State v. 5 Star Feedlot Inc.

487 P.3d 1183

STATE of Colorado, Department of Natural Resources and Parks and Wildlife Commission and Division of Parks and Wildlife, Plaintiffs-Appellees,

v.5 STAR FEEDLOT INC., Defendant-Appellant.

Court of Appeals No. 18CA1131

Colorado Court of Appeals, Division VII.

Announced October 24, 2019

As Modified on Denial of Rehearing December 12, 2019

Philip J. Weiser, Attorney General, Jake Matter, Senior Assistant Attorney General, Joseph G. Phillips, Assistant Attorney General, Denver, Colorado, for Plaintiffs-Appellees

Richards Carrington, LLC, Christopher P. Carrington, Ruth M. Moore, Denver, Colorado, for Defendant-Appellant

Witwer, Oldenburg, Barry & Groom, LLP, John J. Barry, David J. Skarka, Greeley, Colorado, for Amici Curiae Colorado Livestock Association, Colorado Farm Bureau, and Colorado Corn Growers Association.

Opinion by JUDGE J. JONES

¶1 Defendant, 5 Star Feedlot Inc. (5 Star), appeals the district court's order denying its motion for summary judgment and granting summary judgment in favor of plaintiffs, the State of Colorado, Department of Natural Resources, Parks and Wildlife Commission and Division of Parks and Wildlife (the State). The State sued 5 Star pursuant to section 33-6-110(1), C.R.S. 2019, for unlawful taking of wildlife after an unusually heavy rainstorm caused one of 5 Star's wastewater containment ponds to overflow. It alleged that wastewater from the pond eventually entered the Republican River, leading to the deaths of almost 15,000 fish. In ruling on the parties’ cross-motions for summary judgment, the district court interpreted "take" in title 33 to mean "kill," ruled that section 33-6-110 creates a "strict liability offense," and, finding no genuine issue as to causation, concluded that 5 Star is strictly liable for the deaths of the fish.

¶2 We disagree with the district court's interpretation of the relevant wildlife statutes. Those statutes required the State to prove that 5 Star acted knowingly, or at least that 5 Star performed some voluntary act that caused the fish to die. The State didn't present any evidence of either a knowing or a voluntary act. We therefore reverse the summary judgment for the State and remand for entry of judgment in 5 Star's favor.

I. Background

¶3 5 Star operates a cattle feedlot in eastern Colorado near the South Fork of the Republican River and Hale Ponds. It stores its wastewater from the feedlot in containment ponds built and maintained in compliance with Colorado Department of Health and Environment regulations.¹

¶4 In the spring of 2015, a severe rainstorm hit the feedlot and surrounding areas. Over six inches of rain fell over three days, including two inches within thirty minutes on the first day of the storm.² Despite 5 Star's rapid repair efforts, approximately 500,000 gallons of wastewater mixed with rainwater escaped from one of the ponds via overflow and a partial breach and flowed several miles over land into the South Fork of the Republican River.³ A few days later, the State recovered 379 dead fish from the Republican River and Hale Ponds.

¶5 The State sued 5 Star under section 33-6-110(1), which authorizes the Colorado Division of Parks and Wildlife to bring a civil action "to recover possession or value or both possession and value of any wildlife taken in violation of articles 1 to 6" of title 33. In its amended complaint, the State alleged violations of sections 33-2-104(3), 33-2-105(4), and 33-6-109(1), C.R.S. 2019. Section 33-6-109(1) makes it unlawful for any person to hunt, take, or have in his possession any wildlife that is the property of the State, unless otherwise permitted; sections 33-2-104(3) and - 105(4) similarly proscribe taking and other conduct relating to nongame wildlife and threatened wildlife, respectively.

¶6 5 Star moved to dismiss the State's amended complaint under C.R.C.P. 12(b)(5), arguing that it didn't "take" the fish under the wildlife code's definition of "take." The district court denied that motion. Later, both sides filed motions for summary judgment. The State argued that 5 Star is strictly liable for and had caused the deaths of the fish. 5 Star argued that the State must prove both a mens rea (mental state) and an actus reus (unlawful voluntary act), and that the State hadn't presented evidence of either. It also argued that the State hadn't established the existence of a genuine issue of material fact as to whether 5 Star had proximately caused the fish to die.⁴

¶7 The district court denied 5 Star's motion and granted the State's motion as to liability, concluding that 5 Star "took" the fish in violation of the wildlife statutes. Specifically, the court ruled that "take" in section 33-6-109(1) includes "kill," and that 5 Star had killed the fish; 5 Star is strictly liable for the killings; and there was no genuine issue of material fact as to causation (that is, 5 Star had caused the fish to die). The court later ordered 5 Star to pay the State $625,755.⁵

II. Discussion

¶8 5 Star argues on appeal that the district court erred by (1) imposing liability on it for taking wildlife because it didn't "take" any fish, didn't "knowingly" take any fish, and didn't perform any voluntary act causing the fish to die; (2) granting summary judgment for the State because there were genuine issues of material fact; and (3) not granting 5 Star's motion for summary judgment because the State didn't present sufficient evidence that 5 Star caused the fishes’ deaths. Because we conclude that the district court misinterpreted the wildlife statutes in imposing liability on 5 Star, we don't address 5 Star's second and third contentions.

A. Standard of Review and Principles of Statutory Interpretation

¶9 We review de novo a district court's order granting or denying summary judgment. Westin Operator, LLC v. Groh , 2015 CO 25, ¶ 19, 347 P.3d 606. We also review de novo questions of statutory interpretation. Colo. Oil & Gas Conservation Comm'n v. Martinez , 2019 CO 3, ¶ 19, 433 P.3d 22.

¶10 When interpreting a statute, our task is to discern and give effect to the General Assembly's intent. Krol v. CF & I Steel , 2013 COA 32, ¶ 15, 307 P.3d 1116. In doing so, we look to the entire statutory scheme to give consistent, harmonious, and sensible effect to all of its parts, and we apply words and phrases in accordance with their plain and ordinary meanings. Id. ; see Denver Post Corp. v. Ritter , 255 P.3d 1083, 1089 (Colo. 2011). Unless the statute is ambiguous, we enforce it as written without resorting to other rules of statutory construction. Denver Post Corp. , 255 P.3d at 1089 ; Krol , ¶ 15.

B. Analysis

1. Section 33-6-110(1) Requires the State to Prove All Elements of a "Violation of" the Criminal Statutes Underlying the State's Claim

¶11 5 Star's statutory interpretation arguments are, in relevant part, premised on the assertion that the State can prevail on a claim under section 33-6-110(1) only if it proves everything required to prove a violation of the criminal statutes underlying the claim, including a culpable mental state and an unlawful voluntary act.⁶ The State concedes that it must prove all elements of a violation of the underlying statutes on which it relies — sections 33-2-104, 33-2-105, and 33-6-109 — albeit by only a preponderance of the evidence. But it argues that the mens rea and actus reus concepts that 5 Star invokes don't apply to section 33-6-110(1) and the underlying statutes because they create only strict liability offenses.

¶12 Looking to the plain language of section 33-6-110(1), we agree with the parties that the State can't establish liability under that statute without also proving all elements of culpability under the predicate criminal offenses.

¶13 As noted, section 33-6-110(1) authorizes the State to bring a civil action to recover the value of wildlife taken "in violation of articles 1 to 6" of title 33. (Emphasis added.) So by the statute's plain language, the State can't recover unless it proves a violation of a provision of articles 1 to 6 of title 33. As a matter of logic, doing so necessarily requires that the State prove all of the elements of whatever underlying violation the State alleges.

¶14 In this way, section 33-6-110(1) is similar to the civil theft statute, § 18-4-405, C.R.S. 2019. That statute allows the owner of stolen property to file a civil action against someone who took his property or who has possession of it. But to prevail on a civil claim under that statute, the owner must prove all of the elements of criminal theft, even though the burden of proof is only preponderance of the evidence. Itin v. Ungar , 17 P.3d 129, 133 (Colo. 2000) ; Scott v. Scott , 2018 COA 25, ¶ 26, 428 P.3d 626 ; Black v. Black , 2018 COA 7, ¶ 93, 422 P.3d 592.

¶15 We turn, then, to 5 Star's contentions that the underlying statutes require proof of a culpable mental state and a voluntary act, and that the State didn't present any evidence of either.

2. Mens Rea

¶16 5 Star contends that the mental state of "knowingly" applies to violations of section 33-6-109(1),⁷ and by extension to the State's claim in this case, and that the State didn't present any evidence that it acted knowingly. The State counters that section 33-6-109(1), and by extension section 33-6-110, creates a strict liability offense. We agree with 5 Star.

¶17 Section 33-6-109(1) provides that "[i]t is unlawful for any person to hunt, take, or have in such person's possession any wildlife that is the property of this State as provided in section 33-1-101, except as permitted by articles 1 to 6 of this title or by rule or regulation of the commission." A violation of this provision is a misdemeanor. § 33-6-109(3).

¶18 Section 33-6-109(1) doesn't specify any culpable mental state that must be proved to show a violation thereof. But the lack of an expressed mental state in that section doesn't mean there isn't a required mental state: "because a crime ordinarily requires the conjunction of an act and a culpable mental state,...