DURANGO, Colo. — A federal judge in Colorado has recommended the Durango & Silverton Narrow Gauge Railroad’s motion to dismiss a lawsuit seeking costs associated with a 2018 wildfire be thrown out.
In July 2019, attorneys for the federal government filed a lawsuit demanding the narrow gauge railroad pay $25 million to compensate the U.S. Forest Service for resources used to douse the 53,000-acre 416 Fire that began on June 1, 2018, near Hermosa, Colo. Fire investigators stated that the fire was the result of a cinder from a passing steam train. Two months later, attorneys for the railroad moved to have the case thrown out of court, arguing that state and federal law only allows the government to sue for damages caused by a wildfire but not suppression costs [See: “Durango & Silverton says wildfire lawsuit should be dismissed,” Trains News Wire, Sept. 12, 2019].
The presiding judge asked for the opinion of another federal judge and, on Dec. 27, that judge recommended that the D&SNG’s motion be dismissed and that the case move forward.
“The United States (government) is entitled to whatever protection is afforded to other landowners in Colorado — including entitlement to recovery of fire suppression costs,” wrote U.S. Magistrate Judge N. Reid Neureiter.
As of Dec. 31, presiding judge Robert E. Blackburn had not formally dismissed the motion.
The 416 Fire forced the evacuation of thousands of people near Hermosa and closed the railroad for well over a month. Train service resumed in July after rain helped reduce the fire danger, but it was disrupted again a few weeks later by a series of mudslides in the recently burned area, again forcing the railroad to significantly alter its operations until fall.
Almost as soon as the fire began, local residents were blaming the railroad for the blaze. Multiple eyewitnesses told local news outlets that they saw the fire start after the train passed by.
Although the railroad has not taken responsibility for the 416 Fire, it has vowed to do more to prevent locomotive-caused fires in the future. Soon after the fire began, the railroad began work on converting K-37 locomotive No. 493 to burn oil and it announced that it would be purchasing two new diesel locomotives.
The trial is currently set to take place in November and December 2020. According to court records, prosecutors and the defense expect the trial to last 10 days.
Mister Pinckney:
While I agree with your sentiment what you propose is not legally possible. D&S is a common carrier and as such is beholden to the Surface Transportation Board. They cannot simply shut down. They must have permission to shut down. Common carriers enjoy special privileges but this comes at the obligation that they perform a public service.
The above comments are generic in nature and do not form the basis for an attorney/client relationship. They do not constitute legal advice. I am not your attorney. “Kind words and a gun will always get you more than kinds words alone” – Al Capone.
Interesting: judge Blackburn apointed by W and judge Neureiter appointed 2018.
There were fires before the railroad was here. There is absolutely no proof the locos. started the fire. How can the Feds bring this to court with no proof. I have been on one of their trains and seen their spark suppresion system using water sprayed into the smokestack. There was so much water being sprayed in the stack that it was raining down on the cars nearest the loco. I do not believe there is any way a spark could survive that. And with the trailing car carrying fire equipment, and looking for any signs of an ignition, I can not believe they are responsible. Where are their Congressmen? Why are they not getting this idiotic lawsuit thrown out?
Mister Pinckney:
The Durango and Silverton is part of my childhood. I was there when it was still Rio Grande. I would very much hate to see it go.
If you can give me a single-use email address I’ll send you a PDF explaining how this is the case.
The above comments are generic in nature and do not form the basis for an attorney/client relationship. They do not constitute legal advice. I am not your attorney. Diesel boats forever.
Hoo-boy do Diesels produce sparks and fires! That was the experience with Boston & Maine local freights on the Fitchburg out of Boston. Carbon builds up in the stacks–plus brush both cut and uncut is allowed to accumulate so there’d be fires along the railroad in the 1970’s and ’80’s. Think the great Zealand Fire of 1907 in the White Mountains of NH caused by logging slash just left in place for a few years until the dry summer of 1907 and up it went bigtime right in front of rich and influential tourists–and forest management changed BIG!
Ms. Harding: You are indeed correct. I was under the mistaken impression that given its isolation, truncation, and limited commercial focus that the D&S is no longer a common carrier. Therefore, the ownership needs to immediately submit a request to abandon to the STB and then scrap it on-site ASAP upon receipt of the near-certain approval is in order. I still say to Lidice the plant, fixtures, and equipment. At its best, government is like a canine when it comes to successful instruction on what not to do and where when it comes to business. When it comes to government and railroad history/preservation, the Chicago METRA set the example with the steam locomotive collection of the late Dick Jensen. How about a “Historic Marker” sign for the Silverton Ghost Town SIte, detailing the life and death of the town, the DRG&W narrow gauge empire and the D&S? It could explain why it was “born”. And, why it died. Let it be the RGS of the 21st century. Albeit without preservation of any kind. Not even a “rail trail”. When a government doesn’t want the jobs directly and indirectly created by a business (as is the case with this “lawsuit”), it is foolish to to think that the government’s wish will not prevail. Occasionally, the assurance of business (and thus job) elimination (think tax revenue elimination) will get the attention of a government as tax revenue is to government what crack cocaine is to a drug addict. I use the recent case of Mauch Chunk, PA as a railroading case where government is at least appearing to back off after being assured defensive action by the targeted railroad.
Mr. Maynard, Given the U.S. Presidents who appointed those judges, I am not surprised at their anti-employment and anti-business rulings. Both of those Presidents are the antithesis of free-market American capitalism.
The owners of the Durango & Silverton should immediately and very publicly file for a Chapter 7 bankruptcy, cancel operations proposed for the 2020 season, and terminate all staff. Give public notice that if the lawsuit is not immediately dismissed by a given date (within 10 days of the announcement), that the ownership of the D & S will immediately and irrevocably solicit bidders for scrapping of the line, locomotives, rolling stock, and demolition of buildings, physical plant and other facilities. There will be no donations or sales of equipment or other artifacts for preservation. In other words, Lidice the Durango & Silverton.
Yes, I am a longtime railfan. While I’ve never ridden the D & S, I hoped to one day, I miss the EBT. But, if the Federal government is concerned about scorched earth, give it to them. It’s time for business to teach the stepchildren of illegitimate parentage which is government that it’s supposed to be “Government of the People, For the People, and By the People. If the state and local governments don’t effectively come to the aid of the D & S, the town deserves financial ruin.
Don’t let government win either the Cadillac or the set of steak knives in this.
John Rice, Your statement is on the wrong railroad and out of place for this event. Want to know, just look of court records on the internet. The D&RG and D&RGW never needed to operate any locomotives with wood making sparks. The land owner should have had the dry oak bush chewed up and destroyed with machines or control burns. The case should be thrown out.
While I cannot comment on the litigation itself it is not with a dry eye that I watch another piece of my (misspent) childhood bite the dust …
The above comments are generic in nature and do not form the basis for an attorney/client relationship. They do not constitute legal advice. I am not your attorney. In case of emergency, draw a door.
I think I can do this without expressing an opinion on the current litigation.
This is, however, simply a personal opinion and should be relied on for no purpose whatsoever, and should not be taken as legal advice. I am not your attorney. For prompt and accurate legal advice consult a licenced legal practitioner in your jurisdisction.
I believe D&S is at the moment privately owned. If the worst comes to pass, D&S is bankrupted and put out of business, all is not lost. As in the case of the other end of the San Juan Extension, the states of New Mexico and Colorado put together an interstate agency which owns the railroad. I believe they farm out operations to a third party.
Let us assume D&S is put out of business by the outcome of the litigation. The railroad is a major attraction to an area which is lightly populated and which currently has few other sources of income. San Juan County, where Silverton is located, has a total population of about 700 – down somewhat, but not much, from the days my youth, is small enough for example that the Sheriff there, aside from a local lockup doesn’t have a jail – you get transported to Durango and locked up there. At least that is how I remember it and never you mind how I know that detail.
Durango is in La Plata (the silver) County which is considerably bigger at about 50,000. Whether it can survive without the railroad is less open to question than in the case of Silverton but there is no question that a shutdown would hurt the local economy.
The State of Colorado does not want an unpopulated county. There is precedent for them stepping in and forming a public corporation to own the railroad and see that it is operated. I can see that happening in the worst case scenario.
Regarding conversion from coal to oil. For reasons other than the fire hazard it only makes sense. Unfortunately. This too is something about which I have mixed emotions, but the fact is that feeding a K-28 is back breaking work. If you didn’t have muscle when you started that job, you will by the time you quit.
One thing about San Juan County. The Sheriff Department are pretty easy going, and as long as you aren’t causing a problem you can do just about anything you like and they will not bother you. There are some exceptions. When you come to town behave. And don’t harass the tourists.
And a shoutout to Foster’s in Chama. Though, it can’t be as I remembered it. Sic transit gloria mundi …
The above comments are generic in nature and do not form the basis for an attorney/client relationship. They do not constitute legal advice. I am not your attorney. For prompt and accurate legal advice consult a licenced legal practitioner in your jurisdiction.
Kill the golden goose and we will have two new ghost towns.
Mr. Jones, At the currant time one of the steam locomotives is being converted to an oil fired system with plans to do one or two more. The railroad is also purchasing two diesel locomotives to use when fire danger is prevalent. Hope this answers your question.
Fred, remember this is a federal lawsuit. While there may be people in the county who want to see the railroad gone and who aren’t looking at the big picture, it’s the feds instigating this. They don’t care what happens to the county. It’s not their problem. They’re just after the win.
Residents of Durango and Silverton will just have to pick up the pieces the best they can. Or move.
When the towns dry up, and the county goes broke, maybe they will wonder what they did wrong.
Or maybe let the government prove beyond a reasonable doubt it was the train that started the fire, and throw out the hearsay from people that claim to have seen the fire start after the train went by, which by the way is always followed by a fire suppression crew for just such problems.
It may be time to convert the locos to use oil, or change to diesels altogether. Mother Nature is cruel in both directions.
No surprise here. A federal lawsuit brought by a federal agency thrown out by a federal court judge. Well, it’s not over yet, although in the end the only real winners will be the lawyers.
And if the railroad loses, ditto to Michael’s comment. I’ve been to that part of Colorado twice. There’s nothing else there to bring the big crowds in, at least not in the numbers the railroad does.
There have been fires caused by wood burning engines for many years in the late 1800’s. It would be interesting to see what the case law has on this.
Michael…my thoughts exactly.