By Eric Berger

A federal judge in Washington State laid down the law in a ruling against BNSF Railway in civil lawsuit involving violations of an agreement with the Swinomish Tribe on rail traffic over their land. The case concluded against the backdrop of a March 16 derailment of two BNSF diesels and resulting in 3,100 gallons of fuel spilling into waters in which the tribe has treaty-protected fishing rights.

The Swinomish Indian Tribal Community filed suit against BNSF in 2015, alleging that the railroad was in breach of a 1991 agreement with Burlington Northern limiting traffic to 25 cars per day. The terms of the agreement also require the railroad to tell the tribe about the “nature and identity of all cargo” it moves across tribal lands.

The railroad began delivering 100-car unit trains carrying Bakken crude oil to a nearby refinery in 2012, despite objections from tribal leaders.

In a March 27 ruling, U.S. District Court Judge Robert Lasnik wrote that BNSF “willfully, consciously and knowingly exceeded the limitations on its right of access” between September 2012 and May 2021 “in pursuit of profits.”

Court documents showed that during a 2013 meeting with tribal representatives, a BNSF attorney asserted that its common carrier obligations under federal law trumped the terms of the easement for the rail line.

That argument and others advanced by BNSF were ultimately rejected in the court’s decision and in a prior Ninth Circuit Court of Appeals ruling, which dismissed a BNSF motion for preemptory judgment on grounds that the easement agreement was negated by terms of the Interstate Commerce Commission Termination Act, which reserves most regulatory authority over railroads to the U.S. Surface Transportation Board.

Lasnik reaffirmed that ruling, holding that the tribal council was correct in responding to the claim by noting that the agreement was not a matter of local right-of-way regulations, but “rather involved limitations arising from a federally-approved easement crossing tribal trust lands established by treaty, the supreme law of the land.”

Lasnik ruled the railway “trespassed on Indian lands and is liable for the damages caused by its overburdening of the easement.” Those damages will be determined in the second phase of the trial.