Commentary: BNSF’s Swinomish Trial Looks Headed for a Train Wreck

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BNSF, a subsidiary of Berkshire Hathaway, is facing a costly lawsuit by the Swinomish Tribal Community over the crossing of its reservation in Washington state and looks ever more to be headed down the wrong track.

The lawsuit, initially filed in March 2015, claims that BNSF violated the terms of a right-of-way easement granted to the railroad by running more trains and cars than allowed under the agreement.

On March 27, a federal judge ruled that BNSF “willfully, consciously and knowingly exceeded the limitations on its right of access” from September 2012 to May 2021. U.S. District Court Judge Robert Lasnik also noted that this action was “in pursuit of profits.”

The Swinomish Tribe is concerned that the oil trains are a potential threat to their waterways, as they pass over the Swinomish Channel, which connects Skagit Bay to the south and Padilla Bay to the north.
The tribe’s historic treaty rights protect their fishing rights, and they fear that BNSF’s shipment of Bakken crude across the right-of-way in a manner and in quantities that violate the explicit terms of the easement agreement could put their way of life at risk. The Swinomish also claim that BNSF ran the trains without their consent or permission.

The railroad is facing the potential of significant damages if it loses the lawsuit.

The Swinomish Indian Tribal Community is a federally recognized tribe located in the Pacific Northwest region of the United States, specifically in the state of Washington. They have lived in the Skagit River-Delta of Puget Sound for many centuries, fishing the region’s brackish waters. The tribe’s historic treaty rights protect their way of life and cultural heritage, and they are deeply connected to the land and waterways of the region.

The tribe’s concerns about the potential threat to their waterways posed by the oil trains are not unfounded. The Swinomish Channel, which the trains pass over, is an 11-mile-long saltwater channel that connects Skagit Bay to the south and Padilla Bay to the north, separating Fidalgo Island from mainland Skagit County. Any spill or accident involving the trains could have severe consequences for the local environment, including the contamination of the water supply, harm to fish and wildlife, and damage to tribal lands.

The Swinomish’s fears were realized on March 16 when two BNSF locomotives derailed on the Swinomish Indian Tribal Community Reservation, spilling diesel fuel. In total, cleanup crews removed approximately 2,100 cubic yards of contaminated soil and 4,300 gallons of groundwater from the site.

This is not the first time that the tribe has had to fight for their rights over the use of their land. Train travel across the tribe’s land has a long contentious history, with the original track having been laid in the late 1800s without the consent of the Swinomish or the US government. The tracks cross the northern edge of the reservation, and the Swinomish, as the present-day political successor-in-interest to certain of the tribes and bands that signed the 1855 Treaty of Point Elliott, first sued the railroad in 1976, alleging a century of trespassing on tribal land. The resulting settlement led to the 1991 Easement Agreement that allowed only the 25-car train limit without the Tribe’s permission.

Despite the agreement, BNSF began running its Bakken oil trains across the Reservation without asking or even notifying the tribe, a move that the tribe views as a direct violation of the agreement. The tribe has repeatedly told BNSF to stop, but the trains kept rolling. The Swinomish have shown willingness to negotiate with BNSF, but their concerns for their environment, cultural heritage, and way of life are not negotiable.

Heading for a Costly Resolution?

The lack of respect shown by BNSF towards the Swinomish Indian Tribal Community’s treaty rights, makes it highly probable that this lawsuit will lead to a costly end for BNSF. It doesn’t require clairvoyance to foresee this outcome. The railroad seems to be on a one-way track towards an expensive train wreck.

© 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.

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