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Lead attorney in Marshall Fire lawsuit: Xcel Energy "just doesn't want to accept responsibility"

James Avery, attorney in Marshall Fire lawsuit, says Xcel Energy "doesn't want to accept responsibility"
James Avery, attorney in Marshall Fire lawsuit, says Xcel Energy "doesn't want to accept responsibility" 02:42

The lead attorney in the lawsuit that was filed against Xcel Energy after the Marshall Fire says this week's announcement of the wildfire's causes only strengthens the case of those he's representing.

On Thursday authorities revealed that the fire, which destroyed more than 1,000 homes and several commercial properties, actually started as two separate fires. An investigation by the Boulder County Sheriff's Office shows the two fires had separate origins and merged to form as one on Dec. 30, 2021, and go on to become most destructive wildfire in Colorado history.


Investigators say the first fire was set on the property of a religious group on Marshall Road near Highway 93. That was on Dec. 24, six days before the Marshall Fire began on its path of destruction. That Dec. 24 fire was composed of tree branches and wooden pallets and firefighters determined it was no longer burning after they extinguished it. It did keep smoldering. Then, on Dec. 30, strong winds refueled it. About an hour later, a second fire started south of the Marshall Mesa Trailhead and investigators say that spot was ignited by an Xcel Energy power line. The sheriff said no criminal charges will be filed as a result of the investigation.

More than $2 billion in damages occurred and two people lost their lives. A total of 35,000 people were evacuated and thousands of animals, including pets, died in the blaze as strong wind gusts reaching more than 100 mph fueled the flames.

While there won't be criminal charges, Boulder County District Attorney Michael Dougherty pointed out Thursday that the burden of proof for civil liability is much lower than that for criminal liability, which is beyond a reasonable doubt.

There is already a lawsuit that has been filed against Xcel Energy and we will likely see more action taken. The current lawsuit was filed more than a year ago and attorneys say a growing number of residents who lost everything are signing on. But there are still plenty of homeowners left contemplating their next steps. John Mickel is one of those. He is still living in a rental home as the rebuilding process continues, 18 months after the fire.

CBS News Colorado's Karen Morfitt interviews John Mickel. CBS

Mickel says learning the wildfire's cause is another step in what has been a long process.

"I think it's something that in the back of your mind you always wanted to know, but it wasn't going to make a difference one way or the other," he said.

In the time since the fire, he's been focused on rebuilding and avoiding trying to find someone to blame, but he knows not everyone feels the same way.

"We all wanted an answer, right. Now we've got an answer. What you do with it is up to you," he said.

The lawsuit that targets Xcel Energy was filed in March. It came after videos surfaced showing downed and arcing power lines in the area of the fire's origin.

Edward Harrell

"They just don't want to accept their responsibility because it is massive," said James Avery, the lawsuit's lead attorney.

Avery has been involved in similar lawsuits against power companies in California. He says law enforcement's determination that those lines were one of two ignition sources only strengthens their case.

"What Xcel Energy has been insisting is that their equipment had nothing to do with the start of the fire, so the sheriff's investigation blows that up," Avery said.

In a statement, Xcel Energy responded to the release of the sheriff's report saying that they disagree with the suggestion that their power lines caused the second ignition, going on to say "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."

"We have reviewed our maintenance records and believe the system was properly maintained," the statement reads.

CBS News Colorado's Karen Morfitt interviews James Avery. CBS

Avery said they've seen a surge in numbers of people expressing interest in joining the lawsuit. For Mickel, such a thought at this point is just piling on to all the things he has to do in order to get life back to normal.

"There's so many plates in the air spinning that, you know, that's just another one that now I've got to start spinning in the air and looking at as we go," Mickel said.

Avery and the law group he works with out of California have argued similar cases against energy companies involved in wildfires there. A majority of those cases, he says, have ended with settlements where the company took responsibility in some form.

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