BNSF Railway Co. is appealing a nearly $400 million judgment imposed by a U.S. District Court, which the company claims unjustly targets legitimate profits far removed from a trespass on Swinomish Indian Tribal Community land. In a brief filed with the Ninth Circuit on Monday, BNSF requested the court to reconsider the disgorgement amount, arguing that the trial judge failed to account for the remote nature of profits linked to the trespassing.
While BNSF acknowledges that it violated the Swinomish Tribe’s sovereignty by crossing tribal land to access an oil refinery, the railroad maintains that the court’s decision to award such a large sum was overly punitive. The case centers on a 0.7-mile stretch of the tribe’s land, which BNSF used to transport oil from North Dakota to Washington refineries.
The tribe claims that the railroad could not have reached the refineries without crossing their land, and therefore should be entitled to the entirety of the profits from the route. However, BNSF argues that the award represents 91% of the profits from the entire 1,500-mile route, which it contends is disproportionate to the actual trespass.
BNSF asserts that the court’s decision disregards long-standing rules in equity, which limit the scope of disgorgement to profits directly connected to the wrongdoing. The company also claims that the court blocked critical evidence showing that the railroad could have earned profits even if it had avoided the tribe’s land, such as through alternative shipping routes and infrastructure adjustments.
While BNSF recognizes the “dignitary harm” caused by the trespass, as highlighted by an amicus brief from the state of Washington, it emphasizes that neither the state nor the tribe has provided sufficient justification to depart from standard disgorgement practices.
The case follows a 2023 ruling by U.S. District Judge Robert S. Lasnik, who found that BNSF willfully violated its easement agreement with the Swinomish Tribe. The judge awarded the tribe $394.5 million after a four-day disgorgement trial in Seattle.
Representatives for both BNSF and the Swinomish Tribe did not immediately respond to requests for comment.
The case is currently before the Ninth Circuit, under case number 24-4333. The underlying matter is Swinomish Indian Tribal Community v. BNSF Railway Co., case number 2:15-cv-00543, in the U.S. District Court for the Western District of Washington.
