A civil trial to determine Xcel Energy’s responsibility for the 2021 Marshall fire and whether the company should pay damages is set to begin Sept. 25 — and attorneys continue to argue over how much blame should be placed on the Twelve Tribes, an international religious cult whose members lit the first embers in Colorado’s most catastrophic wildfire.
Lawyers spent more than six hours Wednesday in a Boulder courtroom arguing over how jurors will be asked to decide fault, whether or not a telecommunications company should be sanctioned for destroying evidence, and whether some blame for the fire can be shifted onto the first responders who allowed Twelve Tribes members to continue burning debris on their property a week before the Marshall fire erupted from smoldering embers.
The trial is expected to last two months, extending from late September through early November, with billions of dollars on the line for Colorado’s largest utility company.
Testimony will involve hours of technical explanations about the science of fires, weather forecasts, how utilities supply electricity to their customers and measures they can take to prevent their equipment from sparking wildfires.
Boulder County District Court Judge Thomas Mulvahill told attorneys that he expects to call 300 people for the jury pool and that it is likely a third of those people will be disqualified almost immediately because of their relationships to people impacted by the Marshall fire.
The lawsuit involves 4,000 plaintiffs who are Boulder County homeowners and business owners, including retail giant Target, whose properties were destroyed or damaged by the 2021 wildfire, as well as 200 insurance companies that provided coverage to those people.
More than 300 lawsuits, most with multiple plaintiffs, were filed by fire victims, and those lawsuits have been combined into a single class-action lawsuit against Xcel and two telecommunications companies: Teleport Communications LLC and CenturyLink.
Twelve Tribes is not named as a defendant.
The trial will determine who was responsible for the fire’s cause, and if Xcel is found liable, a separate legal proceeding will be scheduled to determine how much the company should pay in damages.
A portion of Wednesday’s hearing involved how the jury will be asked to decide Xcel’s level of responsibility for the fire.
The plaintiffs’ attorneys want assurance from the judge that jurors will only be asked to decide whether Xcel was responsible for the entire Marshall fire rather than deliberating whether the utility is to blame for damage or destruction at every specific property involved in the lawsuit. The fire destroyed more than 1,000 homes.
The plaintiffs also object to Xcel’s proposed 70-page verdict form, which divides destroyed properties into specific geographical areas so that jurors would be tasked with determining whether Xcel was responsible for the flames that ripped through certain neighborhoods, such as Sagamore in Superior or those in north Louisville.
Luke McFarland, of McFarland Litigation Partners, said that the plaintiffs’ attorneys fear that if Xcel is found to have started the fire, it will then use those geographic points to argue that it is not responsible for every home or business that was destroyed.
“We believe there is one Marshall fire and we know the cause of it,” McFarland said. “We don’t want to spend 20 years on this case. We want it done as soon as possible.”
Wednesday’s hearing also covered trial details such as who will provide equipment so the proceedings can be livestreamed, whether there is space in the Boulder County Justice Center to accommodate an overflow room so fire victims can attend, and whether there are enough private rooms to accommodate the nearly three dozen lawyers involved in the case.
A sign welcomes people outside the Twelve Tribes community in Boulder on Feb. 10, 2022. The Twelve Tribes has locations in Manitou Springs and Boulder County.
Two ignition points identified
The Marshall fire started on the morning of Dec. 30, 2021, during a windstorm in which gusts topped 100 mph, and it tore through neighborhoods in Louisville and Superior, killing two people and more than 1,000 pets while destroying $2 billion worth of property.
The investigation by the Boulder County sheriff’s and district attorney’s offices determined the fire had two starting points that merged to create the 6,000-acre blaze.
The first ignition point was on the property of the Twelve Tribes, a religious cult that owns a compound on Eldorado Springs Drive near Marshall Mesa.
Members had burned debris on Dec. 24, prompting a response by Boulder County law enforcement and firefighters. But those officials told Twelve Tribes members to bury the burn debris when they were finished and left the property without issuing citations or dousing the blaze with water, the investigation found.
However, strong winds on Dec. 30 blew the dirt cover off smoldering embers and sent them flying onto dry grasses in the surrounding neighborhood.
A second ignition started about an hour later when hot particles sparking from a broken Xcel Energy electrical distribution system hit the ground near a trailhead at Marshall Mesa, about 2,000 feet from the Twelve Tribes compound, the investigation found. That fire took a different path before merging with flames from the Twelve Tribes burn pit.
Ultimately, the district attorney chose not to file criminal charges against Xcel Energy or Twelve Tribes for causing the blaze.
Now the civil case aims to pin blame on Xcel and the two telecommunications companies whose equipment was located near the utility company’s electrical conductors and wires.
Xcel and its attorneys continue to deny that the company was responsible for the wildfire.
“We all know that causation is the key issue here,” said Kevin Orsini, a lawyer at Cravath, an international firm that is representing Xcel. “They have a theory that once the fire merged, we are responsible for everything after that. The jury will have to decide that.”
Firefighters’ role debated
The two sides also debated whether Mountain View Fire Rescue could have a part in the Marshall fire’s destruction because it advised Twelve Tribes that it could continue burning debris on Dec. 24 as long as the members buried the burn site.
The fire department is not named as a defendant in the lawsuit, but could be found partially responsible, lifting some burden from Xcel.
“The important thing with the Twelve Tribes burn is that every single person who observed this burn determined it was safe,” said Adam Romney, a lawyer at Grotefeld Hoffman, which is representing insurance companies.
No one who observed the Dec. 24 burn could have predicted that it would have rekindled a week later, Romney said, and their legal duties were established then, not in hindsight.
But Xcel’s defense team is arguing that those first responders do have some responsibility, although the attorneys tried to walk a fine line between taking heat off Xcel and blaming firefighters.
“The defense is not blaming the fire department for the Marshall fire, and that’s the plaintiffs putting words in their mouth,” said Brittany Sukiennik of Cravath.
In legal briefings, attorneys for Xcel have argued that the Twelve Tribes blaze created a firebreak by destroying grass, brush and trees in its path and eliminating fuel for another fire to catch — and if the company’s equipment sparked a brush fire, that second blaze never jumped the blackened path created by the Twelve Tribes fire.
The utility company also lobbied the judge to strike two expert witnesses that the plaintiffs intend to call, arguing that they are not qualified to testify that Xcel should have preemptively shut off power in Boulder County once strong winds were forecast. They also asked for another two expert witnesses to be barred from speaking about how wires are tied together at electrical conductors.
Volunteer firefighter Jim Siewertsen, from North Fork Fire Protection District, works on putting water on hot spots on burned townhomes on Jan. 1, 2022, in Superior.
‘We have our work cut out for us’
Meanwhile, the plaintiffs’ attorneys lobbied the judge to sanction Teleport, one of the telecommunications companies that owned equipment that they say helped start the second blaze, for destroying evidence.
The company destroyed a piece of lashing wire that investigators believe slapped an Xcel electrical conductor and caused arcing that led to the fire, said Matthew Delinko with Bauman, Lowe, Witt & Maxwell, a law firm representing insurance companies.
“Some of the evidence we believe that would show arcing on it was discarded,” Delinko said. “There can be no question that the lashing wire was relative evidence to a relevant issue at this trial.
Jeff Tillotson, a lawyer for Teleport, blamed the missing lashing on a contractor, who is not a party to the lawsuit. “Look, we would want the lashing,” he said. “In a perfect a world, we would have that lashing.”
Mulvahill did not rule on the issues debated Wednesday. A pretrial conference is scheduled for Sept. 10.
“We have our work cut out for us,” he said as he dismissed the lawyers Wednesday.
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