Durango & Silverton says wildfire lawsuit should be dismissed

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DURANGO, Colo. – Attorneys representing the Durango & Silverton Narrow Gauge Railroad have filed a motion to dismiss a federal lawsuit that demands the railroad cover the costs of putting out a massive wildfire started by one of its trains last year.

In July, federal prosecutors filed a lawsuit demanding the 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.

“Federal fire investigators have determined that the 416 Fire was ignited by particles emitted from an exhaust stack on a coal-burning, steam train engine owned and operated by Defendants,” the lawsuit states. “The United States suffered significant damages, including expenses in its efforts to suppress the 416 Fire and to rehabilitate the public lands damaged by the 416 Fire, a rehabilitation process that still continues.”

This week, attorneys for the D&SNG filed a motion to dismiss arguing that state and federal law only allows the government to sue for damages caused by a wildfire but not suppression costs. “In order for the government to maintain its sole claim for relief against the Defendants, it must show that it suffered damages that are unrelated to suppression costs, and only those damages might be recoverable,” attorneys write.

The railroad still denied the allegations that it started the fire, but accepted them as fact for its argument that it cannot be held responsible for fire suppression costs.

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 when a series of mudslides impacted the railroad 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 eye witnesses told local news outlets that they saw the fire start after the train passed by.

The federal lawsuit noted that the railroad had caused large forest fires in the past. Federal prosecutors also filed a scheduling order that included information about a number of small fires started by D&SNG trains in the month before the 416 Fire started. According to the railroad’s “daily report,” section crews dealt with a number of spot fires in May 2018 along the tracks including nine different fires on May 29, three days before the 416 Fire began.

The railroad owns a helicopter for putting out fires sparked by its steam trains. Most trains are also followed by speeders with workers armed with water and other fire extinguishers.

In September 2018, a number of local residents and businesses filed a lawsuit against the D&SNG, American Heritage Railways and its owner, Allen Harper, alleging that they did not do enough to prevent the fires.

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.

NEWSWIRETrains News Wire

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