The Burlington Northern Santa Fe route through Washington. (click to enlarge)
The Burlington Northern Santa Fe route through Washington. (click to enlarge)

In 1889, the acting commissioner of Indian Affairs heard about a new railroad construction project that was under way, laying track on Swinomish land about 70 miles north of the city, without permission. He fired off a telegram to a federal employee in Seattle, but it was too late. A subsequent telegram from the federal agent shows that the railway company had already built 1,130 yards. The telegram couldn't halt the railway's construction, but it was stored away by the tribe until a tribal historian dug it up decades later. And now its concerns are being renewed in a legal fight that could slow crude-oil trains through Seattle.

According to Swinomish chairman Brian Cladoosby, the telegram shows how the Swinomish people have the right to limit the trains that run across Swinomish property on their way to a refinery near Anacortes (after running beneath Seattle and up to Burlington). "No authority for railroad to cross Swinomish reservation present," the message reads. The telegram, and railway construction that followed despite its warning, illuminates a fundamental disagreement that's now in a different form, 126 years later. "[The telegram] said they were building this railroad across our reservation without our permission," Cladoosby said.

The Swinomish Indian Tribal Community couldn't have known that more than a century later, crude-oil trains would be rattling along that very route—and across reservation land—carrying with them a well-established risk of derailing and exploding. In fact, the only way today's Swinomish people knew that trains full of crude oil were passing through their land was from media reports in 2012. They're not alone. As it stands, railroads still don't have to disclose crude-by-rail routes.

But if the Swinomish can stop the crude-oil trains with a lawsuit that echoes the concerns in this telegram, and tries to assert their rights under a rare agreement the tribe has with the railway company, then this one tribe's stand could also begin to check a runaway industry that mayors, governors, firefighters, senators, and federal regulators have been failing to rein in. It's a story that goes back hundreds and thousands of years, back to a time before anyone had even thought of taking oil from beneath the ground.

The Burlington Northern Santa Fe route through Seattle follows the shapes glaciers left in the earth 15,000 years ago, conforming to a flat edge of inland coast while navigating volatile crude oil north along Puget Sound.

This railway traces the same stretch of coastal waters that the Swinomish people have fished for thousands of years—long before time got codified on things like telegrams or Apple Watches. Today, a small, critical branch of the BNSF railway line runs right across the Swinomish reservation, hugging a highway and then crossing the Swinomish Channel as it passes the tribe's casino en route to the Tesoro refinery.

Crude-by-rail shipments have skyrocketed throughout the Pacific Northwest in recent years, ever since producers in North Dakota started horizontally drilling and fracking the richest oil discovery in the United States since 1968: Bakken shale. Crude-oil unit trains, some as long as a mile, now move beneath Seattle and across the Swinomish reservation toward Anacortes smokestacks.

But the oil boom ushered in by modern innovation has also brought the threat of modern-scale catastrophe with it. Tank cars containing volatile mixtures of crude and fuel gases are derailing—potentially creating fireballs that can shoot the length of a football field into the sky—and they'll continue to derail at an average rate of 10 a year, according to one US Department of Transportation report. Hence the phrase "bomb trains," which was slapped on them by opponents. When these trains move through cities, the risk of potential fatalities increases dramatically. In the summer of 2013, a crude-oil train that was supposed to be parked on a downward slope rolled toward the 6,000-person town of Lac-Mégantic, Quebec, at a top speed of 65 miles per hour. The explosion killed 47 people.

It's cheaper and faster for producers to ship crude without stripping the more volatile elements out of the oil. But there are no voluntary standards, and the US Department of Transportation has already missed a congressional deadline to come up with finalized regulations for this kind of oil transportation. Some US senators, including Maria Cantwell and Patty Murray, are pushing legislation that would ban older models of tank cars, set volatility rules, and force railroads to disclose their routes to first responders. But in the meantime, the trains are still rolling through Washington every week.

The future promises even greater volumes of the stuff. In 2014, an average of 19 trains of crude moved through Washington State a week. A Department of Ecology draft report published the same year predicted 118 more by 2020.

Before a transcontinental railroad carrying crude through Seattle belonged to Burlington Northern Santa Fe, the idea of a railroad crossing the country was just a vision in Isaac Stevens's mind. As the first governor of Washington Territory, Stevens had lots of jobs. In 1853, he was also the superintendent of Indian Affairs in Washington, which meant he was responsible for negotiating treaties. At that time, the federal government's strategy with Native Americans was to move them out of the way of incoming white settlements. Stevens was also chief surveyor for a transcontinental railway line running through Washington.

Stevens's aim for the Swinomish, one of several Puget Sound tribes, was to remove them from fisheries they had stewarded for millennia to the east side of the Cascades, where they were supposed to farm on land that hadn't been cleared for farming. After those negotiations failed, the Puget Sound tribes and Stevens eventually came to a treaty agreement. At the Treaty of Point Elliott, in 1855, the tribes ceded land to the Feds. In return, the Feds promised to maintain tribal rights to hunt and fish in their accustomed areas while holding reservation lands "in trust" for the tribes. For the Swinomish, the end result of this was a relatively small reservation near Anacortes.

But land reserved for the tribes wasn't the Feds' only concern. At that time, the federal government was also drunk on manifest destiny.

"The government is supposed to be a guardian [of tribal rights], but in many ways they're acting as agents for the railroads," Richard White, a Stanford University expert on the history of the American West, explained. This conflict also explains why, later, in the 1870s and 1880s, the federal government started splitting apart reservations in order to make way for private interests, like railroads.

For nearly a century, tribes had limited power to do anything about these sorts of disputes. The Department of the Interior had control over tribal attorney contracts. "Federal law said that no attorney may be paid by an Indian tribe unless the DOI approves the contract," explained Matthew Fletcher, director of the Indigenous Law and Policy Center at Michigan State University. "So if the DOI didn't want a tribe doing the claim, they could bar a tribe from hiring an attorney, to be frank."

That control decreased in the late 1960s, though the approval rule was only finally rejected in 2000. In 1978, the Swinomish filed a lawsuit against BNSF alleging that the railroad had been trespassing on their land over the previous century.

As a result of the suit, by 1991 the tribe and Burlington Northern (which later became part of Burlington Northern Santa Fe) had settled on a unique agreement: Burlington Northern could send only one train in each direction across the reservation a day, and the train had to consist of 25 cars or less. In addition, the railway company would have to update the tribe regularly on the type of cargo contained within.

Every expert I spoke to agreed on one thing: They had never heard of an agreement like that before. "This is huge," Fletcher said.

The aim of the new Swinomish case is to hold the railroad to that original agreement.

"In a nutshell," Cladoosby said, "they said they were going to honor our agreement"—but BNSF was telling the tribe its clients wanted to send through trains with a hundred cars. "We decided to say, 'Okay, we'll see you in court.'"

If the Swinomish make the railroad limit trains through the reservation to two relatively small shipments a day, it would drastically cut crude-oil traffic through Seattle to the Tesoro refinery just north of the reservation. The Shell refinery in Anacortes also has a proposal for building a rail spur off the same line. If built, the Shell Puget Sound refinery would drive another 102-car-long unit train full of crude through the reservation a day.

"My estimate is that Tesoro was sending five trains a week through Seattle, and Shell would put through six trains a week," explained Eric de Place, policy director at the Sightline Institute. He believes that if oil train shipments have to abide by the Swinomish interpretation of the agreement, it would make it prohibitively expensive for the shippers and refiners. Essentially, a reaffirmed easement agreement "would basically knock out all of those oil trains," said de Place.

But the easement agreement does contain a possible poison pill related to the need for long unit trains. It says that the tribe will not "arbitrarily withhold permission to increase the number of trains or cars when necessary to meet shipper needs."

"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," BNSF spokesperson Gus Melonas said in a statement. "Freight rail traffic has continued to grow not only in Washington State, but across our entire network."

Swinomish tribal attorney Stephen LeCuyer says that the tribe's argument is anything but capricious. "If you look at the history of derailment, and explosions and spills involving transport of Bakken crude by rail, the tribe's decision to not agree to increasing train traffic is not arbitrary."

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A federal judge will now decide whether caring about exploding trains is valid or not. recommended

This article has been updated since its original publication.

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