Earlier this year, a Swinomish tribe filed suit in Washington state federal court against BNSF Railway Company (BNSF). In the lawsuit, the tribe challenges the amount of crude oil shipped by BNSF across tribal land. BNSF has authority under a settlement agreement it entered into with the Swinomish Indian Tribal Community. The settlement agreement granted BNSF a right-of-way easement to transport crude oil through the tribal land. Currently, Judge Robert S. Lasnik is considering a motion to dismiss filed by BNSF.

In the motion to dismiss, BNSF contends that the lawsuit should not be decided by a federal court. Rather, the company argues that the U.S. Department of Transportation’s Surface Transportation Board (STB) is the sole entity with authority to hear the lawsuit. According to the company, because it is a common carrier, it lacks the authority to refuse to ship items such as crude oil. BNSF argues that the tribe lacks the authority to limit the types of products that can be transported by a common carrier. BNSF requested that the court either stay or dismiss the complaint. However, BNSF has not asked for a dismissal with prejudice; the tribe could therefore file its complaint with the STB. BNSF also argues that the tribe’s claims for damages should be dismissed because the parties agreed to arbitrate any claims concerning the amount of compensation the tribe should receive based on BNSF’s use of tribal land.

In response, the tribe has argued that the settlement agreement is the only reason BNSF has the right to transport products across tribal land. The tribe further contends that the parties’ contractual agreement is not preempted by federal law. As for the tribe’s arbitration request, the tribe contends that the settlement only requires the parties to arbitrate valuation disputes, not the breach of contract claims at issue in the lawsuit.

Read the motion, response, and reply.