SEATTLE — BNSF Railway must pay nearly $400 million to a Native American tribe in Washington state, a federal judge ordered Monday after finding that the company intentionally trespassed when it repeatedly ran 100-car trains carrying crude oil across the tribe’s reservation.
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.
The company based in Fort Worth, Texas, said in an email it had no comment on the judgment. The tribe, which has about 1,400 members, did not immediately respond to an email seeking comment.
The tribe 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 1991 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.
In a landmark legal victory, a Washington tribe has been awarded nearly $400 million in a trespassing case against a railway company for allowing oil trains to pass through their reservation without permission. The case, brought by the Yakama Nation, highlights the ongoing struggle between indigenous communities and corporations over land rights and environmental protection.
The Yakama Nation, located in south-central Washington, has long fought against the presence of oil trains on their reservation. These trains, which transport crude oil from the Bakken oil fields in North Dakota to refineries on the West Coast, pose a significant risk to the environment and public safety. In recent years, there have been several high-profile accidents involving oil trains, including derailments and explosions that have caused significant damage and put communities at risk.
The Yakama Nation argued that the railway company had trespassed on their land by allowing these dangerous trains to pass through without obtaining the necessary permits or permissions. The tribe also raised concerns about the potential for environmental damage from spills or accidents involving the oil trains.
After a lengthy legal battle, a federal court ruled in favor of the Yakama Nation, awarding them nearly $400 million in damages for trespassing. The court found that the railway company had violated the tribe’s rights by allowing the oil trains to pass through their reservation without proper authorization.
This ruling is a significant victory for the Yakama Nation and other indigenous communities who are fighting to protect their land and resources from the impacts of fossil fuel development. It sends a clear message to corporations that they cannot disregard the rights of indigenous peoples and operate on their land without consequences.
The case also highlights the broader issue of environmental justice and the need for stronger regulations to protect communities from the risks of oil transportation. As the demand for fossil fuels continues to grow, it is essential that we prioritize the safety and well-being of indigenous communities and other vulnerable populations who are disproportionately affected by the impacts of fossil fuel development.
Moving forward, it is crucial that we continue to support and uplift the voices of indigenous communities in their fight for environmental justice. By holding corporations accountable for their actions and advocating for stronger regulations to protect our land and resources, we can work towards a more sustainable and equitable future for all.
