Target alleges telecom firms played role in Marshall Fire origins

BOULDER COUNTY — Target Corp., in a late December lawsuit filed in Boulder District Court, alleges that two telecommunications providers share liability with Xcel Energy Inc. in initiating the Marshall Fire just over two years ago. 

The Target store at 400 Marshall Road in Superior was damaged and closed for about eight months after the devastating blaze, which a Boulder County Sheriff’s Office investigation determined was caused in part by an “unmoored” Xcel line. 

The lawsuit, one of dozens filed by fire victims last month in the lead up to the two-year statute of limitations expiration, is notable for the presence of two additional defendants: telecom operators Teleport Communications America LLC and Qwest Corp. (doing business as CenturyLink), both of which, according to Target’s complaint, “had certain physical infrastructure, including poles, cables, wiring, equipment, connectors, hardware and other component parts and products that are or combine to form telecommunication facilities attached to Xcel Energy’s utility poles at or near the Marshall Mesa Trailhead.”

TelePort, an entity controlled by AT&T Corp. (NYSE: T) and Qwest, which is operated by Lumen Technologies Inc. (NYSE: LUMN), “knew or should have known that the failure to properly append cabling and other equipment to wooden poles would increase the rate of wear or structural failure of those poles under normal circumstances,” Target’s lawsuit claims. 

Lumen global issues director Mark Molzen told BizWest in an email Wednesday that the company is “saddened by the impact that the Marshall Fire had on the community. However, we do not believe that telecommunications facilities played a role in the fires.”

An AT&T spokesperson said in email that “the allegations against Teleport are contradicted by Boulder County’s official fire investigation report, which concluded that the Trailhead portion of the fire was caused solely by Xcel Energy. We will fight the allegations in court.”

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.

“CenturyLink’s unmoored line repeatedly made contact with the Teleport line, and over time may have caused the lashing around the Teleport line to untighten, and to an extent, unravel,” Target’s lawsuit claims. “… The Xcel Energy ignition resulted from an arcing event associated with Xcel Energy’s energized electrical equipment, which may have come into contact with the telecommunications equipment. This arcing event produced molten metal and other super-heated material that dropped to the ground and ignited dry vegetation ground fuels.”

In an emailed statement to BizWest, 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.”  

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.”

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 Boulder County resident 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.”

The lawsuit is Target Corp. v. Public Service Co. of Colorado, doing business as Xcel Energy; Teleport Communications America LLC; Qwest Corp., doing business as CenturyLink; et al. Case number 2023CV31093 filed Dec. 22, 2023, in Boulder County District Court.