Judge orders BNSF to pay $400 million to Swinomish
WA Department of Ecology photo

Judge orders BNSF to pay $400 million to Swinomish

A federal judge has ordered BNSF Railway to pay nearly $400 million to the Swinomish Tribe, ruling the company intentionally trespassed on reservation land by repeatedly running oil trains across the reservation.

BNSF has operated the rail line across the reservation on Fidalgo Island under a 1991 easement that limits train lengths to no more than 25 cars each direction per day. But, BNSF has regularly run trains as long as a mile across the reservation, between the two oil refineries on March Point and the mainland.

US District Judge Robert Lasnik on Monday ruled that BNSF willingly, consciously and knowingly trespassed when it ran those oil trains over the reservation. 

The Associated Press reported the company said in an email it had no comment on the ruling.

In 2015, the tribe filed a lawsuit against BNSF Railway for allegedly violating the terms of an easement agreement allowing trains to cross the Reservation.

"BNSF failed to update the Tribe regarding the nature of the cargo that was crossing the Reservation and unilaterally increased the number of trains and the number of cars without the Tribe’s written agreement, thereby violating the conditions placed on BNSF’s permission to enter the property,” Judge Lasnik said.

Lasnik held a four-day trial to determine damages, in other words just how much in "ill-gotten" profit BNSFshould have to "disgorge." The judge determined the figure was $362 million and added $32 million in post-tax profits.

“A deal is a deal,” said Swinomish Chairman Brian Cladoosby on filing the lawsuit in 2015..

“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.”



WA Department of Ecology photo.

Just last year, a BNSF oil train derailed on the reservation, just north of the Swinomish Casino and Resort.

The state Department of Ecology reported that they and the Marine Spill Response Corporation responded to the derailment. Ecology's initial report indicated about 5000 gallons of diesel fuel leaked, but that most of it leaked on the land side of the tracks. The spill happened on a berm.

Ecology says one locomotive was actively spilling, while the other two locomotives did not appear to be spilling. Cleanup contractors have a boom in place along the shoreline, according to an Ecology spokesperson.