By Bill Lucia / Washington State Standard

BNSF Railway Co. must pay the Swinomish tribe $394 million for violating the terms of an agreement that allowed the railroad to run trains across a strip of the tribe’s land in northwest Washington, a federal judge ruled Monday.

U.S. District Court Judge Robert Lasnik ruled last year that the railroad trespassed between 2012 and 2021 as it sent trains carrying crude oil from North Dakota through the Swinomish Reservation, en route to refineries near Anacortes.

Determining what amount of money the railroad owed the tribe was left for a second phase of the proceedings, which Lasnik oversaw earlier this month.

The tribe argued that the unauthorized rail traffic resulted in around $450 million in ill-gotten gains that should be handed over – or “disgorged” – to remedy the situation.

BNSF contended the tribe was entitled to just a fraction of that total because the violation involved just a three-quarter mile section of land along a 1,500-mile route, and because of various costs that needed to be weighed against profits.

A BNSF spokesperson said Monday the railroad had no comment on the ruling. The tribe and its lawyers did not respond to requests for comment.

The lawsuit dates back to 2015 and hinges on an easement agreement the railroad and the tribe brokered in the early 1990s following earlier litigation. The Seattle and Northern Railroad originally built the tracks, which run along Padilla Bay, in 1889.

Under the easement agreement, BNSF and the tribe agreed only one train with no more than 25 cars should travel in each direction across the Swinomish lands each day, and the number of trains and cars “shall not be increased unless required by shipper needs.”

Lasnik wrote in his ruling last year that the railroad “willfully, consciously, and knowingly exceeded the limitations” between September 2012 and May 2021, as BNSF sent 100-car trains carrying crude oil through the corridor.

Crude oil shipments by rail surged in the U.S. between 2008 and 2014, as hydraulic fracturing, or “fracking,” raised oil production to levels that exceeded pipeline capacity.

This trend stirred widespread safety concerns, particularly after a train carrying crude oil crashed and exploded in 2013 in Lac-Mégantic, Quebec, leaving 47 people dead.

A BNSF train transporting crude oil derailed near Custer, north of Bellingham, in 2020, with cars leaking and catching fire.

Figures in court documents indicate upwards of a quarter million tanker cars carrying oil crossed through the Swinomish easement during the period covered by the lawsuit.

Washington State Standard is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Washington State Standard maintains editorial independence. Contact Editor Bill Lucia for questions: info@washingtonstatestandard.com. Follow Washington State Standard on Facebook and X.