Marshall Fire: Boulder County governments sue Xcel

BOULDER COUNTY — Last week, on the eve of the two-year anniversary of the Marshall Fire, a group of Boulder County government bodies sued Xcel Energy Inc. over its alleged role in the start of the devastating blaze in late December 2021.

The Boulder County Board of Commissioners, the municipal governments in Superior and Louisville, Boulder County Public Health, the Superior Metropolitan District No. 1 and the Boulder Valley School District are now among the hundreds of plaintiffs attempting to hold the utility financially responsible for what Boulder County Sheriff’s Office investigators have determined to be Xcel’s part in the origins of the fire that killed two people and burned more than 1,000 buildings.

Xcel, according to the complaint from the governments, “failed to property design, construct, inspect, maintain, repair, manage and/or operate its electrical equipment pursuant to the applicable (National Electrical Safety Code, or NESC) safety standards, accepted engineering practice in the electric industry, and pursuant to any other applicable codes or standards. As a result, Xcel’s electrical equipment caused a fire near the Mesa Trailhead which ultimately became the Marshall Fire.”

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Boulder County Sheriff’s Office investigators this summer released a report that determined that the Marshall Fire had two root causes: high winds that uncovered a smoldering, days-old fire at the residence of the Twelve Tribes religious group, members of which live at a compound at 5325 Eldorado Springs Drive in Boulder County, and a malfunctioning Xcel powerline that became “unmoored” during the windy day on Dec. 30, 2021.

Residents of the Twelve Tribes home burned material in a yard on Dec. 24, a week prior to the start of the Marshall fire, buried it and assumed that the flames were extinguished, investigators said. 

Twelve Tribes is an international organization with several thousand members that has been accused by past members of labor exploitation, child abuse and racist teachings.

Soon after the high winds on Dec. 30, 2021 transformed the smoldering material into a blaze at Eldorado Springs Drive, “hot particles discharged from an Xcel Energy powerline” several thousand feet away from the initial fire and started a new blaze in a grassy area,” Boulder County Sheriff Curtis Johnson said when the investigation report was released. Investigators found that this line malfunction was likely not related to the Eldorado Springs Drive residential fire; however, the two blazes quickly converged and together started the Marshall Fire.

In an emailed statement to BizWest on Wednesday, an Xcel spokesperson said: “Our thoughts are with the families and communities impacted by the devastating wildfire in Boulder County. We agree with the Boulder County Sheriff’s Office report that the Marshall Fire started as a result of an ignition on a property (5325 Eldorado Springs Drive) previously reported to be affiliated with an entity called the Twelve Tribes, and that this ignition had nothing to do with Xcel Energy’s powerlines. The Sheriff’s report cites several potential causes for a second ignition near the Marshall Mesa Trailhead that started roughly an hour after the first fire. 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. We strongly disagree with any suggestion that Xcel Energy’s power lines caused the second ignition, which according to the report started 80 to 110 feet away from Xcel Energy’s power lines in an area with underground coal fire activity. Xcel Energy did not have the opportunity to review and comment on the analyses relied on by the Sheriff’s Office and believes those analyses are flawed and their conclusions are incorrect.” 

In court filings in response to earlier lawsuits from Marshall Fire victims, the utility has also denied allegations regarding its alleged role in the blaze’s origin. The company, in court filings in similar cases, has also offered a set of affirmative defenses.

“Plaintiffs’ injuries and damages, if any, were the result of actions by one or more third persons over whom (Xcel) had no agency or control and for whose actions it cannot be held liable,” attorneys for the utility wrote in response to a lawsuit brought this summer by John Urdil and others. 

The “plaintiffs’ claims are barred or reduced by their comparative negligence,” as well as by the plaintiffs’ “failure to mitigate damages,” the Xcel response in that case said. 

Xcel, the response said, has “complied with the applicable laws, regulations and rules and such compliance demonstrates that due care and reasonable prudence were exercised. The claims in the (Urdil) complaint are barred, in whole or in part, because matters alleged therein were consistent with available technology, were in compliance with applicable regulations, and alternative product or facility design was not feasible or practical.”

In their complaint filed last week in Boulder County District Court, the local government groups list a slew of damages incurred as a result of the fire. Those include loss of public open space and natural resources, the cost of personnel overtime and debris cleanup, loss of tax revenues and other economic damages. 

Xcel’s statement to BizWest said that the company has “reviewed our maintenance records and believe the system was properly maintained. We operate and maintain our electric system consistent with leading energy service practices and we’re proud of our employees and the work they do to deliver safe, reliable and clean energy to our communities. As members of the Boulder community, we will continue to support our neighbors in this recovery.”