Judge orders railway company to pay Native American tribe astonishing sum for ‘trespassing’ on land

A national railroad has been ordered to pay a Native American tribe nearly $400 million for “encroaching” on its land.

U.S. District Judge Robert Lasnik ordered BNSF Railway to hand over the astonishing sum of cash Monday after finding that the company deliberately entered the Swinomish Tribe’s reservation north of Seattle when it repeatedly ran 100-car trains that transported crude oil across the country.

In doing so, the railroad deliberately violated a 1991 easement with the tribe that allows trains to carry no more than 25 cars per day, Lasnik initially ruled last year.

A trial was then held earlier this month to determine how much profit BNSF made from violations and how much it should pay.

BNSF’s predecessor, the Seattle Northern Railroad Company, illegally built the railroad through the Swinomish Reservation in 1889, much to the tribe’s objection. according to the Seattle Times.

It was used regularly for well over a decade until the federal government granted the Swinomish tribe an easement in 1991, limiting rail traffic to one train of 25 cars per day in each direction.

It also required BNSF to inform the tribe of the “nature and identity of all freight” transported through the reservation, and said the tribe would not arbitrarily deny permission to increase the number of trains or cars.

But in 2015, the tribe sued BNSF, alleging that it was running six 100-car trains every week — four times the authorized number — so it could ship crude oil from the Bakken Formation in and around North Dakota to a nearby refinery.

BNSF’s predecessor, the Seattle Northern Railroad Company, illegally built the railroad through the Swinomish Reservation in 1889

The route crosses sensitive marine ecosystems along the coast, over waters connected to the Salish Sea, where the tribe has treaty-protected fishing rights.

What makes matters worse is that crude oil from the Bakken formation ignites more easily than other crude oil.

After rail cars carrying Bakken crude exploded in Alabama, North Dakota and Quebec, a federal agency warned in 2014 that the oil has a higher degree of volatility than other crude oils in the US.

In court, the tribe argued that they first learned that a nearby refinery would begin receiving crude oil trains through a 2011 Skagit County planning document.

But according to court documents, the tribe did not receive information from BNSF about the use of the track on the reservation until the following year.

A route used by BNSF to transport crude oil crossed sensitive waterways where the tribe has treaty-protected fishing rights (photo: Visitors watch an environmental health analyst from the Swinomish Indian Tribal Community give a presentation in the tidal pools of Salt Creek during the Tribal Climate Camp on the Olympic Peninsula)

At that time, the Tribe and BNSF discussed amending the agreement, but “at no point did the Tribe approve of BNSF’s unilateral decision to move unit trains across the reservation, agree to increase train or car restrictions, or waived his contractual right to approval. Lasnik said in his decision last year.

‘BNSF failed to notify the tribe of the nature of the cargo crossing the reservation and unilaterally increased the number of trains and the number of cars without written permission from the tribe, violating the conditions set for the permission from BNSF to enter the property,” he ruled.

The trains then continued to run through the reservation from September 2012 through May 2021, the Seattle Times reports.

Last year, two BNSF engines also derailed on Swinomish land, leaking an estimated 3,100 gallons of diesel fuel near Padilla Bay.

The derailed BNSF train on the Swinomish Tribal Reservation near Anacortes on March 16, 2023

The train leaked an estimated 3,100 gallons of diesel fuel near Padilla Bay

This month’s four-day trial was intended to determine how much “ill-gotten” profits BNSF should pay out.

Ultimately, Lasnik estimated that figure at $362 million and added $32 million in after-tax profits, such as investment income, for a total of more than $394 million.

In reality, the judge wrote, BNSF earned far more than $32 million in after-tax profits, but if that were all added up, it would have added hundreds of millions more to what was already a large judgment against the railroad used to be.

DailyMail.com has contacted the Swinomish Tribe for comment. BNSF declined to comment.