2021 CO 27
Colo.2021Background
- 5 Star Feedlot operates large, lawful wastewater containment ponds near the South Fork of the Republican River.
- In spring 2015, a historic three-day storm (including a 1-in-50-year 30-minute deluge) caused overflow and a partial breach of one pond; ~500,000 gallons of wastewater/rainwater reached downstream waters and an estimated 15,000 fish died.
- The State sued under Colorado "take" provisions in Title 33 to recover possession/value of wildlife allegedly taken in violation of the wildlife code.
- The district court granted the State summary judgment and assessed $625,755 in damages after a bench trial on damages; 5 Star appealed.
- The Colorado Court of Appeals reversed, holding the State had to prove both a voluntary unlawful act (actus reus) and, at least, knowing conduct (mens rea); it remanded for judgment for 5 Star.
- The Colorado Supreme Court affirmed the court of appeals on narrower grounds: the State was required to prove the voluntary act proscribed by the take statutes (actus reus), and it failed to allege or present evidence that 5 Star performed that proscribed voluntary act; the Court remanded with instructions to enter judgment for 5 Star and did not resolve the mens rea question.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State must prove a voluntary act that matches the act proscribed by the take statutes (actus reus). | State: any voluntary act suffices; take statutes can impose strict liability so no need to prove the specific unlawful voluntary act. | 5 Star: State must prove the voluntary act proscribed by the statutes — i.e., a voluntary act that killed or otherwise acquired possession/control of wildlife without authorization. | Held: State must prove the voluntary act proscribed by the take statutes (actus reus). |
| Whether the State must prove a culpable mental state (knowingly) or whether the take statutes impose strict liability. | State: statutes can be read as strict liability; mens rea need not be proved. | 5 Star: at minimum the State must prove knowingly or an unlawful voluntary act. | Not decided: Supreme Court declined to resolve mens rea after deciding actus reus dispositive. |
| Whether 5 Star's lawful, long-term operation of containment ponds constituted the proscribed voluntary act. | State: operation of ponds (and resulting discharge) established 5 Star's culpable act. | 5 Star: the discharge was caused by an act of God (historic storm); lawful pond operation was not the voluntary act proscribed. | Held: State failed to allege or prove that lawful pond operation itself killed or acquired possession of fish; discharge was triggered by the storm, not a voluntary act by 5 Star. |
| Whether the district court erred in granting the State summary judgment and denying 5 Star's cross-motion. | State: summary judgment appropriate because protected fish died and 5 Star should be strictly liable. | 5 Star: State failed to prove actus reus and causation; summary judgment for State improper and 5 Star entitled to judgment. | Held: district court erred in granting State SJ and denying 5 Star's cross-motion; Supreme Court directed entry of judgment for 5 Star. |
Key Cases Cited
- People v. Marcy, 628 P.2d 69 (Colo. 1981) (criminal liability requires unlawful act (actus reus) and culpable mental state (mens rea))
- People v. Rostad, 669 P.2d 126 (Colo. 1983) (strict-liability offenses still require proof that proscribed conduct was performed voluntarily)
- People v. Wilhelm, 676 P.2d 702 (Colo. 1984) (strict-liability offenses require that prohibited conduct be the product of conscious mental activity)
- People v. Garcia, 541 P.2d 687 (Colo. 1975) (prosecution must prove the voluntary act proscribed by statute; events beyond defendant's control can negate voluntariness)
- People ex rel. Rein v. Meagher, 465 P.3d 554 (Colo. 2020) (standard of review and summary judgment principles)
- People v. Ceja, 904 P.2d 1308 (Colo. 1995) (possession as criminal element requires awareness of possession)