2019 COA 162
Colo. Ct. App.2019Background
- 5 Star Feedlot operated containment ponds near the South Fork of the Republican River; ponds complied with applicable Colorado regulations.
- A severe 2015 storm (over six inches in three days, two inches in 30 minutes) caused a pond overflow and partial breach; ~500,000 gallons of wastewater/rainwater flowed into the river.
- The State recovered 379 dead fish and extrapolated total mortality to ~15,000; it sued under § 33-6-110(1) alleging violations of §§ 33-6-109(1), 33-2-104(3), and 33-2-105(4).
- The district court denied 5 Star’s summary judgment, granted the State’s, held that “take” includes “kill,” treated the offense as strict liability, found no causation dispute, and awarded $625,755.
- On appeal the Court of Appeals reversed: it held the wildlife statutes imply a mens rea of "knowingly" and — even for strict liability offenses — require proof of a voluntary act (actus reus); the State presented no evidence of either.
- The court directed entry of judgment for 5 Star and remanded with directions; one judge concurred in part and dissented in part on the remedy.
Issues
| Issue | State's Argument | 5 Star's Argument | Held |
|---|---|---|---|
| Whether §33-6-109(1) (and related statutes) are strict liability so no mental state required | Statute creates strict liability; State need not prove culpable mental state | Mens rea of "knowingly" is implied and must be proved | Court: "knowingly" is implied; State must prove it |
| Whether proof of a voluntary act (actus reus) is required even if offense is strict liability | Voluntary-act requirement not needed for strict liability civil recovery | Even strict-liability crimes require a voluntary act or culpable omission | Court: voluntary act (or unlawful omission) is required |
| Whether State met its burden on summary judgment (mens rea, actus reus, causation) | District court correctly granted summary judgment for State; causation established | State produced no evidence of knowing conduct or a voluntary act causing the spill; genuine factual disputes exist | Court: State failed to raise a genuine issue on mens rea or actus reus -> reverse and direct entry of judgment for 5 Star (did not decide causation) |
Key Cases Cited
- People v. Moore, 674 P.2d 354 (Colo. 1984) (legislative silence on intent may not eliminate mens rea; intent can be implied)
- People v. Lawrence, 55 P.3d 155 (Colo. App. 2001) ("knowingly" can be implied for wildlife-killing statutes)
- People v. Gordon, 160 P.3d 284 (Colo. App. 2007) (same reasoning as Lawrence on implied mental state)
- People v. Marcy, 628 P.2d 69 (Colo. 1981) (criminal liability generally requires concurrence of actus reus and mens rea)
- People v. Rostad, 669 P.2d 126 (Colo. 1983) (strict-liability offenses still require proof the act was voluntary)
- People v. Garcia, 541 P.2d 687 (Colo. 1975) (even fourth-degree arson requires that the actor voluntarily started the fire)
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard: nonmoving party must present evidence to create a genuine issue of material fact)