Swinomish Indian Tribal Community v BSNF Railway Company

Filing 180

STIPULATION AND ORDER Regarding Materiality re Parties' 179 Stipulated MOTION. Signed by Judge Robert S. Lasnik. (LH)

Case 2:15-cv-00543-RSL Document 180 Filed 11/14/22 Page 1 of 3

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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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SWINOMISH INDIAN TRIBAL
COMMUNITY, a federally recognized Indian
Tribe,
Plaintiff,

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v.

NO. 2:15-cv-00543-RSL
STIPULATION AND ORDER
REGARDING MATERIALITY

BNSF RAILWAY COMPANY, a Delaware
corporation,

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Defendant.

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The Parties stipulate to the relevance of materiality to the liability phase of this case as
follows:
The parties agree and stipulate that based on the rulings made in the Court’s Order
Regarding Cross-Motions for Summary Judgment (Dkt. 174) and the representations of the
parties during oral argument and at the status conference held on September 30, 2022, the
Court is not required or requested to make any findings of fact and/or conclusions of law one
way or the other whether the breach by BNSF of the Right-of-Way Easement for the period
from September 2011 through May 2021 was material. The parties stipulate that by agreeing
that materiality is no longer relevant to the liability issues to be raised in this trial, they do not
waive their rights to argue in any subsequent proceedings that BNSF’s conduct between
STIPULATION AND ORDER REGARDING
MATERIALITY - 1

Case 2:15-cv-00543-RSL Document 180 Filed 11/14/22 Page 2 of 3

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September 2011 through May 2021 was or was not a material breach or that any similar

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conduct in the future is or is not a material breach. The parties further agree that materiality of

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BNSF’s breach is not an element required to be proven in the Tribe’s claim for disgorgement of

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BNSF’s profits as damages.

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DATED this 10th day of November, 2022.

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TOUSLEY BRAIN STEPHENS PLLC

PACIFICA LAW GROUP LLP

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By: /s/ Christopher I. Brain
Christopher I. Brain, WSBA #5054
By: /s/ Chase C. Alvord
Chase C. Alvord, WSBA #26080
By: /s/ Rebecca L. Solomon
Rebecca L. Solomon, WSBA #51520
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
1200 Fifth Avenue, Suite 1700
Seattle, Washington 98101
Tel: [phone]/Fax: [phone]

By: s/Paul J. Lawrence
Paul J. Lawrence, WSBA #13557
By: s/Kai Smith
Kai Smith, WSBA# 54749
Email:
[e-mail]
Email: [e-mail]
1191 Second Avenue, Suite 2000
Seattle, WA 98101
Tel: [phone]/Fax: [phone]

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OFFICE OF THE TRIBAL ATTORNEY,
SWINOMISH INDIAN TRIBAL
COMMUNITY
By: /s/ Stephen T. LeCuyer
Stephen T. LeCuyer, WSBA #36408
By: /s/ Weston R. LeMay
Weston R. LeMay, WSBA #51916
Email: [e-mail]
11404 Moorage Way
LaConner, WA 98257
Tel: [phone]/Fax: [phone]
Attorneys for Plaintiff

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STIPULATION AND ORDER REGARDING
MATERIALITY - 2

Attorneys for Defendant BNSF Railway
Company

Case 2:15-cv-00543-RSL Document 180 Filed 11/14/22 Page 3 of 3

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PURSUANT TO THE ABOVE STIPULATION, THE COURT ORDERS that:

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1. Materiality of the breach by BNSF of the Right-of-Way Easement for the period from

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September 2011 through May 2021 is no longer relevant to the issues to be decided in the liability

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trial set for March 20, 2023. The Court will therefore not make any findings or conclusions one

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way or the other with respect to whether BNSF’s breach of the Right-of-Way Easement was

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material.
2. A finding of materiality is not an element required to be proven in the Tribe’s claim
for disgorgement of BNSF’s profits as damages and is not relevant to whether the Tribe’s claim
for disgorgement of profits is an appropriate remedy.
3. All issues related to damages, including the appropriate damages type, legal theories,
and amounts, will be determined after the Court’s decision in the liability trial.

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IT IS SO ORDERED.
DATED: November 14, 2022

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Robert S. Lasnik
United States District Court Judge

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STIPULATION AND ORDER REGARDING
MATERIALITY - 3