Judge’s recommendation: Lawsuit against D&SNG for 416 Fire costs should proceed — The Durango Herald

From The Durango Herald (Jonathan Romeo):

In what could be a major blow to the Durango & Silverton Narrow Gauge Railroad, a federal judge has recommended a district court throw out the train’s motion to dismiss a lawsuit in which the U.S. government is seeking $25 million for fighting the 416 Fire.

In July, the U.S. government named the D&SNG as the cause of the 416 Fire, which started along the train’s 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.

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.

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.

In September, the D&SNG filed a motion to dismiss the lawsuit, 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 – but not firefighting costs.

The judge overseeing the case – U.S. District Court Judge Robert E. Blackburn – asked for a recommendation from U.S. Magistrate Judge N. Reid Neureiter on interpreting the law and on whether to dismiss the case.

On Friday, Neureiter filed his recommendation, which supported the U.S. government.

“First, I reject the (D&SNG’s) 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,” he wrote.

“The United States was protecting its own property, the National Forest, and acting like a property owner in fighting and attempting to suppress the fire … the United States is entitled to whatever protection is afforded to other landowners in Colorado – including entitlement to recovery of fire suppression costs.”

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