Swinomish Indian Tribal Cmty. v. BNSF Ry. Co.

• Decision Date: 13 January 2017
• Docket Number: No. C15–543RSL,C15–543RSL
• Parties: SWINOMISH INDIAN TRIBAL COMMUNITY, a federally recognized Indian tribe, Plaintiff, v. BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.
• Court: U.S. District Court — Western District of Washington

228 F.Supp.3d 1171

SWINOMISH INDIAN TRIBAL COMMUNITY, a federally recognized Indian tribe, Plaintiff,

v.BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.

No. C15–543RSL

United States District Court, W.D. Washington, at Seattle.

Signed January 13, 2017

Christopher Ian Brain, Paul W. Moomaw, Tousley Brain Stephens, Seattle, WA, Stephen T. Lecuyer, Office of the Tribal Attorney, Laconner, WA, for Plaintiff.

Andrew Ramiro Escobar, Jeffrey B. Degroot, Stellman Keehnel, DLA Piper US LLP, Seattle, WA, for Defendant.

ORDER REGARDING CROSS–MOTIONS FOR SUMMARY JUDGMENT

Robert S. Lasnik, United States District Judge

This matter comes before the Court on plaintiff's "Amended Motion for Summary Judgment" (Dkt. # 58) and defendant "BNSF Railway Company's Cross–Motion for Partial Summary Judgment" (Dkt. # 63). Plaintiff filed this suit in April 2015 alleging that defendant breached a Right-of-Way Easement Agreement ("Easement Agreement"), asserting claims of breach of contract and trespass, and seeking damages, declaratory judgment, and injunctive relief. Defendant raised preemption as an affirmative defense, arguing that plaintiff's claims are barred by the Interstate Commerce Commission Termination Act ("ICCTA"), 49 U.S.C. § 10501 et seq. Plaintiff filed a motion for a summary determination of the preemption defense. Defendant cross-moved on the preemption issue and seeks judgment in its favor on the breach of contract, trespass, and injunctive relief claims.

Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine dispute as to any material fact that would preclude the entry of judgment as a matter of law. The party seeking summary dismissal of the case "bears the initial responsibility of informing the district court of the basis for its motion" (Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ) and "citing to particular parts of materials in the record" that show the absence of a genuine dispute of material fact (Fed. R. Civ. P. 56(c) ). Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to designate "specific facts showing that there is a genuine issue for trial." Celotex Corp. , 477 U.S. at 324, 106 S.Ct. 2548. The Court will "view the evidence in the light most favorable to the nonmoving party ... and draw all reasonable inferences in that party's favor." Krechman v. County of Riverside , 723 F.3d 1104, 1109 (9th Cir. 2013). Although the Court must reserve for the jury genuine issues regarding credibility, the weight of the evidence, and legitimate inferences, the "mere existence of a scintilla of evidence in support of the non-moving party's position will be insufficient" to avoid judgment. City of Pomona v. SQM N. Am. Corp. , 750 F.3d 1036, 1049 (9th Cir. 2014) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable jury could return a verdict in its favor. FreecycleSunnyvale v. Freecycle Network , 626 F.3d 509, 514 (9th Cir. 2010).

Having reviewed the memoranda, declarations, and exhibits submitted by the parties and having heard the arguments of counsel, the Court finds as follows:

BACKGROUND

Plaintiff, the Swinomish Indian Tribal Community, is a federally-recognized Indian tribe organized under the Indian Reorganization Act of 1934, 25 U.S.C. § 476. The Tribe is a successor to the signatories of the Treaty of Point Elliott of 1855, which established the Swinomish Reservation on Fidalgo Island, Washington, for the Tribe's "exclusive use." 12 Stat. 927, 1859 WL 10138 at *2 (signed Jan. 22, 1855). The reservation lands are held by the United States in trust for the Tribe.

In or around 1889, the Seattle and Northern Railway Company began constructing a rail line across the northern edge of the Swinomish Reservation. The Tribe objected, and the construction was temporarily halted while an agent of the Commissioner of Indian Affairs investigated. The local U.S. Attorney was "directed to institute proceedings to prevent the building of the railroad across the said Indian reservation." Dkt. # 33–1 at 13. In response, the railway company petitioned the Department of Interior, Office of Indian Affairs, to obtain consent to a right of way across the reservation. The Acting Commission notified the railway company that "in all cases where right of way for railroads through Indian reservations is not provided for by treaties or agreements by the United States with the Indians, congressional action is necessary to ratify agreements by railway companies with the Indians for such right of way &c." Dkt. # 33–1 at 10. There is no indication that Seattle and Northern Railway Company obtained approval from the Tribe, the Department of Interior, or Congress before completing the line.

In or around 1970, the Tribe contacted Seattle and Northern Railway Company's successor, Burlington Northern Railroad, regarding what it regarded as an on-going and unauthorized use of tribal lands. The parties were unable to come to an agreement and, in 1977, the Tribe requested that the United States bring a lawsuit against Burlington Northern for trespass damages and removal of the rail line. Dkt. # 33–1 at 15 and 18. Burlington Northern filed an application with the Bureau of Indian Affairs ("BIA") for a railroad right of way across the reservation, arguing that its right was established by the Act of March 2, 1899, 25 U.S.C. § 312. Dkt. # 33–1 at 24. The Tribe objected, and the application was denied. Dkt. # 33–2 at 4–5 and 15. Burlington Northern sought an administrative appeal, arguing that tribal consent was not required. Dkt. # 33–2 at 31–44. The Area Director of the BIA affirmed the decision, noting that "Congress had made it clear that the consent of tribes organized under the Indian Reorganization Act was essential before the United States could alienate interests in those tribe's trust lands...." Dkt. # 33–3 at 47. A further appeal to the Assistant Secretary for Indian Affairs was denied on the same ground. Dkt. # 33–4 at 4.

Meanwhile, the Tribe filed a trespass action in this district against Burlington Northern seeking both damages and injunctive relief. Dkt. # 33–2 at 20–23. Burlington Northern filed a separate complaint seeking to compel the Secretary of the Interior to grant a right of way across the reservation. Dkt. # 33–4 at 8–14. The Tribe intervened in that matter, and the parties filed cross-motions for summary judgment on the issue of tribal consent. The Honorable Donald S. Voorhees deferred consideration of the motions until the Ninth Circuit issued a ruling in a factually similar case. Dkt. # 33–4 at 24–25. When the Ninth Circuit held that tribal consent is a condition precedent to the grant of a railroad right of way across tribal lands (S. Pac. Transp. Co. v. Watt , 700 F.2d 550 (9th Cir. 1983) ), Burlington Northern acknowledged that the decision was contrary to its position. Summary judgment was entered in favor of the Tribe and the United States. Dkt. # 33–4 at 28–29. Burlington Northern appealed the decision to the Ninth Circuit, dismissing the appeal only after the Supreme Court denied the petition for certiorari in Southern Pacific .

The Tribe's suit for ejectment and damages remained pending in this district. The Interstate Commerce Commission ("ICC") sought leave to intervene, arguing that it had exclusive jurisdiction over whether abandonment of the rail line or discontinuance of rail transportation over a line, as sought by the Tribe, was in the national interest. Dkt. # 33–6 at 30–31. Judge Voorhees denied the motion as premature: the matter had been bifurcated, and the ICC's concerns regarding an appropriate remedy could be heard if and when liability were established. Dkt. # 33–7 at 2–3. The Tribe and Burlington Northern eventually negotiated a settlement of all outstanding matters through which Burlington Northern would submit to the BIA an application for a right of way easement on terms and conditions agreed to by the parties, and the Tribe would notify the BIA that it consented to the specified terms. Dkt. # 33–4 at 35. Both parties performed, and the BIA approved the settlement and granted the right of way on the terms described in the Easement Agreement and under the authority of the Indian Right of Way Act of 1948 ("IRWA") and its implementing regulations. Dkt. # 33–5 at 3 and 33–8 at 21.

This action arises out of the Easement Agreement. Burlington Northern agreed to pay $125,000 as full payment "for all rent, damages and compensation of any sort, due for past occupancy of the right-of-way from date of construction in 1889 until January 1, 1989." Dkt. # 33–5 at 4. Thereafter, Burlington Northern would pay $10,000 per year, adjusted periodically based on the Consumer Price Index and changes in property values. The easement has an initial term of forty years, with two twenty year extensions at Burlington Northern's option. Burlington Northern promised to "keep the Tribe informed as to the nature and identity of all cargo transported by Burlington Northern across the Reservation" through annual disclosures and to "comply strictly with all Federal and State Regulations regarding classifying, packaging and handling of rail cars so as to provide the least risk and danger to persons, property and the natural environment of the Reservation." Dkt. # 33–5 at 10–11. Burlington Northern also promised that:

unless otherwise agreed in writing, only one eastern bound train, and one western bound train, (of twenty-five (25) cars or less) shall cross the Reservation each day. The number of trains and cars shall not be increased unless required by shipper needs. The Tribe agrees not to arbitrarily withhold permission to increase the number of trains or cars when necessary to meet shipper needs. It is understood and

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