When Boulder County officials released the results of their investigation into the origins of the Marshall Fire, they said there was insufficient evidence to pursue criminal litigation.
Civil litigation, however, is a different beast.
At least eight civil suits have been brought against Xcel Energy. Most are “mass torts” — meaning they’re actually hundreds of lawsuits rolled into one. Unlike class-action suits, where all plaintiffs receive the same payout, in a mass tort case, payouts depend on individual damage. Yet the plaintiffs still work together to prove the defendant guilty.
Their complaint: Xcel is at fault for starting the fire that burned people’s homes or properties.
The county’s investigation — led by the County Sheriff’s Office and the Boulder District Attorney — outlined two causes of the Marshall Fire. One was a reignited slash pile started several days before on the Twelve Tribes property north of the Marshall Mesa trailhead. The other was an unmoored power line managed by Xcel Energy.
No one has sued the Twelve Tribes community for its slash pile. More than 500 plaintiffs are suing Xcel.
Geoff Spreter, an attorney working on two of the cases, said he expects “several thousand to file when all’s said and done.” Plaintiffs can join the existing cases or file new ones up until Dec. 30, when the two-year statute of limitations cutoff comes into effect.
Though Boulder District Attorney Michael Dougherty decided against pressing criminal charges against Xcel, he told Boulder Reporting Lab that “certainly our analysis and conclusions will play a role in civil litigation.”
Civil cases require different standards of proof than criminal cases. In a criminal case, the defendant has to be proven guilty “beyond a reasonable doubt.” In a civil case, you just have to prove your case as more likely than not.
Or, as Michael Yancey, an attorney leading one of the lawsuits, said, you just have to “nudge the needle over 50/50 in front of a jury.”
All the complaints are ‘common law’ claims
While the eight suits are currently separate, attorneys are already collaborating. And all allege essentially the same thing: Xcel was negligent in how it constructed and operated its electric infrastructure. It caused a fire that took private property, “trespassed” and caused a nuisance for Boulder County residents.
Yancey said all claims in his complaint Hauke, Christopher et al v. Xcel Energy Inc et al are common law claims. Meaning, Xcel is not being accused of violating a rule or statute, but of a “violation of a duty.” He gave the example of Xcel having “duty of care” to Colorado residents.
“The power company owes a duty of care to those around it who could foreseeably be injured or impacted by their negligence,” he said.
Xcel maintains its infrastructure did not start the second fire that grew to become Marshall. It instead points to an underground coal fire as the culprit — a cause the county’s investigation largely ruled out. The company has said it didn’t have the opportunity to review or comment on the analyses underpinning the county’s investigation. In a statement to Boulder Reporting Lab, Xcel said “those analyses are flawed and their conclusions are incorrect.”
It has also said it doesn’t really matter who or what started the second fire, because the first, the one started by the Twelve Tribes community, was to blame for the destruction.
“We believe the second fire burned into an area already burned by the fire from the first ignition,” Xcel’s statement said, “and did not cause damage to any homes or businesses.”
How the lawsuits are similar, and different
Negligence
An argument permeating all the lawsuits against Xcel is that the utility should have built infrastructure that could better withstand winds common along the Front Range.
“While 100 mile-per-hour winds are excessive, it’s not unprecedented in Colorado,” Yancey said. If “you operate power lines in Colorado,” he added, “you should foresee the kind of danger that comes from high wind storms.”
A mass tort lawsuit representing more than 150 insurance companies looking to recoup their losses makes a similar argument. “Data from the National Renewable Energy Laboratory and the National Wind Technology Center show that Boulder sees wind gusts exceeding eighty miles per hour most years, often in December or January.”
That suit goes on to say that Xcel is “demonstrably aware” of Colorado’s wind patterns. It has to be, the lawsuit says, as the company constructs and operates wind farms across the state “to profit from Colorado’s windy conditions.”
While some lawsuits suggest Xcel should have buried its lines as a precaution, all question why Xcel didn’t shut off power to its power lines as wind speeds increased — a common precaution taken by utilities.
“Xcel knew, or should have known, that its power lines and electrical infrastructure may be at risk during dry and windy conditions,” two of the lawsuits read.
Inverse Condemnation
A majority of the lawsuits have “inverse condemnation” as their first or second complaint against Xcel. What they’re claiming is that Xcel is almost a government entity, as it enjoys the “exclusive right to provide electrical service in Boulder County, Colorado.”
Because this exclusive right involves providing a public service, it’s “a public entity,” they argue. And by creating a fire that “seized” residents’ property without paying them back for damages, it’s violating the Colorado Constitution.
The Colorado Constitution, similar to the U.S. Constitution, says the government can’t take a private citizen’s property “without just compensation.” In the lawsuits’ view, it’s time for Xcel to provide that compensation.
A few lawsuits also cite trespassing as a complaint, stating that the plaintiffs “did not grant permission” for the fire caused by Xcel to enter their properties. Yancey explained that it’s an old Colorado common law that you can get compensated if someone goes on your land or causes something to go on your land. He said the charge of trespass has been used in the past for wildfires.
Public and private nuisances
Many of the lawsuits also articulate both public and private nuisance complaints. As one lawsuit reads, the fire started by Xcel’s infrastructure “unreasonably interfered with plaintiff’s use and enjoyment of their real and personal property.”
Another states that any reasonable, ordinary person would be “annoyed or disturbed by the condition created by” Xcel.
Yet all these complaints may evolve into something else.
“It’s just the start of the lawsuit,” Yancey said, adding that the discovery process could change the legal game plan.
California lawyers fighting for Coloradans
Many of the lawsuits against Xcel sport attorneys based in California under the guise of “pro hac vice” — Latin meaning “for this occasion.”
This designation means that though these lawyers aren’t qualified to practice law in Colorado, they’re allowed to participate by partnering with a local attorney.
David Fox, for instance, is based in Solana Beach, California. His firm, participating in the case Wallace, Cynthia et al v. Public Service Company of Colorado et al, has been part of past litigation against that state’s utility, PG&E, which has settled numerous cases because of its infrastructure starting wildfires.
“We’ve gotten a lot of experience in proving fault and establishing standards that utilities should live up to,” Fox said in an interview.
Fox’s firm is partnering with Luke McFarland of McFarland Litigation Partners in Golden, Colorado. McFarland previously helped litigate against Xcel in 2003 for the power line-sparked Overland Fire — a fire that burned more than 3,000 acres and destroyed 12 homes in Jamestown.
“Even though Colorado has a good number of wildfires, the amount of fires they’ve had out in California over the last 10 or 15 years is orders of magnitude more than what we’ve seen here,” McFarland said. “So a lot of the fire lawyer expertise has found its way to those California firms.”
These experienced California firms will be collaborating across lawsuits. Fox explained that because of their similarities, “all of the cases are ultimately consolidated under the same judge” in Boulder County. This could take the form of a “mass pleading,” where all the law firms agree on the complaints they levy against Xcel.
Should they win the case or decide on a settlement, then firms will revert back to focusing solely on their clients’ interests when it comes to payouts from Xcel.
“If I’m representing Mr. Smith, I’m responsible for working out Mr. Smith’s damages,” Fox said.
What comes next?
Spreter, who is working on Yancey’s complaint and is based in California, said over the next few months, as plaintiffs continue joining cases and new suits are filed, Xcel probably won’t make a move.
“I don’t see Xcel Energy doing anything until Dec. 30,” he said, explaining that only once the statute of limitations comes into effect can Xcel know the extent of the charges against them.
He added that even if Xcel knows it’s going to settle with fire victims, immediate action is unlikely.
Xcel reportedly has $500 million in their own insurance to pay for potential lawsuits. But if that’s not enough, the cost of settled suits might be passed on to customers.
It could be 2025 before a trial begins, should a trial happen.
