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Court records: D&SNG started nearly 50 fires leading up to 416 Fire

Federal trial expected to last eight to 10 days
Court records show the Durango & Silverton Narrow Gauge Railroad started nearly 50 fires in the weeks leading up to the 416 Fire, which the U.S. government says was started by the train.

The Durango & Silverton Narrow Gauge Railroad ignited nearly 50 fires in the weeks leading up to the 416 Fire, new court records show.

Late last week, a flurry of court filings occurred in a lawsuit in which the U.S. government accuses the D&SNG of starting the 416 Fire and seeks $25 million for firefighting costs.

The 416 Fire started June 1, 2018, north of Durango, adjacent to the railroad’s tracks, burning more than 54,000 acres of national forest lands mostly in the Hermosa Creek watershed.

U.S. fire investigators, as well as eyewitnesses, have pegged the D&SNG as the cause, saying a cinder cast from a smokestack ignited the blaze during a time of extreme drought in Southwest Colorado.

The D&SNG, for its part, has denied its coal-fired steam locomotives started the fire.

When contacted Tuesday, a receptionist at the D&SNG’s attorney’s office in Denver said “no comment” then hung up.

U.S. Judge N. Reid Neureiter filed a “scheduling order” on Sept. 17 that sheds new light on the case.

According to the scheduling order, attorney representing the U.S. government say the D&SNG’s conductors had been tracking fires ignited by their locomotives in “Daily Reports” during the spring of 2018.

During that time, D&SNG locomotives “ignited some four dozen fires along this track in the weeks preceding the 416 Fire ignition,” U.S. attorneys wrote.

On May 17, 2018, for instance, the D&SNG’s train No. 463 ignited four fires along the railroad tracks, one of which grew to 150 feet by 200 feet.

“This evidence also establishes that (the D&SNG) were uniquely aware of the fire risk created by the operation of their coal-powered trains in the weeks leading up to the ignition of the 416 Fire,” U.S. attorneys argue. “Further, (the D&SNG) knew or should have known that they were operating their railroad in increasingly severe drought conditions.”

In court filings, the D&SNG has argued it was not approached by government officials to stop operating the coal-powered trains. And, the railroad has blamed the U.S. Forest Service for not performing wildfire mitigation, which the railroad says created an above-average risk of a catastrophic blaze.

U.S. attorneys aren’t buying it, arguing the railroad operated coal-fired engines knowing the risk they posed to the national forest and surrounding homes.

“Rather than accept responsibility for the consequences of their decision to operate their trains with knowledge of the risk, (the D&SNG) argue that the United States government should be found contributorily negligent for the cause of the 416 Fire and resulting damages,” U.S. attorneys wrote.

“Not only is this argument without merit, given that the United States was under no duty to take action to avoid future injury resulting solely from (the D&SNG’s) negligence, it is irrelevant.”

A representative in Neureiter’s office said Tuesday judges do not comment on open cases.

Earlier this month, the D&SNG filed a motion to dismiss the lawsuit, claiming there is no federal or state law that allows the U.S. government to file a claim for firefighting costs.

U.S. attorneys maintain there is precedent for reclaiming firefighting costs.

“The United States reserves its right to pursue additional categories of damages to be proven at trial,” U.S. attorneys wrote.

In another court filing, it appears a jury trial is slated for November 2020, though records show the D&SNG and the U.S. government are working on the possibility of a settlement. A trial is expected to take eight to 10 days, court records show.

On Sept. 20, the D&SNG’s attorneys filed an official response to the U.S. government’s original lawsuit, denying the railroad started the fire.

Contacted late Tuesday, a spokesman with the U.S. Department of Justice, the legal arm of the Forest Service, said he was unable to immediately provide comment.

jromeo@durangoherald.com

This story has been updated to change the attribution on some of the comments made in the judge’s scheduling order. Many of the arguments laid out in the order were submitted by the plaintiffs or the defendants. A previous version of this story erred in attributing those arguments to the judge.

D&SNG scheduling order (PDF)

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