An eastern Colorado livestock operation scored a victory on Oct. 24 when the state’s Court of Appeals threw out a state attorney general’s claim that 5 Star Feedlot was liable for what it called “one of the largest fish kills in the state’s history.”

The case had been filed following a June 2015 storm in which the South Fork of the Republican River flooded. A storm system dropped 6 inches of rain over three days, including 2 inches within 30 minutes of the first day of the storm in the 50-year event. The feedlot’s lead attorney, Chris Carrington, of Denver-based Richards Carrington, said the state misinterpreted a Colorado statute dealing with illegal possession of wildlife and how it was applied against 5 Star Feeders, a 28,500-head feedlot located in Idalia, near the Kansas border. It had remained in operation during the appeal process.

The South Fork does not carry much of a stream in eastern Colorado but the rain event allegedly caused the death of 379 fish and the Colorado Division of Parks and Wildlife said that 5 Star was liable. CPW brought a civil action to recover the losses, alleging 5 Star violated state law that made it unlawful for any person to hunt, take or have any in his possession wildlife that was the property of the state.

The state went on to extrapolate damages to say about 15,000 fish were killed and those numbers were used to build a penalty of $625,755 imposed by Yuma County District Court Judge Carl S. McGuire III. That penalty was also dismissed by the appeals court.

In its summary judgment, the district court said 5 Star was strictly liable for the deaths of the fish under the state’s wildlife statutes. However, the Colorado Court of Appeals agreed with 5 Star Feedlot’s counsel that the summary judgment was wrongly decided and that an “unlawful taking” requires that the defendant “knowingly” engage in the act.

Chris Carrington’s team, which included Hays, Kansas, attorney Joe Bain, strongly disagreed with the district court’s decision.

“I am relieved for my clients that the government’s experiment has failed and I am encouraged by the strongly worded opinion issued by the Court of Appeals sternly rejecting this governmental interference and overreach,” Carrington said.

Several major agricultural commodity organizations, including the Colorado Livestock Association, the Colorado Corn Growers Association and the Colorado Farm Bureau, had all filed an amicus brief in support of 5 Star. Carrington expressed his thanks to the associations that supported his client.

Carrington said that as of March 2015, the state had informed the feedlot owners in writing that the feedlot had met all wastewater pond regulations required by the state in March 2015, adding that the feedlot was in compliance at the time of the rainfall. The South Fork once fed Bonny Reservoir but as part of a compact with Kansas the dam was taken out so that water could ultimately flow into Kansas.

At most, according to hydrologists involved in the case, the water that supposedly escaped 5 Star’s operation contributed less than 1% of the water that moved through the watershed and into the river during the 2015 flood, Carrington said.

The state’s theory of an “unlawful taking” was essentially that 5 Star had engaged in the same crime used to prosecute someone who engages in hunting an elk or moose out of season or killing a bald eagle, he said, which was overreach.

“Under the state attorney general’s theory, even with an act of God like you saw here, the feedlot would still be considered liable,” Carrington said.

The appeals court observed that under the attorney general’s theory of the case, a violation would have required that 5 Star Feedlot knowingly and voluntarily killed the fish, neither of which the state could prove.

The state has until Dec. 5 to appeal the ruling to the Colorado Supreme Court. If the justices agreed to hear it, then the parties would argue the case before the Colorado Supreme Court, probably in late 2020 or 2021.

Dave Bergmeier can be reached at 620-227-1822 or dbergmeier@hpj.com.

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