TBS Client Swinomish Tribe Proceeds with Lawsuit Against Bakken Crude Oil Trains

Fidalgo Island – U.S. District Judge Robert S. Lasnik today ruled that a lawsuit filed by Tousley Brain Stephens attorneys Chris Brain and Paul Moomaw on behalf of 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.”

TBS attorneys 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.

Click here for court documents and Information about the Swinomish Indian Tribal Community’s lawsuit against BNSF.

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