BNSF Railway, a subsidiary of Berkshire Hathaway, recently found their attempt to settle a lawsuit with the Swinomish Tribal Community met with rejection.
The company had offered a settlement sum of $21.7 million, only to have it dismissed by the tribe. In response, the freight railroad has requested the involvement of a federal judge to appoint an arbiter who can determine an appropriate settlement, as the tribe did not provide a response to BNSF’s offer.
The lawsuit in question was initially filed back in March 2015, asserting that BNSF had breached the terms of a right-of-way easement granted to them by the railroad.
According to the Swinomish Tribe, BNSF had exceeded the agreed limits on train and car crossings outlined in the agreement. The violation was deemed to be conscious and deliberate by U.S. District Court Judge Robert Lasnik, who issued a ruling on March 27. Judge Lasnik also pointed out that this transgression was motivated by the pursuit of profits.
The primary concern of the Swinomish Tribe revolves around the potential risks posed to their waterways by the transportation of oil via trains passing over the Swinomish Channel. This channel acts as a crucial link between Skagit Bay in the south and Padilla Bay in the north. The tribe’s historical treaty rights safeguard their fishing activities, and they are apprehensive that BNSF’s transportation of Bakken crude oil, in a manner and quantity that contravenes the explicit terms of the easement agreement, may jeopardize their way of life. Furthermore, the tribe asserts that BNSF had operated these trains without obtaining their consent or permission.
Should BNSF lose the lawsuit, they could potentially face significant damages.
The Swinomish Indian Tribal Community holds the status of a federally recognized tribe residing in the Pacific Northwest, specifically in the state of Washington. Their ancestral connection to the Skagit River-Delta of Puget Sound spans numerous centuries, during which they have relied on fishing in the region’s brackish waters. The tribe’s historical treaty rights serve to safeguard their cultural heritage and way of life, and their deep-rooted ties to the land and waterways are self-evident.
The tribe’s concerns regarding the threat posed by oil trains to their waterways are not without foundation. The Swinomish Channel, which the trains traverse, stretches over 11 miles and links Skagit Bay in the south to Padilla Bay in the north, forming a separation between Fidalgo Island and mainland Skagit County. Any accidents or spills involving these trains could have dire consequences for the local environment, potentially leading to water contamination, harm to aquatic life and wildlife, as well as damage to tribal lands.
The Swinomish Tribe’s anxieties materialized on March 16 when two BNSF locomotives derailed on the Swinomish Indian Tribal Community Reservation, resulting in the spillage of diesel fuel. As a result, cleanup efforts were undertaken, involving the removal of roughly 2,100 cubic yards of contaminated soil and 4,300 gallons of groundwater from the site.
This struggle for their land rights is not the first instance in which the tribe has had to contend with external forces. The passage of trains through the tribe’s land has a long and contentious history, beginning with the laying of the original tracks in the late 1800s, without the consent of the Swinomish or the U.S. government. These tracks intersect with the northern boundary of the reservation, and the Swinomish, as the contemporary political successor to certain tribes and bands that signed the 1855 Treaty of Point Elliott, initially filed a lawsuit against the railroad in 1976.
© 2023 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 a 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.