L. E. Peabody & Associates, Inc. Helps Swinomish Tribe Secure $394 Million Judgment in Railroad Trespass Case

L. E. Peabody & Associates, Inc. (LEPA) was retained in September of 2020 to support the Swinomish Indian Tribal Community (Tribe) in a federal lawsuit against the BNSF Railway Company (BNSF) regarding BNSF’s trespass over Tribe land. In a preliminary stage of this case, LEPA assisted the Tribe in estimating BNSF’s profits from the railroad’s trespass over the Tribe’s property based upon a limited scope of information available. In a March 2023 decision, the Court ruled that BNSF’s trespass was willful and intentional based in part on LEPA’s estimation of the profit BNSF earned, and that BNSF’s profit from its movement over the Tribe’s land was subject to disgorgement.

During the disgorgement phase of this trial, LEPA advised the Tribe regarding the scope and scale of information necessary to determine actual profit from BNSF’s trespassing movements. Where the data provided in discovery was insufficient, LEPA was able to supplement the evidence using its own knowledge of the railroad industry.

In the June 2024 decision in this case, the courts determined that BNSF must disgorge $395 million in profits and interest earned from violating the easement agreement between 2012 and 2021.

The Tribe's victory in this case demonstrates the importance of both legal and economic expertise in securing just outcomes.

Click here to read more in the Tribe's statement.