Swinomish tribal leaders, wary of the potential for tragedy and tired of negotiations that have gone nowhere, are suing Burlington Northern Santa Fe (BNSF) Railway to stop the company from transporting extra-flammable Bakken crude oil across reservation lands.
Citing the 2013 train derailment in Lac Megantic, Quebec, which sent 72 tanker cars filled with 30,000 gallons of crude each careening into the center of town, killing 47 people, Swinomish filed a lawsuit in federal court on April 7 against BNSF Railway. The suit alleges that the company violated the terms of an easement by carrying millions of gallons of Bakken crude across Swinomish land without updating the tribe on the type of cargo. Moreover, the number of rail cars is quadruple the number allowed by the easement, the Swinomish lawsuit states.
The Swinomish Tribe wants to prevent a similar tragedy on its lands. And it wants the railway company to live up to its legal obligations.
According to Swinomish, tracks running across the northern edge of the reservation were laid in the late 1800s, without the consent of the Swinomish or federal governments. The tracks currently serve two refineries in nearby Anacortes.
In 1991, Swinomish and BNSF signed an agreement settling a lawsuit filed by the tribe in 1976 for nearly a century of trespass. The agreement granted BNSF an easement with these conditions: BNSF would regularly update Swinomish on its cargo, and only one train of 25 rail cars would cross the reservation in each direction daily. In return, Swinomish agreed not to “arbitrarily withhold permission” if there was a future BNSF request to increase the number of trains or cars.
In late 2012, Swinomish learned from media reports that trains of 100 cars or more were beginning to cross the reservation, according to the tribe’s statement announcing the lawsuit. BNSF is reportedly running six 100-car trains per week across the reservation, more than four times as many cars daily than is permitted by the easement.
Each of these trains carries between 2.8 million and 3.4 million gallons of Bakken crude, the Swinomish said—which, according to the U.S. Pipeline and Hazardous Materials Safety Administration, “has a higher gas content, higher vapor pressure, lower flashpoint and boiling point and thus a higher degree of volatility than most other crudes in the U.S., which correlates to increased ignitability and inflammability.”
The tracks are adjacent to Swinomish’s primary economic development area, including the Swinomish Casino and Lodge, a Chevron station and convenience store, an RV park, and a waste treatment plant and air quality monitoring facility. Hundreds of guests and employees are present every day, and these enterprises help provide funds for essential Swinomish governmental services.
The oil cars also pass over Swinomish Channel and Padilla Bay, which are part of Swinomish’s fishing grounds. Swinomish never granted BNSF permission to increase the number of railcars and has demanded that BNSF stop violating the easement. So far, BNSF has refused.
“A deal is a deal,” Swinomish Chairman Brian Cladoosby said in the tribe’s statement. “Our signatures were on the agreement with BNSF, so were theirs, and so was the United States. But despite all that, BNSF began running its Bakken oil trains across the reservation without asking, and without even telling us. This was exactly what they did for decades starting in the 1800s.”
Asked for comment about Swinomish's allegations, Courtney Wallace, BNSF regional manager for public affairs, told ICTMN that BNSF "is currently reviewing the complaint."
Two years of trying to get BNSF to stop have been for naught, Cladoosby said.
“We told BNSF to stop, again and again,” he said. “We also told BNSF: Convince us why we should allow these oil trains to cross the reservation. And we listened for two years, even while the trains kept rolling. But experiences across the country have now shown us all the dangers of Bakken crude. It’s unacceptable for BNSF to put our people and our way of life at risk without regard to the agreement we established in good faith.”
The lawsuit seeks a permanent injunction prohibiting BNSF from running more than one train of 25 cars in each direction, and forbidding the shipment of Bakken crude across the reservation. Swinomish also seeks judgments against BNSF for trespass and breach of contract.
“For thousands of years, we have fought to protect all that is important for those who call the Salish Sea home,” Cladoosby said. “We as leaders need to protect our treaty resources, our economies, and the human health of our citizens and neighbors. We all lose if we give up that which is most precious to us all—our commitment is to do what is right for our children and grandchildren, and protect the land and water upon which their lives will depend.”