Supreme Court Hears Arguments in Case of Feedlot Hit by Flood

State says feedlot should pay damages for thousands of dead fish, but industry groups worry about limitless liability for acts of God

The Colorado Supreme Court considered the ongoing effects of historic contamination in applying waivers to governmental immunity / LAW WEEK FILE

The Colorado Supreme Court on Feb. 10 heard oral arguments in 5 Star Feedlot v. State of Colorado, a case that questions whether a cattle feedlot is liable for “taking” wildlife after a severe rainstorm caused one of its wastewater ponds to overflow, allegedly killing thousands of fish in a nearby river.

The case has caught the attention of farmers and ranchers, many of whom are concerned that a decision against the feedlot could greatly expand their liability in the event of natural disasters and other accidents that lead to the death of wildlife.

In 2015, 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 the state had failed to do so.

On appeal, the Supreme Court is considering whether proving a violation of the take statutes requires evidence of “knowing conduct” and whether it requires an illegal voluntary act. 

CPW argues that the text of the take statutes doesn’t require a culpable mental state. “The take statutes’ context and the underlying purpose of the wildlife code confirm they are strict liability public welfare offenses,” the agency’s opening brief states. 

CPW also argues that while a voluntary act is required for criminal liability under state law, the voluntary act itself need not be illegal. “Rather than prohibit illegal acts, the take statutes prohibit acts that have an illegal result,” according to CPW’s brief, and the voluntary act in 5 Star’s case was operating wastewater ponds near the river.

Justice Carlos Samour asked whether CPW was arguing the feedlot had been committing a crime for months or years by operating the wastewater ponds. “No, I don’t think that 5 Star violated the take statutes until the fish were killed,” said Assistant Attorney General Christopher Breidenbach, adding that the feedlot “committed any number of voluntary acts that we allege foreseeably resulted in the fish dying.”

Justice Richard Gabriel expressed concern that the state’s argument allows for “potentially limitless liability” for any voluntary act that eventually results in the death of wildlife. “I have to say, with great respect, if there are any ranchers watching this argument, there was a collective gasp,” Gabriel said. 

However, the state argued the take statutes are limited by a proximate cause requirement that, while not explicit in the statutes’ text, is a constitutional guarantee affirmed by the 10th Circuit Court of Appeals in United States v. Apollo Energies. In that 2009 case, the federal appellate court held that “due process was violated unless the people in that case proximately, or foreseeably, took migratory birds in violation of the Migratory Bird Treaty Act,” Breidenbach said. 

“Our argument is simply that this result was foreseeable,” Breidenbach said. “And if that’s the case, we believe we should be able to hold 5 Star liable under these statutes.”

5 Star Feedlot argues CPW is required to prove the criminal elements of a knowing mental state and a proscribed “voluntary act,” and that proving these elements was impossible because the feedlot was the “innocent victim of an extreme storm,” according to 5 Star’s answer brief.

The justices pushed 5 Star’s attorney, Christopher Carrington, on why the text of the take provisions in the wildlife code don’t specify a culpable mental state when nearby provisions in the code, such as those related to common carriers, explicitly prohibit conduct carried out “knowingly.” 

Carrington, pointing to the statutes’ legislative history, responded that the General Assembly only specified “knowingly” when it’s not otherwise implied, and the Court of Appeals has concluded in other cases that there is an implied mens rea element to the crime of taking wildlife. The legislature has never amended the statute to remove or reduce the “knowingly” element in response to those cases, 5 Star states in its brief. 

Justice Hood asked Carrington to address the state’s foreseeability argument and whether storms like the one that hit 5 Star Feedlot are likely to be considered “50-year storms” in the future, given the effects of climate change. “In today’s world, don’t we have to have some concern at a policy level that this sort of event may repeat itself more frequently?” Hood asked. 

“That is a policy decision for the General Assembly to make,” Carrington replied, adding that the legislature has given the Colorado Department of Public Health and Environment the responsibility of regulating animal feeding operations to mitigate risk, and 5 Star Feedlot was in compliance with that agency’s rules. 

As for whether a proximate cause requirement is an adequate protection or backstop against the state’s strict liability theory, Carrington said, “What the Attorney General is really asking to do is to get rid of blackletter criminal law.”

“They’re saying get rid of mens rea, get rid of blameworthy conduct. But don’t worry, you’ll have proximate causation that will save you,” Carrington said. “There is no reason for us to abandon the core principals of criminal law.” 

Oliver Dunford of the California-based Pacific Legal Foundation filed an amicus brief in the case supporting 5 Star Feedlot. Pacific Legal Foundation argues the state should have to carry the burden of establishing both a mens rea and actus reus if it wants to impose criminal liability, Dunford said, adding that while the statutes in 5 Star are imposing civil liability, the state must prove violations of criminal statutes in order to hold the feedlot accountable. 

“The danger is that if the court decides to ignore the conditional mens rea and actus reus requirements, all kinds of innocent conduct could be criminalized in the future,” Dunford said.

According to Dunford, there has been a nationwide trend to expand the notion of public welfare exceptions, which allow for strict liability for offenses involving especially dangerous activity, such as transporting flammable liquids. 

CPW argues Colorado’s take statutes are strict liability public welfare offenses. 

“The argument needs to be, then, that running a feedlot is such an inherently dangerous business that they should expect criminal sanctions when something goes wrong,” Dunford said. “And that’s just too much an expansion of the public welfare exception.”

The case has raised concerns among agricultural and business interests. “The state’s theory effectively makes farmers and ranchers the unwitting insurers against extreme natural disasters,” said Kent Naughton, an attorney at Witwer, Oldenburg, Barry & Groom in Greeley. “And that has virtually unlimited financial exposures for these [agricultural] professionals and these family farmers.”

Naughton and his colleague John Barry filed an amicus brief in the case on behalf of the Colorado Livestock Association, the Colorado Farm Bureau, the National Cattlemen’s Beef Association and other agricultural industry groups. 

“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,” Barry said. 

“Tornadoes, earthquakes, floods, you name it,” Barry added. “If the responsibility lies on that operator for simply operating an agriculture-related facility, it’s earth-changing for ag professionals throughout Colorado.” 

— Jessica Folker

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