Railway company must pay a Native American tribe nearly $400 million

A national railway company must pay a Native American tribe nearly $400 million for 'trespassing' on its land. US District Judge Robert Lasnik ordered BNSF Railway to turn over the astonishing sum of cash on Monday after finding that the company intentionally trespassed on the Swinomish Tribe's reservation north of Seattle when it repeatedly ran 100-car trains carrying crude oil across the land.

By doing so, the railway 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 in profits BNSF made through trespassing and how much it should be required to pay.

BNSF's predecessor, the Seattle Northern Railroad Company, illegally constructed the railroad through the Swinomish reservation back in 1889, much to the tribe's objection, according to the Seattle Times. It was used regularly for more than 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 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 train or cars. But in 2015, the tribe sued BNSF arguing that it was running six 100-car trains each week - four times the permitted number - 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. Making matters worse, the crude oil from the Bakken Formation ignites easier than other crude oil. 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 crude oils in the U.S.

In court, the tribe argued they first learned that a nearby refinery would start receiving crude oil trains through a 2011 Skagit County planning document. But it wasn't until the following year that the tribe received information from BNSF addressing the use of the track on the reservation, according to court documents.

At that point, 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,' he ruled.

It then continued to have the trains travel across 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 four-day trial this month was designed to determine how much in 'ill-gotten' profit BNSF should have to disgorge. In the end, 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. DailyMail.com has reached out to the Swinomish tribe for comment. BNSF declined to comment.

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