The federal government wants the owner of a tourist train in Durango to pay $25 million for causing a wildfire that scorched 53,000 acres of Forest Service land last summer.
A lawsuit filed in U.S. District Court on Tuesday by the U.S. Attorney’s Office says burning cinders from the exhaust stack of a coal-fired steam train operated by the Durango & Silverton Narrow Gauge Railroad Co. and its owner, American Heritage Railways, sparked a small brushfire next to the tracks on June 1 last year. The suit says fire investigators found “a collection of numerous, extinguished embers, cinders and ash particles” next to the tracks and at the specific area where the fire originated about 10 miles north of Durango.
“Multiple eyewitness statements verify that the fire ignited adjacent to the track immediately after one of defendants’ coal-fired steam locomotives passed the origin point,” reads the lawsuit.
The 416 Fire burned for six months and firefighters prevented it from destroying any structures, with the state and federal government spending close to $40 million to battle the fire.
“Protecting our public lands is one of the most important things we do in the U.S. Attorney’s Office,” said U.S. Attorney Jason Dunn in a statement Tuesday announcing the lawsuit. “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.”
Al Harper has owned the railroad for more than 22 years. He was unavailable for comment on Tuesday but spoke with The Colorado Sun last summer as the wildfire burned and he struggled to keep his business afloat. It was early July, and the county’s fire restrictions had shut down his trains in mid-June. The La Plata County commissioners a week earlier had declined to downgrade the county’s fire restrictions that prevented running coal-fired steam engines, so his trains between Durango and Silverton remained idle.
“It’s hard for me because I’m an historic preservationist and there has never been scheduled train operations out of this railroad for 136 years without a coal-fired steam engine,” he said. “Oh, I’ve had people say to me, ‘You are an arsonist.’ No, I’ve kept alive what has been. I’ve tried to keep the history alive in Durango.”
The commissioners did not downgrade the fire restrictions until July 11 and Harper was able to run his steam-engine trains to Silverton along the Animas River starting July 12.
He was forced to cancel about 70,000 reservations in the month he was dormant and his business, which includes the Grand Imperial Hotel in Silverton, suffered. Durango’s tourism boosters, however, impressively rallied and encouraged locals to support local businesses during the 416 Fire. The city’s sales and use taxes for the busy months of June, July and August last year fell a mere 1.1 percent compared to the 2017 summer. It was the first year-over-year decline in Durango’s summer business since the recession hit the city in 2009.
Harper declined last summer to discuss the possibility of a lawsuit but admitted it was possible that embers from his train started the fire. He lamented the growing chorus of residents who were blaming the 416 Fire on his train before any formal investigation was concluded. Homeowners near the tracks fought the flames shortly after the train rolled through.
“We had firefighters on the scene. We had a helicopter on the scene and we had a firetruck there. And it still got away from us. Should I have run a coal-fired steam engine at Level 2 (fire restrictions)? Historically we have,” he said. “Maybe it was bad luck. Whatever you want to say. I’ve got insurance and I hope that’s enough.”
Last fall a group of residents and business owners filed a civil lawsuit against Harper’s railroad, seeking damages from not just the fire but the flooding on the burn scar that followed. A judge in Colorado’s Sixth Judicial District Court ordered all the case documents suppressed, limiting public access to filings. A trial date is set for September next year.
Last summer, as his city prepared for a Fourth of July parade, he rifled through some papers on his desk to find a $4.5 million contract for two 2,000-horsepower diesel engines that could pull seven tourist-loaded cars up the river to Silverton. Those engines would be much less likely than his coal-burning engines to emit fire-sparking embers and he could run them when local fire restrictions prevented coal-burning. Harper said he planned to retrofit his steam engines to burn oil so he could keep those engines running when fire danger was high.
He said he was expecting his company would lose much more than he was spending due to the closure.
Harper said after the Missionary Ridge Fire pinched his train business in 2002 with a similar closure, he secured insurance to cover lost bookings. He was glad he had that insurance last summer and seemed confident his liability insurance would help protect his business should he face a lawsuit over the 416 Fire. Colorado law holds railroad companies “liable for all damages by fires that are set out or caused by operating” on their rail lines.
“People need to understand there is no 100% guarantee you can eliminate the chance of a fire just like you can’t drive a car onto the forest and say you are not going to start a fire,” he said last summer, noting how his new diesel engines and fire-prevention strategies, including carrying 1,000 gallons of water on the train and having a firefighting team at the ready, are steps toward reducing the risk of wildfire. “We are preparing so this can’t happen again.”