Denver District Court judge slaps state ethics commission with injunction

The Ralph Carr Judicial Building, which houses the Colorado Independent Ethics Commission.

A torrential rainstorm that caused a wastewater pond to overflow in Yuma County was not sufficient grounds for the state to penalize a feedlot for killing 15,000 fish, the Colorado Supreme Court said in a split decision on Monday.

The government needed to prove that 5 Star Feedlot Inc. consciously acted to kill the wildlife in violation of the “taking” statute, the majority of justices decided in reversing the more than $625,000 in damages a lower court had assessed against the feedlot. Merely operating the wastewater containment ponds in apparent compliance with state law did not open up the company to liability for the fish kill.

“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,” wrote Justice Carlos A. Samour Jr. for himself, Justice Richard L. Gabriel and Chief Justice Brian D. Boatright. “That discharge, however, was triggered by an act of God — the rainstorm — not an act voluntarily performed by 5 Star.”

Christopher P. Carrington, an attorney for 5 Star, called the court's decision a "win for common sense."

"Those who rely upon the land for their livelihood and industry are typically the best stewards of that land, and 5 Star is no exception," Carrington said.

In the dissenting opinion, Justice William W. Hood III disagreed that 5 Star’s actions played no role in the wastewater overflow.

“[T]he storm and the containment ponds were both necessary ingredients for the deaths of the fish,” he countered. “Without the storage of the wastewater in the containment ponds, the spill would not have occurred.”

5 Star is located near the South Fork of the Republican River and Hale Ponds, and uses two 24-million-gallon wastewater containment ponds. A 2015 rainstorm lasted three days and was an approximately once-in-a-century event. As a consequence, 500,000 gallons of waste and rainwater traversed several miles due to the overflow. The state ultimately recovered 1,768 dead fish from both bodies of water, and estimated that 15,000 had died in total.

Colorado Parks and Wildlife initiated a civil action against 5 Star pursuant to the law allowing the state to recover the value of wildlife “taken” illegally. A Yuma County district judge decided in the state’s favor, but 5 Star appealed, arguing it had not done anything voluntarily to take or kill wildlife.

During oral arguments to the Supreme Court, Assistant Attorney General Christopher G. Breidenbach told the justices that siding with 5 Star meant “an industrial polluter will almost never be liable for killing wildlife.”

He added: “It defeats the goal the General Assembly was trying to accomplish, which is to protect an irreplaceable natural resource.”

But the Supreme Court’s majority concluded the state was trying to label 5 Star as a negligent operator whose past actions culminated in the fish deaths, rather than a party that actively did something to kill the fish.

“Just as a defendant can’t be found guilty of fourth degree arson if the fire was started by events beyond his control, a defendant can’t be found guilty of taking protected wildlife without authorization ... if the taking was accomplished by events beyond his control,” Samour noted.

Justice Monica M. Márquez wrote separately to say she agreed with the ultimate conclusion that the Court should resolve the case in 5 Star’s favor, but for the reason that the state failed to prove 5 Star acted knowingly or intentionally in the fish kill.

Hood, writing for himself and Justices Melissa Hart and Maria E. Berkenkotter, argued that operating the wastewater containment ponds was a proximate cause of the fish’s deaths. He likened the scenario to a person who is prone to fainting spells passing out behind the wheel of a car and killing a pedestrian.

No one disputes that 5 Star voluntarily stored feces-contaminated water in ponds. And the State presented evidence that this wastewater mixed with rainwater, spilled into a river, and then killed fish by spiking the river’s ammonia levels and depleting its dissolved oxygen,” Hood wrote. He indicated he would have returned the case to a lower court to determine whether 5 Star foreseeably caused the fish to die.

Colorado Parks and Wildlife did not immediately have a comment to provide on the decision. Carrington, the lawyer for 5 Star, did not believe the state's position at oral arguments that the ruling gives the agriculture industry a right to pollute.

"Colorado has a variety of water quality regulations and laws that address and penalize pollution, and rightfully so," he said. "The government filed a lawsuit under the hunting/poaching statutory framework and not for violation of water quality standards."

Greg Cure, the manager of 5 Star, believed the Court's decision could have had far-reaching effects if the state prevailed, including labeling bird deaths due to wind turbines as a "taking" of wildlife.

"That's what they had us as: that we went down there and fished out 13,000 fish for the taking, like we were fishermen. We were portrayed as poachers," he said. "I don't know of anybody in this world that's stopping it from raining."

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

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