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BNSF must pay Washington tribe $400 million for train trespass

  • Federal judge rules BNSF violated land agreement
  • The railway carried crude oil for years without tribe's consent
  • Trespass was 'willful, conscious, and knowing,' judge says

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(NewsNation) — A federal judge has ordered BNSF Railway to pay nearly $400 million to the Swinomish Tribe in Washington state Monday after finding that the company intentionally trespassed when it ran 100-car trains carrying crude oil across the tribe’s reservation repeatedly over several years, according to online court records.

The tribe — which is federally recognized and has about 1,400 members — sued the railway company in 2015 after it said BNSF increased the number of cars it was running across the reservation so that it could ship crude oil from the Bakken Formation in and around North Dakota to a nearby refinery. 

The company did so without the tribe’s consent violating an easement agreement on the tribe’s land, according to court documents.

Last year, two BNSF cars derailed on Swinomish land, leaking an estimated 3,100 gallons of diesel fuel near Padilla Bay.

A federal agency had warned in 2014 that the oil has a higher degree of volatility than other crudes in the U.S. after train cars carrying Bakken crude oil exploded in Alabama, North Dakota and Quebec. 

The route also crosses sensitive marine ecosystems along the coast where the tribe has treaty-protected rights to fish.

U.S. District Judge Robert Lasnik ruled last year that the railway deliberately broke the terms of a 1991 easement with the Swinomish allowing trains to carry no more than 25 cars per day. 

BNSF — which operates one of the largest railroad networks in North America — told NewsNation Tuesday it had no comment on the judgment.

The easement also required the company to tell the tribe exactly what was being transported across the reservation, and it said the tribe would not arbitrarily withhold permission to increase the number of trains or cars.

“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,” the judge wrote in his decision last year, according to online court records. 

“Trespass was willful, conscious, and knowing,” Lasnik wrote. 

The judge slammed the company saying there are “many unknowns regarding the uses to which BNSF put its ill-gotten profits and the return rates on those investments.”

The four-day trial this month was meant to provide the court with details and expert testimony to guide the judge through complex calculations about how much profit BNSF should have to hand over.

Lasnik put that figure at $362 million and added $32 million in post-tax profits. 

“We know that this is a large amount of money. But that just reflects the enormous wrongful profits that BNSF gained by using the Tribe’s land day after day, week after week, year after year over our objections,” Steve Edwards, chairman of the Swinomish Indian Tribal Community, said in a statement. “When there are these kinds of profits to be gained, the only way to deter future wrongdoing is to do exactly what the court did today — make the trespasser give up the money it gained by trespassing.”

The rail line over the tribe’s land has a long history of misuse.

BNSF’s predecessor illegally constructed it through the reservation in 1889 despite the tribe’s objections. The railway had failed to obtain permission by treaty or an act of Congress before completing the railroad.

The tribe sued in the 1970s, alleging decades of trespassing, and only in 1991 was that litigation settled when the tribe granted an easement allowing limited use of the tracks.

The Associated Press contributed to this story. 

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