The Swinomish Indian Tribal Community’s legal battle with one of the largest freight railroads in the country has come to an amicable end, according to a Nov. 4 written statement from the tribe.
The 10-year trespass litigation with BNSF Railway — in which judges ruled in favor of the tribe every time — was resolved through a confidential mediation process overseen by the Ninth Circuit Federal Court of Appeals and has resulted in the two parties establishing a new, mutually beneficial business relationship.
While the statement does not share details on what should tribal members expect to see when it comes to benefits, nor when, the agreements would reportedly “promote employment, local business growth and the long-term stability and predictability of the Swinomish, Anacortes and Skagit County economies” and “create new opportunities for future Tribal investment in housing, healthcare and education” and “in natural resources stewardship.”
“Everyone prospers when Tribal sovereignty is respected and industry works in true partnership with Tribes,” Chairman Steve Edwards said.
The Swinomish Indian Tribal Community did not respond to a request for further comment.
Kendall Sloan, a spokesperson for BNSF, wrote in an email to La Conner Community News that representatives of the railway and the tribe have met “numerous times” over the past several years and have developed a “positive partnership,” but did not respond to questions about how and when BNSF plans to address concerns about the safety of the swing bridge and the rail line, or how the agreement will support the economy, housing, education and the environment.
A turbulent history
The tribe filed the lawsuit in 2015 after learning from the news that BNSF had been violating the terms of an easement agreement signed in 1991, which authorized a limited number of trains and rail cars to cross the Swinomish Reservation to allow for the development of the tribe’s nearby economic center, which includes the Swinomish Casino & Lodge and other facilities.
This was yet another violation of the tribe’s sovereignty at the hands of a railroad company. Back in the late 1800s, BNSF’s predecessor illegally built the railroad tracks across the northern portion of the reservation against the consent of the tribe and the federal government.
Under the 1991 easement, BNSF was allowed to run only one train with up to 25 railcars to cross the reservation in each direction every day and was required to obtain the tribe’s consent to carry out operations exceeding those limits. Additionally, the company was required to keep the tribe informed on the type of cargo crossing the reservation.
At the same time, the tribe agreed not to arbitrarily deny permission if BNSF ever requested to increase the number of trains and cars.
In 2012, however, the tribe found out that BNSF had been running six 100-car unit trains per week and transporting Bakken crude oil without its consent.
The U.S. District Court in Seattle ruled in favor of the tribe in 2015, later issuing an order that upheld the tribe’s rights in 2017. BNSF filed an appeal with the Court of Appeals for the Ninth Circuit, arguing that the railway’s obligations to two refineries on March Point in Anacortes took priority over the easement.
Both the Court of Appeals and the District Court sided with the tribe, with the District Court finding that BNSF had intentionally trespassed the reservation both before and after 2012. In June 2024, a district court judge ordered BNSF to pay the tribe $394.5 million in what remains one of the largest awards of its kind in Indian Country, the press release states.
A fresh start
Last week’s resolution marks a new start for the tribe and the company, which agreed that one unit train carrying a single type of commodity — including crude oil — may operate across the reservation per day, and that a limited number of additional rail cars may cross the easement to provide more flexibility to rail shippers.
Allowing unit trains to cross the reservation would also reduce the volume of marine vessels delivering crude oil to March Point, minimizing disruption of tribal fishing activities and reducing the risk of oil spills.
Luisa Loi is a general assignment reporter for La Conner Community News.
