Federal Judge Orders BNSF Railway to Pay $400M to Swinomish Casino Tribe

Posted on: June 18, 2024, 11:02h. 

Last updated on: June 19, 2024, 03:07h.

A federal judge on Monday ordered BNSF Railway to pay the Swinomish Indian Tribal Community nearly $400 million for repeatedly trespassing the tribe’s sovereign territory with 100-car trains carrying crude oil.

Swinomish Tribe BNSF Railway
A March 2023 photo shows cleanup work continuing after two BNSF locomotives derailed on sovereign land owned by the Swinomish Indian Tribal Community in Washington next to its tribal casino. A federal judge this week said BNSF must pay the Swinomish Tribe nearly $400 million in trespassing damages. (Image: EPA Region 10)

US District Judge Robert Lasnik concluded that BNSF, a fully owned subsidiary of Warren Buffett’s Berkshire Hathaway, intentionally violated the terms of the Swinomish Tribe’s easement reached in 1991. The easement was the result of a series of lawsuits brought by the tribe on allegations that the railroad trespassed the Native American community’s sovereign land. The track runs directly behind the Swinomish Casino & Lodge.

The easement agreement provided BNSF with limited access to transport freight trains across the Swinomish reservation, which is about 60 air miles north of downtown Seattle along Padilla Bay just west of Whitney. Under the settlement terms, BNSF is to use the tracks a maximum of two times a day, with each train constrained to 25 cars.

The tribe sued BNSF in 2015 after noticing a significant uptick in BNSF’s use of the tracks that pass through Swinomish land. The tribe’s proposed damages were heightened last year after two BNSF engines derailed on Swinomish land and leaked 3,100 gallons of diesel fuel into Padilla Bay. 

Tribe Owed $400M

Lasnik ruled in favor of the Swinomish Tribe that BNSF began violating the easement in 2012 when the company began shipping crude oil from the Bakken Formation in North Dakota to a refinery in Skagit County. The refinery is located west of the Swinomish Reservation and the Swinomish Casino & Lodge.

The Swinomish Casino features 650 slot machines and several live dealer table games. The lodge offers 98 guestrooms.

The destination additionally includes seven restaurants and bars, an 18-hole golf course, an events center, and an RV park with 33 spaces with full hookups. The tribe is currently seeking a new sportsbook partner after Malta-based Kindred Group announced in November that it would depart the North American market.

Resort guests have been inundated with loud trains traversing the BNSF tracks. Lasnik said the damages incurred by the tribe for the trespassing from 2012 through last year amounted to $362 million. He tacked on $32 million in post-tax profits the tribe should have received from investing the capital for total damages of $394 million.

We know that this is a large amount of money. But that just reflects the enormous wrongful profits that BNSF gained by using the Tribe’s land day after day, week after week, year after year over our objections,” said Steve Edwards, chairman of the Swinomish Indian Tribal Community. “When there are these kinds of profits to be gained, the only way to deter future wrongdoing is to do exactly what the court did today — make the trespasser give up the money it gained by trespassing.”

BNSF refrained from commenting on the ruling but the company is expected to appeal the decision.

Controversial Tracks 

BNSF is the largest freight railroad in the US and one of the six Class I railroads in North America. The company’s roots trace back to 1849.

BNSF laid the railroad tracks that traverse the Swinomish land in the late 19th century despite the tribe’s objections. The Swinomish Reservation was established in 1855 after the tribe signed the Treaty of Point Elliott with the US government and the Duwamish Tribe.