Sept. 11, 2015
Federal Judge Allows Swinomish Tribe Lawsuit Against Bakken Crude Oil
Trains to Proceed
Fidalgo Island – U.S. District Judge Robert S.
Lasnik today ruled that a lawsuit filed by the Swinomish Indian Tribal
Community against BNSF Railway will continue in federal court, denying a motion
by BNSF to refer key questions to a 3-member board in Washington DC that
oversees railroad operations.
“We’re pleased the Court has ruled that it will decide the case,
without the delay of a separate and unnecessary proceeding,” said Swinomish
Chairman Brian Cladoosby.
“This case is about BNSF living up to its word. Promises
matter. We all know the dangers of Bakken Crude. We have an established agreement for working with the railroad
on these issues. It’s now up to BNSF
to comply with the limitations it agreed to in
writing.”
In April, the Tribe sued BNSF
for violating the terms of an easement agreement allowing trains to cross its
Reservation in Skagit County.
Train tracks running across the northern edge of the Reservation were
laid in the late 1800’s, without consent from the Swinomish or federal
government. Known as the “Anacortes Spur,” the tracks currently serve two
Anacortes refineries at March Point. In 1991, the Tribe and BNSF signed an
agreement settling a 1976 lawsuit filed by the Tribe for nearly a century of
trespass, and granting BNSF an easement with important conditions: BNSF would
regularly update the Tribe on the type of cargo, and only one train of no more
than 25 railcars would cross the Reservation in each direction daily. In return, the Tribe agreed not to “arbitrarily
withhold permission” if there was a future BNSF request to increase the
number of trains or cars.
In late 2012, the Tribe learned from media reports that “unit
trains” of 100 railcars or more were beginning to cross the Reservation.
Today, BNSF is reportedly running six 100-car “unit trains” per week across the Reservation, more than
four times as many railcars daily as permitted by the easement. Each of these
trains carry between 2.8 and 3.4 million gallons of Bakken Crude, a
particularly dangerous and explosive cargo that has drawn the attention of
lawmakers and federal regulators.
The Tribe never granted BNSF
permission to increase the number of railcars and repeatedly demanded BNSF to
stop violating the easement. So far, BNSF has
refused.
In responding to the lawsuit, BNSF
asked Judge Lasnik to refer key issues to the Surface Transportation Board
(STB), a successor agency to the Interstate Commerce Commission that resolves
railroad rate and service disputes and reviews proposed railroad mergers.
BSNF argued
that it has a responsibility to provide service, even for hazardous
commodities, and that the Easement
doesn’t give the Tribe power to “dictate the commodities that BNSF can
handle over the line.”
Attorneys for the Tribe countered that the Tribe is not seeking to
regulate BNSF’s operations, but is merely asking the court to cause BNSF to
live up to its contractual obligations. The Tribe’s attorneys also noted
that, without the Easement
Agreement, BNSF had no right to enter onto the Tribe’s lands. And without
the limitations contained in the Easement Agreement, the Tribe would not have
granted BNSF its consent to use the right-of-way.
According to the Tribe, the case is a “straightforward contract
dispute,” and the STB has no jurisdiction over tribal rights under the
Indian Right-Of-Way Act of 1948.
“In short, referring this matter to the STB would be futile,
inefficient, and a waste of the parties’ resources,” wrote attorneys for
the Tribe.
In a 6-page ruling, Judge
Lasnik agreed:
“In the context of this case, referral to the STB is neither
efficient nor necessary. The preemption issue can be decided by this Court: it
is, at base, a legal question that can be resolved without the delay of
initiating a separate agency action. Defendant offers no reason to believe that
the relevant facts related to its operations are complex or that an intimate
knowledge of transportation policy is required to adjudicate the preemption issue.”
“We appreciate Judge Lasnik’s
thoughtfulness and wisdom,” said Cladoosby. “This is a contract dispute
over the terms of an easement granted under Federal Law related to Tribal
rights and we firmly believe it is best resolved by the Federal Court.”
The Right-of-Way is within 100 yards of much of the
Tribe’s economic development, including the Swinomish Casino and Lodge,
a Chevron station and convenience store, an RV Park and tribal waste treatment
and air quality monitoring facilities. Hundreds of guests and employees are
present at all times, 24 hours a day, 7 days a week. This infrastructure serves
as the primary source of funding for the Tribe’s essential governmental functions and programs.
The lawsuit seeks a permanent
injunction prohibiting BNSF from running more than one train of 25 cars in each
direction and shipping Bakken Crude across the Reservation. The Tribe also
seeks judgements against BNSF for trespass and breach of contract.
Court documents and Information
about the Swinomish Indian Tribal
Community’s lawsuit against BNSF can be found at:
Contact:
Debra Lekanof 360-391-5296
Alex Fryer 206-384-5448
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