Tribe is awarded $400 million in trespass damages against a railroad company that exceeded the scope of an express easement
A federal court in Washington has awarded damages of $400 million to The Swinomish Indian Tribal Community to be paid by a railroad company (BNSF Railway Company) for knowingly exceeding the scope of a railroad easement on the tribe’s property. Swinomish Indian Tribal Cmty. v. BNSF Rwy. Co., 2024 WL 3027911, 2024 US. Dist. LEXIS 107314 (W.D. Wash. 2024). Federal common law governs a claim for trespass on Indian lands. The railroad company breached its easement agreement by unilaterally increasing the number of trains and the number of cars crossing tribal land without the tribe’s written consent. The court had found that the railroad company breached a right-of-way easement agreement with the tribe, and that the trespass was “willful, conscious, and knowing throughout the trespass period.” Swinomish Indian Tribal Cmty. v. BNSF Rwy. Co., 664 F.Supp.3d 1218 (W.D. Wash. 2023). In the remedies phase, the court held that disgorgement of …