The Colorado Court of Appeals ruled Thursday that La Plata County has “no authority to regulate the operation” of the Durango & Silverton Narrow Gauge Railroad in the latest update to a persistent saga that has embroiled the company and La Plata County in a legal conflict. However, that doesn’t mean the railroad now has license to go off the rails with respect to its use of the Rockwood Station.
The case contends with the question of which body – the La Plata Board of County Commissioners or the Public Utilities Commission – has the power to regulate the railroad’s operations and stations. In separate lawsuits against both the county and the PUC, D&SNG has maintained that neither body can regulate its historic operations.
The focal point of the case is the Cascade Canyon Express trip that D&SNG ran at the height of the COVID-19 pandemic from the Rockwood Station, located about 15 miles north of Durango, to the Cascade Canyon wye and back.
“The train can load as many people and run as many trains as they want from Durango to Silverton and through Rockwood,” said County Attorney Sheryl Rogers. “It’s the actual stopping for the embarking and disembarking of a lot of people that created the issue.”
The trip led to an influx of 200 to 300 cars in the neighborhood per day, the county found, which led to complaints from neighbors. The county issued a notice to D&SNG directing the business to discontinue using the Rockwood Station as a major embarking location on the basis that the railroad was out of compliance with the land-use code that had been recently adopted.
To accommodate the increased volume of visitors, D&SNG made several changes to the physical infrastructure of the Rockwood Station, which the county argues are subject to regulation because they constitute a “extension, betterment or addition.”
The railroad ceased to operate the Cascade Canyon Express trip from the Rockwood Station after receiving the county’s notice.
“We’ve been trying to work with the county from really the last couple of years while this process has been ongoing,” said John Harper, general manager of American Heritage Railroad, which owns D&SNG. “Unfortunately, the county has been unwilling to work with us and come together and come to a resolution that works for both parties.”
Harper reiterated the railroad’s position that the use of the depot falls within the historic use of the railroad, exempting it from the attempted regulation.
Last week’s appeals ruling addresses 6th Judicial District Court Judge Suzanne Carlson’s previous denial of a request from the railroad to enjoin the county from enforcing the land-use code.
The railroad argued in its appeal of Carlson’s decision that it was exempt from the code because of its status as a public utility, its previous use of Rockwood Station that predates the county’s code, and that its activities at the station do not constitute an extension, betterment or addition.
The higher court did not instate such an injunction citing a lack of information, but instead returned the case to Carlson to reconsider.
“The district court improperly avoided addressing the Railroad’s contention that it was entitled to relief that would enjoin the County’s attempt to regulate the operation of the train itself as part of the land use enforcement action,” the decision penned by Court of Appeals Judge Sueanna Johnson read.
The higher court affirmed a previous decision by the PUC that the agency, and not the county, holds the power to regulate the railroad’s operations. However, the court also affirmed the county’s authority “to address the local impact resulting from the change in the Railroad’s land use as a result of the increased passenger presence at Rockwood Station.”
D&SNG also requested relief compensation, claiming that the county’s enforcement was an unconstitutional takings. The higher court affirmed the lower court’s denial of this petition denied on the basis that no takings could have occurred because the county has not issued a final denial of any application for such changes.
Now that the 6th Judicial District Court once again will consider the scope of the county’s regulatory power, Rogers said she and the attorneys in her office are contemplating “a couple of options available to us.”
Rogers also said she is confident the county has witnesses that will be favorable to its case, although both she and Harper declined to speculate on any potential outcome.
“The biggest thing was we want to work with the county,” said Jeff Johnson, general manager of D&SNG.
Neither Johnson nor Harper specified whether they intend to resurrect trips that begin and end at the Rockwood Station, but said they look forward to clarity on what their rights are as a railroad.
rschafir@durangoherald.com
