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Judge throws out D&SNG’s attempt to escape 416 Fire lawsuit

U.S. government seeking $25 million for firefighting costs
The Durango & Silverton Narrow Gauge Railroad will not be able to free itself from a lawsuit seeking $25 million in costs for the 416 Fire, a federal judge ruled Monday.

In a major blow to the Durango & Silverton Narrow Gauge Railroad, a federal judge Monday threw out the railroad’s motion to dismiss a lawsuit in which the U.S. government is seeking $25 million for fighting the 416 Fire.

As a result, the lawsuit will proceed through the court system. Coincidentally, Monday also marked the two-year anniversary of the 416 Fire breaking out.

In July 2019, more than a year after the fire burned more than 54,000 acres mostly in the Hermosa Creek watershed, the U.S. government named the D&SNG the cause of the blaze, confirming eyewitness accounts and months of speculation.

At the same time, U.S. officials said the D&SNG denied starting the fire, prompting the need for a lawsuit that seeks $25 million from the railroad for damages and fire-suppression costs.

In September 2019, the D&SNG filed a motion to dismiss the lawsuit, arguing there is no federal law that allows claims to recover fire-suppression costs and the only Colorado law about the issue allows for recovering actual damages from a fire on property – but not firefighting costs.

The 416 Fire did not destroy any buildings or structures, an accomplishment attributed to the nearly 1,000 firefighters who fought the blaze for about two months through ground crews and aerial attacks.

Since the 416 Fire, D&SNG has devoted $7 million to upgrades in an effort to minimize the chance one of its historic engines might cause another wildfire. Efforts have included converting a coal-burning locomotive to burn oil.

The latest efforts to mitigate the chance of fire come on top of existing programs in place at D&SNG, which include pop cars with water tankers that follow a train to extinguish small fires and a helicopter to combat fires from the air.

Magistrate Judge N. Reid Neureiter, giving a recommendation to the judge overseeing the case, U.S. District Court Judge Robert E. Blackburn, said in December 2019 the U.S. government had legal standing to recover costs.

“It would be nonsensical ... to not include the expense of fire suppression as part of the damages for which a railroad is strictly liable,” Neureiter wrote at the time.

Blackburn on Monday officially threw out the D&SNG’s motion to dismiss, praising Neureiter’s “yeoman-like work” in interpreting the case law.

“I am in agreement with the magistrate judge that fire suppression costs are recoverable,” Blackburn wrote. “His recommendation is thorough, thoughtful and, ultimately, persuasive, and I approve and adopt it as an order of this court.”

Representatives for both the D&SNG and the U.S. government did not respond to a request for comment for this story.

The U.S. government says a cinder emitted from a smokestack from a D&SNG coal-burning locomotive, which was running at a time of extreme drought, sparked the fire about 10 miles north of Durango.

The D&SNG was also sued in September 2018 by more than 50 residents who experienced property damage, mostly from debris flows and mudslides off the burn scar, and businesses that had to shut down or lost sales.

Robert Duthie with Duthie Savastano Brungard PLLC, representing the plaintiffs, said the case has been affected by the COVID-19 outbreak. As a result, a September trial was rescheduled for March 2021.

The lawsuit claims the D&SNG and its owners were negligent in their action to run during extreme drought, failed to take necessary precautions and should be held accountable for any damages or financial losses as a result of the fire.

jromeo@durangoherald.com

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