Swinomish lawsuit against BNSF headed to appeals court

January 25, 2019
An oil train makes its way toward Anacortes in 2014.

An ongoing lawsuit between the Swinomish Indian Tribal Community and BNSF Railway will be heard by the U.S. 9th Circuit Court of Appeals.

The case centers around a right-of-way easement signed in 1976 by the tribe and BNSF that allows trains to cross tribal land to reach the oil refineries on March Point.

The Swinomish sued BNSF in 2015, alleging the company violated the terms of the easement by failing to disclose the cargo of certain trains traveling through the reservation and not seeking approval for an increase in rail traffic, according to court documents.

The original lawsuit sought an injunction to force BNSF to abide by the terms of the easement — one train a day in each direction and to have those trains be a maximum of 25 cars.

According to the lawsuit, BNSF is reportedly running more than four times as many rail cars daily as permitted by the easement.

Rather than argue the case in U.S. District Court, BNSF requested an immediate appeal to the Court of Appeals to address a crucial legal issue.

Both parties have filed briefs with the court. Oral arguments have yet to be scheduled.

According to court documents, BNSF argues that the Interstate Commerce Commission Termination Act of 1995 means the rail company’s obligation to deliver goods to its customers supersedes its legal obligation to the tribe.

BNSF states in its brief that the easement it signed with the tribe allows for an increase in rail traffic as the need to transport goods increases. It asserts that federal law allows it to increase rail traffic without consent from the tribe.

However, the tribe’s brief states that written approval from the tribe is necessary if BNSF wants to increase traffic. The brief cites the Indian Right of Way Act of 1948, which states that travel over tribal land requires tribal consent.

Resolution to this issue, which can be sought only at a higher court, is necessary to resolving this suit, BNSF argues.

The tribe did not oppose BNSF’s request to go to the Court of Appeals.

While the Swinomish do not agree with the company’s assessment, they do agree that solving this question is important to the underlying litigation, documents state.

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