerce Commission Termination Act and could proceed. In 2022, the District Court entered a partial summary judgment in favor of the Tribe, but deferred to trial a ruling on whether the BNSF’s trespass was willful, conscious or knowing. The trial ran March 20-22, 2023.


Train tracks running across the northern edge of the Reservation were laid in the late 1800s without consent from the Swinomish Tribe or federal government. In 1991, the Tribe and BNSF signed an agreement settling a prior lawsuit filed by the Tribe and the United States in 1976 for nearly a century of trespass. This agreement granted BNSF an easement, but subject to important conditions: only one train of 25 railcars would cross the Reservation in each direction daily and BNSF would regularly update the Tribe on the type of cargo crossing Tribal land. In return, the Tribe agreed not to “arbitrarily withhold permission” if there should be a future BNSF request to increase the number of trains or cars.


In late 2012, the Tribe learned from media reports that crude oil “unit trains” of 100 railcars or more were beginning to cross the Reservation. By April 2015, BNSF was reportedly running six 100-car “unit trains” per week across the Reservation, more than four times as much traffic as permitted by the easement. The tracks are adjacent to the Tribe’s economic center, including a hotel and casino and other facilities. The intended development of this economic center was one of the primary reasons for the limitation of the number of trains and cars incorporated into the easement.

Source: Swinomish Indian Tribal Community

 

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