Commentary: Accident Bad Timing for BNSF in Tribe’s Lawsuit

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Talk about bad timing, a BNSF 98-car ethanol train that derailed on September 19, in southeastern South Dakota, adds fuel to the fire for a key portion of the argument in a Native American tribe’s lawsuit against the railroad.

The Swinomish Indian Tribal Community in the state of Washington filed a lawsuit in April 2015 against BNSF alleging that the railroad had violated an Easement Agreement that allowed trains to cross a portion of the tribe’s land. The Easement Agreement enables BNSF to bring Bakken crude oil to the Tesoro refinery in Anacortes, Washington.

U.S. District Judge Robert Lasnik on Friday, September 11, 2015, ruled that BNSF’s request to have the lawsuit dismissed or stayed was denied. The ruling opened the way for the tribe to press its lawsuit, which expressed environmental concerns as a key part of its argument.

Under the terms of the 1991 Easement Agreement, BNSF is allowed to run one 25-car train per day in each direction. The tribe sued contending that BNSF was running as many as six 100-car “unit trains” per week.

A Deal is a Deal

“A deal is a deal,” said Swinomish Chairman Brian Cladoosby. “Our signatures were on the agreement with BNSF, so were theirs, and so was the United States. But despite all that, BNSF began running its Bakken oil trains across the Reservation without asking, and without even telling us. This was exactly what they did for decades starting in the 1800s.”

Under the terms of the Easement Agreement, the Tribe agreed not to “arbitrarily withhold permission” for BNSF’s request to increase the number of trains or cars, and the tribe’s environmental concerns are a key part of its argument that withholding approval would not be arbitrary.

Bridges Cross Fishing Grounds

The Tribe contends that its refusal to grant permission is not arbitrary and is “Based on the demonstrated hazards of shipping Bakken Crude by rail, paired with the proximity of the Right-of-Way to the Tribe’s critical economic and environmental resources and facilities — and the substantial numbers of people who use those resources and facilities on a daily basis — the Tribe is justifiably and gravely concerned with BNSF’s shipment of Bakken Crude across the Right-of-Way in a manner and in quantities at odds with the explicit terms of the Easement Agreement.”

The Swinomish, who call themselves “The People of the Salmon,” are concerned that trains carrying Bakken crude oil run over bridges spanning the Tribe’s fishing grounds in the Swinomish Channel and Padilla Bay. They also note that the track runs across the “heart of the Tribe’s economic development enterprises,” which includes the Tribe’s Swinomish Casino and Lodge, a Chevron station and convenience store, an RV Park, and the Tribal waste treatment plant.

The Tribe stated that these enterprises are the “primary financial source for funding of the Tribe’s essential governmental functions and programs.”

The 1991 Easement Agreement granted the Right-of-Way for an initial 40-year term, along with two 20-year option periods. The current agreement will expire no later than 2071.

The tribe is seeking a “permanent injunction prohibiting BNSF from (1) running more than one train of twenty-five cars or less in each direction over the Right-of-Way per day and (2) shipping Bakken Crude across the Reservation.”

The Swinomish are also seeking monetary damages for the prior trespasses and breach of contract in an amount to be determined at trial.

The South Dakota Accident

While the South Dakota accident was an ethanol train not an oil train, it was exactly the type of accident the Swinomish are concerned about. Seven tank cars derailed with three spilling their contents of ethanol, and one catching fire. The fire spread to a nearby pasture, which was put out by local firefighters, and BNSF hazardous materials teams aided in the clean up. NTSB investigators are currently interviewing the train’s engineer and conductor as they investigate the cause of the accident.

Fortunately, there were no deaths or injuries from the accident, which happened in a rural area that did not cross a body of water. However, the financial damages for BNSF may be far greater than three punctured tank cars if the Swinomish are able to show that their environmental concerns are grounded in reality, and that they have the proof to back it up.

© 2015 David Mazor

Disclosure: David Mazor is a freelance writer focusing on Berkshire Hathaway. The author is long in Berkshire Hathaway, and this article is not a recommendation on whether to buy or sell the stock. The information contained in this article should not be construed as personalized or individualized investment advice. Past performance is no guarantee of future results.