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Swinomish Indian Tribal Community in Washington state has been awarded nearly $400 million after a federal judge ruled BNSF Railway trespassed on the tribe’s reservation land. 

U.S. District Judge Robert Lasnik ruled that BNSF violated the terms of a 1991 easement agreement by repeatedly running long crude oil trains through the reservation.

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The easement allowed BNSF to operate one train with a maximum of 25 cars per day in each direction. However, the tribe sued the rail operator in 2015, alleging that BNSF increased the number of trains and number of cars per train, transporting crude oil from North Dakota to a nearby refinery. The route traversed sensitive marine ecosystems and waters vital to the tribe’s fishing rights.

Earlier this month, the court found that BNSF had breached the easement agreement and would have to relinquish profits gained by exceeding the authorized use of the Swinomish tribal lands.   

“This land is what we have,” Swinomish Tribal Chairman Steve Edwards said in a statement. “We have always protected it, and we always will.” 

Edwards acknowledged the size of the award, saying it 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." 

"When there are these kinds of profits to be gained, the only way to deter future wrongdoing is to do exactly what the Court did today — make the trespasser give up the money it gained by trespassing,” Edwards said. 

The tribe highlighted the potential dangers associated with increased train traffic, including derailments and spills that could contaminate the Salish Sea. A 2014 federal agency warning noted Bakken crude oil, transported by BNSF, is more volatile than other crudes in the U.S., raising safety concerns. Last year, a BNSF train derailment on Swinomish land resulted in a diesel fuel spill.

Judge Lasnik determined BNSF’s “ill-gotten” profits from the unauthorized use of the reservation totaled over $394 million, including net profits and post-tax investment income. The tribe anticipates BNSF will appeal the ruling.