BNSF Railway must pay nearly USD 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.
BNSF has operated a rail line through the Swinomish Reservation under a 1991 easement agreement that permits trains to carry no more than 25 cars each direction per day.
It also required BNSF to tell the tribe about the “nature and identity of all cargo” crossing the easement, which is less than a mile long BNSF transported the crude oil to nearby oil refineries.
U.S. District Judge Robert Lasnik initially ruled last year that the 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 and how much it should be required to disgorge.
Lasnik calculated that BNSF made about USD 362 million in net profits, plus USD 32 million in post-tax profits, like investment income, for a total of about USD 395 million earned from the trespass.
“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,” Swinomish Chairman Steve Edwards said in a written statement.
“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.”
BNSF expected to appeal the rulling
Edwards said he expects BNSF will appeal the latest ruling to the Ninth Circuit. “But we have faith and we look forward to defending Judge Lasnik’s decision to protect our homeland.”
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 facility.
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.
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