BNSF hit with huge fine for exceeding agreed traffic limits

[Brian Battuello]

BNSF repeatedly violated an agreement to limit traffic, particularly oil transport, through a Washington State Native American Reservation. A judge told them to hand over all profits made.

NY Times "gift" article:

https://www.nytimes.com/2024/06/17/...e_code=1.0k0.bs0O.ym3y0-t3fSTo&smid=url-share

 

[zephyr17]

Local coverage in the Seattle Times. The first few articles from the Seattle Times are free

https://www.seattletimes.com/seattl...rders-bnsf-to-pay-wa-tribe-400m-for-trespass/

 

[George Harris]

This whole thing sounds strange. A contract limiting the railroad to no more than 25 cars and one train per day?? That seems totally irrational. Then there is the question of what happened to the Interstate Commerce provision in the Constitution? Many attempts of localities to restrict a railroad's operation have been brought to a screeching halt due to being declared as interfering with interstate commerce. How can the railroad be considered trespassing on their own right of way? Now, it would be a trespass if these people decided to get on the tracks and stop the trains.

 

[PVD]

The railroad agreed to it and violated the terms it agreed to with impunity. The commerce clause does not protect them from their own greed.

 

[Bob Dylan]

The railroad agreed to it and violated the terms it agreed to with impunity. The commerce clause does not protect them from their own greed.

First rule taught in Law School,:" A contract is a contract!"

 

[zephyr17]

The railroad agreed to it and violated the terms it agreed to with impunity. The commerce clause does not protect them from their own greed.

It is a legal contract, voluntarily entered into. The commerce clause cannot override that since the contract was valid and violated no laws.

Plus the tribe is a dependent sovereign nation whose agreement had been needed but not been obtained when they built the line. It is a wholly different situation than your average "locality" which are not sovereign. BNSF entered into a necessary agreement with the tribe to continue to use the line at all since it was pretty much constructed illegally. Then they violated that agreement.

The tribe is holding all the legal cards here, and is playing them well. They don't need to do a sit in on the line, they are using the courts to enforce their rights, as they should.

The other option would be for BNSF to build a trestle around the short stretch of track that crosses the Swinomish reservation. Not only would it be very expensive, but getting permitting to do that for oil trains over Puget Sound would be darn near impossible.

I imagine the solution will be to revise the agreement to allow more cars. For which the tribe will force BNSF to pay through the nose, if they decide to agree at all.

It pretty much boils down to a case of "fool around and find out" where the finding out part happened decades later, but finally did.

 

[Metra Electric Rider]

Indian Reservations are sovereign nations, i.e. countries (or perhaps could be looked upon as somewhat like our other territories, but not quite) which can regulate the commerce within their borders. Hence, it's an international, not interstate, trade issue.

 

[alanh]

The Seattle Times goes into more detail. The route was built across the reservation in 1889 without permission. The tribe was finally able to get some traction on the issue in the 1970s. They settled with ATSF in 1991 with the above mentioned agreement.

 

[MARC Rider]

Indian Reservations are sovereign nations, i.e. countries (or perhaps could be looked upon as somewhat like our other territories, but not quite) which can regulate the commerce within their borders. Hence, it's an international, not interstate, trade issue.

Indians go on the warpath nowadays with lawyers, and they've been pretty successful in recent years.

When I worked at EPA, we got so.e training about dealing with tribal governments. We needed to treat with the tribal governments about the same way we treat state governments, even though the tribal lands are located in a state.

In this case the railroad was originally built across tribal land in violation of treaties and Federal law. The tribal goverment would be within it's right to demand that the tracks be totally removed, but some years ago, they did come to agreement with the railroad, and that agreement was one train per day at 25 cars max. Obviously, the agreement was made before anyone knew anything about Bakken crude oil, but if I were the tribe I wouldn't want any Bakken crude oil going anywhere near my marine resources.

 

[Septa9739]

With the caveat that what the railroad did was wrong…
What exactly happens now? That track is the only apparent rail access to the refinery. Would the tribe rather have 300 and some odd tanker trucks float through every day? Is that economically viable? Does the refinery cut production?

 

[MARC Rider]

With the caveat that what the railroad did was wrong…
What exactly happens now? That track is the only apparent rail access to the refinery. Would the tribe rather have 300 and some odd tanker trucks float through every day? Is that economically viable? Does the refinery cut production?

If I were the tribe, I'd rather have the refineries shut down.

According to the refinery web site, the capacity of one refinery is about 149,000 bbl crude oil per day.
https://www.hfsinclair.com/operations/facilities/us/anacortes-wa/default.aspx
There's another refinery nearby that has a capacity of 120,000 bbl.day
https://en.wikipedia.org/wiki/Marathon_Anacortes_Refinery

The total capacity of all the refineries in the US is about 18.3 million bbl per day.
https://www.eia.gov/energyexplained/oil-and-petroleum-products/data/refinery_rank_2024.xls

Closing this refinery won't result in a shortage of refined petroleum products in the USA.

The refineries was built in the mid 1950s with capacities of about 40,000 - 50,000 bbl/day. The railroad made their agreement with the tribe in 1991. They knew the refinery was there, yet they agreed to the restrictions on rail traffic. That suggests that either (1) in 1991 rail transport of crude oil was not a big deal, or (2) they had no intention of being in compliance with the agreement. Apparently, the Federal Judge in the case ruled that BNSF did, indeed deliberately violate the easement agreement.
https://apnews.com/article/bnsf-rai...judge-ruling-519a7f5bd4ecf25a4b194f5c035fd7b4

 

[PVD]

With the caveat that what the railroad did was wrong…
What exactly happens now? That track is the only apparent rail access to the refinery. Would the tribe rather have 300 and some odd tanker trucks float through every day? Is that economically viable? Does the refinery cut production?

they go back and make a deal to let the folks who own the land share in the actual profits, not the numbers they tried to get away with greed got caught and has to pay the piper boo hoo

 

[alanh]

The oil supply was probably originally from Alaska or across the Pacific by tanker with the rail line used for equipment and other chemicals.

 

[Willbridge]

Indians go on the warpath nowadays with lawyers, and they've been pretty successful in recent years.

When I worked at EPA, we got so.e training about dealing with tribal governments. We needed to treat with the tribal governments about the same way we treat state governments, even though the tribal lands are located in a state.

In this case the railroad was originally built across tribal land in violation of treaties and Federal law. The tribal goverment would be within it's right to demand that the tracks be totally removed, but some years ago, they did come to agreement with the railroad, and that agreement was one train per day at 25 cars max. Obviously, the agreement was made before anyone knew anything about Bakken crude oil, but if I were the tribe I wouldn't want any Bakken crude oil going anywhere near my marine resources.

When we started working at ODOT on the Oregon Transportation Plan in 1975 we were reminded that tribal governments were sovereign entities. It shouldn't be news, but some "forget."

 

[railiner]

IMHO, the BNSF should never have agreed to those terms in the first place, to the point where they shouldn't have even built across the reservation. But since they did, they must adhere to the agreement.

 

[crescent-zephyr]

Indians go on the warpath nowadays with lawyers, and they've been pretty successful in recent years.

*Native Americans. On a discussion board that so frequently corrects the term Pullman Porter, and Dining Car Steward, this needs to be corrected.

 

[railiner]

On a discussion board that so frequently corrects the term Pullman Porter, and Dining Car Steward, this needs to be corrected

I haven’t seen that…those were valid title’s in their era, right?

 

[MARC Rider]

*Native Americans. On a discussion board that so frequently corrects the term Pullman Porter, and Dining Car Steward, this needs to be corrected.

Uh, I don't think so, especially when the sovereign tribal nation involved here calls themselves the "Swinomish Indian Tribal Community."

https://swinomish.org/

Not to mention one of the main activist groups advocating for their rights is called the "American Indian Movement."
https://aimovement.org/


I consider myself a "native American." After all, I was born in this country and so were my parents. But I am in no way any sort of descendant of any of the indigenous people who were on this continent in 1492. Of course, "Indian" is not the best tag to use, as it can be confused with people of South Asian heritage, but it's OK if the context is clear, and I can't think of any better designator, except, when possible, to actually refer to the actual tribal nation in question.

 

[jis]

Uh, I don't think so, especially when the sovereign tribal nation involved here calls themselves the "Swinomish Indian Tribal Community."

https://swinomish.org/

Frankly, the only legitimate "Indian" hails from India. The rest are a confused Columbus' folly.

But then again, this has nothing to do with BNSF

 

[MARC Rider]

On a discussion board that so frequently corrects the term Pullman Porter, and Dining Car Steward, this needs to be corrected.

I think if I worked OBS on a train, I would rather my job position be called "porter" or "steward" (or "waiter") rather than SCA or LSA. I think the traditional terms have a good bit more class than the current ones derived from corporate-speak.

 

[Maglev]

My father, who was a WWII and Korea disabled veteran, instilled in me a respect for indigenous rights. On Maui, he helped Hawaiians with sovereignty issues, and one specific accomplishment was the inclusion of a wide shoreline path in front of a hotel, where the public road was located previous to the hotel's construction. At the nearby huge resort of Wailea, the road was moved up the mountain to accommodate oceanfront hotels, with little public shoreline access.

The Swinomish Reservation is close to where I live. Over the twenty years that we have been here, I have seen BNSF invest a remarkable amount of money into the 14-mile spur from the main line in Burlington to the refineries. The jointed rail is now CWR, and all the ties were replaced. Recently, 100-car oil trains have been common.

Only about a mile of the rail spur passes through the reservation. This is the location of a swing bridge over the Swinomish channel, a picture of which was featured in Trains magazine for having five different kinds of bridge construction. A year ago, a train with local traffic hit a derail at this bridge, on the reservation side. It was fortunately not a loaded oil train with a lot of momentum. The locomotives overturned, spilling some fuel.

The derailment was immediately adjacent to an RV park for gamblers at the Swinomish Casino. There is also a five-story hotel overlooking the tracks here.



I feel it is proper for the Swinomish tribe to receive compensation for the damage to their land, and even that they should have received BNSF's gross revenue instead of just net profit.

 

[joelkfla]

*Native Americans. On a discussion board that so frequently corrects the term Pullman Porter, and Dining Car Steward, this needs to be corrected.

I recently spent several hours at the National Museum of the American Indian at the Smithsonian in Washington, and got educated -- a lot.

Both American Indian and Native American are acceptable to the community. Individuals and groups within the community may favor one or the other.