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Trial seeking damages from Durango railroad for 416 Fire pushed back

More than 30 property owners and businesses accuse D&SNG of disregarding known risk
Property owners and businesses blame the Durango & Silverton Narrow Gauge Railroad and its owner Al Harper and parent company American Heritage Railways Inc. for the 416 Fire. The civil lawsuit was set to go to trial in January, but has been delayed until Aug. 29. (Jerry McBride/Durango Herald file)

A 6th Judicial District court judge has rescheduled the trial in a local lawsuit seeking damages against the Durango & Silverton Narrow Gauge Railroad for its alleged role in the 416 Fire.

Judge Suzanne Carlson delayed the trial for the case between La Plata and San Juan county homeowners and businesses and D&SNG until Aug. 29 at a status conference last week. The pandemic and ongoing negotiations between the federal government and the D&SNG in a separate lawsuit pushed the trial back.

During the hearing, Richard Waltz, an attorney for D&SNG and its parent company, Florida-based American Heritage Railways Inc., which is also named in the lawsuit, told Carlson that settlement negotiations between the railroad and the federal government were ongoing and would impact the trial.

“We have been involved in extensive negotiations,” he told the judge.

“The parties would like to believe they’re close, but I don’t know,” he said.

The lawsuit between the federal government and the train is set for trial in federal court in May 2022. The government is seeking $25 million in damages for firefighting and rehabilitation costs and other damages from the 416 Fire, which largely burned in the San Juan National Forest.

In July 2019, more than a year after the 416 Fire, the Forest Service concluded that a cinder from the smokestack of one of D&SNG’s coal-burning locomotives ignited the roughly 54,000-acre fire north of Durango.

Attorneys for the federal government have brought their case using Colorado’s Railroad Statute, which says railroad companies operating their “line of road” with Colorado are liable for all damages from fires caused by the railroad operations.

The lawyers for dozens of homeowners and businesses are relying on that same statute to pursue their own lawsuit against D&SNG.

The civil lawsuit, which was filed in September 2018, accuses the railroad of missteps and negligence that led to the 416 Fire and damages to their properties and businesses. The lawsuit cites direct damages from smoke, mudslides and flooding, but also indirect damages including lost business.

In addition to D&SNG and American Heritage Railways Inc., the lawsuit names Al Harper, the owner of the railroad.

“The coal-fired steam locomotives of the Durango & Silverton Narrow Gauge Railroad Company and/or American Heritage Railways, Inc. have been an iconic and historic fixture in Durango and Silverton for decades. Despite their cherished place in these communities, however, the D&SNGRC’s and AHR’s management has carelessly disregarded the known risk of fire inherent in the operation of its vintage locomotives,” plaintiffs wrote in the initial complaint.

More than 30 property owners and businesses have joined the lawsuit, which paints a picture of D&SNG failing to do enough to prevent a blaze.

“Defendants could have taken several cautionary and prudent measures to limit the potential of fire on June 1, 2018,” the lawsuit says. “Defendants took none of these steps despite being aware that using any of these precautious (sic) could have prevented a fire like the 416 Fire from starting and quickly getting out of control.”

The three-month-long trial was originally scheduled to begin Sept. 14, 2020, but has seen multiple delays.

Lawyers for the property owners and businesses have told the judge that the scale and complexity of the case requires a three-month trial, Carlson said during the hearing.

When the trial begins in August, a jury will have to decide if D&SNG, American Heritage Railways Inc., and Harper are culpable and should pay millions of dollars to those affected by the 416 Fire, or if they do not bear the responsibility for the fire and the damage it caused.

ahannon@durangoherald.com

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