selectorI would make the case that it is a frivolous and vexatious undertaking to sue the railroad for this accident.
Except there's that, you know, $25 million-odd in cost paid by the taxpayers, and, you know, government minions who need a villain they can soak ... and here's a convenient smoky, unpopular-with-local-voters target that looks like easy judgment (or settlement) fodder.
My guess is it won't be difficult to find the railroad 'guilty and liable' in the original court proceeding, and any letting them off the deep-pockets hook would only come on appeal, and therefore involve careful review of what is 'settled' during the trial ... which is a crapshoot at best, and probably lethally expensive to an outfit the size of D&S if their insurance doesn't give them the best defense money can buy. Which remains to be seen -- it's also possible the insurer will throw them under the bus based on the Federal and state evidence that has been amassed and will be certainly and loudly prosecuted to the best of government ability.
I wouldn't worry about the attraction going away: it will just change ownership in some transaction of convenience; perhaps this has already happened or is well underway to be triggered depending on how the ball bounces. The important consideration is that the new operating entity, whatever it is, operate as strictly as possible on "emberless" firing (which does include no von Boden-Ingles dribble onto the ties, as well as no plugs of flaming soot buildup)
Note that it is the USFS (a federal agency) that is filing suit, not the state of Colorado.
After the debacle of the start of the 2003 Cedar fire in San Diego county, I'm taking anything the USFS with a large grain of salt.
Unless there is video or eye-witness sworn testimony showing definitively that the locomotive or one of the cars caused the fire, I don't see how the State can prevail. Are there no other forest/grassland fires in the State except those caused by passing excursion steam trains? Did the railroad not take reasonable and required precautions to reduce the risk? Was the railroad operating per their permits, and under the auspices of any of the State agencies or departments meant to police, regulate, supervise, oversee, or otherwise mitigate public and environmental risks? Perhaps the 'accident' is that it didn't happen the previous year, or the one before that, for all the years the State has been in a condition of drought and during which the State happily allowed the railroad to run precisely the same way it did during the fire.
I would make the case that it is a frivolous and vexatious undertaking to sue the railroad for this accident.
EuclidThe Forest Service had the power and duty to prohibit the use of coal burning locomotives during high fire danger, and they failed to do that.
This is an interesting legal argument. There is adequate established precedent for restricting the use of this vintage of coal-burning locomotive in 'high fire danger' conditions, most notably the use by NYC ... not a road known for its oil-burning locomotives ... in the Adirondacks nearly as early as effective locomotive oil burners were developed. This being California, the great domain of 'what is not required is forbidden', perhaps a good case could be made for it.
I frankly fail to understand why any coal-burning locomotive with the propensity to shower live coals or 'sparks' would be allowed to operate in a known fire-danger region -- regardless of whether the conditions are chronic or on-going and would constitute 'business interruption' past any insurance coverage therefor. Good methods of oil firing that are reasonably 'reversible' when necessary, or in fact dual-fuel systems that use a light solid-fuel bed as flameholder, are well known in the art. It is long past time D&S did that conversion.
I do wonder whether, as an accommodation, the Forest Service would allow the railroad to include the full costs of the oil conversion as part of the nominal settlement or award, whatever it remains at after appeals are exhausted.
The Forest Service had the power and duty to prohibit the use of coal burning locomotives during high fire danger, and they failed to do that. I don’t believe that assessment is unfair to the Forest Service. Actually, I believe they are being grossly unfair to D&S.
There is bitter opposition to the D&S, and without any evidence, they write letters to the editor claiming it to be a fact that D&S started the fire. Obviously, the Forest Service shares their attitude. They have presented no facts that prove D&S started the fire, and yet they use their unlimited legal resources to wage a legal battle that D&S cannot win. The honest conclusion on the part of the Forest Service would have been that they could not determine the cause of the fire.
Even those railfan neighborhood volunteer fire fighters claim it to be a fact that the fire was ignited by a D&S train. They offer no direct evidence, just that they know it to be true. If they don’t know for sure, why is it so important to have a position on the matter that they are willing to unfairly reach that conclusion? There is something wrong when a person claims something has to be true because they just know it.
Sean
HO Scale CSX Modeler
Colorado_Mac, I definitely agree that there will likely not be another insurer who gives them a policy at an economically-feasible price after the current one expires if they still have coal-burning (ember-producing) locomotives.
Remember how quicky UP wisely converted the Challenger to oil firing after coal embers started numerous small fires along the right-of-way on an excursion not too long after it was returned to service.
These dual lawsuits could result in financial difficulty for the current operator, unfortunately, which is why in my prior post I surmised that it may likely be a future operator.
I don’t think the railroad will go away - it does bring in substantial economic activity to this lightly-populated area of Colorado and can be operated successfully with improved fire safety, for sure.
But the economic fallout to the railroad of the 416 Fire could result in the end of coal-fired steam, more diesel power and limited oil-fired steam. (The last two of that list are already happening. Hopefully the K-37 works well and the cost of converting more locomotives is not cost prohibitive.)
Please notice I said “could” - one never knows for sure. This second lawsuit piled on the first, coupled with the likely future insurance issue is a heavy, heavy financial load to carry.
We all want the D&SNG to survive and thrive.
Having ridden the D&S I feel I should say something but I'd better wait until my blood pressure goes down.
Lady Firestorm loved the ride too, but before I can get a comment out of her I'll have to peel her off the ceiling!
A bad situation all around.
If you read the letters to the editor in the Durango Hearald, it becomes obvious that the oppostion to D&S is not limited to the possibility of it starting fires. Any visible emissions including just steam will set off those who oppose D&S as being a carbon spewing relic from a bygone era that is best forgotten. And it is obvious that the Forest Service is part of that activist opposition. They all want D&S shut down, so the right of way can be used as a recreationsl trail.
The Forest Service claims that a D&S locomotive started the fire because coal cinders were found along the tracks. They also claim that the locomotives have started fires in the past. So they know for certain that the D&S locomotive started the "416 fire" last year.
What is the story with the apparently self-appointed volunteer fire fighters living along one location along the tracks as a group of neighbors? They say they know beyond a shadow of a doubt that a D&S train started the fire. Yet they saw nothing that proves that connection other than the fact that a train passed shortly before the fire broke out. These people are set up with pumps and water tanks, and they patrol the D&S tracks near their homes to watch for fires. Do they have a contractual agreement with D&S to fight fires that may occur on D&S property?
The Forest Service publishes fire restrictions for various activities during condtions of high fire risk. These govern things such as camp fires and the use of internal combustion engines. They certainly are aware of the D&S operation and they have the authority to ban the use of coal-fired locomotives during fire danger. Yet the Forest Service allowed the D&S to operate coal-fired locomotives.
I agree with you, kgbw, and in fact they have already begun that conversion.
https://durangoherald.com/articles/263817-durango-silverton-narrow-gauge-begins-era-of-oilburning-locomotives
My concern is that the lawsuits will either break their financial back, or their insurer will pay but then they will not be able to get affordable insurance after that.
One cloudy crystal ball is to look for a future owner to run mainly diesel with a smattering of oil-fred steam in the vein of White Pass & Yukon. It is a draw mainly because of the scenery. Rail fans go for the steam but it is likely most others go for the scenery and the ride and are agnostic about what is pulling the train. The Grand Canyon Railway is another similar operation in that regard.
If you are thinking of visiting the Durango & Silverton, you may not want to put it off for too long. The Forest Service is suing them for $25M in damages from a massive wildfire last summer that they say was started by the railroad. If that goes against them it might just be the end. This is in addition to other lawsuits in Colorado - heck even the legal costs might be enough to sink them.
Long, detailed story: https://durangoherald.com/articles/283967
Shorter story: https://www.denverpost.com/2019/07/02/416-fire-caused-durango-silverton-narrow-gauge-railroad/
I hope I'm just being a grouchy old pessimist!
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