BNSF Railway must pay $400m to a Native American tribe

U.S. District Judge Robert Lasnik initially ruled last year that the railway deliberately violated the terms of a 1991 easement with the Swinomish Tribe north of Seattle that allows trains to carry no more than 25 cars per day. The judge held a trial earlier this month to determine how much in profits BNSF made through trespassing from 2012 to 2021 and how much it should be required to disgorge.

“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 company based in Fort Worth, Texas, said in an email it had no comment.

The tribe, which has about 1,400 members, sued in 2015 after BNSF dramatically increased, without the tribe’s consent, 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 route crosses sensitive marine ecosystems along the coast, over water that connects with the Salish Sea, where the tribe has treaty-protected rights to fish.

Bakken oil is easier to refine into the fuels sold at the gas pump and ignites more easily. After train cars carrying Bakken crude oil exploded in Alabama, North Dakota and Quebec, a federal agency warned in 2014 that the oil has a higher degree of volatility than other crudes in the U.S.

Last year, two BNSF engines derailed on Swinomish land, leaking an estimated 3,100 gallons (11,700 liters) of diesel fuel near Padilla Bay.

The tribe pointed out that a corporate predecessor of BNSF laid the tracks in the late 19th century over its objections. 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 easement limited rail traffic to one train of 25 cars per day in each direction. It required BNSF to tell the tribe about the “nature and identity of all cargo” transported across the reservation, and it said the tribe would not arbitrarily withhold permission to increase the number of trains or cars.

The tribe learned through a 2011 Skagit County planning document that a nearby refinery would start receiving crude oil trains. It wasn’t until the following year that the tribe received information from BNSF addressing current track usage, court documents show.

The tribe and BNSF discussed amending the agreement, but “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,” Lasnik said in his decision last year.

“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,” Lasnik said.

The four-day trial this month was designed to provide the court with details and expert testimony to guide the judge through complex calculations about how much in “ill-gotten” profit BNSF should have to disgorge. Lasnik put that figure at $362 million and added $32 million in post-tax profits such as investment income for a total of more than $394 million.

In reality, the judge wrote, BNSF made far more than $32 million in post-tax profits, but adding all of that up would have added hundreds of millions more to what was already a large judgment against the railway.

The tribe said it expects BNSF to appeal the ruling.