On Jan. 13, Judge Robert S. Lasnik of the District Court for the Western District of Washington issued a novel decision contrasting the preemptive effects of the ICC Termination Act (ICCTA) and the Indian Right of Way Act of 1948 (IRWA). Judge Lasnik held that there was no evidence that, through the passage of ICCTA, Congress intended to preempt or repeal the IRWA when a railroad right of way crosses tribal lands.

The decision stems from a dispute between BNSF Railway Co. and the Swinomish Indian Tribal Community regarding BNSF-owned railway tracks that cross the northern edge of the Swinomish Reservation. Since construction of the line in or around 1889, the tribe has objected to the line and has involved BNSF's predecessors in lengthy litigation in an attempt to halt construction and operation of the railway over tribal lands. Ultimately, the parties agreed to enter into an easement agreement that provided, in part, that the railway would limit the number of trains and cars that crossed the reservation to one daily train of 25 cars in each direction. The railroad also agreed to inform the tribe of the commodities being shipped over tribal lands. In turn, the tribe would agree not to arbitrarily withhold permission to increase the number of trains or cars when necessary to meet shipper needs.

This suit arose from tribal allegations that BNSF breached the easement's terms and conditions by running 100-car crude oil trains across tribal lands and by failing to comply with the cargo reporting requirements, resulting in an overburdening of the right of way that constitutes a trespass. In addition to monetary damages, the tribe sought injunctive relief against the railway. BNSF argued that the ICCTA preempted its operations and that the tribe had no authority to halt the rail operations. Both parties filed for summary judgment. Judge Lasnik considered the preemption arguments and found that the tribe's state law claims seeking to prevent the transport of crude oil trains over the line would conflict with ICCTA because any "state law claim that would effectively require a common carrier to discriminate against a particular type of cargo and/or a particular region burdens interstate commerce and is therefore preempted." However, Judge Lasnik also found that the ICCTA does not preempt or repeal the IRWA, and therefore "the rights and remedies afforded by the IRWA and its implementing regulations remain available to the Tribe, and the [Bureau of Indian Affairs] retains the power to enforce and/or cancel the right of way." In his ruling, Judge Lasnik noted that "there is no evidence that Congress actually considered the obvious potential for conflict between its establishment of the [Surface Transportation Board] with exclusive jurisdiction over rail transportation and the Tribe's treaty right of 'exclusive use' or the BIA's right to terminate a railroad right of way, much less that it affirmatively chose to resolve that conflict by abrogating the treaty or repealing the IRWA."