A torrential rainstorm in Yuma County that resulted in the killing of 379 fish was the subject of a Colorado Supreme Court oral argument on Wednesday, centered around the question of whether the feedlot whose containment pond overflowed was responsible for the taking of wildlife.

“To protect Colorado wildlife the General Assembly created a comprehensive set of laws, including statutes that prohibit taking wildlife without permission,” Christopher G. Breidenbach of the attorney general’s office told the justices.

As a result of the wastewater overflow from 5 Star Feedlot, Inc. into the Republican River in the spring of 2015, Colorado Parks and Wildlife sought to recover the value of the fish. 5 Star countered that the state needed to prove it acted voluntarily to take the fish, and that 5 Star also knew what it was doing. A district court judge sided against 5 Star and ordered the company to pay over $625,000.

Under Colorado law, taking means to “acquire possession of wildlife,” but does not include accidental wounding and killing by cars or trains. In 2020, the legislature amended the law to add “kill” to the definition, although Breidenbach believed that killing wildlife was a form of possession.

One year earlier, the Court of Appeals reversed the decision and chided the state for failing to provide evidence that 5 Star was out of compliance with any law governing its containment ponds. A majority of the three-judge panel found the cause of the fish deaths to be the rainstorm, which was not a voluntary or unlawful act by the feedlot.

Breidenbach argued to the justices that the Court of Appeals’ conclusion added additional thresholds to the statute – like voluntariness – that the General Assembly had not included. Justice Richard L. Gabriel, however, reiterated that 5 Star had complied with all regulations for its containment ponds.

“This was an act of god that led these ponds to overflow and led wastewater to go down to the river. Where is the voluntary act on their part?” he asked. 

Breidenbach responded that if an entity took a series of voluntary actions, such as choosing to build, locate and operate containment ponds that ultimately resulted in the killing of wildlife, criminal or civil penalties were permissible Gabriel observed that “if there any ranchers watching this argument, there was a collective gasp” over the liability they could face under that line of argument.

“Under your theory, 5 Star Feedlot had this violation for days, months, maybe years,” agreed Justice Carlos A. Samour Jr. “You’re saying the act is having the storage that they had. Well, they had that for a long time….Are you arguing they’ve been committing this crime for days, months, years?”

Breidenbach clarified that the killing of the fish was the only illegal act in this instance.

“Under the Court of Appeals’ decision, an industrial polluter will almost never be liable for killing wildlife,” he said. “It defeats the goal the General Assembly was trying to accomplish, which is to protect an irreplaceable natural resource.”

Christopher Carrington, defending 5 Star Feedlot, believed it would be unfair for the legislature to criminalize “unknowing possession.” He also pointed out the legislative change in 2020 that added “kill” to the definition of take.

“At the time this supposed crime was committed in 2015, take did not mean kill and we can’t write it back in,” Carrington said.

At the time of the Court of Appeals decision, Colorado Parks and Wildlife told CPR that the legal action against 5 Star was not an attack on the agriculture industry.

The case is State of Colorado et al. v. 5 Star Feedlot Inc.