On Monday, the Colorado Supreme Court ruled in favor of 5 Star Feedlot, absolving 5 Star of liability in the 2015 incident that resulted in the death of fish in the Republican River.
In 2015, a historic rain overwhelmed the feedlots’ wastewater containment ponds, which overflowed into the Republican River with flooding rainwater. Days later, the Department of Natural Resources was alerted that a mass of dead fish were discovered on the South Fork of the Republican River. The Colorado Attorney General filed suit against 5 Star Feedlot alleging they violated state statutes by unlawfully taking state owned wildlife. To “take” means “to acquire possession of wildlife…” either through “actual or constructive possession of or any control over the…” wildlife. The State contended that 5 Star Feedlot was strictly liable for an unlawful taking of the fish caused by the overflow of wastewater from their “lawful, years-long operated wastewater containment ponds.”
The district court granted summary judgment in favor of the State, finding that 5 Star Feedlot was liable for the death of the fish in the river and fined 5 Star $600,000 for taking state wildlife in violation of state statutes. The feedlot appealed the decision, specifically appealing the failure of the State to prove that 5 Star Feedlot voluntarily released the wastewater into the river. The Court of Appeals held that “the State was required to prove that 5 Star acted knowingly and committed an unlawful voluntary act by which it killed or otherwise acquired possession of or control over the fish.” Further, the Court of Appeals found that the State failed to present evidence that 5 Star voluntarily released wastewater in the Republican River, a win for 5 Star.
Upon appeal to the Colorado Supreme Court, Colorado Farm Bureau, along with a coalition of other state agricultural groups, submitted an amicus brief in support of 5 Star. On appeal, the Supreme Court was tasked with determining (1) if the state had to prove that 5 Star intentionally acted, and (2) whether it was required to prove that 5 Star had acted voluntarily. In a narrow opinion, the Supreme Court agreed with the Court of Appeals, deciding that “the State was required to prove that 5 Star performed the voluntary act prescribed by the taking statutory provisions.” In other words, “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 – the rainstorm – not an act voluntarily performed by 5 Star.” The Court found that the “discharge…was triggered by an act of God.” Thus, the State failed to satisfy the voluntary act requirement because the incident was outside of the control of 5 Star.