POPLAR, Mont. — The Fort Peck Assiniboine and Sioux Tribal Nation has filed a reply brief in its appeal of a district court decision denying the tribe authority to tax Burlington Northern Santa Fe Railroad.
The brief was filed in the federal Court of Appeals for the Ninth Circuit in the case involving the railroad, which transports freight across 80 miles of the tribes’ 2.2 million-acre reservation in northeastern Montana.
The brief argues that Burlington’s conduct, particularly the transport of hazardous and toxic materials, threatens the health and welfare of the tribes. The brief points to Supreme Court and other federal cases where tribal authority has been sustained in similar situations.
Tribal Chairman Arlyn Headdress said the information about hazardous cargo is an important element in a legal action pending before the Court of Appeals that seeks to force the railroad to resume paying taxes.
“Without question, there are some very important legal issues involved here, but our situation goes beyond legalities,” Headdress said.
“The health and well-being of the 8,000 people living on the reservation are very much at stake. And, after the incidents of Sept. 11, I think millions of Americans would like to know exactly what kinds of dangerous materials the railroad is transporting and what steps they are taking to ensure that this material doesn’t fall into the wrong hands.”
Headdress said Burlington Northern has admitted carrying toxic and dangerous materials across the reservation.
“In fact,” he said, “they have asked for our assistance in planning for a possible hazardous release.”
BNSF Spokesman Gus Melonas said Friday that as policy the railroad does not comment on legal issues. However, he said, 99.99 percent of the hazardous materials shipped by BNSF have made it to their destinations without the product being released.
“It looks like it’s really about collecting tax dollars from the railroad and not about the safety of hazardous materials,” Melonas said.
Last September, after a decade of peaceful coexistence, the tribes went to court in a dispute with the railroad that dates back to 1987 when they adopted a law imposing a tax on companies using reservation lands.
BN challenged the tribes’ authority to take such action. That case was settled in March 1991 when the Court of Appeals ruled in favor of the tribes.
After that decision, the railroad began paying the tax and continued doing so until February 2000. That June, the U.S. District Court for the District of Montana ruled in favor of the railroad. It is the tribes’ appeal of this decision that the Ninth Circuit Court is hearing.
Tribal attorney Reid Peyton Chambers of the Washington, D.C., law firm Sonosky, Chambers, Sachse, Endreson & Perry has asked the appeals court to hear oral arguments on this issue.
Headdress said safety issues involving the railroad are nothing new to tribal leaders. He said they have often expressed their safety concerns, without satisfaction, to BN management.
“We have had 11 tribal members killed and three seriously injured in railroad-related accidents on the reservation since 1987,” he said.
“In addition, more than 600,000 freight cars cross our land each year, many of them carrying hazardous and toxic cargo that could spill in a derailment.
“I don’t think it is an exaggeration to say that the well-being of our people depends on our ability to react in the proper way should an accident and derailment occur. But, without knowing the types and amounts of materials we might encounter, we cannot be of full assistance to the railroad or meet our safety obligations to our people.”
Melonas said the deaths that Headdress referred to are separate from the hazardous-materials issue.
“It’s unfortunate when tribal members are killed by trains,” Melonas said. “But, according to our initial records check, none of those incidents were related to hazardous materials movement.”
Headdress said the terrorist attacks of Sept. 11 add impetus to the tribes’ request.
“We can no longer take issues of public safety for granted,” he said. “The information we are requesting should be of great interest to every American.”