The Swinomish Tribe’s lawsuit seeking to force BNSF Railway to comply with an easement agreement could go to trial sometime between May and September 2018.
That’s according to schedules proposed by lawyers for both sides in documents filed June 22 with U.S. District Court for Western Washington. That same court ruled on June 9 that the lawsuit would go forward to trial.
Swinomish sued BNSF Railway in April 2015 after learning that the company was moving 100 railcars a day to and from nearby oil refineries, on tracks that cross Swinomish lands. An easement granted by Swinomish to BNSF Railway limits transport to 25 cars daily. The easement agreement also requires BNSF Railway to regularly update the tribe on the type of cargo it is transporting.
In the easement agreement, Swinomish had agreed not to “arbitrarily withhold permission” if there should be a future BNSF Railway request to increase the number of trains or cars. But according to Swinomish, no such request was made. In January, the court ruled there was no dispute that BNSF had breached the easement agreement, stating “BNSF neither apprised the tribe of its cargo nor obtained the tribe’s written agreement to an increase in the number of trains and the number of cars in those trains.”
In a statement released by his office after the June 9 ruling that the lawsuit would go to trial, Swinomish Chairman Brian Cladoosby said, “We are thankful that the Court has again ruled there is no dispute that BNSF breached our easement agreement, and that our case will go forward to resolution. A deal is a deal is a deal. The tribe takes the agreements that it signs seriously, and we expect them to be honored.”
Cladoosby said the court’s decision to proceed to trial is important for all people who are “concerned about the safety of moving oil by rail. We have all seen that oil trains pose serious, serious risks to our communities and to our environment. This case is just one way the tribe is working to protect the reservation, its neighbors and the Salish Sea, which we have depended upon for thousands of years.”
Protecting land and the public’s right to know
In January, U.S. District Court Judge Robert S. Lasnik – while stating that BNSF had breached the easement agreement – said he didn’t have jurisdiction to rule on Swinomish’s request for an injunction limiting the type of cargo or the number of trains or cars crossing the reservation. Limits will likely be sought as “remedies” at the trial.
And so, according to a consultant to the Swinomish Tribe, the excess trains “charge ahead unabated.”
To the Swinomish Tribe, the issue is the right of Swinomish to govern use of its lands, protect its lands and residents, and uphold the authority of legal agreements. The Swinomish Reservation has an overall population – Native Americans and non-Native Americans – of about 2,900, according to demographic data available online. The reservation encompasses 7,000 acres of land and 3,000 acres of tidelands, much of it environmentally sensitive and protected.
Swinomish is a signatory to the 1855 Treaty of Point Elliott, which made a large swath of Western Washington available for non-Native settlement but also reserved certain land and resource rights throughout the signatories’ traditional territories.
Train tracks were laid in the late 1800s across the northern edge of the Reservation without consent from Swinomish or the federal government. The tracks currently serve the Shell Puget Sound Refinery and Tesoro Anacortes Refinery, both on nearby March’s Point.
Swinomish and the United States sued BNSF Railway’s predecessor in the late 1970s, alleging nearly a century of trespass. The lawsuit went to trial in 1981 and the easement agreement was later reached – the current agreement that the court agrees BNSF has breached.
BNSF Railway believes the easement agreement is trumped by federal railroad regulatory authority and the railway’s obligations as a common carrier to serve its customers and ensure “the flow of interstate commerce,” BNSF Railway spokeswoman Courtney Wallace stated in an earlier interview.
BNSF Railway wrote on June 22 it intends to ask the court to reconsider its decision that the easement is not preempted by the Interstate Commerce Commission Termination Act, which placed jurisdiction of rail transportation under a new Surface Transportation Board and established new rules for rail transportation.
BNSF believes the court must still “adjudicate,” or make a formal decision, regarding Swinomish’s right to exercise control over the land on which trains travel across the reservation; and the scope of the Treaty of Point Elliott in relation to Swinomish’s exercise of control. Swinomish maintains that BNSF Railway’s request for a court determination on those issues is “spurious,” or not valid, and “without any merit whatsoever.”
Both sides do agree that discovery – or obtaining evidence from both sides – still needs to be completed with respect to:
“Whether BNSF materially breached the Right-of-Way Easement by increasing rail traffic without the tribe’s written consent … or by not apprising the tribe of its cargo.”
“Whether BNSF trespassed on the tribe’s property by increasing rail traffic without the tribe’s written consent …”
“Regardless of BNSF’s failure to request prior notice, whether it was arbitrary for the tribe to withhold its consent to increased rail traffic and if not, the remedies available to the tribe.”
The case number is 2:15-cv-00542-RSL. Swinomish is represented by the firm of Tousley Brain Stephens of Seattle and the Office of the Swinomish Tribal Attorney. BNSF is represented by the firm of DLA Piper US of Seattle.