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Judge denies request by Durango train to resume fire mitigation, bridge repair

Forest Service says railroad must submit work plans
Recent rainstorms brought down a significant amount of debris and caused a log jam at the Durango & Silverton Narrow Gauge Railroad’s bridge at Elk Creek.

The Durango & Silverton Narrow Gauge Railroad’s plea to a federal judge for permission to resume a fire mitigation project along its tracks, as well as a separate project to repair a damaged bridge, was denied Tuesday.

In recent weeks, the U.S. Forest Service has ordered the D&SNG to stop two projects along its tracks.

On May 27, the Forest Service sent the railroad a cease-and-desist order after concerns were raised the D&SNG was removing and selling mass amounts of trees along its right of way to reduce fire risk.

Then, on July 2, the Forest Service told the D&SNG to stop emergency repairs at the Elk Creek Bridge, which was recently damaged by debris during a washout, effectively cutting off any potential trips to Silverton.

The D&SNG on Friday asked the federal court judge who is overseeing the lawsuit in which the Forest Service is suing the railroad for millions of dollars for the 416 Fire to override the agency’s stop orders.

The Forest Service, according to court filings, said the D&SNG is allowed to work within its right of way, but may have to secure a permit for projects that are outside the scope of routine operations and maintenance.

A spokesman for the Forest Service referred all questions to the U.S. Department of Justice. Jeffery Dorschner, spokesman for the department, said in an email, the “U.S. attorney is pleased with the court’s decision,” but declined to comment further.

A federal judge threw out an attempt by the Durango & Silverton Narrow Gauge Railroad to override the Forest Service’s stop orders on two projects in the San Juan National Forest.

On Tuesday, Judge Robert E. Blackburn denied the D&SNG’s request, saying the issues raised over the railroad’s stopped projects are unrelated to the 416 Fire lawsuit.

“Although this line of road is the same as that involved in this lawsuit, the issues which underlie the motion are otherwise completely unrelated to the issues before the court for resolution in this case,” Blackburn wrote.

John Harper, general manager of American Heritage Railways, which owns the D&SNG, said because of Forest Service actions, it’s unclear when the railroad’s fire mitigation project and bridge repair may resume.

“We have never in the history of the railroad needed to ask the Forest Service for permission to repair our own tracks,” he said. “So this is unfamiliar territory.”

The D&SNG started an extensive vegetation removal project this spring to reduce potential fire hazards on the 100-foot right of way on each side of the railroad’s tracks from the Cascade station to Silverton, which cuts through the San Juan National Forest.

The D&SNG completed 8 miles of the project before the Forest Service sent the railroad a cease-and-desist order.

“The railroad has increased its mitigation efforts in large part as a response to the Forest Service’s complaints detailed in the lawsuit that its past efforts were not sufficient,” D&SNG attorney Richard Waltz wrote in an email to U.S. attorneys.

According to court filings, it appears the D&SNG is under investigation for trespassing outside of the right of way and onto Forest Service land.

Jacob Licht, assistant U.S. attorney, wrote in an email June 25 that the 416 Fire lawsuit had to be delayed “due to the railroad’s recent trespass activities whereby the railroad clear-cut significant portions of the San Juan National Forest without a permit or other permission.”

“Special Agent Leach must currently focus on investigating this trespass action, making him unavailable to work at this time on his rebuttal to defendant’s cause and origin expert reports,” Licht wrote.

Harper said D&SNG crews never left the railroad’s right of way. He said he was told it could take two months to complete the investigation.

“That’s almost the whole summer,” he said. “They are now financially impacting our entire operation.”

The Durango & Silverton Narrow Gauge Railroad’s fire mitigation project has raised concerns it is cutting down large and old trees, and selling the timber to a logging company.

Around the same time, the D&SNG learned a rainstorm had washed out about 40 feet of track at the Elk Creek Bridge, about 5 miles below Silverton, which could take up to four months to repair.

Harper said the D&SNG had crews ready to begin work on the bridge when the Forest Service asked the railroad to stop.

James Simino, the Forest Service’s Columbine district ranger, wrote in a July 2 email that the D&SNG “is allowed to take emergency action necessary to protect life and property, but (D&SNG) is still required to seek authorization at the earliest opportunity.”

Simino asked for a detailed plan of repairs to the bridge and track, assuring the D&SNG it would be reviewed immediately.

The D&SNG has not submitted plans for the fire mitigation or bridge repair projects to the Forest Service, Harper said, because it is not required to do so.

“We don’t believe we need their permission or a Forest Service permit to work on our own tracks (and right of way),” he said.

Harper added that since the Forest Service ordered the railroad to stop, the issues have been passed onto U.S. attorneys, making it harder to collaborate.

“We can’t even talk to them (the Forest Service) because it’s in their attorney’s hands,” he said. “But we’ll continue to work with the Forest Service ... to better understand how we can move forward under these circumstances.”

jromeo@durangoherald.com

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