Judge orders railway to pay nearly $400 million to Washington tribe for trespassing with oil trains


BNSF Railway has been ordered to pay nearly $400 million to a Native American tribe in Washington state after a federal judge found that the company intentionally trespassed by repeatedly running 100-car trains carrying crude oil across the tribe’s reservation. The ruling marks a significant victory for the Swinomish Tribe, highlighting ongoing tensions between indigenous communities and large corporations over land rights and environmental protections.

The judgment was delivered by U.S. District Judge Robert Lasnik, who last year determined that BNSF Railway had deliberately violated the terms of a 1991 easement agreement with the Swinomish Tribe. This agreement permitted the railway to carry no more than 25 train cars per day across the reservation, a restriction that BNSF ignored. The easement was intended to protect the tribe’s land and resources, yet from 2012 to 2021, BNSF significantly increased the number of cars, leading to the lawsuit.

“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,” said Steve Edwards, chairman of the Swinomish Indian Tribal Community, 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.”

Despite repeated objections from the Swinomish Tribe, BNSF continued its operations, shipping crude oil from the Bakken Formation in and around North Dakota to a nearby refinery. This route crosses sensitive marine ecosystems along the coast, including waters connected to the Salish Sea, where the tribe holds treaty-protected fishing rights. The environmental and cultural significance of this area makes the railway’s actions particularly egregious in the eyes of the tribe.

The Bakken crude oil is notably volatile and easier to refine into fuels sold at gas pumps. However, its transportation has been linked to several disastrous incidents. Notably, train cars carrying Bakken crude oil have exploded in Alabama, North Dakota, and Quebec. In 2014, a federal agency warned that this type of oil has a higher degree of volatility compared to other crudes in the U.S., emphasizing the risks associated with transporting it through environmentally sensitive and populated areas.

The Swinomish Tribe’s conflict with the railway is not new. The tracks were originally laid by a corporate predecessor of BNSF in the late 19th century, despite objections from the tribe. After decades of litigation over what the tribe considered unauthorized use of their land, the 1991 easement was established. This agreement was meant to limit rail traffic and required BNSF to notify the tribe about the nature and identity of all cargo transported across the reservation. However, the tribe alleges that BNSF failed to adhere to these conditions, prompting the recent legal battle.

The tipping point came in 2011 when the tribe learned through a Skagit County planning document that a nearby refinery would begin receiving crude oil trains. BNSF’s subsequent communication about current track usage did not satisfy the tribe, leading to discussions about amending the agreement. Despite these talks, the tribe never approved BNSF’s unilateral decision to increase the number of trains and cars. Judge Lasnik noted that BNSF’s actions violated the conditions of their easement, as they did not secure the tribe’s written agreement for the increased rail traffic.

In a four-day trial earlier this month, experts provided detailed testimony to help the court calculate the profits BNSF made from this trespassing. Judge Lasnik concluded that BNSF should disgorge $362 million in profits made through their unauthorized use of the tribe’s land. He also added $32 million in post-tax profits, such as investment income, bringing the total to over $394 million. Lasnik acknowledged that BNSF likely made even more in post-tax profits, but including those would have resulted in an even larger judgment against the railway.

The decision reflects broader issues of corporate accountability and indigenous rights. The Swinomish Tribe’s victory is a landmark case, potentially setting a precedent for other Native American communities facing similar challenges. It underscores the importance of respecting tribal sovereignty and adhering to agreements designed to protect both cultural and environmental resources.

BNSF, based in Fort Worth, Texas, has not commented on the ruling. The railway company now faces a significant financial penalty, which serves as a reminder of the importance of honoring legal agreements and the potential consequences of failing to do so. The Swinomish Tribe’s perseverance in seeking justice highlights the ongoing struggle of indigenous communities to protect their lands and resources from exploitation by powerful corporate interests.

As the tribe and their supporters celebrate this legal victory, the case also draws attention to the broader issue of environmental justice. The transportation of volatile crude oil through sensitive ecological areas poses significant risks, not only to the environment but also to the people who rely on these lands for their livelihoods and cultural practices. The ruling against BNSF serves as a powerful statement about the need for responsible corporate behavior and the enforcement of laws designed to protect both the environment and the rights of indigenous peoples.


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