Fire an ‘Act of God’

By Jason Ferguson

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Two utility companies that are being sued by landowners in the wake of last year’s Legion Lake Fire are denying any responsibility for the blaze, which lasted over a week and burned 54,000 acres of state, federal and private land. It is the third-largest fire in the recorded history of the Black Hills.

A lawsuit filed in Seventh Judicial Circuit Court Aug. 17 claims negligence by Black Hills Power, dba Black Hills Energy (BHE) and Hanson Communications of Willmar, Minn., along with its subsidiary, Randall Telephone Co.

Landowners affected by the fire claim the tree recognized to have started the fire by falling onto a nearby BHE powerline during strong December winds last year was enabled to fall because a major portion of the tree’s root system was severed when a utility trench was dug adjacent to the tree, which they claim caused the tree’s soil plate to be severly damaged, “rendering it vulnerable to toppling.”

The 35-foot-tall tree was confirmed to have started the fire after an investigation.

In its response, the telephone company, through its attorneys, says it denies “each and every claim and cause action set forth in the Plaintiff’s Complaint except those which are specifically admitted or qualified.”

The company’s attorneys, John Nooney and Robert Galbraith of Rapid City, wrote in the answer to the lawsuit that their client, the telephone company, “generally admits” that a fire occurred in Custer State Park as generally alleged in the complaint, but “the Answering Defendants deny that they are liable to the Plaintiffs for the same.”

The next paragraph of the response states that while the telephone company admits it did locate certain facilities underground, it denies that it was negligent in the placement of such facilities and further denies that it is liable to the Plaintiffs for any claims or cause of action.

“The Answering Defendants affirmatively alleges that the claims or causes of action more fully set forth in the Plaintiff’s Complaint were the result of an act of God,” the response reads.

Through its attorneys, Marie Ruettgers and Edwin Evens, of Rapid City and Sioux Falls, respectively, BHE denies that the tree that fell was within its right of way, but does admit to a tree falling on a BHE powerline and igniting the fire.

BHE’s response goes on to lay some blame at the feet of the plaintiffs and other “third parties, saying “Plaintiffs failed to mitigate their damages, if any, and any damages resulting from Plaintiff’s failure to mitigate their damages may not be recovered.”

“The damages, of any, claimed by Plaintiffs were caused by the acts or omissions of third parties, for which Defendant has no responsibility or liability,” the response continues. “Plaintiff’s injuries and damages, if any, were caused by the fault of other persons, entities and/or actors, including but not limited to the Plaintiffs, whether or not joined as parties to this lawsuit, which must be evaluated and liability apportioned among all such actors proportionate to their respective fault.”

The original lawsuit says each plaintiff suffered consequential damages, including, but not limited to, loss of value of their real property, loss of personal property, loss of real estate value, loss of agricultural value (past and future), loss of aesthetics, rehabilitation, cleanup and replacement costs. 

Plaintiffs are Evan Gallentine, Roberta Gallentine, Anita Gallentine, Jeff Harkey, Gail Harkey and David Reyelts, individually and through Needles View Ranch, LLC. They are represented by Belle Fourche attorney Kenneth Barker.

Court documents list several claims for relief: negligence and that the fire harmed the plaintiffs by the “nuisance” and “trespass” of the defendants because of the fire. The suit seeks “their compensatory, consequential, incidental and actual damages, both past and future, in an amount to be determined by a jury,” along with costs, expenses and attorney fees related to the lawsuit.

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