Tag Archives: Seattle Mayor Ed Murray

Washington’s Swinomish sue to halt Bakken oil trains

Repost from High Country News

Washington’s Swinomish sue to halt Bakken oil trains

Many communities fight transport of crude oil through their towns; some find legal footing to succeed.

By Kindra McQuillan, April 16, 2015, Web Exclusive

To the Coastal Salish people living on Washington’s Swinomish Reservation, water remains an important aspect of daily life. Their ancestors fished for salmon at the mouths of Northwestern rivers and gathered shellfish on Pacific tidelands; modern Swinomish people still pursue these activities from their small reservation on the Puget Sound. Many fish for their own subsistence, and many work as employees of the Swinomish Fish Company, which serves international markets.

The Swinomish Reservation is surrounded by water. Swinomish Channel and Swinomish Reservation. Photograph courtesy of Joe Mabel

Even so, for more than 20 years, the Swinomish have consented to strictly regulated use of a railroad that crosses waters on either side of their island reservation. The track, operated by Burlington Northern Santa Fe LLC, crosses a swing bridge over Puget Sound’s Swinomish Channel, passes several Swinomish businesses, and then crosses a trestle over Padilla Bay, originally on its way to Anacortes, where it historically delivered lumber. A legal agreement between the tribe and the company limited the amount of traffic that would cross the reservation and waterways to Anacortes and required the company to inform the tribe about its cargo.

In the 1990s, the last section of railroad to Anacortes was removed, and the tracks ended on March Point, which houses two oil refineries. Burlington Northern fell behind on their annual reports, and the tribe assumed the trains were carrying supplies to the refineries.

But in 2012, reservation residents began to see 100-car trains—four times as long as the agreed maximum length. Then an Anacortes newspaper reported that the trains were carrying Bakken crude, a volatile oil that has figured in numerous train explosions in recent years, some of them deadly.

Burlington Northern had not informed the tribe that the cars carried this new, dangerous cargo, and ignored tribal requests to desist. So last week, the tribe filed a lawsuit in federal court. The suit asks the court to reinforce the original car limit and to prohibit the transport of Bakken crude via rail across the reservation.

“It’s not a matter of if another train will blow up; it’s a matter of when,” Brian Cladoosby, chairman of the Swinomish tribe, recently told me. “We want to make sure it doesn’t happen in our backyard.”

Police helicopter view of Lac-Mégantic, Quebec, the day a Bakken oil train derailed, killing 47 people in 2013. Photograph courtesy of Sûreté du Québec.

But while many Western communities are grasping for protection against dangerous shipments of crude oil, the Swinomish tribe has a unique instrument for getting it done.

The instrument has to do with the way tribal trust lands work. Tribal trust land, unlike much off-reservation land, requires consent from both the federal government and the tribe before utilities and railroad companies can build infrastructure. But for a century, Burlington Northern and its predecessor companies broke this law by maintaining a railway on the Swinomish reservation without consent from either. In the late 1970s, the tribe sued the company for a century of trespass, reaching a settlement in 1991 that gave the company an easement for continued use of the railway, albeit with a few restrictions: No more than one train could cross the reservation per day in each direction, none could have more than 25 cars, and Burlington Northern would have to inform the tribe of the trains’ cargo at least once per year.

Then came the Bakken boom, and with it a dramatic increase in traffic as trains rushed to carry oil from the Bakken to the West Coast, where ports could take the fuel to international markets. After seeing the traffic increase on their reservation, “the tribe had conversations with Burlington Northern,” says Stephen LeCuyer, director of the office of tribal attorney. “But in the meantime the tribe was seeing explosive derailments of Bakken oil trains, and reached the conclusion that they would not consent to an increase of over 25 cars per day.” After the tribe brought their concerns to Burlington Northern, the company said it wanted to negotiate. Meanwhile, the oil trains kept rolling.  That led to last week’s suit.

Burlington Northern has yet to file their case, but in a statement, company spokesperson Gus Melonas argues that it has a legal obligation to carry the oil.  “As a common carrier, we are obligated under federal law to move all regulated products, which ensures the flow of interstate commerce,” he said in a statement.

“The Easement Agreement includes a mechanism to address rail traffic volumes to meet shipper needs, and we have been working with the Swinomish Tribe for several years to resolve this issue.” The mechanism Melonas refers to is a stipulation in the agreement, wherein the tribe agrees not to “arbitrarily withhold permission to increase the number of trains or cars when necessary to meet shipper needs.”

To the tribes, this mechanism is null. Given the dangerous nature of Bakken crude, the tribe is confident it’s not making an arbitrary decision “in any way,” LeCuyer says.

Their complaint was filed with the U.S. District Court for the Western District of Washington, and was formally served on April 10. Burlington Northern must now file a response within 21 days of the formal complaint. At that point, the court will issue a schedule for hearings, and the case will eventually be decided by U.S. District Judge Robert Lasnik.

Jan Hasselman, an attorney with Earthjustice, an environmental law group that has handled many cases related to oil transportation, said the Swinomish argument appears “airtight.”

“BNSF made an agreement with them, and it violated that agreement,” he said. But Hasselman added that the case wouldn’t likely set a precedent for other communities. “Their agreement is pretty unique,” he said. “But this is yet another example of communities all across the country in different ways rising up to the threat of crude oil transportation.”

Last week, the National Transportation Safety Board issued urgent recommendations calling for the improvement of unsafe oil-tank train cars. Politicians like Sen. Maria Cantwell, D-Washington, and Seattle Mayor Ed Murray, D, are calling for greater oil train safety.

Earlier this year, Washington’s Quinault tribe was able to slow shipping of crude-by-rail near their reservation by challenging oil terminals that were being built without an environmental impact statement.

Meanwhile, the Swinomish Tribe is also testifying against a Canadian pipeline that would carry crude oil to ports in the Salish Sea, the body of water that encompasses the Strait of Georgia, the Strait of Juan de Fuca, and the Puget Sound. Alternative forms of oil transportation, like pipelines and barges, may be safer to human communities, but they would still put fisheries at risk.

“We, of course, always have concern about tankers hitting our reefs,” Cladoosby says. “Thank God that has never happened. We live on an island surrounded by water. We’ve lived here since time immemorial, and the Creator has blessed us with every species of wild salmon. We work very hard to take care of it.”

Swinomish Chairman Brian Cladoosby and his father. Photograph courtesy of Flickr user Ecotrust.
Kindra McQuillan is an editorial intern with

High Country News.

Washington State bill: Report volume, contents of oil trains

Repost from SeattlePI.com

State House bill: Report volume, contents of oil trains

By Joel Connelly, April 14, 2015

A bill that would require “comprehensive reporting” of the volume and specific contents of oil trains crossing Washington was passed on a bipartisan vote by the state House of Representatives on Tuesday.

Oil tanker cars derailed under the Magnolia Bridge.  No harm done, but not the case elsewhere.
Oil tanker cars derailed under the Magnolia Bridge. No harm done, but not the case elsewhere.

The legislation goes to the Republican-run state Senate, where key committee chairs enjoy much closer relationships with railroads and oil refiners.

“The House has passed these urgently needed policies with bipartisan support, twice. Delay on the part of the Senate is unacceptable,” said Joan Crooks, CEO of the Washington Environmental Council and Washington Conservation Voters.

(Washington Conservation Voters tried in 2014 to defeat several oil industry allies in the Senate, but lost every high-profile race.)

The legislation, passed on a 58-40 vote, requires that shippers and receivers give cargo data to first responders, but goes further and establishes a website for members of the public to access the information.

Washington Fire Chiefs, in letters sent last month to railroads, asked BNSF, Union Pacific and Canadian National to supply “Comprehensive Emergency Response Plans” and “Worst Case Scenarios” on an oil train accident.

BNSF has responded by offering the chiefs a meeting.

If there is such a response plan or plans, “I haven’t seen it,” new Seattle Fire Chief Harold Skoggins told a news conference with Sen. Maria Cantwell and Seattle Mayor Ed Murray last week.

“It would be nice were there a system created where we would be notified when this material is traveling through our city,” Skoggins added.

The railroads have been reticent about releasing cargo information, citing national security concerns and privately voicing fear of protests.

A fire burns Monday, Feb. 16, 2015, after a train derailment near Charleston, W.Va. Nearby residents were told to evacuate as state emergency response and environmental officials headed to the scene. (AP Photo/The Register-Herald, Steve Keenan)
A fire burns Monday, Feb. 16, 2015, after a train derailment near Charleston, W.Va. Nearby residents were told to evacuate as state emergency response and environmental officials headed to the scene. (AP Photo/The Register-Herald, Steve Keenan)

BNSF has, however, released information on the upgrading of tracks and investment in newer, safer oil tanker cars.

The House legislation goes further, directing rule making for such measures as tug escorts when hazardous cargoes are transported by water.  It directs the state to inspect rail crossings and push for repairs.

And it would require oil companies to pay for increased oil spill prevention, preparedness and response.

Just two and a half years have passed since the first oil train, carrying Bakken crude oil from North Dakota, passed through Seattle en route to refineries in northern Puget Sound.

The state now sees about 19 oil trains a week.  At least a dozen pass along the Seattle waterfront, through a mile-long tunnel, and past the stadium homes of the Seattle Seahawks, Seattle Mariners and Seattle Sounders.

The BNSF has trained Seattle firefighters on oil tanker cars brought to a site in Interbay.  But any serious fire would require a major response from numerous fire departments.

The legislation in Olympia has been inspired, in part, by the long delay in getting new oil train safety rules — such as getting old, unsafe tanker cars off the tracks — out of the U.S. Department of Transportation.

The U.S. and Canada have seen a series of oil train fires in recent months.  A runaway train wiped out the center of Lac-Megantic, Quebec, killing 47 people.  A train blew up near New Casselton, North Dakota, luckily in an unpopulated area.  In February, there were major accidents and fires in West Virginia, Illinois and Ontario.

Sen. Cantwell is sponsoring federal legislation that would require railroads and oil companies to disclose routes and vapor content of trains to first responders.

Eventually, the senator warned last week, Puget Sound population centers could see up to 16 trains a day.

Swinomish tribe sues to permanently ban Bakken oil trains

Repost from The Seattle Times

Swinomish tribe sues to block Bakken oil trains

A federal lawsuit filed by the Swinomish Indian tribe seeks to ban BNSF Railway from transporting Bakken crude oil across tribal lands. The line in question carries oil trains to the Tesoro refinery in Anacortes.

By Hal Bernton, April 7, 2015 at 8:37 pm, Updated April 8, 2015 at 12:10 pm
A view of the Tesoro refinery, as seen from Cap Sante lookout in Anacortes. Photographed on July 16, 2012. (John Lok / The Seattle Times)
A view of the Tesoro refinery, as seen from Cap Sante lookout in Anacortes. Photographed on July 16, 2012. (John Lok / The Seattle Times)

The Swinomish Indian Tribal Community on Tuesday went to federal court to block BNSF Railway from sending 100-car oil trains through reservation lands, claiming the company is violating an easement that sharply restricts rail traffic.

The easement signed by the railway’s predecessor company in 1991 permits only two trains a day of 25 cars or less from transiting the reservation. It also calls for the railroad company to get permission from the tribe to increase traffic.

The lawsuit filed in U.S. District Court in Seattle asks the court to permanently ban the railroad from shipping Bakken shale crude oil across tribal land, asserting that the railroad never sought permission for the oil trains.

“A deal is a deal,” said Swinomish Chairman Brian Cladoosby in a statement released Tuesday. “Our signatures were on the agreement with BNSF, so were theirs. So was the United States. But despite all that, BNSF began running its Bakken oil trains across the reservation without asking, and without even telling us.”

The Swinomish rail line that traverses tribal land on Fidalgo Island enables trains to reach a Tesoro refinery in nearby Anacortes.

A BNSF spokesman, in a statement released Tuesday said, “We have received the complaint and are reviewing it.”

The tribal lawsuit is part of an intensifying backlash in Washington and elsewhere in North America against shipping Bakken shale crude from North Dakota and Montana. Production from those fields has surged with the development of new fracking techniques.

Since 2013, a series of train derailments resulted in fiery explosions of Bakken crude, with four of those accidents occurring since early February. Bakken crude has a higher volatility than many other crudes, due to elevated levels of gases such as ethane, propane and butane

At Seattle’s Emergency Operations Center on Tuesday, Mayor Ed Murray, King County Executive Dow Constantine and other officials joined U.S. Sen. Maria Cantwell, D-Wash., to discuss threats posed by these accidents.

“In Canada nearly two years ago, a mile-long train derailed and the ensuing explosion cost 47 people their lives,” Cantwell said. “That blast leveled a half-mile radius. If that happened in Seattle, the effects would be catastrophic.”

“In Seattle, an incident of this type could impact tens of thousands of residents.”

Cantwell introduced legislation last month that would require the federal Transportation Department to regulate the volatility of crude oil shipped by trains.

The bill also would increase funding for first responders and require more disclosures from railroads about train routes. The railroads would also have to plan for worst-case derailment scenarios.

In Washington last year, up to 19 trains a week crossed parts of the state with crude oil that ends up at state or California refineries.

Some of those trains now cross Swinomish lands on the way to the Tesoro refinery. The number of those trains could rise if Shell gets approval for a rail facility at its refinery in Anacortes.

As the trains move through tribal lands, they pass close by a casino, a lodge and other development.

“Based on the demonstrated hazards” of Bakken shale crude, the tribe is “justifiably and gravely concerned” with the oil shipments, the lawsuit asserts.

The railroad’s 1991 easement across the reservation lands resulted from the settlement of an earlier tribal lawsuit that alleged that BNSF’s predecessor company was trespassing on their lands with its trains during most of the past century.

The settlement called for periodic railroad disclosures “as different products, or commodities, are added or deleted.” It also called on the tribe not to “arbitrarily withhold permission to increase the number of trains or cars when necessary to meet shipper needs.”

The crude-oil shipments across tribal lands began in late 2011, but tribal officials said they were never informed in advance, and have never authorized that train traffic.

“We told BNSF to stop, again and again,” Cladoosby said. “It’s unacceptable for BNSF to put our people and our way of life at risk without regard to the agreement we established in good faith.”