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How much should BNSF pay tribe for breaking agreements? [1]

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Date: 2024-06-04  

This mornings Seattle Times has an article starting on the front page about BNSF, who does not have a good history out here in the Pacific Northwest. Derailments, including of cars carrying Bakken crude oil resulted in major and very visible fires in December 2020 and September 2021. Another derailment in March 2023 spilled diesel fuel but did not cause a fire. Other derailments have also occurred.

Title in the print edition phrased it as “trespassing” on tracks passing through the Swinomish Tribe’s land. It’s a bit more complex than that — BNSF has operated a rail line since 1991 under an easement granted them by the tribe that permits no more than 25 cars each direction per day. BNSF was required to tell the tribe about the “nature and identity of all cargo” crossing the easement — which is about a mile wide. Judging by the long pileups at crossings in Whatcom County, the trains were always in violation of that 25 car rule — I counted more than 200 cars per train several times when our timing was bad.

US District Court Judge Robert Lasnik found that BNSF violated the easement agreement “big time”! (My translation of “willingly, consciously, and knowingly trespassed” in the ruling by running a quarter-million cars carrying crude over the reservation in violation of the terms of the easement.)

The written order was issued last year, and a trial is now underway this week to determine the profits BNSF obtained by interfering with the tribe’s legally protected property rights.

The parties are in agreement as to the number of cars that trespassed (266,877) and the amount of revenue the cars generated for BNSF. The dispute is over how much of that money should be turned over to the Swinomish (and, hopefully serious penalties on top of that for the violation of the terms of the easement).

There are all kinds of questions that are unprecedented, according to one of the experts called by BNSF, who said (as reported in the paper):

“there is no precedent for the calculations he has been asked to make”

Is the penalty prorated for the single mile of the easement? Or, since BNSF decided to use the easement, is all the traffic flowing through only made possible by that easement? Things are likely to get pretty heated.

Fortunately, the judge appears to have a good handle on the situation:

“So what you’re saying is, whatever I do is going to be right, because there is no right answer?” Judge Lasnik said Monday, drawing laughter from the courtroom.

Should get really hilarious — if the Swinomish cancel the easement, how many billions of dollars would BSNF have to pay to route way inland through communities that have grown quite a bit in the last 30 years? What would BNSF eat to avoid that expense? What could the Swinomish pile on in demands for serious upgrades to tracks and swinging penalties for future derailments?

Minor edit cares → cars

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