Weapons And Wildlife

In this Sept. 26, 2012 file photo, a cormorant dries its wings after diving for fish in Lake Ladora at the Rocky Mountain Arsenal National Wildlife Refuge in Commerce City, Colo. Roughly 10 miles (16 kilometers) from downtown Denver, the arsenal was once an environmental nightmare where chemical weapons and commercial pesticides were made. Thousands of ducks died after coming in contact with its wastewater ponds in the 1950s. 

The state Supreme Court has announced it will hear a case that calls into question whether the government must prove that an entity knowingly and voluntarily acted illegally to take state property — in this instance, wildlife.

5 Star Feedlot, Inc. operates a feedlot near the South Fork of the Republican River and Hale Ponds, near the Kansas state line. In the spring of 2015, a torrential rainstorm resulted in 500,000 gallons of rain and wastewater from the feedlot overflowing its containment pond and washing into the river. Subsequently, the state recovered 379 dead fish from the waterway.

Even though 5 Star’s containment pond complied with Colorado law, the state filed a lawsuit to recover the value of the wildlife because it was taken in a manner not prescribed by law. 5 Star countered that it did not “take” the fish, and argued that the state needed to show a voluntary unlawful act and a mental state to prove a violation. The company also alleged there was no proof that 5 Star was responsible for the fish deaths.

A district court ruled that to “take” means to “kill,” and there was no question that 5 Star had culpability. The court ordered 5 Star to pay over $625,000 in damages.

On appeal, the Colorado Court of Appeals reversed that judgment. Writing for the three-member panel, Judge Jerry N. Jones acknowledged that even though the law did not require a defendant to exhibit a culpable mental state while hunting or unlawfully possessing wildlife, such a requirement went without saying.

“Logically, a person can’t hunt without knowing he is doing so; hunting requires some deliberate action,” Jones explained.

The appeals judges also found that 5 Star did not perform an unlawful voluntary act or fail to live up to its legal obligations — and the discharge of the wastewater counted as neither.

“The district court’s erroneous acceptance of the State’s legal argument didn’t retroactively relieve the state of its obligation to come forward with evidence,” wrote Jones, slamming the government's handling of the case by not showing sufficient proof. “It isn’t our job to rescue the state from the consequences of its litigation strategy.”

Judge Terry Fox agreed that the state needed to prove that 5 Star acted knowingly and voluntarily, but dissented on the conclusion that the state had not offered any proof at all. She wrote that the materials of the containment pond had eroded and may not have provided sufficient capacity for a severe rainstorm.

“Causation remains hotly disputed,” Fox cautioned.

Jones flatly rejected her analysis that 5 Star did anything to contribute to the overflow, noting that “The state has never even argued that 5 Star failed to comply with any law relating to the construction and maintenance of the containment ponds.”

He added bluntly: “We should not be making arguments for a party.”

The case is State of Colorado, Department of Natural Resources et al. v. 5 Star Feedlot.

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