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Department of Natural Resources v. 5 Star Feedlot, Inc.

2021 CO 27. No. 19SC986. CRS §§ 33-6-109(1) and -110(1)—CRS §§ 33-2-104(3) and -105(4)—Voluntary Act (Actus Reus)—“Take” Protected Wildlife.

May 4, 2021

The Supreme Court held that when the State brings a civil action pursuant to CRS § 33-6-110(1) to recover the value of wildlife that has allegedly been taken, it must prove by a preponderance of the evidence all the elements necessary for a conviction under a predicate statutory provision that makes it unlawful to take protected wildlife. Here, the State alleged that 5 Star Feedlot, Inc. (5 Star) violated three such statutory provisions. The Court therefore concluded that the State was required to prove that 5 Star performed the voluntary act proscribed by those taking statutory provisions (the actus reus). Consequently, the State had to prove that 5 Star, consciously and as a result of effort or determination, performed a voluntary act by which it killed or otherwise acquired possession of or control over the fish in question without authorization.

The only evidence presented by the State of a voluntary act performed by 5 Star was the lawful, years-long operation of wastewater containment ponds. But the lawful, longstanding operation of such ponds wasn’t an act through which 5 Star killed or otherwise acquired possession of or control over the fish. Rather, as the State admitted in its complaint, the discharge from one of 5 Star’s wastewater containment ponds led to the fish’s destruction. That discharge, however, was triggered by an act of God—a once-in-a-half-century rainstorm—not an act voluntarily performed by 5 Star. Because the State failed to formally allege or prevent proof that 5 Star’s lawful, years-long operation of wastewater containment ponds killed or otherwise acquired possession of or control over the fish, it could not satisfy the voluntary act or actus reus requirement of the taking statutory provisions.

Hence, the Court of Appeals correctly concluded that the district court erred both in entering summary judgment against 5 Star and in denying 5 Star’s cross-motion. Accordingly, the Court of Appeals’ judgment was affirmed, albeit on narrower grounds, and the case was remanded with instructions to return the case to the district court for entry of judgment in 5 Star’s favor.


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