BNSF Railway should pay almost $400 million to a Native American tribe in Washington state, a federal choose ordered Monday after discovering that the corporate deliberately trespassed when it repeatedly ran 100-car trains carrying crude oil throughout the tribe’s reservation.
U.S. District Choose Robert Lasnik initially dominated final yr that the railway intentionally violated the phrases of a 1991 easement with the Swinomish Tribe north of Seattle that enables trains to hold not more than 25 automobiles per day. The choose held a trial earlier this month to find out how a lot in earnings BNSF made by means of trespassing from 2012 to 2021 and the way a lot it ought to 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 Neighborhood, mentioned in a press release. “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 corporate primarily based in Fort Value, Texas, mentioned in an electronic mail it had no remark.
The tribe, which has about 1,400 members, sued in 2015 after BNSF dramatically elevated, with out the tribe’s consent, the variety of automobiles it was operating throughout the reservation in order that it might ship crude oil from the Bakken Formation in and round North Dakota to a close-by refinery. The route crosses delicate marine ecosystems alongside the coast, over water that connects with the Salish Sea, the place the tribe has treaty-protected rights to fish.
Bakken oil is simpler to refine into the fuels offered on the fuel pump and ignites extra simply. After practice automobiles carrying Bakken crude oil exploded in Alabama, North Dakota and Quebec, a federal company warned in 2014 that the oil has the next diploma of volatility than different crudes within the U.S.
Final yr, two BNSF engines derailed on Swinomish land, leaking an estimated 3,100 gallons (11,700 liters) of diesel gasoline close to Padilla Bay.
The tribe identified {that a} company predecessor of BNSF laid the tracks within the late nineteenth century over its objections. The tribe sued within the Nineteen Seventies, alleging a long time of trespassing, and solely in 1991 was that litigation settled, when the tribe granted an easement permitting restricted use of the tracks.
The easement restricted rail visitors to 1 practice of 25 automobiles per day in every route. It required BNSF to inform the tribe concerning the “nature and identity of all cargo” transported throughout the reservation, and it mentioned the tribe wouldn’t arbitrarily withhold permission to extend the variety of trains or automobiles.
The tribe discovered by means of a 2011 Skagit County planning doc {that a} close by refinery would begin receiving crude oil trains. It wasn’t till the next yr that the tribe acquired info from BNSF addressing present monitor utilization, court docket paperwork present.
The tribe and BNSF mentioned amending the settlement, however “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 mentioned in his choice final yr.
“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 mentioned.
The four-day trial this month was designed to offer the court docket with particulars and knowledgeable testimony to information the choose by means of advanced calculations about how a lot in “ill-gotten” revenue BNSF ought to must disgorge. Lasnik put that determine at $362 million and added $32 million in post-tax earnings resembling funding earnings for a complete of greater than $394 million.
In actuality, the choose wrote, BNSF made way over $32 million in post-tax earnings, however including all of that up would have added a whole lot of thousands and thousands extra to what was already a big judgment towards the railway.
The tribe mentioned it expects BNSF to attraction the ruling.
