State of Colorado, Department of Natural Resources and Parks and Wildlife Commission and Division of Parks and Wildlife v. 5 Star Feedlot Inc.
No. 18CA1131
Colorado Court of Appeals
October 24, 2019
2019COA162
JUDGE J. JONES
Yuma County District Court No. 16CV30022, Honorable Carl S. McGuire III, Judge
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
October 24, 2019
2019COA162
No. 18CA1131, State of Colorado v. 5 Star Feedlot — Parks and Wildlife — Unlawful Taking; Criminal Law — Mens Rea — Actus Reus
A division of the court of appeals addresses whether 5 Star Feedlot, a cattle feedlot in eastern Colorado, can be liable under
COLORADO COURT OF APPEALS 2019COA162
Court of Appeals No. 18CA1131
Yuma County District Court No. 16CV30022
Honorable Carl S. McGuire III, Judge
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.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE J. JONES
Tow, J., concurs
Fox, J., concurs in part and dissents in part
Announced October 24, 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
¶ 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
¶ 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
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
¶ 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
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
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. We also review de novo questions of statutory interpretation. Colo. Oil & Gas Conservation Comm‘n v. Martinez, 2019 CO 3, ¶ 19.
¶ 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. 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. 2001). 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
evidence. But it argues that the mens rea and actus reus concepts that 5 Star invokes don‘t apply to
¶ 12 Looking to the plain language of
¶ 13 As noted,
¶ 14 In this way,
¶ 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
¶ 17
wildlife that is the property of this State as provided in
¶ 18
¶ 19 “A person acts ‘knowingly’ or ‘willfully’ with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists.”
¶ 20 In People v. Lawrence, 55 P.3d 155, 162 (Colo. App. 2001), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36 (2004), a division held that the trial court didn‘t err when it instructed the jury that “knowingly” was the culpable mental state for killing and abandoning wildlife as proscribed by
[I]t is unlawful for any person to hunt or take, or to solicit another person to hunt or take, any wildlife and detach or remove, with the intent to abandon the carcass or body, only the head, hide, claws, teeth, antlers, horns, internal organs, or feathers or any or all such parts or to kill and abandon any wildlife.
¶ 21 Addressing a later version of
¶ 22 In both Lawrence and Gordon, the divisions viewed the question of the required mental state as whether a showing of specific intent or mere knowing conduct was required. Neither division appears to have regarded
¶ 23 We conclude that the reasoning of Lawrence and Gordon — that the statutory language “logically requires ‘knowing‘” — applies to the offenses described in
¶ 24 Like “hunt” and “have in such person‘s possession,” we conclude that “take,” a term at issue in Gordon, also logically requires knowing conduct. We don‘t see any indication in the statute that different mental states would apply to different acts within the phrase “hunt, take, or have in such person‘s possession.”
¶ 25 In sum, we conclude that the culpable mental state of “knowingly” is implied in
¶ 26 During oral argument, but only in response to a judge‘s question, counsel for the State suggested that 5 Star‘s mere operation of the feedlot subjected it to liability. Even assuming that we can consider that assertion, but see McGihon v. Cave, 2016 COA 78, ¶ 10 n.1 (appellate court won‘t address arguments first offered at oral argument), we reject it. Counsel didn‘t assert that in building and operating the containment ponds, 5 Star did so with the awareness that this conduct was “practically certain to cause” the deaths of almost 15,000 fish (or any fish) in a river miles away. See
¶ 27 5 Star also contends that, to prove a violation of
¶ 28 “In order to subject a person to criminal liability for his conduct, there generally must be a concurrence of an unlawful act (actus reus) and a culpable mental state (mens rea).” People v. Marcy, 628 P.2d 69, 73 (Colo. 1981). With respect to the unlawful act, criminal culpability requires “the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing.”
¶ 29 Though, as noted, most criminal offenses require a concurrence of a voluntary act and a culpable mental state, see Marcy, 628 P.2d at 73, the General Assembly “may create offenses requiring only the voluntary performance of an act, requiring proof only that the prohibited conduct was ‘the product of conscious mental activity involving effort or determination,‘” People v. Wilhelm, 676 P.2d 702, 706 (Colo. 1984) (emphasis added) (quoting People v. Rostad, 669 P.2d 126, 129 (Colo. 1983)). In the case of such a strict liability offense,10 an actor may be liable even if it didn‘t expect the consequences of its action. And so it follows that even if we were to agree with the State and the district court that
¶ 30 Our conclusion finds additional support in decisions construing other strict liability offenses. For instance, in People v. Garcia, 189 Colo. 347, 351, 541 P.2d 687, 689 (1975), a case involving fourth degree arson, the court held, relying on
at 129-30 (vehicular homicide, though a strict liability offense, requires proof of a voluntary act; “the minimal requirement for a “strict liability” offense is proof that the proscribed offense was performed voluntarily — i.e., that such act must be the product of conscious mental activity involving effort or determination“); People v. Caddy, 189 Colo. 353, 355, 540 P.2d 1089, 1091 (1975) (though speeding is a strict liability offense, proof of a voluntary act is required); People v. Hoskay, 87 P.3d 194, 198 (Colo. App. 2003) (public indecency is a strict liability offense but proof of a voluntary act is required).
¶ 31 In this case, the State didn‘t argue below or present any evidence to the district court showing that 5 Star performed a voluntary act or failed to perform an act that it had a legal duty to perform. Nor did it argue anything to that effect in its answer brief on appeal. As noted, at oral argument counsel for the State suggested that 5 Star‘s mere lawful operation of its feedlot could constitute the requisite culpable conduct. That suggestion fails in this context as well, for three reasons.
¶ 33 Second, and relatedly, a lawful voluntary act that alone doesn‘t result in any transgression of the law can lead to criminal culpability only if coupled with an unlawful voluntary act. See, e.g., Martin v. State, 17 So. 2d 427 (Ala. Ct. App. 1944) (the defendant didn‘t perform a voluntary act, and therefore didn‘t commit public intoxication, when he got drunk at home and was brought out into the public by police officers); State v. Turner, 953 S.W.2d 213, 216 (Tenn. Crim. App. 1996) (no crime of being in control of a vehicle while intoxicated, a strict liability offense, if an intoxicated person‘s friends carry him into his car and leave him there); see also Marcy, 628 P.2d at 73 (“there generally must be . . . an unlawful act“); COLJI-Crim. G1:01 (2018) (“A crime is committed when the defendant has committed a voluntary act prohibited by law, together with a culpable state of mind.“) (emphasis added); cf. Commonwealth v. Collier, 693 N.E.2d 673, 676 (Mass. 1998) (state was required to prove that the defendant, a mere passenger in a vehicle, intended for the vehicle to pass close to his former wife to show a violation of a protective order barring him from being within 100 yards of her; a voluntary act cannot be merely accidental or mistaken). The only “act” combining with 5 Star‘s lawful operation of the feedlot that allegedly caused the fishes’ deaths was the rainstorm. That event was neither unlawful nor voluntary nor an act on 5 Star‘s part.
¶ 34 Third, 5 Star‘s operation of the feedlot wasn‘t an “omission to perform an act.”
III. Disposition
¶ 35 5 Star asks that we reverse the judgment and remand for entry of judgment in its favor: it appeals not only the summary judgment in the State‘s favor, but also the district court‘s denial of its motion for summary judgment.
¶ 36 Ordinarily, an order denying a motion for summary judgment isn‘t appealable. Feiger, Collison & Killmer v. Jones, 926 P.2d 1244, 1251 (Colo. 1996) (a party can‘t appeal the denial of a summary judgment motion following a judgment entered after a trial); Glennon Heights, Inc. v. Cent. Bank & Tr., 658 P.2d 872, 875 (Colo. 1983) (“[A] denial of a motion for summary judgment is not an appealable order when it does not otherwise put an end to the litigation.“); see Chase v. Farmers Ins. Exch., 129 P.3d 1011, 1015 (Colo. App. 2004). But when a district court rules on cross-motions for summary judgment — denying summary judgment for one party and granting summary judgment for the other — the judgment is final and we may review the denial. See Yaffe Cos., Inc. v. Great Am. Ins. Co., 499 F.3d 1182, 1184 (10th Cir. 2007) (“An order denying summary judgment is reviewable when . . . it is coupled with a grant of summary judgment to the opposing party.” (quoting Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1124 (9th Cir. 2002))); In re Estate of Scott, 119 P.3d 511, 515-16 (Colo. App. 2004), aff‘d on other grounds, 136 P.3d 892 (Colo. 2006); Udis v. Universal Commc‘ns Co., 56 P.3d 1177, 1183 (Colo. App. 2002).
¶ 37 When 5 Star moved for summary judgment, pointing out the lack of any allegation or supporting evidence of a culpable mental state or voluntary act, it was incumbent on
¶ 38 The partial dissent‘s assertion that “there was no need for the State to come forward” with “evidence of a knowing or voluntary act” “[b]ecause the trial court applied an incorrect legal standard” is contrary to the well-settled law cited above.12 Infra ¶ 43. 5 Star made its required showing and the State was therefore obliged to counter it. The fact the State chose not to do so, but instead chose to rely solely on a legal argument — that it didn‘t have to show a mens rea or a voluntary act — doesn‘t entitle the State to a second bite at the apple (a second bite that the State didn‘t even ask for in its brief on appeal). Put differently, 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 showing the existence of a genuine issue of fact. The State put all of its eggs in one basket at its peril. It isn‘t our job to rescue the State from the consequences of its litigation strategy.
¶ 39 Contrary to the partial dissent‘s suggestion, we haven‘t considered any evidence outside the summary judgment record. (Indeed, no party has presented to us any such evidence.) We have considered only the summary judgment filings, which, it seems appropriate to point out, include the State‘s sworn discovery response that the discharge from the containment ponds was the only event that caused the fish to die.
¶ 40 To the extent the partial dissent deems there to be a genuine issue of material fact as to whether the containment ponds were “suitable to provide capacity for a twenty-five year, twenty-four-hour storm event,” infra ¶ 49, we can‘t agree with the premise of that assertion. 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. Indeed, it has conceded that 5 Star complied with all such laws. Even putting aside the fact that we should not be making arguments for a party, especially arguments contrary to that party‘s concessions, the law is clear that for a failure to act to constitute the requisite actus reus, the act must be one as to which the law imposes a duty to perform.
¶ 41 Lastly, the fact that “causation remains hotly disputed” is irrelevant.13 Infra ¶ 49. If a party fails to establish a genuine issue of material fact on an element as to which it bears the burden of proof, it matters not that there is a genuine issue of material fact on another element: summary judgment is proper. E.g., Nelson v. Elway, 908 P.2d 102, 106-07 (Colo. 1995) (summary judgment proper where the plaintiffs failed to establish a genuine issue of material fact on one element
IV. Conclusion
¶ 42 We reverse the summary judgment in favor of the state and remand the case for entry of judgment in 5 Star‘s favor.
JUDGE TOW concurs.
JUDGE FOX concurs in part and dissents in part.
JUDGE FOX, concurring in part and dissenting in part.
¶ 43 I concur with the majority‘s conclusions that the operative statutes required the State to prove that 5 Star acted knowingly and performed some voluntary act that caused the fish to die. But I dissent from its conclusion that summary judgment should enter in 5 Star‘s favor because the State did not present evidence of a knowing or voluntary act. Because the trial court applied an incorrect legal standard, there was no need for the State to come forward with such evidence and genuine issues of material fact remain regarding whether 5 Star acted knowingly and voluntarily; summary judgment for 5 Star is therefore not proper. Likewise, causation is disputed and is a material fact question that is not appropriate for summary judgment disposition at the appellate level.
I. Standard of Review
¶ 44 Summary judgment is a drastic remedy, appropriate only where there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law.
¶ 45 Because the majority sets out the correct review standard for statutory interpretation, I do not repeat it here.
II. The Trial Court‘s Ruling
¶ 46 Having concluded that the wildlife statutes at issue gave rise to strict liability, the trial court concluded that there was “no genuine issue of material fact as it relates to liability . . . [and given the] clear showing that the controlling standards” were met, it proceeded to set the case for trial on damages. Thus, there was no inquiry — or factfindings — made regarding 5 Star‘s knowledge or whether its acts were voluntary.
III. Analysis
¶ 47 I cannot say on the sparse summary judgment record that the parties agree that 5 Star acted — or failed to act — voluntarily or with knowledge. Acting voluntarily and with knowledge is the standard the division announces today; matters like voluntary action and knowledge are fact-laden and inappropriate for disposition on summary judgment, especially by an appellate court. See, e.g., Lombard, 187 P.3d at 572 (holding that a genuine issue of material fact existed as to whether a conference center had constructive knowledge that a ladder from a loft constituted a danger and so summary judgment was inappropriate); Mancuso v. United Bank of Pueblo, 818 P.2d 732, 740-41 (Colo. 1991)
¶ 48 There is another reason I disagree with the majority‘s decision to remand for entry of summary judgment in 5 Star‘s favor. Because the trial court‘s findings were based on an erroneous view of the law, see, e.g., Pullman-Standard v. Swint, 456 U.S. 273, 287 (1982), the record does not permit only one resolution of material issues of fact, Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240, 1248 (Colo. 1987) (reversing court of appeals’ holding affirming district court‘s granting of defendant‘s motion for summary judgment dismissing plaintiff‘s products liability action against motorcycle manufacturers after reinterpreting the standard for when a product is defective and unreasonably dangerous and remanding where the court noted that the answer to this issue could not be determined based on the “limited facts thus far presented to the trial court“); see also Jolly v. People, 742 P.2d 891, 898-900 (Colo. 1987) (recognizing that when an appellate court holds that different elements apply than those applied at trial, a remand for a new trial is appropriate); People v. Riley, 708 P.2d 1359, 1366 (Colo. 1985) (reversing and remanding for a new trial after the trial court misinterpreted the applicable statute).
¶ 49 What the State can prove under the standards the majority announces here remains to be seen and does not need to be detailed here. The State‘s representation that the discharge from the containment ponds caused the fishes’ deaths is not dispositive, especially where the record indicates that, according to the State, the impoundments from which the materials left 5 Star‘s property following the storm had eroded and may not have been suitable to provide capacity for a twenty-five-year, twenty-four-hour storm event, much less for the actual rain event in question. The record contains competing expert opinions concerning this and other relevant issues. For example, in addition to questions whether 5 Star acted with knowledge and voluntarily, the record discloses that causation remains hotly disputed. A remand, therefore, is necessary, Swint, 456 U.S. at 292, because genuine issues of material fact remain, see, e.g., Smith v. Boyett, 908 P.2d 508, 515 (Colo. 1995); Struble v. Am. Family Ins. Co., 172 P.3d 950, 957 (Colo. App. 2007).
¶ 50 I therefore respectfully dissent from the part of the majority‘s decision that remands for entry of summary judgment in 5 Star‘s favor. In all other respects, I join the majority.