With an inflammatory title like that, not hard to see where this thread will go....

Doesn't the Durango & Silverton have a fire suppression speeder following their trains, also? If not, why don't they institute that precaution?    Let us hope that this great American institution isn't destroyed by rapacious, marginally employed lawyers.

mark s posted:

Let us hope that this great American institution isn't destroyed by rapacious, marginally employed lawyers.

In fact, the subject lawsuit has been filed by the United States Attorney's office, that is, by the U.S. Government. Also, note the reference to the Colorado statute: The United States is seeking compensation under Colorado Revised Statute § 40-30-103 which states: “Every railroad operating its line of road, or any part thereof, within this state shall be liable for all damages by fires that are set out or caused by operating any such line of road, or any part thereof, in this state, whether negligently or otherwise.”

Feds sue Durango & Silverton Narrow Gauge Railroad seeking to recoup $25M in 416 Fire costs

First time that railroad has been formally blamed

Posted: 1:24 PM, Jul 02, 2019

 

 

DENVER – Federal officials announced on Tuesday that the 416 Fire which burned 54,000 acres in southwest Colorado last year was caused by burning cinders from an antique locomotive operated by the Durango & Silverton Narrow Gauge Railroad Company.

The cause was released in a federal lawsuit from the U.S. Attorney’s Office for the District of Colorado that seeks compensation for firefighting and rehabilitation efforts, which the U.S. Attorney’s Office says cost the federal government approximately $25 million so far.

U.S. Attorney for Colorado Jason Dunn announced the lawsuit Tuesday. The railroad company and its owner and operator, American Heritage Railways, Inc., are named as defendants in the lawsuit.

The suit contains the first public announcement that the train caused the fire , though it has long been suspected as the source by locals.

“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.

Much of the land burned in the fire, which was among several massive fires that burned in the state in 2018, sat in the San Juan National Forest and federal firefighting resources were used for months to put the fire down.

The fire, which sparked on June 1, was active for 61 days and was not declared extinguished until late November.

The lawsuit states that the locomotive that started the fire had a metal screen over its exhaust stack to capture burning exhaust particles but that the screen did not trap every particle. It says that some of those particles ended up on the ground next to the railroad and sparked a small brush fire, which then spread.

The suit says that they found the origin of the fire next to the track, along with a collection of extinguished embers and cinders at the point of origin. And it says that several eyewitnesses told investigators that the fire started just after one of the coal-fire steam locomotives passed.

Additionally, according to the suit, several fires were started in the months prior to June 1 by the steam locomotives operated by Durango & Silverton Narrow Gauge Railroad company. It also names several other fires in the area started by the train, including the 2012 Goblin Fire, the 2012 Needleton Fire and the 2002 Schaff II Fire.

The United States is seeking compensation under Colorado Revised Statute § 40-30-103 which states: “Every railroad operating its line of road, or any part thereof, within this state shall be liable for all damages by fires that are set out or caused by operating any such line of road, or any part thereof, in this state, whether negligently or otherwise.”
The United States is seeking a trial to determine damages and is asking for pre-judgment interest, administrative costs and penalties, as well as post-judgment costs and attorney’s fees.

 “Protecting our public lands is one of the most important things we do in the U.S. Attorney’s Office,” U.S. Attorney Dunn said in a statement. “This fire caused significant damage, cost taxpayers millions of dollars, and put lives at risk. We owe it to taxpayers to bring this action on their behalf.”

And Mark S comment still stands.

Who do they use on fires that start from lightning?  

Or damage caused during floods ?  

But hey it's just Colorado being Colorado. 

I guess identifying the fuel firing that train that passed before the fire is a biggie....we need to write our congress persons to get them to turn off the ambulance chasers?

My guess is we are seeing the beginning of the end of this operation. Some of you that are lawyers might want to chime in.

I REALLY don't want this to be a political rant thread.  Article was something I came across and just found interesting.  And having ridden that line last year I really hope cooler heads prevail of this scenic route.

Professor Chaos posted:

With an inflammatory title like that, not hard to see where this thread will go....

I am sorry you think my heading was inflammatory, just stating facts. Please suggest something less inflammatory or neutral and I will change the heading.

Everyone loves the D&S, and thinks they should be excused. But think about every time a major forest fire is started by  careless campers, for example, causing millions of dollars in damage and millions for fire suppression operations (and sometimes loss of life). No one thinks the campers should be excused in those cases, and in fact they are subject to civil and criminal liability. 

The D&S hasn't been found liable yet, and I hope they aren't, but under the law they can't be treated any different from any other organization, or any individual. Personal bias has to be set aside, and the matter approached dispassionately and impartially. Something to think about. 

And laws holding railroads liable for damage caused by fires are not unique to Colorado. It is not "Colorado being Colorado." Many, if not all, other states have similar laws. This is the Wisconsin statute, for example:

192.44  Fires; railroad liability; action for damages.

192.44(1)(1) Each railroad corporation owning or operating a railroad shall be liable to the owner of property injured or destroyed by fire communicated directly or indirectly by locomotives in use upon such railroad, or by the burning of grass, weeds or rubbish on the right of way by employees of such corporation; and such railroad corporation may procure insurance in its own behalf for its protection against such liability.

192.44(2) (2) To recover such damages, it shall only be necessary for the owner to prove the loss of or injury to the owner's property, and that the fire originated in the manner hereinbefore stated.

aussteve posted:

Who do they use on fires that start from lightning?  

Or damage caused during floods ?  

But hey it's just Colorado being Colorado. 

This is an unfair analogy.  Fires from lightning or flood damage are natural occurring events.  This fire, if the evidence is to be believed, was caused by the rail operator and could have been prevented if they had taken any number of preventive measures.  Why shouldn't they be held responsible?

Considering they operate in a semi arid pine forest and have had problems before, they should have switched to oil.  The steam train in my state did that long ago.

From a post over on TO about this...

$25 million sounds like a lot of money. 

I don't know if the railroad could stand such a loss if they are in fact held liable.  Furthermore could the local economy survive the loss of the railroad if it were to go out of business? 

If I remember my business law, in these kind of cases it will come down to whether the railroad reasonably attempted to prevent such fires from happening, whether a reasonable man could decide they bore fault for it (and again, this is what I recall).  In theory they could (again based on what I remember of business law) argue the railroad is responsible under the idea of vicarious liability (basically if an activity is so dangerous that no matter how many precautions you take, it doesn't matter, you are found to be fully liable..one case I remember, radiation machine used in cancer treatment had a bug in the software controlling it that ended up basically killing a patient, was ruled under vicarious liability).  Again based on my recall from courses, they might assign a certain percentage of the blame on the railroad, along with other contributing factors.For example, if the fire happened at a time when there was a particularly severe drought, versus what it would be normally, and it could be shown that the fire likely would not have happened or been a lot less severe, that could mitigate penalties. They could also find in this example hypothetically, that the state was partially at fault, that if in fact there was a severe drought, they should have curtailed operations of anything that had the potential to spark a fire, or at the least issued alerts (and obviously I don't know the conditiions at the time, this is a pure hypothetical). 

I can only hope that whatever comes out of this, it doesn't shut down the D and S, or worse, act as a catalyst for other tourist/steam railroads to be shut down. My hope is in the end that the railroad took what precautions it could and it was simply an unfortunate accident, and that there ends up some sort of settlement that allows both sides to walk away intact. Personally (and that is all it is), unless the railroad was grossly negligent, where it could be shown that its efforts were sub standard to try and prevent accidental fires, if they can try and nail them for full liability (and yes, I realize the law often says things like "the property owner only needs to show their loss and that the fire originated in such a fashion", but I am pretty certain that codicil to the law in terms of outcomes of lawsuits is still bound by whether the actions of the railroad to prevent fire were found to be non negligent.").

One note, this isn't greedy lawyers out to make a quick buck off a company, this is the federal government suing for the cost of putting out what became a major fire, the lawyers working on this (unless the feds are using private attorneys under contract, rather than staff attorneys) are not gonna get rich from this, they don't get a percent of the settlement directly, they are paid to handle the case. For better or worse, the government spent a lot of money and time putting out the fire, people risked their lives fighting it, and whether I think they should have filed suit or not, it is a reasonable action to try and get back their cost of fighting the fire.  Doesn't mean it is fair, either, how many major fires turn out to be either someone stupidly leaving a campfire unattended, or worse arson for fun? Do they go after the operator of a campground where the person accidentally started a fire? Odds are, they don't, in part because they likely wouldn't collect much. 

It's actually a fairly short Complaint at only 7 pages. Here are the specific allegations regarding the fire (sorry about the weird formatting--I cut and past from a PDF file):

The 416 Fire began on June 1, 2018, at approximately 9:53 a.m., when one of Defendants’ coal-fired steam trains, bound from Durango to Silverton, was passing through the San Juan National Forest lands at a location called Shalona Hill, which is adjacent to a private residential subdivision called Irongate Way.

Evidence indicates that the coal-fired steam locomotive cast off one or more burning cinders or other hot material, and ignited a small brush fire next to Defendant’s railroad track on National Forest land.

Fire investigators located the origin of the fire as next to the railroad track.

Federal fire investigators found a collection of numerous, extinguished embers, cinders and ash particles on the ground adjacent to the railroad track, including at the specific point of fire origin.

Multiple eyewitness statements verify that the fire ignited adjacent to the track immediately after one of Defendants’ coal-fire steam locomotives passed the origin point.

The Forest Service and other agencies promptly mobilized fire suppression efforts on the day the 416 Fire ignited.

The fire spread across the San Juan National Forest, and ultimately burned over 53,000 acres of National Forest land.

Firefighters did not declare the 416 Fire extinguished until November 29, 2018.

It was a horrible fire, no doubt about that.

This is only the beginning of the legal action, not the settlement.  Let's not rush to judgment.  There's insurance, and, as BIGKID pointed out there will be a lot of documents filed by both the government and the railroad, and this is a complex matter which will be negotiated..

This is very sad.....My grandparents took me to Durango to ride the Durango & Silverton Narrow Gauge Railroad for the 1st time in 1970. I have been back countless times with the last time being October 2018 with my family.  I took a behind scenes tour of the roundhouse with my daughter. I kept telling her during the tour how lucky we were to be taking a step back in time. The Durango & Silverton Railroad is an American treasure right along with the Grand Canyon, Yellowstone and the Statue of Liberty! The city of Durango lives because of this train. The fire was terrible as all fires are but why go after the railroad. I live in Flagstaff Arizona in the heart of the largest ponderosa pine forest in the world. Just like Durango forest fires are common and scary but it comes with territory just like hurricanes in Florida. I can't tell you how many fires get started by cold homeless people or lightning from dry thunderstorms. People who travel through our area from the east or midwest don't realize that almost anytime of the year a single cigarette butt can cause a roaring blaze in a matter of minutes. Most fires happen and you just don't know how they started. When you have such dry conditions with 5 to 10% humidity anything can spark a fire............ To sue the railroad because they have money is a stinking joke!! 

As noted, the legal issues are real, the costs incurred fighting the fire are real, hopefully the liability insurance will cover the damages, etc. I acknowledge the validity of the comments from the lawyers, herein.

Had the occaision to ride an excursion behind Milw 261 about 15 years ago - Chicago to just beyond Rochelle, IL - on the BN, and due to the BN legal Dept's liability concerns, the excursion operator had chaperones in each car yelling at everyone to keep their heads in, even if one was wearing goggles. Ruined the trip for me. I know - - - whine, whine whine!  But, that is why we have maybe 10 mainline steam locomotives operating in this country, and the UK has hundreds.

Again, doesn't the D&S have a fire suppresion speeder following each train? 

Yes ...............The Durango & Silverton has a fire crew following the train to put out any fire caused by hot  particles from the locomotive. Although if it's windy as it usually is when dry the hot ember could travel over a mile from the rails.

Questions to ask the USFS:

1.  If there was a wildfire risk within that forest, ask the RR to shut down during the dry period?

2.  I think the USFS asked the UP to convert the 3985 to oil.  So why not ask the D&S?

rrman posted:

Professor Chaos posted:

With an inflammatory title like that, not hard to see where this thread will go....

I am sorry you think my heading was inflammatory, just stating facts. Please suggest something less inflammatory or neutral and I will change the heading.

Having ridden the D&SNGR as a kid, I sure hope that it survives this suit. That said, your title is not "just stating facts," but shows a strong bias against the lawsuit. A neutral title, stating just the facts might be:

"U.S. Attorney's Colorado Office files suit against the Durango & Silverton Narrow Gauge Railroad seeking to recoup $25M in 416 Fire costs."

It's worth remembering that even headlines that "state just the facts" can convey bias.

bigkid posted:

If I remember my business law, in these kind of cases it will come down to whether the railroad reasonably attempted to prevent such fires from happening, whether a reasonable man could decide they bore fault for it (and again, this is what I recall). 

"one case I remember, radiation machine used in cancer treatment had a bug in the software controlling it that ended up basically killing a patient, was ruled under vicarious liability)."

Interesting, would this apply to Boeing as well?

I am going to day something some will not like.  But to have a healthy forest, over the long haul, there actually has to be a fire every so often.  I do not know if this is needed in this forest.  But the fires in Yellowstone a few years ago were EXACTLY what the park needed.  You need fire to get rid of undergrowth.  Also fire is needed for some tree seeds to sprout.

Dominic Mazoch posted:

I am going to day something some will not like.  But to have a healthy forest, over the long haul, there actually has to be a fire every so often.  I do not know if this is needed in this forest.  But the fires in Yellowstone a few years ago were EXACTLY what the park needed.  You need fire to get rid of undergrowth.  Also fire is needed for some tree seeds to sprout.

Dominic, you are right, fires are needed to keep a forest healthy, and yes, some conifers need fire to activate their cones' seeds. A productive fire is small and not very hot. You may here about "prescribed burns." These are small, man-made, controlled fires that reduce undergrowth and activate seeds. Most or all of the fires that make the news out West are huge and much too hot to be productive. These are destructive fires. (Will Mother Nature recover from a destructive fire? Eventually, yes.)

—Matt

aussteve posted:

Who do they use on fires that start from lightning?  

Or damage caused during floods ?  

But hey it's just Colorado being Colorado. 

Just to let you know Denver and Boulder are the large population areas were liberals from all over the country have congregated. They do not represent the values of the rest of the state! 

"controlled" is a joke..twice on trips out there, once in S.D. and again at Yellowstone, where a controlled fire that got away from them routed you way out into Wyoming, and the route back was blocked by bridge construction where road was closed and you sat there in your car in the dark all night!

Glenn:  just a note, best to steer clear of politics, or the editor will shut down the discussion.

It's pretty simple if the D&S is found guilty of causing the fire they will have to pay the fine in part or in full. As they should, if it puts them out of business, so be it. 

Sorry to be blunt but that's the way it will end,

Dave

david1 posted:

It's pretty simple if the D&S is found guilty of causing the fire they will have to pay the fine in part or in full. As they should, if it puts them out of business, so be it. 

Sorry to be blunt but that's the way it will end,

Dave

Dave, there is no "fine." This is a federal civil lawsuit. Not even the complaint itself states a monetary amount that they want.

The prayer for relief is for the following:

--Damages in an amount to be determined at trial;

--Pre-judgment interest, administrative costs, and penalties pursuant to 31 U.S.C. 3717 and 43 CFR 2808.11;

--Post-judgment interest at the statutory rate;

--An award of costs an attorney's fees; and

--Any other relief the Court deems just and proper.

The $25,000,000 number that keeps popping up is only what the fire cost the government. Theoretically, the jury could find in the Government's favor--and award $1.00.

BobbyD posted:

bigkid posted:

If I remember my business law, in these kind of cases it will come down to whether the railroad reasonably attempted to prevent such fires from happening, whether a reasonable man could decide they bore fault for it (and again, this is what I recall). 

"one case I remember, radiation machine used in cancer treatment had a bug in the software controlling it that ended up basically killing a patient, was ruled under vicarious liability)."

Interesting, would this apply to Boeing as well?

Interesting question. From what I know of vicarious liability cases, the activity involved is so inherently dangerous that basically in doing it the person/organization accepts that fact, that if something goes wrong in effect they will be found responsible/negligent even if they did everything they could. My opinion would be no, that given the relative safety of aircraft that Boeing would not be assumed to be liable automatically. Put it this way, Boeing planes achieve millions of  flight miles every year and airline travel is one of the safest forms of travel in general, so it would be hard to argue that this represents something so risky Boeing is liable no matter what it did. As a result, this comes down to standards of liability and negligence, did Boeing in putting the changes into the 737 Max follow acceptable procedures in how they designed, built, tested and rolled them out? If once issues were raised with the design, did they act in a timely fashion to correct them? If they were found failing in one or more of these areas (and there are plenty more,liability and negligence are specialized area of law, this is just a simple example), then they could be found liable, and if they were found to have violated the last one, where they knew they had potentially big problems and didn't act, negligence would come into it (and I apologize to those with legal training in advance, the law is based on precise use of terms, hopefully I haven't boinked these ones too much. 

With the Colorado fire, I doubt there  would be vicarious liability, while obviously there is risk with a coal fired steam engine travelling through a forest, the risk doesn't come to the level that vicarious liability would kick in, again it would come down to if the Durango and Silverton in operating the train followed acceptable practices to ameliorate the risks involved or if somehow they weren't doing what they were supposed to be doing, whether industry best practices, their own policies and procedures and/or regulatory and other outside influences (for example, if a government agency issued an alert that the forest involved was in high danger of fire, due to dry conditions/drought or because of heavy, hot winds like the Santa Ana winds in California, and they continued to operate, that could be considered negligence). 

smd4 posted:

david1 posted:

It's pretty simple if the D&S is found guilty of causing the fire they will have to pay the fine in part or in full. As they should, if it puts them out of business, so be it. 

Sorry to be blunt but that's the way it will end,

Dave

Dave, there is no "fine." This is a federal civil lawsuit. Not even the complaint itself states a monetary amount that they want.

The prayer for relief is for the following:

--Damages in an amount to be determined at trial;

--Pre-judgment interest, administrative costs, and penalties pursuant to 31 U.S.C. 3717 and 43 CFR 2808.11;

--Post-judgment interest at the statutory rate;

--An award of costs an attorney's fees; and

--Any other relief the Court deems just and proper.

The $25,000,000 number that keeps popping up is only what the fire cost the government. Theoretically, the jury could find in the Government's favor--and award $1.00.

 

Thanks for this, I think it clarifies how judgements happen when it comes to lawsuits for damages.  A jury (or a judge, question I always wanted to ask, can a defendant waive the right to a jury in a civil case?) could give much less than asked I assume if they feel like someone else bears some of the blame (for example, if this had been a drought and the government didn't issue warnings or guidelines about the state  of the forest, they could be considered partially responsible for it). A jury could also decide that the railroad was really negligent and award damages more than what the plaintiff asked for....I have been on civil cases here in wonderful NJ, and it isn't easy, the cases I was on there were no guidelines, we were just told to come to a verdict and decide what the plaintiff should get, if anything. 

Knowledgeable comments by both the legally trained and others have been presented here. Rest assured, this case will go on for months with reams of documents and multiple witness testimonies. Hopefully the insurance will be a key factor and I am fairly certain the railroad has, or will hire, talented legal counsel. I would certainly not write off the D&S at this juncture!

This country needs SERIOUS Tort reform.

I just wonder if this is the first fire supposedly caused by a steamer along  the ROW, given the D&RGW ran trains, coal fired steamers, over this route since the 1880's?

Dominic Mazoch posted:

I am going to day something some will not like.  But to have a healthy forest, over the long haul, there actually has to be a fire every so often.  I do not know if this is needed in this forest.  But the fires in Yellowstone a few years ago were EXACTLY what the park needed.  You need fire to get rid of undergrowth.  Also fire is needed for some tree seeds to sprout.

The smaller, productive fires prevents larger, destructive from happenning.

Noticed Smokey the Bear has changed his tone.  A little.  Only you can prevent WILDfires.  Covers forest, grasslands and swamps....  But the message is still important.

Isn't this road some kind of National Historical Site, and exempt from this kind of petty harassment?  Should be...

The attorneys and insurance folks will sort this out, and it is very likely the lawsuit will not prevail. The tourism draw of this historic railroad is very important to the economy of Colorado, and saner, sober heads will make an informed decision. Proper precautionary procedures will be modified and/or adopted to prevent future conflagations from occurring. The proverbial sky is NOT falling!