Judge rules BNSF willfully breached agreement with Washington Tribe

A judge ruled that the BNSF railroad intentionally violated the terms of an easement agreement with Washington’s Swinomish Indian Tribal Community by running 100-car trains carrying crude oil across the reservation.

The civil case decision comes after two BNSF engines derailed on Swinenomish land earlier this month, spilling an estimated 3,100 gallons of diesel fuel near Padilla Bay. BNSF operates a railway line through the Swinomish Reserve under a 1991 easement agreement that allows trains to carry no more than 25 cars per day. In addition, the BNSF had to inform the tribe of the “nature and identity of all cargo” transported through the reservation.

In his written order, U.S. District Court Judge Robert Lasnik said the railroad made a unilateral decision to increase the number of trains and cars traversing the reservation without the consent of the tribe, the Seattle Times reported.

Lasnik ruled that the BNSF “willfully, knowingly and knowingly exceeded the limits of its right of access” from September 2012 to May 2021 “in order to make a profit”.

A BNSF spokesman declined to comment on the verdict to the newspaper.

“The tribe takes its agreements very seriously and expects them to be honored and we are grateful that the BNSF stands by the promises it has made,” said Steve Edwards, Chair of the Swinomish Indian Tribal Community, in a statement .

The railway relief crosses sensitive marine ecosystems via a swing bridge on the Swinomish Channel and a trestle across Padilla Bay within the reserve. The waters connect other waters of the Salish Sea where the tribe has chartered fishing rights.

The tribe learned through a 2011 Skagit County planning document that a nearby refinery would begin receiving crude oil trains. It was not until the following year that the tribe received information from the BNSF about current route usage, court documents show.

The Tribe and BNSF discussed an amended agreement, but “at no point has the Tribe consented to BNSF’s unilateral decision to move unit trains through the reservation to an increase in train or car restrictions, or waived its contractual right of approval,” Lasnik wrote.

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

Swinomish’s attorney pushed back at that meeting, “noting that this was not the typical right-of-way case with state or local regulation,” Lasnik wrote, “but rather involved restrictions arising from a federally sanctioned easement that tribal Traverses trust lands established by treaty, the supreme law of the land.

Meanwhile, 100-car trains carrying crude oil from the Bakken Formation in and around North Dakota ran through the reservation.

Bakken Oil is more easily refined into the fuels sold at the pump and is easier to ignite. In 2014, after train cars carrying Bakken crude oil exploded in Alabama, North Dakota and Quebec, a federal agency warned that the oil had a higher degree of volatility than other US crudes

The tribe sued in 2015, claiming BNSF was running trains with four times the number of cars allowed under an easement agreement with the tribe.

In 2020, the Ninth Circuit Court of Appeals upheld an earlier federal court ruling that found the BNSF had violated the easement agreement and the tribe has the right to enforce it. Later that year, BNSF applied for permission to move 16 Bakken crude oil trains each month in 2021 via the easement. The request was rejected.

Lasnik found that previous intentional crossings of easements by the BNSF exceeded agreements, and therefore “the railroad “entered Indian lands and is liable for the damage caused by the crossing of easements. ”

In a second phase of the process, the tribe’s claim for damages is examined.

Copyright 2023 Associated Press. All rights reserved. This material may not be published, broadcast, transcribed or redistributed.

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