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Federal government sues Durango train for starting 416 Fire

Lawsuit seeks $25 million from D&SNG for firefighting costs

The Durango & Silverton Narrow Gauge Railroad is the cause of the 416 Fire, the U.S. Forest Service officially announced Tuesday.

The U.S. Attorney’s Office announced Tuesday a lawsuit on behalf of the U.S. Forest Service in the U.S. District Court for the District of Colorado against the Durango & Silverton Narrow Gauge Railroad Co. and its owner and operator, American Heritage Railways Inc., that seeks to recover damages suffered as a result of the 416 Fire.

“The United States alleges that the fire was ignited by burning particles emitted from an exhaust stack on a coal-burning steam engine locomotive owned and operated by the Durango & Silverton Narrow Gauge Railroad,” a news release from the U.S. Attorney’s Office said Tuesday.

Because the D&SNG started the fire, the Department of Justice says the railroad “should be held liable under federal and Colorado law for all the damages incurred by the United States as a result of the fire, including the costs of fire suppression and the costs to rehabilitate the public lands damaged by the fire.”

“Protecting our public lands is one of the most important things we do in the U.S. Attorney’s Office,” said U.S. Attorney Jason Dunn in a prepared statement. “This fire caused significant damage, cost taxpayers millions of dollars and put lives at risk. We owe it to taxpayers to bring this action on their behalf.”

D&SNG owner Al Harper did not return a call seeking comment Tuesday afternoon. Denver attorney Richard Waltz, representing the railroad, declined comment.

Dunn, speaking to The Durango Herald, said the D&SNG has denied it caused the 416 Fire.

The U.S. Attorney’s Office attempted to negotiate with the railroad, Dunn said. He wouldn’t comment further on how the negotiations went.

Though the cost of fighting the 416 Fire has been estimated around $40 million, the news release Tuesday said the federal government is seeking $25 million from the D&SNG. Dunn said additional costs may be determined going forward.

“If you operate a railroad that emits embers, then you have to be accountable if that conduct starts a fire, regardless of whether it was intentional, negligent or not,” Dunn said.

Tuesday’s announcement brings closure to one of the biggest questions for the community in Southwest Colorado: What started the 416 Fire?

According to the seven-page lawsuit, the D&SNG’s locomotives had ignited “multiple fires” along the approximately 45-mile track from Durango to Silverton before the start of the 416 Fire.

A hand crew makes its way to the 416 Fire on June 4, 2018, along U.S. Highway 550. The 416 Fire burned about 54,000 acres north of Durango.

As a preventive measure, the D&SNG had placed a metal screen over the smokestack to capture burning exhaust particles, but it didn’t catch all the emitting material, the lawsuit alleges.

Fire investigators, the lawsuit says, found a “collection of numerous, extinguished embers, cinders and ash particles on the ground adjacent to the railroad track, including at the specific point of fire origin.”

Though the official announcement came nearly 13 months after the start of the fire, many residents expressed few doubts about the train’s involvement.

About 9:45 a.m. June 1, 2018, residents in the Meadowridge subdivision, about 10 miles north of Durango, saw a “wisp of smoke” near a bend in the tracks as the D&SNG passed by, igniting intense speculation that the train was the cause of the 416 Fire.

The small spark climbed up a hillside as some Meadowridge residents, who had grown used to seeing the D&SNG start fires and had equipped themselves with their own water truck, attempted to put out the growing blaze.

Extreme drought conditions, however, set the stage for what went on to become Colorado’s sixth-largest wildfire. By the time the 416 Fire was contained nearly two months later, an estimated 54,000 acres of mostly San Juan National Forest lands within the Hermosa Creek watershed had been consumed.

Despite coming dangerously close to homes north of Durango, not a single structure was lost in the blaze, nor was anyone seriously injured.

But the fire took its toll on the community, forcing thousands of evacuations, causing economic losses in Southwest Colorado and leaving behind a threat of potentially destructive flooding to homes and property below the burn scar.

These fears of flooding materialized in July and September when heavy rains hit the burn area, causing destructive flooding to homes north of Durango. As a result, about $7 million will be spent to protect about 120 homes and buildings in the area.

As the fire burned in the San Juan National Forest, Harper’s fleet of six coal-fired steam engines sat idle in a rail yard, unable to infuse thousands of dollars into the Durango and Silverton economies, for more than 40 days. The subsequent flooding also forced mandatory closures.

For the past year, Harper, whose family has owned the railroad since 1998, acknowledged the D&SNG could be responsible for the blaze and said the train would take full responsibility.

Harper, vowing the train would never be shut down as a result of fires again, then invested about $7 million in the conversion of coal-burning engines to oil-burning and to acquire two custom-built diesel locomotives – engines that hold a lesser risk of starting wildfires.

He also pledged that in the future, the D&SNG would consult with the U.S. Forest Service, local fire districts and La Plata County to determine if weather conditions pose too high a fire risk to run coal-fired engines.

The D&SNG is one of the top tourist attractions in Southwest Colorado, with railroad officials estimating it provides a $200 million jolt to the economy in the region through nearly 200,000 riders a year.

But the railroad has been a common culprit for starting fires on wildlands.

Documents obtained in an open records request last year showed that in two decades’ worth of investigations into fires started by the D&SNG, it took years of negotiations to reach a settlement. In almost every case, the D&SNG hit back with a lower counteroffer, often denying it started the fire.

Vehicles buried by rock and mud north of Hermosa. After the 416 Fire, summer monsoons caused mudslides below the burn scar.
After the fire, flood waters threatened dozens of homes below the burn area, including this area above East Animas Road (County Road 250) on July 24, 2018.

It’s unclear how Tuesday’s announcement will affect a lawsuit filed in September 2018 by residents and business owners against the D&SNG, which accuses the train of starting the fire and looks for compensation for damages suffered.

More than 25 affected parties are listed in the lawsuit, with most of those damages a result of floods from the burn area, though a few people are seeking compensation for fire damage to their property. Also, a handful of businesses joined the litigation, arguing they lost sales during the 416 Fire.

Sixth Judicial District Court Judge Suzanne Carlson set a seven-week jury trial to begin Sept. 14, 2020.

jromeo@durangoherald.com

Lawsuit against train 416 Fire (PDF)

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