When Boulder County officials released the , 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 鈥渕ass torts鈥� 鈥� meaning they鈥檙e 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鈥檚 homes or properties.
The 鈥� led by the County Sheriff鈥檚 Office and the Boulder District Attorney 鈥� outlined two causes of the . 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 . More than 500 plaintiffs are suing Xcel.
, an attorney working on two of the cases, said he expects 鈥渟everal thousand to file when all鈥檚 said and done.鈥� 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 鈥渃ertainly our analysis and conclusions will play a role in civil litigation.鈥�
Civil cases require different standards of proof than criminal cases. In a criminal case, the defendant has to be proven guilty 鈥渂eyond a reasonable doubt.鈥� 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 鈥渘udge the needle over 50/50 in front of a jury.鈥�
All the complaints are 鈥榗ommon law鈥� 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, 鈥渢respassed鈥� and caused a nuisance for Boulder County residents.
Yancey said all claims in his complaint are common law claims. Meaning, Xcel is not being accused of violating a rule or statute, but of a 鈥渧iolation of a duty.鈥� He gave the example of Xcel having 鈥渄uty of care鈥� to Colorado residents.
鈥淭he power company owes a duty of care to those around it who could foreseeably be injured or impacted by their negligence,鈥� 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 鈥� a cause largely ruled out. The company has said it didn鈥檛 have the opportunity to review or comment on the analyses underpinning the county鈥檚 investigation. In a statement to Boulder Reporting Lab, Xcel said 鈥渢hose analyses are flawed and their conclusions are incorrect.鈥�
It has also said it doesn鈥檛 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.
鈥淲e believe the second fire burned into an area already burned by the fire from the first ignition,鈥� Xcel鈥檚 statement said, 鈥渁nd did not cause damage to any homes or businesses.鈥�
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.
鈥淲hile 100 mile-per-hour winds are excessive, it鈥檚 not unprecedented in Colorado,鈥� Yancey said. If 鈥測ou operate power lines in Colorado,鈥� he added, 鈥測ou should foresee the kind of danger that comes from high wind storms.鈥�
A mass tort lawsuit looking to recoup their losses makes a similar argument. 鈥淒ata 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.鈥�
That suit goes on to say that Xcel is 鈥渄emonstrably aware鈥� of Colorado鈥檚 wind patterns. It has to be, the lawsuit says, as the company constructs and operates wind farms across the state 鈥渢o profit from Colorado鈥檚 windy conditions.鈥�
While some lawsuits suggest Xcel should have buried its lines as a precaution, all question why Xcel didn鈥檛 shut off power to its power lines as wind speeds increased 鈥� a common precaution taken by utilities.
鈥淴cel knew, or should have known, that its power lines and electrical infrastructure may be at risk during dry and windy conditions,鈥� two of the lawsuits read.
Inverse Condemnation
A majority of the lawsuits have 鈥渋nverse condemnation鈥� as their first or second complaint against Xcel. What they鈥檙e claiming is that Xcel is almost a government entity, as it enjoys the 鈥渆xclusive right to provide electrical service in Boulder County, Colorado.鈥�
Because this exclusive right involves providing a public service, it鈥檚 鈥渁 public entity,鈥� they argue. And by creating a fire that 鈥渟eized鈥� residents鈥� property without paying them back for damages, it鈥檚 violating the Colorado Constitution.
The Colorado Constitution, similar to the U.S. Constitution, says the government can鈥檛 take a private citizen鈥檚 property 鈥渨ithout just compensation.鈥� In the lawsuits鈥� view, it鈥檚 time for Xcel to provide that compensation.
A few lawsuits also cite trespassing as a complaint, stating that the plaintiffs 鈥渄id not grant permission鈥� for the fire caused by Xcel to enter their properties. Yancey explained that it鈥檚 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鈥檚 infrastructure 鈥渦nreasonably interfered with plaintiff鈥檚 use and enjoyment of their real and personal property.鈥�
Another states that any reasonable, ordinary person would be 鈥渁nnoyed or disturbed by the condition created by鈥� Xcel.
Yet all these complaints may evolve into something else.
鈥淚t鈥檚 just the start of the lawsuit,鈥� 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 鈥減ro hac vice鈥� 鈥� Latin meaning 鈥渇or this occasion.鈥�
This designation means that though these lawyers aren鈥檛 qualified to practice law in Colorado, they鈥檙e 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 , has been part of past litigation against that state鈥檚 utility, PG&E, which has settled numerous cases because of its infrastructure starting wildfires.
鈥淲e鈥檝e gotten a lot of experience in proving fault and establishing standards that utilities should live up to,鈥� Fox said in an interview.
Fox鈥檚 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 鈥� a fire that burned more than 3,000 acres and destroyed 12 homes in Jamestown.
鈥淓ven though Colorado has a good number of wildfires, the amount of fires they鈥檝e had out in California over the last 10 or 15 years is orders of magnitude more than what we鈥檝e seen here,鈥� McFarland said. 鈥淪o a lot of the fire lawyer expertise has found its way to those California firms.鈥�
These experienced California firms will be collaborating across lawsuits. Fox explained that because of their similarities, 鈥渁ll of the cases are ultimately consolidated under the same judge鈥� in Boulder County. This could take the form of a 鈥渕ass pleading,鈥� 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鈥� interests when it comes to payouts from Xcel.
鈥淚f I鈥檓 representing Mr. Smith, I鈥檓 responsible for working out Mr. Smith鈥檚 damages,鈥� Fox said.
What comes next?
Spreter, who is working on Yancey鈥檚 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鈥檛 make a move.
鈥淚 don鈥檛 see Xcel Energy doing anything until Dec. 30,鈥� 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鈥檚 going to settle with fire victims, immediate action is unlikely.
Xcel in their own insurance to pay for potential lawsuits. But if that鈥檚 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.
