BNSF Railway ordered to pay $395 million after years of trespassing on Swinomish land

A federal judge on Monday ordered BNSF Railway to pay the Swinomish Tribe $395 million for illegally running mile-long oil trains through the tribe’s reservation for nearly a decade.

Since 2012, BNSF has been hauling Bakken crude from North Dakota to a pair of oil refineries in Anacortes, Washington. To get there, the mile-long trains roll through the Swinomish Reservation, about 50 miles north of Seattle.

BNSF has permission from the tribe to run two oil trains a day, totaling no more than 50 tanker cars, through its reservation.

Instead, BNSF has been running oil trains with 100 or more cars each across the reservation’s northern end up to six times a day.

“The trespass was willful, knowing, and conscious throughout the trespass period,” U.S. District Judge Robert Lasnik said in his ruling.

As a “conscious wrongdoer,” BNSF “will be stripped of the net profits obtained from its unauthorized interference with another’s property,” Lasnik ordered.

BNSF officials declined to comment on the ruling. Swinomish Tribal Chairman Steve Edwards declined, through a spokesperson, to be interviewed but issued a written statement.

“This land is what we have,” Edwards said. “This is what we kept as our homeland when we signed the Treaty of Point Elliott. We have always protected it and we always will.”

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BNSF and the Swinomish Tribe agreed that the company had trespassed but had been arguing over how much profit the company should be forced to disgorge — the legal term for coughing up illegal profits.

“We know that this is a large amount of money. But that just reflects the enormous wrongful profits that BNSF gained by using the Tribe’s land day after day, week after week, year after year over our objections,” Edwards said.

The rail line was built over the tribe’s and the federal government’s objections in 1889.

A century later, the tribe and Burlington Northern Railroad Company reached an agreement allowing one eastbound and one westbound oil train to roll through the reservation daily. Under that 1990 agreement, Burlington Northern also paid the Swinomish Tribe $125,000 as “payment in full for all rent, damages, and compensation of any sort, due for past occupancy of the right-of-way from date of construction in 1889 until January 1, 1989.”

In 2023, BNSF Railway reported earning $5.1 billion in profit on revenue of $23.9 billion. BNSF’s revenues fell 8% and its profits fell 13% in 2023.

“Railroads don’t get much attention when they are working but, were they unavailable, the void would be noticed immediately throughout America,” Warren Buffett, CEO of BNSF’s parent company, Berkshire Hathaway, said in his 2024 letter to shareholders.

Monday’s decision is a long-delayed result of the Swinomish Tribe’s 2015 lawsuit against BNSF, but it is unlikely to be the last word on the dispute.

Swinomish officials said they expect BNSF to appeal the decision to the Ninth Circuit Court of Appeals.