Near the south fork of the Republican River and Hale Ponds in Yuma County, Colorado, 5 Star Feedlots, Inc., operates a 25,000 head lot. After six years entangled in the courts, the Colorado Supreme Court ruled in favor of the feedlot, a victory for agriculture in a state increasingly unfriendly to the $7 billion industry.

In 2015, three days of heavy rains, described in court documents as a rainstorm of historic proportions, hit the area, dropping more than 6 inches of rain. The result was overflow from, and a partial breach in, one of the feedlot’s 24-million-gallon containment ponds.

About 500,000 gallons of wastewater and rainwater escaped the pond’s banks. Several days after the storm, the Colorado Division of Parks and Wildlife recovered 379 dead fish from the river and 1,389 dead fish from Hale Ponds. The wildlife referred to is identified in court documents as the southernmost population of the brassy minnow, a threatened species, and fish like the stonecat and orange throat darter.

---

---

The state filed a complaint against 5 Star authorizing the DPW to “bring…a civil action against any person, in the name of the people of the state, to recover possession or value or both possession and value of any wildlife taken in violation of articles 1 to 6. Those articles refer to any nongame wildlife in need of management by determination of the commission; species or subspecies of wildlife indigenous to the state determined to be threatened within the state; and wildlife that is the property of the state.

The state estimated that, based on the dead fish collected, about 15,000 fish died, the loss was valued at $625,755.

---

---

A DANGEROUS PRECEDENT

Chris Carrington, a Denver attorney, said his is the third firm to represent 5 Star and said a dangerous precedent was narrowly avoided. He said he was less excited about prevailing, than he would have been devastated had they not. The filing, he said, began June 1, 2016, under former attorney general and former gubernatorial candidate Cynthia Coffman, and reached to a conclusion in May of 2021 under AG Phil Weiser.

The only voluntary act these guys engaged in was lawfully operating a business,” he said. “The fish died from a discharge that they didn’t cause, and couldn’t have caused, and they were in full compliance with CDPHE regulations.”

Carrington said he has represented multiple small businesses against the current attorney general’s office and said the office does “whatever they think they can get away with, and they get away with a lot.”

“I’ve seen so many meritless prosecutions by the Attorney General and this one was just shocking because it felt like an attempt to use the statute in a new way to generate revenue, without regard for the policy behind it which is crushing these small businesses,” he said. “My client spent a lot of money through a number of law firms to survive this. Coffman, and then Weiser, nobody cared about that.”

Carrington said if the issue is the CDPHE regulating containment ponds are the issue, there is opportunity for dialogue between agencies and agriculture to adjust regulations. This is an illustration, he said, of the importance of a “judicial system that is separate from, not influenced by, and divorced from the executive branch.”

“If Mr. Polis had his way, or Mr. Weiser, I don’t know what that would look like for our industry,” he said. “In the end, it felt like a win for common sense.”

In their appeal, 5 Star filed a motion to dismiss, asserting that it hadn’t ‘taken’ any fish. The motion was denied in district court and the state then argued that the fish had died, and the liability fell strictly on 5 Star. In turn, 5 Star argued that the state must prove that the feedlot acted with the culpable mental state of knowingly and performed an unlawful voluntary act, but had presented evidence of neither element, and failed to establish a genuine issue of material fact on the issue of causation in opposing 5 Star’s summary judgment motion.

The district court sided with the state, implying that 5 Star had taken the fish by killing the fish, and that the liability was 5 Star’s to bear. The feedlot was ordered to pay $625,755 to the state.

In an appeal, 5 Star said it was not liable for the fish’s deaths, in part because the state had presented insufficient evidence as to the cause of the fish’s death. The court of appeals reversed the 2019 district court decision, agreeing with 5 Star’s appeal that it had not both acted knowingly and committed an unlawful voluntary act by which it killed or otherwise acquired possession of the fish. Following the split decision by the district court, the state petitioned the Supreme Court to review the case.

SUPREME COURT RULING

In the Supreme Court decision, they wrote that they applied the same legal standard as applied in a 2016 case City of Longmont v. Colo. Oil & Gas Association. In 2020, the state legislature amended the definition of take to exclude the accidental wounding or killing of wildlife by a motor vehicle, vessel, or train.

The state’s highest court reviewed the record from the court of appeals and discerned that the state has “concede[d] that 5 Star’s containment ponds comply with all relevant Colorado laws.” The Supreme Court concluded that the state did not present evidence of knowing conduct, or evidence of a voluntary act that is itself illegal, proving the District Court erred. In short, according to the opinion published, the state claimed the discharge of wastewater and rainwater from one of the feedlot’s containment ponds killed the fish. However, the discharge was triggered by a rainstorm which was not an act performed by 5 Star or an act 5 Star undertook “consciously as a result of effort or determination.”

The evidence, according to Carrington, was shaky at best.

“The fifth pond in their series overflowed, went into a ditch, went into a culvert, which then joined with another culvert, which then met up with another ditch …it was like three and a half miles before it got to the river,” he said. “Over those three and a half miles, water was coming from everywhere — fertilized fields, it’s collecting water from everywhere and they pinpointed my guys, three and a half miles from the river, as responsible for 15,000 counts of unlawful taking. It was totally insane.”

Carrington warns that the case illustrates the importance of agriculture producers remaining vigilant and being cautious when agreeing to or settling actions, as each fine “emboldens CPW” to use statutes in similar ways. In a 2019 article in Colorado Public Radio News prior to the Supreme Court ruling, Lauren Truitt, a spokesperson with Colorado Parks and Wildlife, said the agency is still digesting the decision but called the suggestion the agency was trying to make up revenue with the lawsuit a “gross mischaracterization.”

“This wasn’t an attack on big ag,” she said in the article. “This was really a last resort.”

The Supreme Court’s decision was in favor of 5 Star in a 4 to 3 ruling: Chief Justice Brian D. Boatright, Justice Richard L. Gabriel, Justice Carlos A. Samour, Jr., with Justice Monica M. Marquez concurring in judgment only, and Justices William W. Hood III, Melissa Hart, and Maria E. Berkenkotter dissenting.

In a guest editorial by Clayton Calvin and Jake Fogelman, members of the Future Leaders program at the Independence Institute, the pair said the Supreme Court “narrowly staved off a troubling precedent this time” and said the state is on an “increasing trajectory of increasing antagonism toward rural Coloradans”.

The case, the two wrote, demonstrates the “state’s newfound willingness to go after family-owned agricultural operations” and details the state’s argument that “even if 5 Star’s conduct were considered a negligent ‘accident,’ it was still able to both ‘accidentally’ and ‘knowingly’ kill the fish at the same time.”