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Lawsuit filed by residents, businesses against train for 416 Fire

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Friday, Sept. 14, 2018 9:49 PM
The 416 Fire burns June 4 west of U.S. Highway 550 near Tamarron and the Glacier Club.
Helicopters work the 416 Fire on June 9 on the east side of Hermosa Cliffs.
A Chinook helicopter looks to drop a load of water in front of flames June 7 near Hermosa while battling the 416 Fire. Residents and businesses have filed a lawsuit against the Durango & Silverton Narrow Gauge Railroad, accusing it of starting the fire.
An ambulance crew from the Upper Pine River Fire Protection District helped battle the 416 Fire. No homes were destroyed in the fire.
A Chinook helicopter drops a load of water in front of flames June 7 near Hermosa while battling the 416 Fire.
A hand crew makes its way to the 416 Fire on June 4 along U.S. Highway 550, which was closed for multiple days because of the fire.
Drivers wait in line at a road block near County Road 250 and U.S. Highway 550 during the 416 Fire.
An air tanker unloads retardant June 1, the first day of the 416 Fire north of Durango.

More than a half dozen residents and businesses have filed a lawsuit against the Durango & Silverton Narrow Gauge Railroad accusing it of starting the 416 Fire that scorched 54,129 acres of mostly U.S. Forest Service land.

The lawsuit, filed Friday in 6th Judicial District Court in Durango, contends that the 416 Fire, which sparked June 1 about 10 miles north of Durango, was started by burning material emitted from a coal engine that travels along the 50-mile route from Durango to Silverton. The lawsuit also names Al Harper, owner of the railroad.

“By filing this lawsuit, plaintiffs, as guardians of Durango and Silverton history, seek to safeguard the natural beauty of the San Juan National Forest and protect future generations from devastating wildfires that can be avoided through the exercise of due care and diligence,” the lawsuit says.

Plaintiffs say the company and its owner knew, or should have known, of the drought conditions that existed at the time the fire started.

The company did work to prevent this possibility. The train has its own firefighting tactics, such as having pop cars with water tankers follow a train to extinguish small fires and a helicopter to tackle fires from the air.

But plaintiffs say the railway operator was not equipped to extinguish this blaze. It had just laid off its veteran crew of firefighters at the beginning of the year, the lawsuit states, and replaced them “with employees much less experienced in fire mitigation and firefighting techniques.”

Fire crews “were unable to put down the fire because they were insufficiently trained by the defendant and/or because the firefighting equipment provided on the pop car was wholly insufficient to appropriately respond to the fire,” attorneys wrote in the lawsuit.

Fire retardant covers a chunk of coal along the Durango & Silverton Narrow Gauge tracks June 5 during the 416 Fire north of Durango.
Jerry McBride/Durango Herald file

The amount of dry material, which had not been cut in years, near where the fire started and the crew’s “lack of experience and inadequate equipment” caused the fire to spread beyond control, the lawsuit alleges.

Plaintiffs assert that fire mitigation techniques – such as removing dead and dying foliage, following the coal train with a diesel-powered water tanker, employing more diesel engines during the dry summer months or replacing the coal-powered train with diesel engines altogether – were not used by the company.

Those alleged missteps caused a fire that plaintiffs say caused a 5.6 percent drop in sales tax and a 13.2 percent drop in lodgers tax in June this year in Durango compared with 2017. Plaintiffs also say in the lawsuit that their homes and businesses were damaged by the mudslides that followed the 416 Fire or the adverse economic impacts.

Harper

Harper, chairman and CEO of the railroad, said he could not comment on the lawsuit because he hasn’t been served and there has been no official proclamation of the cause of the fire.

The lawsuit was filed by local law firm Duthie Savastano Brungard and statewide trial firm Burg Simpson Eldredge Hersh & Jardine.

Plaintiffs include the Lawrence M. Cohen Family Trust; Ryan Patrick Davis, aka Hermosa Creek Grill; Blanche L. Tune; Westerly RV Park LLC; Brian D. Leidal; Eileen K. Leidal; Colorado Outback Adventures LLC; Leonard Wessman; Migdelina Wessman; and Keith Harper.

416 Fire lawsuit

The Forest Service, which is responsible for investigating the cause of the 416 Fire, has not determined what started the blaze, although it intends to issue a ruling in the late fall or early winter. The Colorado State Attorney General is expected to review the report before it is released.

The civil case has yet to be accepted by the 6th Judicial District Court, an action that attorney Bobby Duthie, who represents the interest of Durango residents and businesses, said could happen within the next couple of days.

Duthie said he’s convinced the fire was started by the train based on interviews he’s conducted with people who witnessed the fire start.

Crest Fleming, who lives in the Irongate subdivision next to the Durango & Silverton Narrow Gauge Railroad tracks, said he has no doubts the Durango & Silverton Narrow Gauge Railroad started the 416 Fire.
Jerry McBride/Durango Herald file

“There was an eyewitness who saw the fire start, and it was on the hillside right as the train was coming up the tracks,” Duthie said. “They (the plaintiffs) want compensation and damages for the property that has been damaged. That’s all.”

Plaintiffs say railway operators “carelessly disregarded the known risk of fire inherent in operation of its vintage locomotives.”

No homes were burned in the fire, but it did close U.S. Highway 550 for several days and shrouded the region in smoke for more than a month.

The 416 Fire burned for 61 days before it was contained July 31, when much of the fire in hard-to-reach areas was extinguished without human intervention.

bhauff@durangoherald.com This story has been updated to reflect two separate meetings being held to discuss the 416 Fire. Attorneys representing plaintiffs will hold its meeting Tuesday and Wednesday, Sept. 17 and 18, at the Durango Arts Center.

If you go

Attorney Bill Rossick of William G Rossick LLLP will hold a “town hall” meeting from 6 to 8 p.m. Wednesday at the Holiday Inn Durango to discuss the cause of the 416 Fire, approved Small Business Association loans, options for joining the lawsuit against the railway operators, issues with insurance and other legal questions.
Attorneys for the plaintiffs in a lawsuit against the Railroad will hold a meeting at 7 p.m. Monday and Tuesday at the Durango Arts Center about how they’re helping those affected by the fire.

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