Fidalgo Island – The Swinomish Indian Tribal Community today welcomed a decision from the United States District Court for the Western District of Washington in support of the Tribe’s summary judgment motion against BNSF Railway (BNSF).
In today’s ruling, the court found that the Tribe’s lawsuit against BNSF is not preempted by the Interstate Commerce Commission Termination Act and that the lawsuit to enforce the right-of-way easement agreement with BNSF will proceed.
The tribe filed suit against BNSF in April of 2015 for violating the terms of an easement agreement allowing trains to cross its Reservation in Skagit County. The Court also ruled that BNSF breached its promises under the easement agreement when it failed to disclose its cargo and “made no attempt to obtain the Tribe’s written agreement to an increase in traffic across the reservation until long after the unit train shipments had begun.”
“The court’s ruling today is a victory not just for the Swinomish Indian Tribal Community, but for all of Indian Country.” said Swinomish Chairman Brian Cladoosby. “Again and again we have seen agreements with tribes ignored or just tossed aside when they are inconvenient. We are grateful that the Court has affirmed that agreements with tribes must be honored.”
“The Tribe takes its agreements seriously, and expects them to be honored,” continued Cladoosby, “whether it is the Treaty of Point Elliott or an easement across Tribal trust lands.”
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. The tracks currently serve two Anacortes refineries. In 1991, the Tribe and BNSF signed an agreement settling a lawsuit filed by the Tribe and the United States in 1976 for nearly a century of trespass, and granting BNSF an easement but with important conditions: only one train of 25 railcars would cross the Reservation in each direction daily, and BNSF would regularly update the Tribe on the type of cargo. In return, the Tribe agreed not to “arbitrarily withhold permission” if there should be 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. In April of 2015, BNSF was 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.