In Colorado, the deadline to sue for starting a wildfire is two years. That window for the Marshall Fire closed on Dec. 30, 2023, but not before more than 200 cases were filed against Xcel Energy for allegedly causing the most destructive fire in the state’s history.
One lawsuit that came at the buzzer was from towns affected by the fire and Boulder County.
It was filed on Dec. 28, 2023 by the Board of County Commissioners, the Town of Superior, the City of Louisville, Boulder County Public Health, the Boulder Valley School District and Superior Metropolitan District No. 1.
The governments and school district are suing to recoup losses that “are vital for community recovery after a wildfire,” Torri Sherlin, an attorney with Baron & Budd P.C., the firm representing the county, told Boulder Reporting Lab.
The lawsuit says they are seeking compensation for various damages, including to infrastructure, employee work hours and revenue losses from property, excise and sales taxes.
The suit was prompted by a letter from the Federal Emergency Management Agency, according to an October memo from the county attorney.
After an official investigation revealed the alleged causes of the Marshall Fire — attributed to Xcel and a fundamentalist religious group — FEMA sent a letter to the Colorado Division of Homeland Security and Emergency Management. The letter said recipients of FEMA public assistance funds must take “all actions necessary” to recover money from any “potentially liable third party,” according to the county’s memo. This requirement is based on the federal Stafford Act, which prohibits a duplication of benefits from FEMA.
“If Boulder County does not pursue a claim it must provide FEMA with justification that such a pursuit is not commercially reasonable,” the memo said.
The investigation had concluded that the Marshall Fire resulted from the merging of two fires. The first was ignited on a property owned by the Twelve Tribes religious community on Eldorado Springs Drive, allegedly sparked 30 minutes before the second fire, which was allegedly caused by sparks from an unmoored Xcel power line.
The state Division of Homeland Security and Emergency Management determined it would not be “commercially reasonable” to take legal action at the state level against any third parties, according to the memo. Boulder County didn’t agree. Neither did nearby towns.
The lawsuit they filed closely resembles lawsuits that were previously filed against Xcel by insurers and homeowners.
Read: Xcel Energy faces legal firestorm: Understanding the Marshall Fire lawsuits
No one has sued the Twelve Tribes community.
Sherlin, the attorney, said the governments are suing Xcel, and not Twelve Tribes, because of evidence presented in the investigation.
“The public entities allege that the fire ignited by the Twelve Tribes did not spread quickly due to various environmental factors,” Sherlin said. “Whereas the Xcel ignition occurred in a flat mesa near dense and forested areas, which created favorable conditions for rapid fire spread.”
Geoff Spreter, an attorney working on two of the other civil cases, said he believes no one is suing the Twelve Tribes because “they don’t have any money.”
Read: Marshall Fire investigation raises questions about safety of slash burning laws in Boulder County
In a statement to Boulder Reporting Lab, Xcel said, “We strongly disagree with any suggestion that Xcel Energy’s powerlines caused the second ignition.” The company also implied that the second fire did not inflict damage to people’s homes. “We believe the second fire burned into an area already burned by the fire from the first ignition, and did not cause damage to any homes or businesses,” it said.
Similar to previous cases, and likely to be lumped with them
Like those preceding it, the county’s lawsuit has inverse condemnation and negligence as the first two complaints against Xcel.
In the case of inverse condemnation, the plaintiffs claim that Xcel acts almost as a government entity with monopoly power as the sole utility in Boulder County. And by allegedly causing a fire that burned through towns and public spaces, it seized “real property” without proper compensation or going through the eminent domain process, which is unconstitutional.
For negligence, the county and towns argue that Xcel should be prepared for wind events like the one that bolstered the Marshall Fire given how long it has operated in the Boulder area.
A new study by National Oceanic and Atmospheric Administration researchers found that while some aspects of the wind event Marshall Fire were abnormal — like the wind’s relentlessness — the wind’s strength was not.
Though the researchers added that the Front Range is especially challenging for forecasters trying to predict downslope winds, that doesn’t change the fact that such winds still are bound to happen.
In the coming months it is expected that all the lawsuits against Xcel will be consolidated under one judge in a mass tort — meaning all plaintiffs, including the county and insurers and individual homeowners, would argue together to prove liability, but then each embark on their own quest to secure payment for damages. Already a motion to consolidate was put forth and met no resistance from Xcel’s attorneys. After that, the timeline is unknown
“Sometimes these cases can take several years,” Sherlin said. “It just depends on the pace the court ultimately wants to move the case forward.”
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