A violent rainstorm that caused a sewer pond in Yuma County to overflow wasn’t a sufficient reason for the state to punish a feedlot for killing 15,000 fish, the Colorado Supreme Court said in a separate decision on Monday.
The government had to prove that 5 Star Feedlot Inc. has deliberately violated the animal kingdom, which is against the “Sampling Act”. The majority of judges ruled to reverse the more than $ 625,000 in damages that a lower court ruled against the feedlot. Merely operating the sewer ponds in apparent compliance with state laws has not held the company responsible for any liability for any fish killing.
“Rather, as the state admitted in its complaint, it was the discharge from one of the five-star sewer ponds that led to the destruction of the fish,” wrote Judge Carlos A. Samour Jr. to himself, Judge Richard L. Gabriel and Chief Justice Brian D. Boatright. “However, this discharge was triggered by an act of God – the rainstorm – not an act voluntarily performed by 5 stars.”
Christopher P. Carrington, an attorney for 5 Star, described the court’s decision as “an asset to common sense”.
“Those who depend on the land for a living and industry tend to be the best stewards in the land and 5 stars are no exception,” Carrington said.
In the dissenting opinion, Judge William W. Hood III disagreed that 5 Star’s actions played no part in the sewer overflow.
“[T]The storm and containment ponds were both essential ingredients for the fish to die, ”he countered. “Without the storage of the wastewater in the containment, the spill would not have occurred.”
Located near the South Fork of the Republican River and the Hale Ponds, 5 Star uses two sewage ponds with a capacity of 24 million gallons. A 2015 rainstorm lasted three days and was an event that happened roughly once a century. As a result, 500,000 gallons of garbage and rainwater were traveled several miles due to the overflow. The state ultimately recovered 1,768 dead fish from both bodies of water and estimated that a total of 15,000 died.
Colorado Parks and Wildlife initiated a civil lawsuit against 5 Stars under the law that enabled the state to regain the value of illegally “taken” wildlife. A Yuma County district judge ruled in favor of the state, but 5 Star appealed, arguing that he did not volunteer to take or kill any wildlife.
During a hearing in the Supreme Court, Deputy Attorney General Christopher G. Breidenbach told the judges that the five-star siding means that “an industrial polluter is almost never held liable for the killing of wildlife”.
He added, “It defeats the goal that the General Assembly wanted to achieve, which is to protect an irreplaceable natural resource.”
However, the majority of the Supreme Court concluded that the state was trying to label 5 Star as a negligent operator whose previous actions resulted in the death of fish, rather than a party actively taking action to kill the fish.
“Just as a defendant cannot be found guilty of fourth degree arson if the fire was caused by events beyond his control, a defendant cannot be found guilty of taking protected wildlife without authorization … if the ingestion achieved by events beyond his control, ”remarked Samour.
Judge Monica M. Márquez wrote separately that she agreed with the final conclusion that the court should resolve the case in 5 Star’s favor, but for the reason that the state could not prove that 5 Star was knowingly or intentionally involved in the fish killing .
Hood, who wrote for himself and Judges Melissa Hart and Maria E. Berkenkotter, argued that the operation of the sewer ponds was an immediate cause of the fish’s death. He compared the scenario to a person who is prone to fainting spells, who faints behind the wheel of a car and kills a pedestrian.
“Nobody denies that 5 Star voluntarily stored water contaminated with feces in ponds. And the state produced evidence that this sewage was mixed with rainwater, spilled into a river and then killed by raising the river’s ammonia levels and using up its dissolved oxygen, “Hood wrote. He stated that he sent the case back to a lower court to see if 5 stars could have predictably caused the fish’s death.
Colorado Parks and Wildlife did not immediately comment on the decision. 5 Star’s attorney, Carrington, did not believe the state’s position in oral arguments that the ruling gave agriculture a right to pollution.
“”Colorado has a myriad of water quality regulations and laws that rightly address and punish pollution, “he said.” T.The government filed a lawsuit against hunting / poaching rather than violating water quality standards. “
Greg Cure, the manager of 5 Star, believed the court’s ruling could have had far-reaching implications if the state prevailed, including labeling bird deaths due to wind turbines as “ingesting” wildlife.
“This is how they had us: We went down there and caught 13,000 takeaway fish like we were fishermen. We were portrayed as poachers,” he said. “I don’t know anyone in this world who prevents it from raining.”
The case is State of Colorado et al. v. 5 Star Feedlot Inc.
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