of Colorado v. 5 Star Feedlot , 2019 COA 162 ( 2019 )

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
section 33-6-110, C.R.S. 2019, for “taking” wildlife in violation of
sections 33-2-104(3), 33-2-105(4), and 33-6-109(1) after an
unusually heavy rainstorm caused one of its wastewater
containment ponds to overflow, allegedly killing nearly 15,000 fish
in a river three miles away. The division concludes that, to prove a
violation of those statutes, the State must prove that a defendant
acted knowingly, or at least that it performed some voluntary act,
and the State failed to present evidence of either in this case. As a
result, the division reverses the summary judgment in favor of the
State and remands for entry of judgment in 5 Star’s favor.
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 Association.
¶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 section 33-6-110(1), C.R.S. 2019, for
unlawful taking of wildlife after an unusually heavy rainstorm
caused one of 5 Star’s wastewater containment ponds to overflow.
It alleged that wastewater from the pond eventually entered the
Republican River, leading to the deaths of almost 15,000 fish. In
ruling on the parties’ cross-motions for summary judgment, the
district court interpreted “take” in title 33 to mean “kill,” ruled that
section 33-6-110 creates a “strict liability offense,” and, finding no
genuine issue as to causation, concluded that 5 Star is strictly
liable for the deaths of the fish.
¶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 a voluntary act. We
1
therefore reverse the summary judgment for the State and remand
for entry of judgment in 5 Star’s favor.
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
1 The State concedes that 5 Star’s containment ponds comply with
all relevant Colorado laws.
2 5 Star presented evidence that such intense rainfall over a
thirty-minute period occurs in this area, on average, once every fifty
years.
3 The wastewater from the feedlot made up a minute portion of the
approximately 134 million gallons of runoff water from thousands of
2
later, the State recovered 379 dead fish from the Republican River
and Hale Ponds.
¶5 The State sued 5 Star under section 33-6-110(1), which
authorizes the Colorado Division of Parks and Wildlife to bring a
civil action “to recover possession or value or both possession and
value of any wildlife taken in violation of articles 1 to 6” of title 33.
In its amended complaint, the State alleged violations of sections
33-2-104(3), 33-2-105(4), and 33-6-109(1), C.R.S. 2019. Section
33-6-109(1) makes it unlawful for any person to hunt, take, or have
in his possession any wildlife that is the property of the State,
unless otherwise permitted; sections 33-2-104(3) and -105(4)
similarly proscribe taking and other conduct relating to nongame
wildlife and threatened wildlife, respectively.
¶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.
acres of land that entered the Republican River upstream from
where the dead fish were found.
3
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 section 33-6-109(1) includes “kill,” and that 5 Star had
killed the fish; 5 Star is strictly liable for the killings; and there was
no genuine issue of material fact as to causation (that is, 5 Star had
caused the fish to die). The court later ordered 5 Star to pay the
State $625,755.5
4 5 Star laid out these arguments in its “Combined Response to
State’s Motion for Summary Judgment” and “Reply in Support of 5
Star’s Motion for Summary Judgment.”
5 Though the State had recovered only 379 dead fish, it
“extrapolated” from that number to claim almost 15,000 total fish
deaths. The court based its damage calculation on that higher,
extrapolated figure.
4
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 misinterpreted the wildlife statutes in imposing
liability on 5 Star, we don’t address 5 Star’s second and third
contentions.
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
5
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 section 33-6-110(1) only if it proves everything required
to prove a violation of the criminal statutes underlying the claim,
including a culpable mental state and an unlawful voluntary act. 6
The State concedes that it must prove all elements of a violation of
the underlying statutes on which it relies — sections 33-2-104, 33-
2-105, and 33-6-109 — albeit by only a preponderance of the
6The State concedes that 5 Star preserved all of its arguments for
appeal.
6
evidence. But it argues that the mens rea and actus reus concepts
that 5 Star invokes don’t apply to section 33-6-110(1) and the
underlying statutes because they create only strict liability offenses.
¶ 12 Looking to the plain language of section 33-6-110(1), we agree
with the parties that the State can’t establish liability under that
statute without also proving all elements of culpability under the
predicate criminal offenses.
¶ 13 As noted, section 33-6-110(1) authorizes the State to bring a
civil action to recover the value of wildlife taken “in violation of
articles 1 to 6” of title 33. (Emphasis added.) So by the statute’s
plain language, the State can’t recover unless it proves a violation of
a provision of articles 1 to 6 of title 33. As a matter of logic, doing
so necessarily requires that the State prove all of the elements of
whatever underlying violation the State alleges.
¶ 14 In this way, section 33-6-110(1) is similar to the civil theft
statute, § 18-4-405, C.R.S. 2019. That statute allows the owner of
stolen property to file a civil action against someone who took his
property or who has possession of it. But to prevail on a civil claim
under that statute, the owner must prove all of the elements of
criminal theft, even though the burden of proof is only
7
preponderance of the evidence. Itin v. Ungar, 17 P.3d 129, 133
(Colo. 2000); Scott v. Scott, 2018 COA 25, ¶ 26; Black v. Black, 2018
COA 7, ¶ 93.
¶ 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 section 33-6-109(1),7 and by extension to the State’s
claim in this case, and that the State didn’t present any evidence
that it acted knowingly. The State counters that section 33-6-
109(1), and by extension section 33-6-110, creates a strict liability
offense. We agree with 5 Star.
¶ 17 Section 33-6-109(1) provides that “[i]t is unlawful for any
person to hunt, take, or have in such person’s possession any
7 The parties focus their arguments on section 33-6-109(1), C.R.S.
2019, as they did in the district court. We will as well, because
section 33-2-104(3), C.R.S. 2019, and section 33-2-105(4), C.R.S.
2019, are worded very similarly to section 33-6-109(1). Though
those sections, unlike section 33-6-109(1), don’t include a provision
for criminal liability, another statute makes it a misdemeanor to
violate those sections. § 33-6-104(1), C.R.S. 2019.
8
wildlife that is the property of this State as provided in section 33-1-
101, except as permitted by articles 1 to 6 of this title or by rule or
regulation of the commission.” A violation of this provision is a
misdemeanor. § 33-6-109(3).
¶ 18 Section 33-6-109(1) doesn’t specify any culpable mental state
that must be proved to show a violation thereof. But the lack of an
expressed mental state in that section doesn’t mean there isn’t a
required mental state: “because a crime ordinarily requires the
conjunction of an act and a culpable mental state, legislative silence
on the element of intent in a criminal statute is not to be construed
as an indication that no culpable mental state is required.” People
v. Moore, 674 P.2d 354, 358 (Colo. 1984). If “the proscribed
conduct necessarily involves such a culpable mental state[,]” one
may be implied. § 18-1-503(3), C.R.S. 2019. We conclude that the
culpable mental state of “knowingly” is implied in section 33-6-
109(1).
¶ 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.” § 18-1-501(6), C.R.S. 2019. With respect to a
9
result of his conduct, a person acts “knowingly” or “willfully” “when
he is aware that his conduct is practically certain to cause the
result.” Id. Divisions of this court have concluded that this mental
state is implied in certain offenses under title 33 that are similar to
that created by section 33-6-109.
¶ 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 section 33-6-
117, C.R.S. 2001. The statute then read as follows:
[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.
§ 33-6-117(1), C.R.S. 2001. Rejecting the defendant’s argument
that proof of specific intent applied to a prosecution under the last
phrase — “to kill and abandon any wildlife” — the division held that
the language “with the intent” in the statute didn’t apply to that
phrase. Lawrence, 55 P.3d at 162-63. But, noting that a mental
10
state can be inferred from a statute when none is expressed, the
division concluded that “knowingly” applied to “to kill and abandon
any wildlife” because (1) the first part of the statute established a
specific intent crime, suggesting that the General Assembly wanted
to make the second part only a general intent crime; and (2) the
language of the statute “logically requires ‘knowing’ that one killed
and abandoned wildlife.” Id. at 163.
¶ 21 Addressing a later version of section 33-6-117(1), which made
it unlawful “to abandon the carcass or body of such wildlife; or to
take and abandon wildlife,” § 33-6-117(1), C.R.S. 2007, another
division of this court applied the same reasoning, holding that the
statute required only that an offender knowingly take and abandon
wildlife, People v. Gordon, 160 P.3d 284, 289 (Colo. App. 2007).
¶ 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 requiring no culpable mental
state as an option. To the contrary, both divisions considered the
nature of the conduct proscribed to require knowing conduct.
11
¶ 23 We conclude that the reasoning of Lawrence and Gordon —
that the statutory language “logically requires ‘knowing’” — applies
to the offenses described in section 33-6-109(1), including unlawful
taking. Gordon, 160 P.3d at 289; Lawrence, 55 P.3d at 163; see
§ 18-1-503(2) (a mental state may be implied “if the proscribed
conduct necessarily involves such a culpable mental state”).
Section 33-6-109(1) proscribes conduct that is virtually identical to
the conduct proscribed by the versions of section 33-6-117
construed in those cases. It makes it unlawful to “hunt, take, or
have in such person’s possession” wildlife that belongs to the State.
§ 33-6-109(1). Logically, a person can’t hunt without knowing he is
doing so; hunting requires some deliberate action. See § 33-1-
102(25.5), C.R.S. 2019 (“‘Hunt’ means to pursue, attract, stalk, lie
in wait for, or attempt to shoot, wound, kill, trap, capture, collect,
or take wildlife.”). Likewise, interpreting “have in such person’s
possession” consistent with generally applicable principles of
criminal law, a person can’t possess something without knowing he
is doing so. See § 18-1-501(9) (possession isn’t a voluntary act, and
therefore isn’t a crime, unless the actor was aware of his physical
possession or control over the property); Patton v. People, 35 P.3d
12
 124, 131 (Colo. 2001) (construing a statute proscribing possession
of a controlled substance and concluding that “‘possession’ requires
immediate and knowing control over the substance”).
¶ 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.”
§ 33-6-109(1). We also observe that the term “take” is defined in
title 33 as “to acquire possession of wildlife.” § 33-1-102(43). In
turn, “possession” is defined as “either actual or constructive
possession of or any control over the object referred to.” § 33-1-
102(34). As noted, to establish possession it must be shown that
the person was aware of his possession. “Control,” as well, implies
some knowledge or awareness. See Black’s Law Dictionary 416
(11th ed. 2019) (“[t]o exercise power or influence over”). 8
8 The State’s theory of liability is that 5 Star controlled the fish —
that is, took them — by killing them.
13
¶ 25 In sum, we conclude that the culpable mental state of
“knowingly” is implied in section 33-6-109(1)’s prohibition of
hunting, taking, or having in one’s possession wildlife belonging to
the State. The State, however, didn’t present any evidence that 5
Star “knowingly” took the fish. (Indeed, the State never even alleged
that 5 Star acted knowingly in any way.) Instead, it argued, and the
district court erroneously ruled, that 5 Star was strictly liable for
the fishes’ deaths. 9
¶ 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
9 The State’s answer brief on appeal cites an unpublished opinion
by a division of this court which, it says, holds that section 33-6-
109 creates a strict liability offense. By citing that case, the State
violated this court’s formal policy prohibiting parties from citing
unpublished decisions of this court, with exceptions that don’t
apply in this case. See Colorado Court of Appeals, Citation Policies,
Policy Concerning Citation of Unpublished Opinions (2019),
https://perma.cc/5GTB-QMA5. Indeed, the State expressly
acknowledged its awareness of that policy in its brief. The State’s
willful violation of our policy is appalling. We trust that it won’t be
repeated.
14
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 § 18-1-501(6). And we can’t glean any reasonable inference of
such knowledge from the evidence the State submitted on summary
judgment.
3. Actus Reus
¶ 27 5 Star also contends that, to prove a violation of section 33-6-
109(1), the State must prove that the defendant committed a
voluntary act, or actus reus, and that the State failed to present any
evidence of such an act by 5 Star. This is so, 5 Star argues, even if
the underlying statutes create only strict liability offenses — that is,
even if the underlying criminal statutes don’t require proof of a
culpable mental state. The State argues that the voluntary act
requirement doesn’t apply to strict liability offenses. We agree with
5 Star in full.
¶ 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.
15
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.” § 18-1-502,
C.R.S. 2019. A “voluntary act” means “an act performed
consciously as a result of effort or determination, and includes the
possession of property if the actor was aware of his physical
possession or control thereof for a sufficient period to have been
able to terminate it.” § 18-1-501(9). An omission is “a failure to
perform an act as to which a duty of performance is imposed by
law.” § 18-1-501(7).
¶ 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
16
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 section
33-6-109(1) creates a strict liability offense, proof that the
defendant performed a voluntary act (or failed to perform an act
that it had a legal duty to perform) is still required.
¶ 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 section 18-
1-502, that proof of a voluntary act was required: a person could
not be found guilty if the fire was started “by events beyond the
actor’s control; the actor must purposefully start a fire, though he
may not intend or foresee the consequences.” Indeed, our appellate
courts have applied this principle in a variety of other strict liability
contexts, apparently without exception. See, e.g., Rostad, 669 P.2d
10 Strict liability crimes are different in at least one important,
relevant way from strict liability torts. Strict liability in tort “may
arise regardless of the defendant’s conduct[,]” while a strict liability
crime “requires . . . that proscribed conduct be voluntarily
performed.” Lui v. Barnhart, 987 P.2d 942, 944 (Colo. App. 1999).
17
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.
¶ 32 First, the operation of the feedlot wasn’t, even according to the
State, the act that killed the fish. Rather, it was — and remains —
18
the State’s theory that the discharge from the feedlot killed the
fish. 11 But the discharge wasn’t an act by 5 Star, or at least wasn’t
a voluntary act: it wasn’t “an act performed consciously [by 5 Star]
as a result of effort or determination.” § 18-1-501(9).
¶ 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,
11The State admitted in the district court that the “discharge” from
the containment ponds was the sole event resulting in the fishes’
deaths.
19
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.” § 18-1-502. Recall, an omission for which one
may be culpable is a “failure to perform an act as to which a duty of
performance is imposed by law.” § 18-1-501(7). The State has
never even alleged that 5 Star violated any law or regulation giving
rise to a legal duty to prevent the spill in question. See 1 Wayne R.
LaFave, Substantive Criminal Law § 6.2(a), at 590, Westlaw (3d ed.
database updated Oct. 2018) (the duty to act must be “a legal duty
and not simply a moral duty”).
20
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) (“[A]n order denying
summary judgment is reviewable when . . . it is coupled with a
grant of summary judgment to the opposing party.” (quoting
21
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 the State to come
forward with evidence demonstrating a genuine issue of material
fact. Cont’l Air Lines, Inc. v. Keenan, 731 P.2d 708, 712-13 (Colo.
1987). It failed to do so. Because it failed to do so, we may direct
the entry of judgment against it and for 5 Star. In re Estate of Scott,
119 P.3d at 515-16 (where party failed to show genuine issue of
material fact on cross-motions for summary judgment, appellate
court directed judgment against that party); Udis, 56 P.3d at 1183
(if the record shows that no issue of fact remains, appellate court
may direct entry of judgment in favor of party who unsuccessfully
cross-moved for summary judgment); see Witcher v. Canon City,
716 P.2d 445, 456-57 (Colo. 1986) (a party’s failure to challenge
evidence submitted in support of summary judgment in the district
court waives any such challenge on appeal); 11 James Wm. Moore
22
et al., Moore’s Federal Practice § 56.81[2] (3d ed. 2015) (a party’s
failure to timely respond to the moving party’s characterization of
material facts as undisputed justifies entry of summary judgment
for the moving party if the test for summary judgment is met).
¶ 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
12 None of the cases cited by the partial dissent support its
conclusion. None of them concern cross-motions for summary
judgment where the party which lost in the district court satisfied
its burden of showing the nonexistence of any genuine issue of
material fact.
23
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
24
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. § 18-
1-501(7). Again, the State has never even alleged such an act, and
the partial dissent doesn’t cite any legal authority imposing the
duty it implicitly would fault 5 Star for failing to meet.
¶ 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 of a civil conspiracy claim); Casey v.
Christie Lodge Owners Ass’n, Inc., 923 P.2d 365, 366-67 (Colo. App.
1996) (summary judgment proper where the plaintiff failed to show
existence of a genuine issue of material fact on knowledge element
of premises liability claim); see Celotex Corp. v. Catrett, 477 U.S.
13Given our resolution of other issues, we need not address 5 Star’s
contention that there is a genuine issue of material fact as to
causation.
25
317, 322 (1986) (summary judgment is required “against a party
who fails to make a showing sufficient to establish the existence of
an element essential to that party’s case”).
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.
26
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. C.R.C.P. 56(c);
Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 570 (Colo.
2008). We review a summary judgment ruling de novo. Gibbons v.
27
Ludlow, 2013 CO 49, ¶ 11; see also Churchey v. Adolph Coors Co.,
759 P.2d 1336, 1340 (Colo. 1988) (“[A] party’s failure to satisfy the
burden of proof on its own motion for summary judgment ‘does not
automatically indicate that the opposing party has satisfied [its]
burden and should be granted summary judgment on the other
motion.’”) (citation omitted). Moreover, we may only consider the
record as presented to the trial court and not consider additional
arguments or evidence offered on appeal. Mohr v. Kelley, 8 P.3d
543, 545 (Colo. App. 2000) (appellate jurisdiction limited to issues
which had been before the district court in proper procedural
posture (citing Cty. Court v. Ruth, 194 Colo. 352, 575 P.2d 1
(1977))).
¶ 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
28
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) (holding
that a genuine issue of material fact existed regarding whether the
bank had actual knowledge of customer’s son’s alleged breach and
reversing part of a summary judgment grant); People v. Madison,
176 P.3d 793, 798 (Colo. App. 2007) (“A fact finder may infer intent
to cause the natural and probable consequences of unlawful
29
voluntary acts, and pertinent to the inquiry is the defendant’s
conduct and the circumstances surrounding any act or omission.”).
¶ 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
30
 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).
31
¶ 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.
32