The Swinomish Indian Tribal Community filed a lawsuit in federal court Tuesday against BNSF Railway for allegedly violating the terms of an easement agreement allowing trains to cross the Reservation.
Train tracks running across the northern edge of the Reservation were laid in the late 1800’s, without consent from the Swinomish or federal government. The tracks currently serve two Anacortes refineries. In 1991, the Tribe and BNSF signed an agreement settling a lawsuit filed by the Tribe in 1976 for nearly a century of trespass, and granting BNSF an easement with important conditions: BNSF would regularly update the Tribe on the type of cargo, and only one train of 25 railcars would cross the Reservation in each direction daily. In return, the Tribe agreed not to “arbitrarily withhold permission” if there was a future BNSF request to increase the number of trains or cars.
In late 2012, the Tribe learned from media reports that “unit trains” of 100 railcars or more were beginning to cross the Reservation. Today, BNSF is reportedly running six 100-car “unit trains” per week across the Reservation, more than four times as many railcars daily as permitted by the easement. Each of these trains carry between 2.8- and 3.4-million gallons of Bakken Crude, a particularly dangerous and explosive cargo that has drawn the attention of lawmakers and federal regulators.
The Tribe never granted BNSF permission to increase the number of railcars and repeatedly demanded BNSF to stop violating the easement. So far, BNSF has refused.
“A deal is a deal,” said Swinomish Chairman Brian Cladoosby. “Our signatures were on the agreement with BNSF, so were theirs, and so was the United States. But despite all that, BNSF began running its Bakken oil trains across the Reservation without asking, and without even telling us. This was exactly what they did for decades starting in the 1800’s.
“We told BNSF to stop, again and again,” said Cladoosby. “We also told BNSF: convince us why we should allow these oil trains to cross the Reservation. And we listened for two years, even while the trains kept rolling. But experiences across the country have now shown us all the dangers of Bakken Crude. It’s unacceptable for BNSF to put our people and our way of life at risk without regard to the agreement we established in good faith.”
The tracks are adjacent to the Tribe’s primary economic development area, including the Swinomish Casino and Lodge, a Chevron station and convenience store, an RV park, and a Tribal waste treatment plant and air quality monitoring facility. Hundreds of guests and employees are present every day, and these enterprises help provide funds for essential Swinomish governmental services.
The oil cars also pass over the Swinomish Channel and Padilla Bay, which is part of the Tribe’s fishing grounds.
The tribe contends that Bakken Crude is a notoriously dangerous cargo:
- U.S. Pipeline and Hazardous Materials Safety Administration found: “(Bakken) crude has a higher gas content, higher vapor pressure, lower flashpoint and boiling point and thus a higher degree of volatility than most other crudes in the U.S., which correlates to increased ignitability and inflammability.”
- U.S. Department of Transportation noted: “There is reason to believe that derailments of HHFT (high-hazard flammable trains) will continue to involve more cars than derailments of other types of trains. There are many unique features to the operation of unit trains to differentiate their risk. The trains are longer, heavier in total, more challenging to control, and can produce considerably higher buff and draft forces which affect train stability.” (Docket No. PHMSA-2012-0082)
- U.S. Department of Transportation noted that “releases of petroleum crude oil, subsequent fires, and environmental damage resulting from such releases represent an imminent hazard…” (Emergency Restriction/Prohibition Order, Docket No. DOT-OST-2014-0067)
The lawsuit seeks a permanent injunction prohibiting BNSF from running more than one train of 25 cars in each direction and shipping Bakken Crude across the Reservation. The Tribe also seeks judgements against BNSF for trespass and breach of contract.
“For thousands of years, we have fought to protect all that is important for those who call the Salish Sea home. We as leaders need to protect our treaty resources, our economies, and the human health of our citizens and neighbors,” said Cladoosby. “We all lose if we give up that which is most precious to us all – our commitment is to do what is right for our children and grandchildren, and protect the land and water upon which their lives will depend.”