Case 2:15-cv RSL Document 63 Filed 08/08/16 Page 1 of 42 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

Transcription

1 Case :-cv-00-rsl Document Filed 0/0/ Page of THE HONORABLE ROBERT S. LASNIK SWINOMISH INDIAN TRIBAL COMMUNITY, a federally recognized Indian tribe, Plaintiff, v. BNSF RAILWAY COMPANY, a Delaware corporation, UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE Defendant. No. :-cv-00-rsl BNSF RAILWAY COMPANY S CROSS- MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFF S MOTION FOR SUMMARY JUDGMENT NOTED FOR CONSIDERATION: Friday, September, AND OPPOSITION TO PLAINTIFF S MOTION FOR SUMMARY JUDGMENT No. :-cv-00-rsl Seattle, WA -0 Tel:..00

2 Case :-cv-00-rsl Document Filed 0/0/ Page of TABLE OF CONTENTS Page PRELIMINARY STATEMENT... BACKGROUND... I. THE RAILROAD S COMMON-CARRIER DUTIES... II. BNSF S RIGHT-OF-WAY ON THE SWINOMISH RESERVATION... III. IV. STATUTORY AND REGULATORY CHANGES FOLLOWING THE EASEMENT... THE TRIBE IS WITHHOLDING ITS CONSENT TO THE RAIL TRAFFIC INCREASE BECAUSE OF ITS SAFETY CONCERNS REGARDING BAKKEN CRUDE OIL... V. THE TRIBE S SUMMARY JUDGMENT MOTION... ARGUMENT... I. BNSF S USE IS CONSISTENT WITH THE EASEMENT, AND THE TRIBE S WITHHOLDING OF ITS CONSENT IS ARBITRARY BECAUSE IT WOULD VIOLATE FEDERAL LAW... II. A. The Tribe Can Only Oppose an Increase Based on Shipper Needs in the Limited Circumstances Where Withholding Consent Would Not Be Arbitrary... B. The Tribe Acted Arbitrarily in Withholding Consent to a Traffic Increase Necessary to Meet Shipper Needs... C. The Tribe Acted Arbitrarily in Withholding Consent Because Doing So Violates the Hazmat Act... D. BNSF s Interpretation Is the Only Interpretation That Squares the Easement s Limited Consent Provision With Federal Law and the Settlement Agreement s Section... ANY EASEMENT PROVISION THAT ALLOWED THE TRIBE TO PREVENT BNSF FROM MEETING ITS OBLIGATIONS AS A COMMON CARRIER WOULD BE PREEMPTED UNDER ICCTA... A. ICCTA Expressly Preempts Regulation of Rail Transportation by Any Authority Other Than the STB... B. ICCTA Preempts Enforcement of Contract Provisions That Interfere With the Rights of Third Parties That Are Protected by ICCTA... C. IRWA Did Not Give the Tribe the Right to Override Federal Common- Carrier Law as Applied to Movements Over the Reservation... TABLE OF CONTENTS - i No. :-cv-00-rsl Seattle, WA -0 Tel:..00

3 Case :-cv-00-rsl Document Filed 0/0/ Page of TABLE OF CONTENTS (continued) Page D. ICCTA Would Preempt Any Enforcement of a Right-of-Way Agreement That Conflicts With ICCTA Rights and Obligations... E. BNSF Is Not Estopped From Raising Preemption... CONCLUSION... 0 TABLE OF CONTENTS - ii No. :-cv-00-rsl Seattle, WA -0 Tel:..00

4 Case :-cv-00-rsl Document Filed 0/0/ Page of TABLE OF AUTHORITIES Page Cases A&W Properties, Inc. v. Kansas City S. Ry. Co., 0 S.W.d (Tex. App. Dallas 0)... Akron Canton & Youngstown R.R. v. Interstate Commerce Comm n, F.d (th Cir. )..., Amer. Trucking Ass ns v. Atchison, T. & S. F. Ry. Co., U.S. ()..., Ass n Am. Railroads v. S. Coast Air Quality, F.d (th Cir. )... Berg v. Hudesman, Wn.d (0)... Blanchard Sec. Co. v. Rahway Valley R.R. Co., No. 0-00, 0 U.S. Dist. LEXIS (D.N.J. Dec., 0)... BNSF Ry. Co. v. Albany & E. R.R. Co., F. Supp. d (D. Or. )... Bort v. Parker, Wn. App. (0)... Boston & Me. Corp., 0 Fed. Carr. Cas. (CCH),, 0 WL (May, 0)... Boyton v. Com. of Va., U.S. (0)... Casimir v. Remington Arms Co., LLC, No. :-CV-0-JM, WL (W.D. Wash. Jan., )... Classification Ratings of Chemicals, Conrail, April 0, I.C.C. d ()... Consolidated Rail Corp. v. Interstate Commerce Comm n, F.d (D.C. Cir. )... TABLE OF AUTHORITIES - i No. :-cv-00-rsl Seattle, WA -0 Tel:..00

5 Case :-cv-00-rsl Document Filed 0/0/ Page of TABLE OF AUTHORITIES Page Cowley v. Northern Pac. Ry. Co., Wn. ()... CSX Transp. v. Williams, 0 F.d (D.C. Cir. 0)...,, Granite State Concrete Co. v. Surface Transp. Bd., F.d (st Cir. 0)... Holland v. Delray Connecting R. Co., F. Supp. d (N.D. Ind. 0)... Louisville & Nashville R.R. v. Motley, U.S. ()... Lybrand v. Union Pac. R. Co., Fed. Carr. Cas. P, WL 0 (E.D. Ark. )... Matter of Midway Airlines, Inc., F.d (th Cir. )... Merrion v Jicarilla Apache Tribe, U.S. 0 ()... Muskogee Nat. Tel. Co. v. Hall, F. (th Cir. 0)... Norman v. Baltimore & O.R. Co., U.S. 0 ()... Northern States Power Co. v. Prairie Island Mdewakanton Sioux Indian Community, F.d (th Cir. )..., O Neill v. United States, 0 F.d (th Cir. )... Oregon Dep t of Fish & Wildlife v. Klamath Indian Tribe, U.S. ()... PCS Phosphate Co. v. Norfolk S. Corp., F.d (th Cir. 0)... TABLE OF AUTHORITIES - ii No. :-cv-00-rsl Seattle, WA -0 Tel:..00

6 Case :-cv-00-rsl Document Filed 0/0/ Page of TABLE OF AUTHORITIES Page Primrose v. Western Union Tel. Co., U.S. ()... Railroad Ventures, Inc. v. Surface Transp. Bd., F.d (th Cir. 0)...,, Riffin v. Surface Transp. Board, F.d 0 (D.C. Cir. )... Roth v. Norfalco LLC, F.d (d Cir. )... Rushing v. Kansas City S. Ry. Co., F. Supp. d (S.D. Miss. 0)... Southern Pacific Transp. Co. v. Public Service Comm n of Nevada, 0 F.d (th Cir. 0)..., Star Lake R.R. v. Navajo Area Director, Bureau of Indian Affairs, Int. Dec., IBIA (DOI )... Star Lake v. Lujan, F. Supp. (D.D.C. 0)... State v. Farmers Union Grain Co., 0 Wn. App. ()... State v. Illinois Central R.R. Co., So.d 0 (La. App. 0)... Tanner Elec. Coop. v. Puget Sound Power & Light Co., Wn.d (0)... Thomas Tubbs v. Surface Transp. Bd., F.d (th Cir. )... Thompson v. Tex. Mexican Ry., U.S. ()... Trainload Rates on Radioactive Mat l, E.R.R., I.C.C. (0)... TABLE OF AUTHORITIES - iii No. :-cv-00-rsl Seattle, WA -0 Tel:..00

7 Case :-cv-00-rsl Document Filed 0/0/ Page of TABLE OF AUTHORITIES Page Tyrrell v. Norfolk S. Ry. Co., F.d (th Cir. 0)... U.S., DOE v. Baltimore & Ohio R.R. Co., et al., I.C.C. ()..., U.S. v. Seckinger, U.S. (0)... Union Pacific R.R. Co. v. City of Las Vegas, F. Supp. 0 (D. Nev. )... United States Energy Research & Dev. Admin. v. Akron Canton & Youngstown R.R., I.C.C. ()... United States v. Baltimore & Ohio R. Co., U.S. ()... passim United States v. St. Mary s Ry. W., LLC, F. Supp. d (S.D. Ga. )... Wapato Heritage, L.L.C. v. U.S., F.d (th Cir. )... Washington v. Dep t of Transportation, F.d (th Cir. )... Waubay Lake Farmers, Ass n v. BNSF Ry. Co., U.S. Dist. LEXIS 0 (D.S.D. Aug., )... Williamson v. Hampton Mgmt. Co., F. Supp. (N.D. Ill. )... STATUTES U.S.C.... U.S.C.... U.S.C....,,, U.S.C. ()(A)..., TABLE OF AUTHORITIES - iv No. :-cv-00-rsl Seattle, WA -0 Tel:..00

8 Case :-cv-00-rsl Document Filed 0/0/ Page of TABLE OF AUTHORITIES Page U.S.C. 0(b)... passim U.S.C U.S.C. (a)..., Section of the Bankruptcy Code... Clean Air Act... Hazardous Materials Transportation Uniform Safety Act of 0 (codified at U.S.C. et seq.)... OTHER AUTHORITIES Boston & Maine Corp. & Springfield Terminal R.R. Co. Petition for Declaratory Order, S.T.B. Docket No. FD, WL 0 (STB served July, )... CSX Transp., Inc. Petition for Declaratory Order, FD No., 0 WL 0 (STB served Mar., 0)... Grafton & Upton R.R. Co. Petition for Declaratory Order, FD, STB LEXIS (STB served Jan., )... Hanson Natural Resources Co. Non-Common Carrier Status Petition for a Declaratory Order, FD No., MCC LEXIS (ICC served Dec., )... Mark Lange Petition for Declaratory Order, FD 0, 0 STB LEXIS (STB served Jan., 0)... Pinelawn Cemetery Petition for Declaratory Order, S.T.B. Docket No. FD, WL (STB served Apr., )... Railroad Ventures, Inc. Abandonment Exemption Between Youngstown, OH and Darlington, PA, TABLE OF AUTHORITIES - v No. :-cv-00-rsl Seattle, WA -0 Tel:..00

9 Case :-cv-00-rsl Document Filed 0/0/ Page of TABLE OF AUTHORITIES Page S.T.B., 00 WL 0 (STB 00)... Santa Cruz Regional Transp. Comm. Petition for Declaratory Order, FD, WL (S.T.B. Dec., )... Sherwin Alumina Co., LLC v. Union Pacific RR Co., S.T.B. Docket No. NOR, WL 0 (STB served Sept., )... Township of Woodbridge v. Consolidated Rail Corp., S.T.B., 00 WL (STB served Dec., 00)... Township of Woodbridge v. Consolidated Rail Corp., S.T.B., 0 WL 0 (STB served Mar., 0)... Union Pacific R.R. Co. Petition for Declaratory Order, S.T.B. Finance Docket No., 0 WL 0 (June, 0)... U.S. EPA Pet. for Declaratory Order, F.D. No. 0 (STB served Dec. 0, )... Wichita Terminal Ass n, et al. Petition for Declaratory Order, S.T.B. Finance Docket No., WL (S.T.B. June, )...,, Wichita Terminal Association, BNSF Railway Co. & Union Pacific Railroad Co. Petition for Declaratory Order, S.T.B. Docket No. FD (STB served June, )... Wisconsin Dep t of Trans. Petition for Declaratory Order Rail Lines in Almena, Cameron, and Rice Lake, Barron County, Wis., FD, WL 0 (S.T.B. Nov., 0)... C.F.R..(a)... C.F.R.. ()... TABLE OF AUTHORITIES - vi No. :-cv-00-rsl Seattle, WA -0 Tel:..00

10 Case :-cv-00-rsl Document Filed 0/0/ Page of TABLE OF AUTHORITIES Page C.F.R.....,, 0 Fed. Reg. ()... FR 0... Fed. R. Civ. P.... FRE 0(c)... FRE 0... TABLE OF AUTHORITIES - vii No. :-cv-00-rsl Seattle, WA -0 Tel:..00

11 Case :-cv-00-rsl Document Filed 0/0/ Page of Defendant BNSF Railway Company ( BNSF ) opposes plaintiff Swinomish Indian Tribal Community s (the Plaintiff or Tribe ) motion for summary judgment and crossmoves for partial summary judgment () to establish that BNSF has not breached the Right-of- Way Easement ( Easement ) or trespassed on the Tribe s property by increasing rail traffic to meet the needs of refinery shippers, and () to dismiss the Tribe s request for injunctive relief because it would contravene U.S. Supreme Court precedent and is preempted by federal law. PRELIMINARY STATEMENT An essential piece of the interstate rail network has run along the northern edge of the Swinomish Reservation for over 0 years. In, after years of litigation, the predecessor of BNSF, the United States, and the Tribe entered into an Easement that paid the Tribe rent for the railroad s use of the right-of-way so that the railroad could continue to meet its shippers needs, as required by federal law. The parties further agreed that, unless required by shipper needs, rail traffic would be limited to one train of cars or less each way per day. Shipper needs have grown, and so have the shipments by rail. However, the Tribe now seeks to prevent BNSF from meeting shipper needs. Through its Complaint and summary judgment motion, the Tribe seeks to enjoin BNSF from shipping more than cars a day and from shipping any Bakken crude oil across the Easement. To support its motion, the Tribe argues that the Easement gives it the unfettered right to block any rail traffic increase based on the Tribe s safety concerns, notwithstanding the undisputed fact that BNSF s federal commoncarrier obligation requires it to meet its shippers rail transportation needs. The Tribe further asks the Court to find that the Interstate Commerce Commission Termination Act ( ICCTA ) does not preempt the Tribe s ability to seek an injunction to enforce its perceived right. The Tribe s Motion must be denied, and BNSF s Cross-Motion granted, for the following reasons: Throughout this motion, BNSF and its predecessor companies are collectively referred to as BNSF unless otherwise distinguished by context. SUMMARY JUDGMENT - No. :-cv-00-rsl Seattle, WA -0 Tel:..00

12 Case :-cv-00-rsl Document Filed 0/0/ Page of First, the Easement does not give and could not have given the Tribe authority to supersede BNSF s federal law obligations toward its shippers. Nearly 0 years ago, the U.S. Supreme Court ruled that contracts giving a railroad access to land to provide rail transportation (like the Easement here) cannot be used to prevent the railroad from complying with its common-carrier obligations. United States v. Baltimore & Ohio R. Co., U.S. (). The Easement prohibits the Tribe from arbitrarily withholding its consent to rail traffic increases. Under Baltimore, the Tribe s withholding of consent here is arbitrary as a matter of federal law. Furthermore, the Tribe is withholding its consent because [c]rude oil is a notoriously dangerous cargo (Complt..), but federal law explicitly prohibits Indian Tribes from discriminating against the necessary shipment of hazardous materials. See U.S.C. (b). Taking action that violates federal law in multiple ways is the essence of arbitrary. Second, even if the Tribe s interpretation of the Easement were applied which it should not be ICCTA s broad preemption provision would still defeat the Tribe s claims. Numerous cases have made it clear that contract remedies that interfere with interests ICCTA protects are preempted and unenforceable. The Tribe argues that the Indian Right of Way Act ( IRWA ) somehow allows Indian tribes to trump federal laws such as ICCTA, but the law is clear that any rights Indian tribes have under IRWA are subject to the requirements of other federal laws. In any event, ICCTA s plain language states that it preempts remedies under other federal laws when those remedies conflict with the rights and obligations established under ICCTA. For these reasons, the Tribe s request for partial summary judgment must be rejected. For the same reasons, the Court should enter partial summary judgment in BNSF s favor. See also Declaration of Andrew R. Escobar in Support of Defendant BNSF Railway Company s Cross-Motion for Partial Summary Judgment and Opposition to Plaintiff s Motion for Summary Judgment ( Escobar Decl. ) Ex. R (Cladoosby Dep.) at : :. The Tribe s summary judgment motion was originally filed on March,. See Dkt. No.. On July,, the Tribe filed an amended summary judgment motion. See Dkt. No.. All references in this Opposition SUMMARY JUDGMENT - No. :-cv-00-rsl Seattle, WA -0 Tel:..00

13 Case :-cv-00-rsl Document Filed 0/0/ Page of BACKGROUND I. The Railroad s Common-Carrier Duties This case concerns the Tribe s efforts to limit the number of cars and types of cargo transported by rail across the Easement issues that lie at the heart of federal common-carrier obligations. As an interstate freight railroad, BNSF has a statutory duty to provide transportation or service upon reasonable request. U.S.C. (a). This duty runs not to shippers alone, but to the public. Akron Canton & Youngstown R.R. v. Interstate Commerce Comm n, F.d, (th Cir. ). It is a bedrock principle that railroads exercise a public employment and are therefore bound to serve all customers alike, without discrimination. Primrose v. Western Union Tel. Co., U.S., (). Their obligation as common carriers is comprehensive and exceptions are not to be implied. Amer. Trucking Ass ns v. Atchison, T. & S. F. Ry. Co., U.S., 0 (). The federal common-carrier obligation includes the duty to accept shipments of hazardous materials. See Riffin v. Surface Transp. Bd., F.d 0, (D.C. Cir. ). A railroad cannot renege on its common carrier commitment on grounds that the materials are too hazardous if, in fact, the shipments meet federal safety and security regulations. U.S., DOE v. Baltimore & Ohio R.R. Co., I.C.C., (). This duty is imposed in and Cross-Motion to the Tribe s summary judgment motion are to the July, amended motion. As set forth in the proposed order, the Court should enter judgment for BNSF on Counts II (Injunctive Relief) and III (Trespass Damages) of the Complaint in their entirety. The Court should also enter judgment for BNSF at this time on Counts I (Declaratory Relief) and IV (Breach of Easement Agreement), except as they relate to the claims that BNSF failed to comply with the Easement s notice provisions (e.g., Count I, paragraphs.() and.()). The Tribe s allegations relating to notice are not the subject of BNSF s or the Tribe s summary judgment motions. Consideration of the Tribe s entitlement to additional rent for traffic increases has been deferred until a later phase of the case. Dkt. No. at :. See also Union Pacific R.R. Co. Petition for Declaratory Order, STB Finance Docket No., 0 WL 0, at * (June, 0) (railroad has an obligation to quote common carrier rates and provide service for the transportation of chlorine ); Classification Ratings of Chemicals, Conrail, April 0, I.C.C. d () (00 classes of dangerous chemicals); Trainload Rates on Radioactive Mat l, E.R.R., I.C.C. (0) (hazardous radioactive materials), aff d sub nom. Consolidated Rail Corp. v. Interstate Commerce Comm n, F.d (D.C. Cir. ); United States Energy Research & Dev. Admin. v. Akron Canton & Youngstown R.R., I.C.C. () (high level nuclear waste), aff d sub nom. Akron Canton & Youngstown R.R. v. Interstate Commerce Comm n, F.d (th Cir. ). SUMMARY JUDGMENT - No. :-cv-00-rsl Seattle, WA -0 Tel:..00

14 Case :-cv-00-rsl Document Filed 0/0/ Page of significant part because hazardous materials which fuel cars and heat homes have been deemed essential to the economy of the United States and the well being of its people. The Ninth Circuit and other courts have rejected attempts by state and local officials to push the problem somewhere else by prohibiting the transport of hazardous materials through their jurisdiction. II. BNSF s Right-of-Way on the Swinomish Reservation BNSF an interstate freight railroad owns and operates a mainline track that runs along the northern edge of the Swinomish Reservation. BNSF s predecessor built the tracks in. The tracks then continue north towards March Point, where two oil refineries were built in the 0s. This segment of track historically has been part of BNSF s northern corridor, which traverses eight states (from Illinois to Washington) and reaches three Canadian provinces. In the 0s and 0s, the parties engaged in litigation regarding BNSF s right to run trains across the northern edge of the Tribe s Reservation. This litigation focused on the boundaries of the Tribe s Reservation and BNSF s good faith claim that its tracks did not cross land within the Reservation. See Escobar Decl. Ex. D (SITC000000). Indeed, according to documents filed in the prior litigation, the Tribe never asserted an ownership interest in the lands at issue for the hundred-plus years preceding the litigation. Escobar Decl. Ex. A at SITC and Ex. D at SITC Despite pending for over years, the litigation did not produce a definitive answer to whether the tracks in fact cross the Reservation. The record belies the Tribe s assertion in the present litigation that BNSF ran trains across its Reservation for over a century without justification: several parties involved in the prior litigation, including the State of Washington, believed that the Tribe did not have a Hazardous Materials: Transportation of Explosive by Rail, Fed. Reg.,0,, (June, 0). Southern Pacific Transp. Co. v. Public Service Comm n of Nevada, 0 F.d, (th Cir. 0); CSX Transp. v. Williams, 0 F.d (D.C. Cir. 0); Union Pacific R.R. Co. v. City of Las Vegas, F. Supp. 0 (D. Nev. ). A contested issue in the prior litigation was whether the track at issue was actually on Reservation land. SUMMARY JUDGMENT - No. :-cv-00-rsl Seattle, WA -0 Tel:..00

15 Case :-cv-00-rsl Document Filed 0/0/ Page of lawful right to lands at the northern edge of the Reservation, and this legal question was never answered with certainty. Unable to resolve their dispute through protracted litigation, the Tribe, the United States, and BNSF entered into the Settlement Agreement and Easement in to resolve the Tribe s claims that BNSF s tracks constituted a trespass on tribal lands. Under the Easement, BNSF has a right to maintain and operate the existing railroad line for a term of 0 years, with two -year renewal options. In exchange, BNSF paid for prior usage and agreed to pay an annual rent according to a formula set forth in the Easement. In the negotiations leading to the Easement, the Tribe originally proposed a limitation of cars per day. Escobar Decl. Ex. F at SITC BNSF flatly rejected this proposal: We cannot agree to a single train limitation, or a limitation on the number of cars. Brain Decl. Ex. at SITC In its responsive letter, BNSF made clear that it has a common-carrier obligation to carry hazardous materials. You are aware the basic hazardous materials handled are propane tank cars, both loaded and empty and, [a]s a common carrier railroad, Burlington Northern is obligated to handle such cars properly classified, package[d] and loaded to all destinations. Id. Therefore, as BNSF explained, depending upon business at the refineries, we must have flexibility with regard to the number of cars.... Id. (emphasis added). BNSF offered a compromise to increase the annual rental amounts owed to the Tribe for any greater traffic over the Reservation. The parties ultimately finalized the Easement, and agreed to the following provision: Burlington Northern agrees that, unless otherwise agreed in writing, only one eastern bound train, and one western bound train, (of twenty-five 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 agreed that if the number of crossings or number of cars is increased, the annual rental will be subject to adjustment in accordance with paragraph (b)iii of this Right-of-Way Easement and paragraph (b)iii of the Settlement Agreement. See Declaration of Christopher I. Brain in Support of Motion for Summary Judgment ( Brain Decl. ) Ex.. SUMMARY JUDGMENT - No. :-cv-00-rsl Seattle, WA -0 Tel:..00

16 Case :-cv-00-rsl Document Filed 0/0/ Page of Brain Decl. Ex. at SITC The Easement and related Settlement Agreement expressly recognize BNSF s duties under federal law. For example, the Settlement Agreement states: Nothing in this Settlement Agreement or the associated Right-of-Way Easement shall supersede any federal law or regulation as they now exist or as they may be amended or changed from time to time. Brain Decl. Ex. at SITC It further states: BN shall comply with all applicable federal laws and regulations pertaining to BN s activities within the Swinomish Reservation. Id. at SITC Recognizing that BNSF s trains carry hazardous materials, the Easement provides that BNSF will 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. Brain Decl. Ex. at SITC The Tribe approved the Easement and Settlement Agreement by resolution on August,. Escobar Decl. Ex. G (SITC00000.) In November and December 0, the U.S. Interior Department approved the Settlement Agreement, and the Easement was executed in July. Brain Decl. Ex. at SITC00000,. III. Statutory and Regulatory Changes Following the Easement In, Congress enacted ICCTA and ceded to the Surface Transportation Board ( STB ) oversight for all matters relating to interstate rail commerce. See U.S.C. 0(b). The STB s jurisdiction over rail transportation is exclusive (id.) and applies to rail facilities or property regardless of ownership or agreement concerning use. U.S.C. ()(A). Congress included an express preemption provision that is unique among federal preemption statutes for its breadth, which covers federal as well as state laws and remedies: the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law. U.S.C. 0(b) (emphasis added). SUMMARY JUDGMENT - No. :-cv-00-rsl Seattle, WA -0 Tel:..00

17 Case :-cv-00-rsl Document Filed 0/0/ Page of In addition, Congress has mandated comprehensive and uniform regulation of the transportation of hazardous materials. To accomplish this, Congress enacted the Hazardous Materials Transportation Uniform Safety Act of 0 (codified at U.S.C. et seq.). Based on Congress s concerns about fragmented regulation of hazardous materials transportation, both the statute and its implementing federal regulations specifically preempt any state, local or tribal regulation of hazardous materials transportation. The Hazmat Act expressly preempts any requirement of a State... or Indian Tribe that differs from the Act s regulations over the transportation of hazardous materials. U.S.C. (emphasis added). The U.S. Department of Transportation s implementing regulation provides: A law, order, or other directive of... an Indian tribe that designates, limits, or prohibits the use of a rail line... for the transportation of hazardous materials... is preempted. C.F.R.. (emphasis added). IV. The Tribe Is Withholding Its Consent to the Rail Traffic Increase Because of Its Safety Concerns Regarding Bakken Crude Oil By, BNSF needed to transport a greater number of cars across the Swinomish Reservation than initially identified in the Easement. The traffic increase corresponded to an expansion in shipper needs at March Point. BNSF s two March Point shippers recently described the reasons for seeking a traffic increase in a request to the STB for a declaratory order regarding the Tribe s injunction request in this case. As Tesoro explained to the STB, Bakken crude oil, which can be transported to March Point only by rail, has become an important source of crude oil for refinery operations due to the fact that alternative crude oil sources available by pipeline and ocean vessel have physical and commercial limitations. Shell, which does not currently move Bakken crude by rail but is in the process of expanding its rail facilities at the refinery to do so, explained that it could be competitively disadvantaged The two shippers are Tesoro Refining & Marketing Company, LLC ( Tesoro ) and Equilon Enterprises LLC d/b/a Shell Oil Products US ( Shell ). See Escobar Decl. Ex. P (Verified Statement of Keith M. Casey at, ). SUMMARY JUDGMENT - No. :-cv-00-rsl Seattle, WA -0 Tel:..00

18 Case :-cv-00-rsl Document Filed 0/0/ Page of if it is unable to obtain future supplies of Bakken crude by rail. serves these shippers refineries on March Point. BNSF is the only railroad that After the Tribe notified BNSF in October of its concerns regarding the upcoming increase in rail traffic, BNSF supplied the Tribe with information regarding the traffic on the line. Escobar Decl. Exs. I at, J, and K. The parties then commenced discussions to adjust the Easement s rental fee. Escobar Decl. Exs. I, J, L, and M. By November, the Tribe had decided that it was not willing to permit a car increase based on the Tribe s concerns about the shipment of Bakken crude oil across the Easement. Escobar Decl. Ex. L. After several more months of correspondence between the parties, in April, the Tribe abruptly cancelled a meeting with BNSF to further discuss this issue, and filed its complaint with this Court. Dkt. No. ; see also Escobar Decl. Exs. N and O. V. The Tribe s Summary Judgment Motion Two facts underpin the Tribe s summary judgment motion. Both facts are disputed, thereby requiring the Court to deny the Tribe s motion. The factual disputes raised by the Tribe s motion, however, do not need to be resolved in order to grant BNSF s cross-motion for summary judgment. First, according to the Tribe, BNSF never advised the Tribe about its common-carrier obligations. See MSJ at :, :, :, : ; Olson Dec.. This fact is disputed. BNSF specifically advised the Tribe of its common-carrier obligations in the settlement negotiations, and this obligation is reflected in the terms of the Settlement Agreement itself. Brain Decl. Ex. at SITC00000, Ex. at SITC Moreover, BNSF s status as a railroad subject to common-carrier obligations came up repeatedly during the prior litigation, including when the ICC attempted to intervene in that lawsuit on the basis that the ICC had exclusive jurisdiction to permit a common-carrier See Escobar Decl. Ex. Q (Verified Statement of Michael A. Carr at ). See also Escobar Decl. Ex. R (Cladoosby Dep.) at :, : ; Escobar Decl. Ex. T (Edwards Dep.) at : :. SUMMARY JUDGMENT - No. :-cv-00-rsl Seattle, WA -0 Tel:..00

19 Case :-cv-00-rsl Document Filed 0/0/ Page of railroad, like BNSF, to cease operations over a line or discontinue its service. Escobar Decl. Ex. B at ; see also, e.g., Escobar Decl. Ex. C at (proposed Pretrial Order signed by the Tribe admitting that BNSF is an interstate common carrier railroad ); Escobar Decl. Ex. E at (a later proposed Pretrial Order signed by the Tribe admitting the same). Second, the Tribe asserts that it would have never consented to a right-of-way if it had known that BNSF relied on its common-carrier obligations to exceed, if requested by shippers, the Easement s qualified car limitation. See MSJ at :, : ; Olson Decl. ; Wilbur Decl.. This fact is also disputed. BNSF advised the Tribe of its common-carrier obligations, the parties agreed to language reflecting BNSF s obligations, and the Tribe signed the Easement. Moreover, the Tribe s assertion that it would have never consented is unsupported by admissible evidence. See Fed. R. Civ. P. (c)(). The Tribe relies on paragraph seven of the Olson Declaration but, as BNSF explained in its pending motion to compel (Dkt. No. ), paragraph seven implicates the attorney-client privilege. Thus, the Tribe must either waive the privilege (which it refuses to do) or strike that sentence. The Tribe also relies on the Declaration of Jim Wilbur, but his statement lacks foundation and is based on speculation regarding the motives behind other people s actions. See Washington v. Dep t of Transportation, F.d, 00 (th Cir. ) ( Under the Federal Rules of Evidence, speculative opinion testimony by lay witnesses i.e., testimony not To support this point, the Olson and Wilbur declarations rely on impermissible hearsay and cannot be considered. Both declarations necessarily rely on out-of-court statements by others to support their representation that the Tribe would not have consented to the Easement without train/car limitations. Neither Mr. Olson nor Mr. Wilbur could have gained this alleged information in a vacuum both had to have relied on the truth of third-party statements regarding what the Tribe would or would not have done. The Tribe is now using the truth of those out-of-court statements to support its legal arguments. Rule does not permit use of such hearsay. See Fed. R. Civ. P. (c)() ( An affidavit or declaration used to support or oppose a motion must be admissible in evidence ); FRE 0(c); FRE 0; see also Casimir v. Remington Arms Co., LLC, No. :-CV-0-JM, WL, at * (W.D. Wash. Jan., ) ( The declaration of Plaintiff is not admissible because it is not based upon personal knowledge and contains hearsay within hearsay. ). For these reasons, BNSF respectfully requests the Court strike the final sentence in paragraph seven of Mr. Olson s declaration and the final two sentences of paragraph three and all of paragraph four of Mr. Wilbur s declaration. BNSF reserves the right to supplement this cross-motion and opposition should the Tribe be ordered to produce additional documents in response to BNSF s pending motion to compel. Dkt. No.. SUMMARY JUDGMENT - No. :-cv-00-rsl Seattle, WA -0 Tel:..00

20 Case :-cv-00-rsl Document Filed 0/0/ Page of based upon the witness s perception is generally considered inadmissible. ). In fact, Mr. Wilbur admits that he was not even at the final tribal meeting at which the Easement was approved. See Wilbur Decl. ; see also Escobar Decl. Ex. E at. Regardless, BNSF s cross-motion on the preemption defense can be granted even if the Court agrees that the Tribe s two proffered facts are disputed: As to the first fact regarding BNSF informing the Tribe of its common-carrier obligations BNSF s ICCTA obligations are the product of federal law, not the product of discussions between BNSF and the Tribe. Accordingly, whether the Tribe s claims are preempted is a legal question regarding federal law that does not turn on whatever representations the parties made at the time the Easement was executed. The Tribe claims that the second fact relating to the Tribe s consent justifies an override under IRWA of BNSF s common-carrier obligations. But, as explained below, easements under IRWA are subject to federal law, including ICCTA, and ICCTA s preemption provision supersedes any conflicting remedies under other federal laws, including IRWA. ARGUMENT I. BNSF s Use Is Consistent With the Easement, and the Tribe s Withholding of Its Consent Is Arbitrary Because It Would Violate Federal Law The Easement did not give the Tribe a right to prevent BNSF from meeting its shippers needs. The parties recognized BNSF s need to meet its federal law obligations to its shippers and expressly included an exception to the Easement s traffic limitation when a traffic increase is required to meet shipper needs. Moreover, to the extent the Tribe has discretion to withhold its consent to traffic increases, federal law would make it arbitrary and unlawful to use that discretion to violate rights and obligations that are created by federal law. The Tribe either knew or should have known that any rights it obtained under the Easement were defined by and circumscribed by federal law requirements. SUMMARY JUDGMENT - No. :-cv-00-rsl Seattle, WA -0 Tel:..00

21 Case :-cv-00-rsl Document Filed 0/0/ Page of A. The Tribe Can Oppose an Increase Based on Shipper Needs Only in the Limited Circumstances Where Withholding Consent Would Not Be Arbitrary The fulcrum of the Tribe s Complaint repeated in each count is that BNSF breached the Easement by exceeding the explicit limitations on train traffic contained therein. Complt..,,.,.,. The Tribe is incorrect. BNSF s use of the right-of-way is consistent with the Easement s terms. Section (c) of the Easement reads, in pertinent part: Burlington Northern agrees that, unless otherwise agreed in writing, only one eastern bound train, and one western bound train (of twenty-five 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 agreed that if the number of crossings or number of cars is increased, the annual rental will be subject to adjustment in accordance with paragraph (b)iii of this Right-of-Way Easement and paragraph (b)iii of the Settlement Agreement. Brain Decl. Ex. at SITC Under this provision, the parties agreed that the -car limitation would be subject to shipper needs and that the Tribe could not arbitrarily withhold its consent when an increase is required by shipper needs. As BNSF informed the Tribe during the negotiations, it could not agree to an easement that restricted train traffic across the right-ofway due to its federal common-carrier obligations. See Brain Decl. Ex. at SITC The parties accordingly agreed that the number of trains and cars could be increased, but only if required by shipper needs. Insofar as the Tribe received a right to oppose an increase in traffic, this right was limited to only those circumstances in which its opposing the increase is not arbitrary. Thus, while the Tribe may have a contractual right to oppose a traffic increase, it can exercise that opposition to an increase based on shipper needs only when that opposition would not cause BNSF to violate its federal law obligations e.g., when the shipper s request does not comply with federal safety and security regulations. See, e.g., Baltimore & Ohio R.R. Co, The parties also agreed that the Tribe would receive additional rent for any traffic increase required to meet shipper needs. Brain Decl. Ex. at SITC SUMMARY JUDGMENT - No. :-cv-00-rsl Seattle, WA -0 Tel:..00

22 Case :-cv-00-rsl Document Filed 0/0/ Page of I.C.C. at (holding that a railroad cannot renege on its common carrier commitment on grounds that the materials are too hazardous if, in fact, the shipments meet federal safety and security regulations); see also, e.g., Granite State Concrete Co. v. Surface Transp. Bd., F.d, (st Cir. 0) (affirming STB decision holding restrictions on common-carrier service were reasonable due to safety concerns); cf. Sherwin Alumina Co., LLC v. Union Pacific RR Co., STB Docket No. NOR, WL 0, at * (STB served Sept., ) (no common-carrier duty due to labor dispute). This independent right of the Tribe under the Easement to refuse traffic increases that do not comply with applicable federal safety and security regulations is consistent with the negotiations and the terms of the Settlement Agreement, which also obligated BNSF to comply with such federal and safety regulations. Brain Decl. Ex. at SITC This scenario when a shipper makes a request to move goods that are not in compliance with applicable safety and security regulations does not apply here. Instead, as explained below, the Tribe is acting arbitrarily by opposing a shipper-needs-based increase in rail traffic because, by doing so, it would force BNSF to violate its duties under federal law. B. The Tribe Acted Arbitrarily in Withholding Consent to a Traffic Increase Necessary to Meet Shipper Needs Under federal law, it would be arbitrary under the Easement for the Tribe to withhold its consent under the present circumstance because doing so would prevent BNSF from meeting its common-carrier obligations. As noted previously, federal law imposes a statutory duty on BNSF to provide transportation or service upon reasonable request. U.S.C. (a). This duty dates back more than a century, originally adopted at common law and later As a general proposition, a party s refusal to consent under a contractual-consent provision is unreasonable or arbitrary or otherwise voided if the withholding of consent would violate the law. This common-sense principle has arisen, for example, in the leasing context where a landlord refused to consent to a lessee s request to sublease the premises because the proposed subtenant was a minority. See, e.g., Williamson v. Hampton Mgmt. Co., F. Supp., (N.D. Ill. ) (landlord s withholding of consent unlawful where it refused to consent to sublease to two black women on the basis of race). SUMMARY JUDGMENT - No. :-cv-00-rsl Seattle, WA -0 Tel:..00

23 Case :-cv-00-rsl Document Filed 0/0/ Page of incorporated in the Interstate Commerce Act. See Amer. Trucking Ass ns, U.S. at 0. The common-carrier duty is integral for interstate commerce, and the Supreme Court has repeatedly held that private contracts may not be used to limit or avoid a railroad s statutory common-carrier obligations. In Louisville & Nashville R.R. v. Motley, U.S. (), the Supreme Court held that a settlement agreement with a railroad was unenforceable because its enforcement would require the violation of a federal statute applicable to railroads. As the Supreme Court noted, the authorities are numerous and are all one way. Id. at ; see also Norman v. Baltimore & O.R. Co., U.S. 0, 0 0 () ( Parties cannot remove their transactions from the reach of dominant constitutional power by making contracts about them. ); Cowley v. Northern Pac. Ry. Co., Wn., () (a case similar to Motley, where the court held that the railroad cannot be liable for damages for breach of contract when the law made further performance of the contract on its part impossible). In, the Supreme Court applied this long-established legal principle in a case that has striking similarities to the present matter. In United States v. Baltimore & O.R. Company, U.S. (), the Supreme Court ruled that the owner of land used by a railroad to provide rail service cannot force the railroad to violate its federal law obligations as a common carrier. The Supreme Court defined the issue in the case as follows: Can the noncarrier owner of a segment of railroad track who contracts for an interstate railroad s use of the segment as part of its line reserve a right to regulate the type of commodities that the railroad may transport over the segment, or would such a reservation be invalid under the Interstate Commerce Act? Id. at. The Supreme Court s answer was resoundingly clear: ownership of Track [the track segment at issue] does not vest [the landowner] with power to compel the railroads to operate in a way which violates the Interstate Commerce Act. Id. at. As the Court explained, [p]roperty can be used even by its owner only in accordance with the law, and conditions its owner places on its use by another are subject to like limitations. Id. at. SUMMARY JUDGMENT - No. :-cv-00-rsl Seattle, WA -0 Tel:..00

24 Case :-cv-00-rsl Document Filed 0/0/ Page of Because the railroad s statutory obligations to the public are paramount, those obligations prevail over an agreement with the property owner. The courts and the STB have repeatedly acknowledged the validity and importance of the Baltimore rule. In Boyton v. Com. of Va., U.S., 0 (0), the Supreme Court reiterated that a railroad cannot escape its statutory duty to treat its shippers alike either by use of facilities it does not own or by contractual arrangement with the owner of those facilities. The Sixth Circuit has held that the STB properly invalidated a settlement agreement on public policy grounds because its enforcement would unreasonably interfere with the railroad s future fulfillment of common-carrier obligations. See Railroad Ventures, Inc. v. Surface Transp. Bd., F.d, 0 (th Cir. 0). And the STB has reaffirmed that voluntary agreements cannot be used to unreasonably interfere with railroad operations. Under Baltimore and its related cases, a landowner like the Tribe cannot use its contract with a railroad to prevent the railroad from complying with obligations to the public that are guaranteed by federal law. Thus, even if the Tribe had some discretion under the Easement to withhold consent to traffic increases required by shipper needs, it would be arbitrary as a matter of federal law for the Tribe to use that discretion to force BNSF to violate its common-carrier obligations. C. The Tribe Acted Arbitrarily in Withholding Consent Because Doing So Violates the Hazmat Act It would also be arbitrary as a matter of federal law for the Tribe to withhold consent in order to block Bakken crude oil from being shipped over the right-of-way because doing so is a regulation on the transportation of hazardous materials that violates federal law. Here, the See Railroad Ventures, Inc. Abandonment Exemption Between Youngstown, OH and Darlington, PA, S.T.B., 00 WL 0, at * (STB 00) ( While the Board encourages privately negotiated agreements, any contractual restrictions that unreasonably interfere with common carrier operations are deemed void as contrary to public policy. ); Wichita Terminal Ass n, et al. Petition for Declaratory Order, STB Finance Docket No., WL, at * (S.T.B. June, ) (voluntary agreements cannot be used to unreasonably interfere with the railroad s operations). SUMMARY JUDGMENT - No. :-cv-00-rsl Seattle, WA -0 Tel:..00

25 Case :-cv-00-rsl Document Filed 0/0/ Page of Tribe is withholding its consent to the rail traffic increase because BNSF is shipping Bakken Crude by rail over the right-of-way, and seeks a permanent injunction to block BNSF from doing so. Complt..., :. The Tribe s Chairman, Brian Cladoosby, emphasized in his recent deposition that the Tribe s refusal to consent is based on three reasons: () safety; () safety; and () safety. Escobar Decl. Ex. R (Cladoosby Dep.) at : :. Federal law, however, explicitly bars the Tribe from discriminating against the shipment of hazardous materials. BNSF s handling of hazardous commodities is governed by a comprehensive scheme of federal regulations. See Southern Pacific Transp. Co. v. Public Service Comm n of Nevada, 0 F.d, (th Cir. 0) ( [t]he extent of federal regulation in the area of transportation, loading, unloading and storage of hazardous materials is comprehensive ) (quotations, citation, and emphasis omitted). As explained above, BNSF has a statutory duty to accept shipments of hazardous materials when they meet federal regulations. See supra, Background Section I. The authorities enforcing this requirement are legion. See, e.g., supra at note. This duty s ironclad nature is evidenced by the D.C. Circuit s decision in CSX Transp. v. Williams, in which the court refused to create an exception to railroads duty to carry hazardous materials notwithstanding concern by the D.C. Government about the risk of a terrorist attack near the U.S. Capitol. 0 F.d (D.C. Cir. 0). Included in this comprehensive regulatory scheme are specific federal prohibitions on tribal interference with hazardous material shipments. In 0, Congress added an express preemption clause to the federal statutes governing hazardous materials transportation to preempt Indian Tribes from regulating the transport of hazardous materials. The Hazmat Act expressly preempts any requirement of a State... or Indian Tribe that differs from the Act s regulations over the transportation of hazardous materials. U.S.C. (a) (emphasis added). The U.S. Department of Transportation s implementing regulation provides: A law, order, or other directive of... an Indian tribe that designates, limits, or prohibits the use of a SUMMARY JUDGMENT - No. :-cv-00-rsl Seattle, WA -0 Tel:..00

26 Case :-cv-00-rsl Document Filed 0/0/ Page of rail line... for the transportation of hazardous materials... is preempted. C.F.R.. (emphasis added). The Eighth Circuit has found that an Indian tribe could not interfere with the use of a railroad line through the reservation despite concerns about the hazardous nature of the cargo being shipped, holding that Indian tribes are expressly subjected to the Act s preemption rules. See Northern States Power Co. v. Prairie Island Mdewakanton Sioux Indian Community, F.d, (th Cir. ). Additionally, courts have found that the Hazmat Act preempts state common law claims. See, e.g., Roth v. Norfalco LLC, F.d, (d Cir. ) ( there is nothing in the HMTA to indicate that Congress did not wish to preempt state common law requirements. We are thus left with a robust preemption provision that leaves little, if any, room for non-federal regulation. ). Because federal hazmat legislation forbids Indian tribes from limiting or prohibiting the shipments of hazardous materials, the Swinomish Tribe is acting arbitrarily in fact unlawfully in seeking to use the Easement to restrict or prohibit the shipment of Bakken crude along the Reservation s northern edge. D. BNSF s Interpretation Is the Only Interpretation That Squares the Easement s Limited Consent Provision With Federal Law and the Settlement Agreement s Section BNSF s reading of the Easement comports with the basic rule of contract interpretation that [c]ontractual language also must be interpreted in light of existing statutes and rules of law. Tanner Elec. Coop. v. Puget Sound Power & Light Co., Wn.d, (0) (citing Arthur L. Corbin, Contracts, at (0)); Bort v. Parker, Wn. App., (0); State v. Farmers Union Grain Co., 0 Wn. App., () ( Parties are presumed to contract with reference to existing statutes. ). Given BNSF s obligation under federal law to provide service to its shippers on reasonable request provided the shipments meet See also 0 Fed. Reg. () ( In regard to rail routing, for example, in a March, 0 final rule ( FR 0), we concluded that the specifics of routing rail shipments of hazardous materials preempts all states, their political subdivisions, and Indian Tribes from prescribing or restricting routes for rail shipments of hazardous materials. ) (emphasis added). SUMMARY JUDGMENT - No. :-cv-00-rsl Seattle, WA -0 Tel:..00

27 Case :-cv-00-rsl Document Filed 0/0/ Page of applicable federal safety and security laws, the Easement must be construed to permit BNSF to satisfy its federal law obligations. See, e.g., U.S. v. Seckinger, U.S., (0) (contract should not be construed in a way that is contrary to established law). Indeed, the parties agreed in the Settlement Agreement s Section that nothing in the Easement shall supersede any federal law or regulation as they now exist or as they may be amended or changed from time to time. Brain Decl. Ex. at SITC And the parties recognition comports with the STB s oft-stated principle that right-of-way easements cannot be interpreted or enforced in a way that would affect [the railroad s] common carrier obligations. Wisconsin Dep t of Trans. Petition for Declaratory Order Rail Lines in Almena, Cameron, and Rice Lake, Barron County, Wis., FD, WL 0, at * (S.T.B. Nov., 0); Santa Cruz Regional Transp. Comm. Petition for Declaratory Order, FD, WL, at * (STB Dec., ). While the Court does not need to look beyond the Settlement Agreement and Easement s plain language, the prior litigation s settlement negotiation history confirms BNSF s reading. See O Neill v. United States, 0 F.d, (th Cir. ); Berg v. Hudesman, Wn.d, (0). As the Tribe points out in its motion, the Tribe initially sought a strict limit on the number of cars and trains that could run over the right-ofway. MSJ at. But in response to the Tribe s proposal, BNSF made it clear that it could not agree to a limit on traffic movements over the right-of-way that ignored shipper requirements, especially when the shipment involved hazardous material. BNSF stated without any qualification or ambiguity: We cannot agree to a single train limitation, or to a limitation on the number of cars. At times, depending upon business at the refineries, we must have The Tribe claims that this provision was included for the limited purpose of ensuring that the Tribe was compensated in accordance with federal law. See MSJ at. But the language is broad and unambiguous. When it was proposed by the Tribe, there was no connection or reference to a supposed limitation on its application as the Tribe now claims. See Brain Decl. Ex.. In any event, federal law, including IRWA, requires that the Easement and its consent provision be subject to and, when necessary, give way to federal law, so the Settlement Agreement s Section simply acknowledges this reality. SUMMARY JUDGMENT - No. :-cv-00-rsl Seattle, WA -0 Tel:..00

28 Case :-cv-00-rsl Document Filed 0/0/ Page of flexibility with regard to the number of cars.... Brain Decl. Ex. at SITC Moreover, BNSF made it clear that all cars handled have to be classified, packaged, and loaded, in accordance with the DOT-FRA Rules and Regulations... and as a common carrier railroad, Burlington Northern is obligated to handle such cars properly classified, package[d] and loaded to all destinations. Id. The parties eventually agreed to the language in the Easement s Section (c), which protects BNSF s ability to meet its common-carrier obligations. In short, federal law imposes a common-carrier obligation on BNSF, and the Easement itself reflects this obligation. Only one reasonable interpretation exists: BNSF is entitled to increase traffic if required by shipper needs (as required by federal law), and the Tribe cannot withhold its consent to increased traffic or the shipment of hazardous commodities if doing so would create a violation of federal law, which the Easement is explicitly designed not to supersede. Because it is undisputed that the car increase is based on shipper needs (Complt..; Escobar Decl. Exs. J and P), BNSF s use of the right-of-way is consistent with the Easement s terms. Summary judgment in BNSF s favor is therefore appropriate on the Tribe s claim that BNSF violated the Easement by increasing traffic over the right-of-way. See Wapato Heritage, L.L.C. v. U.S., F.d, (th Cir. ) (affirming the grant of summary judgment where contract is not ambiguous); see also Oregon Dep t of Fish & Wildlife v. Klamath Indian Tribe, U.S., () (where there is only one reasonable interpretation, the canon favoring construction of agreements in favor of Native Americans does not apply). The parties also agreed that any traffic increase attributable to BNSF s need to comply with federal law obligations would be addressed through a rental adjustment. The Tribe therefore obtained the right to seek additional rent in the event of a traffic increase necessary to meet shipper needs, not the right to interfere with BNSF s federal law obligations. The Easement provides a mechanism for seeking additional rent when a traffic increase is required to meet shipper needs, but it does not permit the Tribe to prevent BNSF from meeting its common-carrier requirements. SUMMARY JUDGMENT - No. :-cv-00-rsl Seattle, WA -0 Tel:..00