A divided Colorado Supreme Court on May 3 found a feedlot is not liable under Colorado’s taking statutes for the death of wildlife that resulted when a heavy rainstorm caused wastewater from the feedlot to flow into nearby bodies of water.
The agricultural industry can “breathe a sigh of relief” following the decision, said Richards Carrington partner Chris Carrington, who represented the feedlot. He called the decision a “common sense outcome” that offers some assurance that “the courts are not going to hold us liable for acts of God and things that are out of our control, like the rain.”
The case dates back to 2015, when an unusually heavy rainstorm hit 5 Star Feedlot outside of Bethune, causing wastewater to escape a wastewater pond and flow into the South Fork of the Republican River. Days later, state wildlife officials found dead fish in the river and nearby ponds.
Colorado Parks and Wildlife sued 5 Star for unlawful taking of wildlife, alleging the feedlot was strictly liable for and had caused the deaths of 15,000 fish. The district court sided with the state and ordered 5 Star to pay more than $625,000 in damages.
However, a division of the Court of Appeals reversed the decision, concluding the wildlife code requires the state to prove 5 Star acted knowingly or performed “some voluntary act that caused the fish to die” and that the state had failed to do so.
‘ACTUS REUS GUN FIGHT’
One of the questions before the Supreme Court was whether the state had to prove 5 Star committed an illegal voluntary act or simply a voluntary act that led to the death of the wildlife.
CPW had argued that while a voluntary act is required for criminal liability under state law, the voluntary act itself need not be illegal as long as it has an illegal result. The voluntary act in 5 Star’s case, according to CPW, was operating wastewater ponds near the river.
However, a plurality of the Supreme Court disagreed, finding the state was required to prove 5 Star performed a voluntary act, or actus reus, that is proscribed by the taking statutes, which make it illegal to kill or take possession of wildlife without authorization. Because the state failed to prove this voluntary act, the plurality said, the case should be dismissed in favor of 5 Star.
In the opinion, Justice Carlos Samour noted that the “flaw in the State’s analytical approach” was that it appeared to analyze the case “through the prism of a negligence tort.” According to Carrington, the state had originally framed the case as both a takings and negligence case but dropped the negligence claims before trial.
“[T]he State brought a negligence-tort knife to an actus-reus gun fight,” Samour wrote, but tort principles “can’t be shoehorned” into the section of the wildlife code that allows the state to recover the value of unlawfully taken wildlife, which requires proof establishing a criminal offense.
Samour’s opinion was joined by justices Brian Boatright and Richard Gabriel. They found that because the actus reus question was dispositive, they did not need to answer the second question before the court: Does proving a violation of the taking statutes require evidence of knowing conduct? “We leave for a future expedition the question of whether the taking statutory provisions impose strict liability or require proof of the culpable mental state of knowingly,” Samour wrote.
Justice Monica Márquez did address that issue in a concurring opinion in which she agreed the case should be dismissed in favor of 5 Star but did not address the actus reus question. “[B]ecause the State failed to allege knowing or intentional conduct by 5 Star amounting to a ‘taking’ of wildlife, its case cannot survive summary judgment,” she wrote.
‘WHO’LL STOP THE RAIN?’
In a dissent joined by justices Melissa Hart and Maria Berkenkotter, Justice William Hood argued that “when a crime prohibits a result — like causing fish to die —proving the actus reus requires a voluntary act that actually and proximately caused the forbidden result.” By voluntarily storing feces-contaminated water in ponds, Hood said, 5 Star actually and foreseeably caused the fish to die.
Hood went on to address the question of whether taking violations require knowing conduct. He concluded that the taking statutes do not contain an implied mens rea requirement and should be interpreted as strict liability statutes.
The case had raised alarm among farmers and ranchers, who feared a decision against the feedlot could greatly expand their liability in the event of natural disasters that lead to the death of wildlife.
“If strict liability follows from this, it is virtually limitless the incredible acts of God that can occur and result in liability — perhaps wiping out a family farm or a family ranch operation,” attorney John Barry, who co-authored an amicus brief on behalf of several agricultural groups, told Law Week in an interview in February.
“It was an act of God — no one disputed that,” Carrington said. “And that’s what felt so fundamentally unfair about the case, to me, from the time I got involved.”
Samour began his opinion with lyrics from a Creedence Clearwater Revival song: “And I wonder, still I wonder, who’ll stop the rain?” Carrington said that the opening line captured what his clients were feeling.
“We can’t stop the rain. We did everything that we were supposed to do, everything the state asked us to do. And yet, nonetheless, we’re mired down in litigation for the next six years,” Carrington said, adding that 5 Star had passed an inspection by the Colorado Department of Public Health and Environment just months before the storm hit.
Ruth Moore, an attorney at Richards Carrington and Moore Williams, also represented 5 Star in the case. Moore said in an email that the court’s judgment “properly limits the Attorney General’s attempt to repurpose the criminal hunting [and] poaching statutes for situations that those statutes simply don’t fit. 5 Star didn’t engage in any conduct resembling hunting or poaching. All 5 Star did was lawfully maintain a ranching operation three miles away from a river.”