The Durango & Silverton Narrow Gauge Railroad has filed a lawsuit against La Plata County in an effort to defend its increased use of the Rockwood Station about 15 miles north of Durango.
The Rockwood Station became D&SNG’s main arrival and departure point for excursions during the height of the COVID-19 pandemic, bringing up to 600 people to the small neighborhood daily and sparking neighborhood concerns. The county says the train’s heavy use of the station is in violation of county codes.
La Plata County issued notices to D&SNG in early May ordering the train to stop using the Rockwood Station as a major arrival/departure point, among other demands. The train responded with a lawsuit, arguing the county doesn’t have the legal authority to restrict the railroad’s operations at the Rockwood Station.
According to the lawsuit, filed by D&SNG and the railroad’s parent company American Heritage Railways Inc., the train is a public utility regulated by the Colorado Public Utilities Commission, and the county is pre-empted by federal law from applying local land-use regulations on railroad facilities.
Trains have the power to erect infrastructure necessary for their operations, and D&SNG has a lawful pre-existing use of the station, one that extends about 140 years into the past, according to the lawsuit filed May 21.
The train also filed a motion for a temporary restraining order and preliminary injunction, calling for the county to cease its enforcement of the notices and land-use regulations until the situation is resolved. The railroad is no longer using the Rockwood Station as its main point of arrivals and departures.
“La Plata County’s threatened action, if not enjoined, constitutes a violation of due process of law and an unlawful and unconstitutional taking of property without just compensation,” the lawsuit said.
La Plata County commissioners reviewed the complaint this week and are seeking further legal clarification as it relates to the county’s regulatory capabilities.
“Tourism ... comprises about 30% of La Plata County’s economy. That’s a very serious number, especially coming out of the pandemic,” said Commissioner Marsha Porter-Norton during this week’s meeting. “We know the train is a very important part of that tourism sector. However, I think this is not a matter of public opinion, it’s a matter of law. It’s a matter of where our regulatory purview is.”
The train began using the station last year as its departure and arrival point for the Cascade Canyon Express, an alternative tour launched in response to the COVID-19 pandemic. But the railroad relaunched the service this year, prompting Rockwood residents to complain about littering, trespassing, increased fire risk, and chaotic traffic and speeding on the two-lane mountain road leading to the station.
They accused La Plata County commissioners of looking the other way and giving the railroad a pass on having to apply for a land-use permit. But county officials said they thought the Rockwood trips were meant to last for one season, during the height of the pandemic, and they were as surprised as residents to see them return this year.
La Plata County says the changes at Rockwood have not been permitted and do not conform with the county’s code, which went into effect October 2020.
“In any scenario where we have a property owner who is out of compliance with the land-use code, our goal is not to commence and get involved in litigation. Our goal is to bring them into compliance,” said Sheryl Rogers, county attorney. “We do invite them to meet with the planning department and gain an understanding of which process would be appropriate for the use they’re undertaking.”
The county asked the train to complete a voluntary process to address the county code issues. D&SNG declined and instead offered to mitigate the impacts without the necessary land-use permit filing, according to county documents.
In early May, the county issued notices that said the train needed to correct the code violations by May 21 or face fines, penalties or other legal action, according to the D&SNG complaint.
During a meeting Tuesday, county commissioners unanimously agreed to send a request for clarification to the state and federal entities with authority over the train, the Colorado Public Utilities Commission and the Surface Transportation Board, respectively.
“I love the train and I’ve ridden on it several times. ... But on this, I’m getting mixed signals, and we need to clarify those jurisdictions and we need to understand what our responsibility is,” said Commissioner Clyde Church. “One of our responsibilities is to apply the land-use code uniformly. ... I see this as a step toward that clarification of responsibilities.”
“This is not to try to stop the train or attack the train,” said Commissioner Matt Salka. “This is to get a better understanding on what our role is and what the train’s role is.”