Operators of a beloved old train were hit with a new lawsuit earlier this month for their role in last summer’s “416 fire.”
Federal prosecutors filed a com- plaint July 2 against the Durango & Silverton Narrow Gauge Railroad Company and American Heritage Railways, which operate an antique train that carries tourists through the San Juan National Forest between Durango and Silverton.
U.S. Attorney for Colorado Jason Dunn said the federal government has spent millions of dollars fighting the fire and restoring more than 50,000 acres — a task that could take decades to complete.
“It’s important that the community there knows that this is not just about recouping costs incurred by taxpayers,” Dunn said. ”It’s also about ensuring we recover the costs of rehabilitation.”
The federal lawsuit also provided the first official peek at the results of a year-long investigation into the cause of the fire. The complaint said evidence shows the coal-fired loco- motive cast off cinders or other hot material, which started the fire on the morning of June 1, 2018. Fire investigators determined the fire started next to the train tracks, the lawsuit said.
Dunn said it took significant time for the investigation to reach a point where his office was comfortable filing the lawsuit. The government’s fire-related costs are currently estimated at around $25 million, but Dunn said that number is not set in stone.
“The cost calculation is an ongoing process. It may very well rise,” he said. Counsel for the defendants did not comment on the litigation.
The federal complaint is a welcome development for two lawyers who filed an earlier lawsuit against the train’s operators.
That lawsuit, filed in district court in La Plata County in September 2018, is seeking compensation for property owners and businesses affected by the fire. In addition to suing the operators, the complaint names Allen Harper, who owns both companies, as a defendant.
Burg Simpson shareholder Tom Henderson and Bobby Duthie, partner at Durango-based Duthie Savastano Brungard, are representing plaintiffs in the district court case. Henderson and Duthie said the federal lawsuit corroborates their own investigation and case.
“It’s been an interesting dynamic down in Durango, because the absence of the federal government’s results of their investigation seemed to be al- most an unspoken endorsement of doubt about what started the fire,” said Henderson.
He said the “inescapable conclusion” revealed in the federal complaint was that the train started the fire.
“There are no other alternative theories out there,” Henderson said. “And from that perspective alone, I view [the federal complaint] as a very positive development.”
The team said they don’t expect the federal suit to affect their clients’ chance at fair compensation.
“I’m optimistic that there will be enough to go around,” Henderson said.
Duthie said it helps that their complaint was filed first.
“We believe we’re going to be able to work out a fair allocation with the government,” Duthie said. “That’s far less of a concern than getting the train management to recognize its responsibilities to the citizens of La Plata and the government of the U.S.
Like the 2018 lawsuit, the U.S. Attorney’s complaint cites a state statute that says train companies operating in Colorado are liable for all damages from fires resulting from their operations. Unlike the previous lawsuit, the federal complaint doesn’t include any claims of negligence.
Dunn said there’s no requirement to show negligence, carelessness or in- tent under the strict liability statute.
Henderson said that for his cli- ents, many of whom suffered indirect damage due to flooding on the land affected by the fire, it’s still unclear whether the statute will cover damages other than burned property. How- ever, he said this is unlikely to be an issue for the federal case, which is focused on recovering losses related to fighting the fire and direct fire damage.
Henderson said the federal com- plaint could also bring new plaintiffs on board in the district court case.
He said they currently have around two dozen clients and plan to file an amendment in the next month to add a few more to the lawsuit. He hopes the federal investigation’s results can help convince potential plaintiffs who are on the fence.
“We do know that there are a number of folks out there who suffered great harm as a result of the fire that have withheld joining the lawsuit,” Henderson said. “Some of them we believe were waiting for the federal government’s conclusion, and others are hesitant to get involved with taking aim at a train which is a huge economic engine for that community.”
Duthie said future flood damage caused by the fire could also bring more plaintiffs out of the woodwork. The fire left the area vulnerable to flooding and mudslides, and Duthie said residents could face new losses for the next several years.
“That’s an unknown group of plaintiffs that we don’t know who they are yet,” he said. “So, I think the group will grow.”
While there is a two-year stat- ute of limitations to seek compensation for property damage, for future flood damage, that two-year period would begin from the date the damage is incurred, not the date of the fire, Henderson said.
The lawsuits have been controversial in Durango, Silverton and the surrounding area, where the train serves as the backbone of the tour- ism industry. Henderson said he and Duthie considered local sentiment and whether it could affect the fairness of the trial when deciding where to file the lawsuit last fall. They requested a jury trial, which is set for September 2020. “Absolutely, there’s a concern,” Henderson said. “I would imagine that concern is shared on both sides.”
But he said Duthie, a longtime Durango resident, was strongly in favor of filing in La Plata County, and nothing has happened since to prompt them to try to move the case.
“He was very adamant that the citizens of Silverton and Durango have the opportunity to sit in judgment because it was their community that was so adversely impacted,” Henderson said.
Duthie said there are misunderstandings about the goals of the litigation they hope will clear up as more details emerge about the fire.
“Citizens don’t completely under- stand the legal process, and many believe my clients and the government are trying to kill the train or eliminate the train,” he said. “And that’s completely untrue.”
“The train will endure,” Henderson said. “The train has endured for over a hundred years. It’s not going away.”