State v. 5 Star Feedlot, Inc.

• Citation: 486 P.3d 250
• Decision Date: 03 May 2021
• Docket Number: Supreme Court Case No. 19SC986
• Parties: State of Colorado, DEPARTMENT OF NATURAL RESOURCES; and Parks and Wildlife Commission and Division of Parks and Wildlife, Petitioners, v. 5 STAR FEEDLOT, INC., Respondent
• Court: Colorado Supreme Court

486 P.3d 250

State of Colorado, DEPARTMENT OF NATURAL RESOURCES; and Parks and Wildlife Commission and Division of Parks and Wildlife, Petitioners,

v.5 STAR FEEDLOT, INC., Respondent

Supreme Court Case No. 19SC986

Supreme Court of Colorado.

May 3, 2021

Rehearing Denied June 1, 2021

Attorneys for Petitioners: Philip J. Weiser, Attorney General, Christopher G. Breidenbach, Assistant Attorney General, Joseph G. Michaels, Senior Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: Richards Carrington, LLC, Christopher P. Carrington, Ruth M. Moore, Denver, Colorado

Attorneys for Amici Curiae Colorado Livestock Association, Colorado Farm Bureau, Colorado Corn Growers Association, Colorado Cattlemen's Association, and National Cattlemen's Beef Association: Witwer, Oldenburg, Barry & Groom, LLP, John J. Barry, Kent A. Naughton, Greeley, Colorado

Attorneys for Amicus Curiae Pacific Legal Foundation: Jeffrey W. McCoy, Sacramento, California, Oliver J. Dunford, Palm Beach Gardens, Florida

En Banc

JUSTICE SAMOUR announced the judgment of the Court and delivered an opinion, in which CHIEF JUSTICE BOATRIGHT and JUSTICE GABRIEL join.

¶1 In a 1970s hit song, John Fogerty asks—in his trademark raspy snarl—"And I wonder, still I wonder, who'll stop the rain?" Creedence Clearwater Revival, Who'll Stop the Rain, on Cosmo's Factory (Fantasy Records 1970). Many a person in eastern Colorado may have pondered this rhetorical question in the spring of 2015, when a severe three-day storm deluged the area with over six inches of rain. Two inches of water fell within thirty minutes on the first day, a once-in-a-half-century occurrence. During the storm, a mixture of wastewater and rainwater overflowed from one of the wastewater containment ponds in a cattle feedlot operated by 5 Star Feedlot, Inc. ("5 Star"). That water then crossed several miles of land and ultimately found its way to the South Fork of the Republican River, killing an estimated 15,000 fish and giving rise to this litigation.

¶2 Pursuant to section 33-6-110(1), C.R.S. (2020), the State initiated a civil action against 5 Star. The State sought to recover the value of the deceased fish based on 5 Star's alleged violation of three predicate statutory provisions ("taking statutory provisions") which, with some exceptions not pertinent here, make it unlawful for any person to "take"—i.e., to kill or otherwise acquire possession of or control over—certain wildlife. The parties filed cross-motions for summary judgment on the issue of liability. The district court denied 5 Star's motion, granted the State's motion, and, following a bench trial on damages, ordered 5 Star to pay the State $625,755. 5 Star then appealed.

¶3 The court of appeals reversed, holding that the taking statutory provisions required the State to prove that 5 Star acted knowingly or, at minimum, performed an unlawful voluntary act. Because it found that the State had failed to present any evidence of either element, the court of appeals remanded for entry of judgment in 5 Star's favor.

¶4 We now hold that the State was required to prove that 5 Star performed the voluntary act proscribed by the taking statutory provisions (the actus reus).¹ Consequently, the State had to prove that 5 Star, consciously and as a result of effort or determination, performed a voluntary act by which it killed or otherwise acquired possession of or control over the fish without authorization.

¶5 The only evidence presented by the State of a voluntary act performed by 5 Star was the lawful, years-long operation of wastewater containment ponds. But the lawful, longstanding operation of such ponds wasn't, even according to the State's complaint, an act through which 5 Star killed or otherwise acquired possession of or control over the fish. Rather, as the State admitted in its complaint, it was the discharge from one of 5 Star's wastewater containment ponds that led to the fish's destruction. That discharge, however, was triggered by an act of God—the rainstorm—not an act voluntarily performed by 5 Star. Since the State failed to formally allege, never mind present proof, that 5 Star's lawful, years-long operation of wastewater containment ponds killed or otherwise acquired possession of or control over the fish, it could not satisfy the voluntary act or actus reus requirement of the taking statutory provisions.

¶6 Hence, we agree with the court of appeals that the district court erred both in entering summary judgment against 5 Star and in denying 5 Star's cross-motion. Given this conclusion, we need not, and thus do not, decide whether the State was also required to prove that 5 Star acted knowingly. Accordingly, we affirm the court of appeals' judgment, albeit on narrower grounds, and remand with instructions to return the case to the district court for entry of judgment against the State and in 5 Star's favor.

I. Facts and Procedural History

¶7 5 Star runs a cattle feedlot in eastern Colorado near the South Fork of the Republican River and Hale Ponds. As part of its operations, 5 Star uses containment ponds to store wastewater. There is no finding in the record that these ponds—each of which can hold more than twenty-four million gallons of wastewater—were built or maintained in violation of any Colorado law, rule, or regulation. Indeed, the State did not ask the district court to make any such finding.²

¶8 Within three miles of 5 Star's feedlot is the South Fork of the Republican River, which is home to an array of wildlife, including the southernmost population of the Brassy Minnow, a threatened species, and rare fish like the Stonecat and Orangethroat Darter. The river flows through the South Republican State Wildlife Area and feeds Hale Ponds, which are among the scarce locations for public sportfishing in the region.

¶9 In the spring of 2015, an act of God—a three-day rainstorm of historic proportions—impacted both 5 Star's feedlot and the South Fork of the Republican River. More than six inches of water inundated the area. On the first day alone, two inches fell within thirty minutes, a phenomenon which, on average, takes place only twice every century. The extreme rainstorm caused overflow from, and a partial breach in, one of 5 Star's wastewater containment ponds. A mixture of wastewater and rainwater then escaped from that pond. Despite 5 Star's prompt corrective measures, 500,000 gallons of wastewater and rainwater eventually flowed over several miles of land and into the river. A few days later, the State recovered 379 dead fish from the river and 1,389 dead fish from Hale Ponds.³

¶10 The State filed a complaint against 5 Star under section 33-6-110(1), which authorizes the Colorado Division of Parks and Wildlife to "bring ... a civil action against any person, in the name of the people of the state, to recover possession or value or both possession and value of any wildlife taken in violation of articles 1 to 6" of title 33. (Emphasis added.) In its amended complaint, the State alleged that 5 Star had violated the taking statutory provisions, which make it unlawful to "take" protected wildlife:

• Section 33-2-104(3), C.R.S. (2020), states that, except as otherwise provided in regulations issued by the Parks and Wildlife Commission ("the Commission"), "it is unlawful for any person to take ... nongame wildlife" that the Commission has deemed to be in need of management;

• Section 33-2-105(4), C.R.S. (2020), states that, except as otherwise provided in article 33, "it is unlawful for any person to take ... any species or subspecies of wildlife appearing on the list of wildlife indigenous to this state determined to be threatened within the state pursuant to subsection (1) of this section"; and

• Section 33-6-109(1), C.R.S. (2020), states that "[i]t is unlawful for any person to ... take ... any wildlife that is the property of this state as provided in section 33-1-101, except as permitted by articles 1 to 6" of title 33 or by rule or regulation of the Commission.

(Emphases added.)⁴ It is uncontested that the fish that perished were protected under one or more of these provisions.

¶11 Relying on C.R.C.P. 12(b)(5), 5 Star filed a motion to dismiss, asserting that it hadn't taken any fish. After the district court denied that motion, the parties filed cross-motions for summary judgment. The State argued that the fish had died and that 5 Star was strictly liable for such deaths. Although it acknowledged that the taking statutory provisions declare certain conduct "unlawful," the State nonetheless claimed that it was under no obligation to present evidence of either a culpable mental state (mens rea) or a voluntary act (actus reus). 5 Star, in turn, maintained that the State (1) was required to prove that 5 Star both acted with the culpable mental state of knowingly and performed an unlawful voluntary act, but had presented evidence of neither element, and (2) had failed to establish a genuine issue of material fact on the issue of causation in opposing 5 Star's summary judgment motion.

¶12 In a lean order, the district court denied 5 Star's motion and granted the State's motion. After implying that 5 Star had taken the fish by killing the fish, it ruled that 5 Star was strictly liable. The court added that no genuine issue of material fact remained on the issue of liability. The case then proceeded to a bench trial on the issue of damages. The court ultimately ordered 5 Star to pay $625,755 to the State.

¶13 5 Star appealed, raising three contentions: (1) it was not liable for the fish's deaths because it had neither acted with the culpable mental state of knowingly nor performed an unlawful voluntary act that killed or otherwise acquired possession of or control over the fish; (2) genuine issues of material fact remained that rendered the grant of the State's summary judgment motion erroneous; and (3) its own motion for summary judgment should have been granted because the State had presented insufficient evidence as to...