{"id":90961,"date":"2019-12-31T20:09:19","date_gmt":"2019-12-31T20:09:19","guid":{"rendered":"https:\/\/dh.durangoherald.com\/tj\/judges-recommendation-lawsuit-against-dsng-for-416-fire-costs-should-proceed\/"},"modified":"2019-12-31T20:09:19","modified_gmt":"2019-12-31T20:09:19","slug":"judges-recommendation-lawsuit-against-dsng-for-416-fire-costs-should-proceed","status":"publish","type":"post","link":"https:\/\/dh.durangoherald.com\/tj\/judges-recommendation-lawsuit-against-dsng-for-416-fire-costs-should-proceed\/","title":{"rendered":"Judge\u2019s recommendation: Lawsuit against D&SNG for 416 Fire costs should proceed"},"content":{"rendered":"\n

\"A
A federal judge made a recommendation to a fellow judge to throw out the Durango & Silverton Narrow Gauge Railroad\u2019s motion to dismiss a government lawsuit to recover costs for the 416 Fire.<\/span>Durango Herald file<\/span><\/figcaption><\/figure>\n<\/p>

In what could be a blow to the Durango & Silverton Narrow Gauge Railroad, a federal judge has recommended a District Court throw out the train\u2019s motion to dismiss a lawsuit in which the U.S. government is seeking $25 million for fighting the 416 Fire.<\/p>\n

In July, the U.S. government named the D&SNG as the cause of the 416 Fire<\/a>, which started along the train\u2019s tracks north of Durango in summer 2018 and went on to burn more than 54,000 acres of mostly national forest lands in the Hermosa Creek watershed.<\/p>\n

After eyewitness accounts and months of speculation, federal investigators determined a cinder emitted from a smokestack from a D&SNG coal-burning locomotive, which was running at a time of extreme drought in Southwest Colorado, sparked the fire.<\/p>\n

At the same time, U.S. officials said the D&SNG denied starting the fire, prompting a lawsuit that seeks $25 million from the railroad for damages and fire-suppression costs.<\/p>\n

In September, the D&SNG filed a motion to dismiss the lawsuit<\/a>, saying there is no federal law that allows claims to recover fire suppression costs, and the only Colorado law on the issue allows for recovering actual damages from a fire on property \u2013 but not firefighting costs.<\/p>\n

The judge overseeing the case \u2013 U.S. District Court Judge Robert E. Blackburn \u2013 asked for a recommendation from U.S. Magistrate Judge N. Reid Neureiter on interpreting the law and on whether to dismiss the case.<\/p>\n

On Friday, Neureiter filed his recommendation, which supported the U.S. government.<\/p>\n

\u201cFirst, I reject the (D&SNG\u2019s) argument that, as a public entity providing a civic service by fighting a forest fire, the United States is not entitled to recover fire suppression costs,\u201d he wrote.<\/p>\n

\u201cThe United States was protecting its own property, the National Forest, and acting like a property owner in fighting and attempting to suppress the fire \u2026 the United States is entitled to whatever protection is afforded to other landowners in Colorado \u2013 including entitlement to recovery of fire suppression costs.\u201d<\/p>\n

Attorneys for both the D&SNG and the U.S. government declined to comment for this story. Both have the opportunity to challenge Neureiter\u2019s recommendation. It\u2019s unclear when Judge Blackburn will make an actual final decision.<\/p>\n

Neureiter, however, said previous decisions by the 10th Circuit Court, which Colorado falls under, have already made clear an entity can sue to recover firefighting costs.<\/p>\n

As to the D&SNG\u2019s claim an entity can recoup costs only for damaged property, but not firefighting costs, Neureiter wrote, \u201cThe 10th Circuit drew no distinction between fire damage to physical property and the expenses incurred in fighting the fire.\u201d<\/p>\n

\u201cI conclude that fire suppression costs are damages that may be recovered \u2026 because they are directly related to, inextricably intertwined with, and indeed an integral element of damages to property by fires.\u201d<\/p>\n

Neureiter, in his recommendation, shot down each of the D&SNG\u2019s reasons why the case should be dismissed.<\/p>\n

The D&SNG, for example, said allowing the U.S. government\u2019s lawsuit to proceed would open the door to unlimited claims for damages from fires, like \u201ca person hundreds of miles from a fire who suffers health effects due to smoke.\u201d<\/p>\n

\u201c(The D&SNG\u2019s) depiction is an exaggeration,\u201d Neureiter wrote. \u201cIt is nonsensical to say that the law cannot compensate a plaintiff who has expended money on fire suppression to protect property out of fear that someone a hundred miles away might later complain about respiratory problems.\u201d<\/p>\n

And, if the D&SNG\u2019s interpretation of the law on the matter were true, it \u201cwould lead to perverse incentives,\u201d he wrote, because a property owner, if confronted by a fire started by a train, would have little economic incentive to extinguish the fire because suppression costs are not recoverable.<\/p>\n

\u201cBy contrast, allowing property to be completely consumed would ensure full recovery from the railroad for the value of the burned property. Interpreting a statute that is intended to protect property from fire to instead create incentives to allow property to burn makes little sense.\u201d<\/p>\n

Ultimately, it appears Neureiter found little merit in the D&SNG\u2019s attempt to throw out the case.<\/p>\n

\u201cThe entire purpose of this strict liability statute was to shift the unavoidable cost of fires started by coal-burning trains to the railroads who run the trains,\u201d he wrote. \u201cIt would be nonsensical \u2026 to not include the expense of fire suppression as part of the damages for which a railroad is strictly liable.\u201d<\/p>\n

It\u2019s unclear how Neureiter\u2019s recommendation may affect a lawsuit filed in September 2018 by more than 50 residents and business owners against the D&SNG<\/a>, which accuses the train of starting the fire and looks for compensation for damages suffered. Attorneys for that case did not return requests seeking comment.<\/p>\n

jromeo@durangoherald.com<\/a><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Railroad wants federal claim for $25M to fight blaze thrown out<\/p>\n","protected":false},"author":1,"featured_media":90962,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[],"tags":[2838,170,28,884,445,4259,549,84],"naviga_topic":[],"class_list":["post-90961","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","tag-416-fire","tag-durango-and-silverton-narrow-gauge-railroad-co","tag-headlines","tag-hermosa","tag-newsletter-lead","tag-newsletter-sign-up","tag-united-states-forest-service","tag-wildfire"],"acf":[],"author_name":"dh_admin","_links":{"self":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/90961","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/comments?post=90961"}],"version-history":[{"count":0,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/90961\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media\/90962"}],"wp:attachment":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media?parent=90961"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/categories?post=90961"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/tags?post=90961"},{"taxonomy":"naviga_topic","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/naviga_topic?post=90961"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}