Xcel Energy is facing nearly 300 lawsuits filed by homeowners, local governments and retail giant Target in the wake of the second anniversary of the Marshall fire, and attorneys filing the cases say the legal arguments over liability will be complex because of the deadly wildfire’s two known origin points.

Those 281 lawsuits represent a far greater number of plaintiffs, however, since some of them have been filed by multiple homeowners, insurance companies and government agencies; one lawsuit filed last summer, for example, includes nearly 250 individual plaintiffs.

The Marshall fire, which raged across parts of unincorporated Boulder County, Superior and Louisville on Dec. 30, 2021, killed two people and destroyed 1,084 homes and additional commercial properties — more than $2 billion in total property damage. The bulk of lawsuits were filed in November and December, ahead of a Dec. 30 deadline.

The official investigation pinned blame on loose wire owned by Xcel and a week-old, smoldering fire started by members of the Twelve Tribes, a religious cult with a compound in Boulder County. Those two ignitions later merged to form the most destructive wildfire in Colorado history, according to the investigation led by the Boulder County sheriff’s and district attorney’s offices.

That merger of the two fires will be a point of contention in legal arguments, said Gerald Singleton, managing partner of the Singleton Schreiber law firm, which is representing dozens of Marshall fire homeowners.

“I’ve never had a situation with an enormous billion-dollar company on one hand and, shall we say, a religious organization billed for its unusual practices on the other,” said Singleton, who has litigated damages connected to three dozen wildfires in multiple states.

Xcel denies any role in the wildfire’s origin.

“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 spokeswoman Michelle Aguayo said in an e-mailed statement.

During litigation, Singleton expects Xcel to blame the Twelve Tribes for most of the damages and argue the merger of the fires occurred much later than investigators determined — or that it never happened.

“What they’re going to say is, first and foremost, anything burned by the Twelve Tribes facility is something they aren’t responsible for,” he said of Xcel. “In cases of multiple ignitions, we’ve seen that in the past.”

The lawyers representing Marshall fire victims have started their own investigations into the wildfire’s origin, bringing in experts to help them map the blaze’s path.

“Every major fire has a progression. It starts somewhere and spreads,” said Scott Maynor, whose The Maynor Law Firm has joined with three other firms to form the Marshall Fire Lawyers team. “What’s going to be key in this case is the progression of the Xcel fire. It’s going to be a heavy lift for all the lawyers and all the experts to find out what happened.”

No lawsuits filed against the Twelve Tribes

So far, none of the nearly 300 Marshall fire lawsuits has named the Twelve Tribes as a defendant. That’s because the official investigation into the fire’s origins makes any argument over negligence by the cult’s members difficult to prove, Singleton said.

In an investigative report released in June by the Boulder County sheriff and district attorney, authorities said Twelve Tribes members started a fire on Dec. 24, 2021, to burn trash and yard debris. Mountain View Fire Rescue, a sheriff’s deputy and Boulder County park rangers went to the property and determined the fire was not a danger and Twelve Tribes residents were not violating any local rules or ordinances.

The man overseeing the trash fire agreed to bury the remaining embers under a pile of dirt when he was finished. That plan was approved by authorities and the man covered the pit with about a foot of dirt, according to the investigative report.

But embers can smolder underground for weeks and when the winds on Dec. 30 reached hurricane levels, the dirt was blown away, the investigation determined.

Because fire and law enforcement officials signed off on the Twelve Tribes’ fire and approved the plan to extinguish the embers, it would be hard to argue the cult is liable, Singleton said.

“You can never be sure until you get all the information,” he said. “But just in looking at it, there’s going to be a lot of things that say, ‘We aren’t negligent in setting the fire.’”

As for Xcel’s ignition point, the sheriff’s office hired an independent investigator to look into the possibility that power lines ignited the blaze. That consultant, Jensen Hughes, found that an Xcel conductor came loose during the windstorm on Dec. 30 and its lashing wires touched other pieces of the system. That loose line bouncing in the high winds caused electrical arcing that sent hot pieces of metal flying into dry grass, igniting a fire, the report said.

The lawsuits against Xcel all include that analysis in their claims.

But Xcel officials argue the sheriff’s investigation is flawed and they complain that the company was never given a chance to review or comment on the findings. Xcel also says its power lines in the area were properly maintained.

“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 power lines,” Aguayo said in her statement. “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.”

The lawsuits also point out that Boulder County is known for its high winds and that Xcel had a responsibility to take measures on excessively windy days to mitigate potential fires. The company failed to do so, Singleton said.

Other plaintiffs “haven’t been taken off the table”

Only one lawsuit names any defendants other than Xcel — the suit filed by the Target Corporation. That lawsuit also names CenturyLink and Teleport Communications LLC as defendants.

The Target store in Superior was closed for eight months after the fire damaged the building’s roof and set off sprinklers that destroyed the interior and all of the merchandise inside.

In its complaint, Target also blames the wildfire on the two telecommunications companies, saying they had equipment lashed to the same pole as Xcel. CenturyLink’s wires may have come loose, striking Teleport’s wires and causing them to unravel. The Teleport lashing may have hit Xcel’s conductors, the lawsuit states.

Efforts to reach Target’s lawyers were unsuccessful.

Maynor, who is part of the Marshall Fire Lawyers team, said they are still investigating how much CenturyLink and Teleport were involved in the origin.

“Those defendants haven’t been taken off the table for other plaintiffs, but Target was the first to file,” he said.

All of the lawsuits cite negligence, trespass, and public and private nuisance laws as the basis for the claims, and all ask for an unspecified amount of damages.

Consolidating hundreds of lawsuits

The cases are grouped as a mass-action lawsuit, which means they ultimately will be consolidated for litigation — though any settlements or jury awards will be dispersed based on individual losses. So someone who lost their entire home would be due more money than someone whose home was damaged by smoke and soot, Maynor said.

In conversations with Marshall fire survivors, those who joined the lawsuits said they are keeping their expectations for a payout low, but they filed because any amount would help them recover their losses. Few families had enough insurance to fully pay to rebuild their homes and replace lost property.

Lawsuits involving wildfire damages are an increasing concern for utility companies as climate change increases fire risks. A few downed power lines or malfunctioning equipment can ignite fires on dry ground that end up torching communities and large-scale landscapes.

Pacific Gas & Electric, a California utility company, declared bankruptcy in 2019 after its equipment malfunctioned and ignited several wildfires, including the 2018 Camp fire that killed 84 people and destroyed the town of Paradise in Northern California. The company eventually reached a $117 million settlement agreement over that wildfire and one other.

There are a few other notable lawsuits filed against Xcel in connection with the Marshall fire:

The family of Nadine Turnbull, one of the two people killed in the Marshall fire, sued Xcel for wrongful death as well as negligence and other failures. Turnbull was trying to rescue dogs from her house when it was engulfed in flames. Bone fragments later found on her property were identified as Turnbull’s.
Multiple Boulder County government bodies, including the Board of County Commissioners, the Louisville and Superior governments and the Boulder Valley School District, sued over their financial losses connected to the fire. The lawsuit cites losses ranging from water contamination to the destruction of infrastructure — roads, sidewalks and sewers — to the loss of tax revenue because of decimated property values.
In July, 150 insurance companies filed a joint lawsuit against Xcel in an attempt to reclaim money they paid to homeowners, renters and businesses who lost property in the blaze. An insurance industry representative said those companies have a duty to reclaim some of their losses to keep premiums down for customers.

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