Lawyers suing the Durango & Silverton Narrow Gauge Railroad said they seek to obtain just compensation for residents who suffered damages as a result of the 416 Fire, not kill La Plata County’s top tourist attraction.
“Our motives are to hold the train responsible and to hold it responsible going forward, not to put the train out of business” said Thomas Henderson, a Denver attorney with Burg, Simpson, Eldredge, Hersh and Jardine, at an informational meeting held Tuesday night at Durango Arts Center.
Henderson was joined by Durango attorney Bobby Duthie, with Duthie, Savastano, Brungard, at meetings held Monday and Tuesday.
Henderson and Duthie said they have not yet served the D&SNG with papers for the lawsuit. But Duthie said he expects the train will be served soon.
Damages to homeowners’ properties mostly came from flood damage from the burn area, but some homeowners had burned trees and other damages resulting from fire on their lands, Henderson said.
In addition, Henderson said “loss of pristine views” might harm property values.
“The losses are pretty near and dear,” he said. “The dream that they had isn’t there anymore, and they can’t resell their property anymore.”
No buildings or homes were lost to the fire, which started June 1 and was declared fully contained July 31.
On Wednesday, D&SNG owner Al Harper said before next season he is investing $6 million in fire-mitigation efforts, including purchasing two diesel engines and converting a coal-burning engine to burn oil. He added that he is exploring the possibility of converting two more engines to burn oil.
“I can’t speak about litigation; I assume there will be one or two lawsuits, but I am willing to listen to anyone with ideas for fire mitigation that are within reason and affordable,” Harper said.
He added that he has invested more money in the train than it has generated in revenue since he bought it in 1998.
“We do this because we love the train, and we love the community, and we love Durango, and that’s why we’re going to keep going and why we’re going to hang tough,” he said.
Henderson said several plaintiffs are business owners who lost sales during the 416 Fire, which forced on-and-off closures of U.S. Highway 550.
Henderson described the civil lawsuit as more of a mass tort litigation than a class-action lawsuit because damages vary widely among plaintiffs.
Attorneys will use a forensic accountant to help determine losses suffered by businesses during the fire, he said.
One of the reasons for the lawsuit’s filing last week is to force the train to adopt new procedures to minimize fire starts next season, Duthie said.
The U.S. Forest Service, which is responsible for investigating the cause of the 416 Fire, has not determined what started the blaze. It intends to issue a ruling in late fall or early winter. The office of Colorado Attorney General Cynthia Coffman is expected to review the report before it is released.
While the Forest Service has not listed a cause of the blaze, Henderson said lawyers have enough information that a D&SNG train started the 416 Fire based on interviews, the environmental conditions at the time and a history of train-ignited fires.
Henderson also said attorneys have hired their own fire investigators to examine the cause of the fire.
Kristi Householder, a plaintiff, said she has spent more than $100,000 cleaning and making repairs to her property as a result of floods from the 416 Fire burn scar. She said 23 dump truck loads of debris have been removed from her land.
“The fire was two county roads and a state highway away from us. We were not that worried even though we had mandatory evacuations. Then, on July 17, in 20 minutes’ time, our property was changed completely,” she said. “It truly was a life-changing event.”
The lawsuit seeks to cover all damages and losses incurred by the plaintiffs resulting from the 416 Fire, smoke from the fire and subsequent flooding and mudslides.