Dep't of Nat. Res. v. 5 Star Feedlot, Inc

2021 CO 27

• Court: Supreme Court of Colorado
• Decided: May 11, 2021
• Docket: 19SC986
• Status: Published

Opinion

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, even according to the

State’s complaint, 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.

Since the State failed to formally allege, never mind present 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 supreme court affirms the court of appeals’ judgment,

albeit on narrower grounds, and remands with instructions to return the case to

the district court for entry of judgment against the State and in 5 Star’s favor. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

2021 CO 27

Supreme Court Case No. 19SC986 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 18CA1131

Petitioners:

State of Colorado, Department of Natural Resources; and Parks and Wildlife Commission and Division of Parks and Wildlife,

v.

Respondent:

5 Star Feedlot, Inc.

Judgment Affirmed en banc May 3, 2021

Attorneys for Petitioners: Philip J. Weiser, Attorney General Christopher G. Breidenbach, Assistant Attorney General Joseph G. Michaels, Senior Assistant Attorney General Denver, Colorado

Attorneys for Respondent: Richards Carrington, LLC Christopher P. Carrington Ruth M. Moore Denver, Colorado Attorneys for Amici Curiae Colorado Livestock Association, Colorado Farm Bureau, Colorado Corn Growers Association, Colorado Cattlemen’s Association, and National Cattlemen’s Beef Association: Witwer, Oldenburg, Barry & Groom, LLP John J. Barry Kent A. Naughton Greeley, Colorado

Attorneys for Amicus Curiae Pacific Legal Foundation: Jeffrey W. McCoy Sacramento, California

Oliver J. Dunford Palm Beach Gardens, Florida

JUSTICE SAMOUR announced the judgment of the Court and delivered an opinion, in which CHIEF JUSTICE BOATRIGHT and JUSTICE GABRIEL join. JUSTICE MÁRQUEZ concurs in the judgment only. JUSTICE HOOD dissents, and JUSTICE HART and JUSTICE BERKENKOTTER join in the dissent.

2 ¶1 In a 1970s hit song, John Fogerty asks—in his trademark raspy snarl—“And

I wonder, still I wonder, who’ll stop the rain?” Creedence Clearwater Revival,

Who’ll Stop the Rain, on Cosmo’s Factory (Fantasy Records 1970). Many a person

in eastern Colorado may have pondered this rhetorical question in the spring of

2015, when a severe three-day storm deluged the area with over six inches of rain.

Two inches of water fell within thirty minutes on the first day, a

once-in-a-half-century occurrence. During the storm, a mixture of wastewater and

rainwater overflowed from one of the wastewater containment ponds in a cattle

feedlot operated by 5 Star Feedlot, Inc. (“5 Star”). That water then crossed several

miles of land and ultimately found its way to the South Fork of the Republican

River, killing an estimated 15,000 fish and giving rise to this litigation.

¶2 Pursuant to section 33-6-110(1), C.R.S. (2020), the State initiated a civil action

against 5 Star. The State sought to recover the value of the deceased fish based on

5 Star’s alleged violation of three predicate statutory provisions (“taking statutory

provisions”) which, with some exceptions not pertinent here, make it unlawful for

any person to “take”—i.e., to kill or otherwise acquire possession of or control

over—certain wildlife. The parties filed cross-motions for summary judgment on

the issue of liability. The district court denied 5 Star’s motion, granted the State’s

motion, and, following a bench trial on damages, ordered 5 Star to pay the State

$625,755. 5 Star then appealed.

3 ¶3 The court of appeals reversed, holding that the taking statutory provisions

required the State to prove that 5 Star acted knowingly or, at minimum, performed

an unlawful voluntary act. Because it found that the State had failed to present

any evidence of either element, the court of appeals remanded for entry of

judgment in 5 Star’s favor.

¶4 We now hold that the State was required to prove that 5 Star performed the

voluntary act proscribed by the taking statutory provisions (the actus reus).1

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 without authorization.

¶5 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, even according to the

State’s complaint, 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, it was the discharge from one of 5 Star’s wastewater containment ponds

that led to the fish’s destruction. That discharge, however, was triggered by an act

1 As relevant here, the taking statutory provisions have the same actus reus, as they proscribe the same voluntary act.

4 of God—the rainstorm—not an act voluntarily performed by 5 Star. Since the State

failed to formally allege, never mind present 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.

¶6 Hence, we agree with the court of appeals that the district court erred both

in entering summary judgment against 5 Star and in denying 5 Star’s cross-

motion. Given this conclusion, we need not, and thus do not, decide whether the

State was also required to prove that 5 Star acted knowingly. Accordingly, we

affirm the court of appeals’ judgment, albeit on narrower grounds, and remand

with instructions to return the case to the district court for entry of judgment

against the State and in 5 Star’s favor.

I. Facts and Procedural History

¶7 5 Star runs a cattle feedlot in eastern Colorado near the South Fork of the

Republican River and Hale Ponds. As part of its operations, 5 Star uses

containment ponds to store wastewater. There is no finding in the record that

these ponds—each of which can hold more than twenty-four million gallons of

wastewater—were built or maintained in violation of any Colorado law, rule, or

5 regulation. Indeed, the State did not ask the district court to make any such

finding.2

¶8 Within three miles of 5 Star’s feedlot is the South Fork of the Republican

River, which is home to an array of wildlife, including the southernmost

population of the Brassy Minnow, a threatened species, and rare fish like the

Stonecat and Orangethroat Darter. The river flows through the South Republican

State Wildlife Area and feeds Hale Ponds, which are among the scarce locations

for public sportfishing in the region.

¶9 In the spring of 2015, an act of God—a three-day rainstorm of historic

proportions—impacted both 5 Star’s feedlot and the South Fork of the Republican

River. More than six inches of water inundated the area. On the first day alone,

two inches fell within thirty minutes, a phenomenon which, on average, takes

place only twice every century. The extreme rainstorm caused overflow from, and

a partial breach in, one of 5 Star’s wastewater containment ponds. A mixture of

wastewater and rainwater then escaped from that pond. Despite 5 Star’s prompt

2Pursuant to its review of the record, the court of appeals discerned that the State had “concede[d] that 5 Star’s containment ponds comply with all relevant Colorado laws.” Dep’t of Nat. Res. v. 5 Star Feedlot, Inc., 2019 COA 162M, ¶ 3 n.1, __ P.3d __. We don’t have to go that far. Instead, we are content to indicate that the record supports the conclusion that 5 Star’s operation of its containment ponds at the time of the rainstorm was lawful.

6 corrective measures, 500,000 gallons of wastewater and rainwater eventually

flowed over several miles of land and into the river. A few days later, the State

recovered 379 dead fish from the river and 1,389 dead fish from Hale Ponds.3

¶10 The State filed a complaint against 5 Star under section 33-6-110(1), which

authorizes the Colorado Division of Parks and Wildlife 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” of title 33. (Emphasis added.) In its amended complaint, the State alleged that

5 Star had violated the taking statutory provisions, which make it unlawful to

“take” protected wildlife:

• Section 33-2-104(3), C.R.S. (2020), states that, except as otherwise provided in regulations issued by the Parks and Wildlife Commission (“the Commission”), “it is unlawful for any person to take . . . nongame wildlife” that the Commission has deemed to be in need of management;

• Section 33-2-105(4), C.R.S. (2020), states that, except as otherwise provided in article 33, “it is unlawful for any person to take . . . any species or subspecies of wildlife appearing on the list of wildlife indigenous to this state determined to be threatened within the state pursuant to subsection (1) of this section”; and

3 Based on the dead fish collected, the State estimated that approximately 15,000 fish died. Because the district court arrived at its damage calculation of $625,755 using that estimate, and because it doesn’t affect our analysis, we accept the estimate at face value.

7 • Section 33-6-109(1), C.R.S. (2020), states that “[i]t is unlawful for any person to . . . take . . . any wildlife that is the property of this state as provided in section 33-1-101, except as permitted by articles 1 to 6” of title 33 or by rule or regulation of the Commission.

(Emphases added.)4 It is uncontested that the fish that perished were protected

under one or more of these provisions.

¶11 Relying on C.R.C.P. 12(b)(5), 5 Star filed a motion to dismiss, asserting that

it hadn’t taken any fish. After the district court denied that motion, the parties

filed cross-motions for summary judgment. The State argued that the fish had

died and that 5 Star was strictly liable for such deaths. Although it acknowledged

that the taking statutory provisions declare certain conduct “unlawful,” the State

nonetheless claimed that it was under no obligation to present evidence of either

a culpable mental state (mens rea) or a voluntary act (actus reus). 5 Star, in turn,

maintained that the State (1) was required to prove that 5 Star both acted with the

culpable mental state of knowingly and performed an unlawful voluntary act, but

had presented evidence of neither element, and (2) had failed to establish a

4 The taking statutory provisions prohibit acts other than “tak[ing]” protected wildlife. However, those prohibited acts are not pertinent here. Thus, our discussion of the voluntary act or actus reus required by the taking statutory provisions is limited to “tak[ing]” protected wildlife.

8 genuine issue of material fact on the issue of causation in opposing 5 Star’s

summary judgment motion.

¶12 In a lean order, the district court denied 5 Star’s motion and granted the

State’s motion. After implying that 5 Star had taken the fish by killing the fish, it

ruled that 5 Star was strictly liable. The court added that no genuine issue of

material fact remained on the issue of liability. The case then proceeded to a bench

trial on the issue of damages. The court ultimately ordered 5 Star to pay $625,755

to the State.

¶13 5 Star appealed, raising three contentions: (1) it was not liable for the fish’s

deaths because it had neither acted with the culpable mental state of knowingly

nor performed an unlawful voluntary act that killed or otherwise acquired

possession of or control over the fish; (2) genuine issues of material fact remained

that rendered the grant of the State’s summary judgment motion erroneous; and

(3) its own motion for summary judgment should have been granted because the

State had presented insufficient evidence as to the cause of the fish’s demise.

Believing that the State’s motion had been mistakenly granted and that its cross-

motion had been mistakenly denied, 5 Star asked the court to reverse the summary

judgment in favor of the State and to remand with instructions to enter judgment

in favor of 5 Star.

9 ¶14 Siding with 5 Star, a split division of the court of appeals reversed in a

published opinion. Dep’t of Nat. Res. v. 5 Star Feedlot, Inc., 2019 COA 162M, ¶ 2,

__ P.3d __. The majority of the division concluded that the district court had

misinterpreted the taking statutory provisions. Id. More specifically, the division

agreed with 5 Star’s first contention and held that the State was required to prove

that 5 Star both acted knowingly and committed an unlawful voluntary act by

which it killed or otherwise acquired possession of or control over the fish. Id. at

¶¶ 16, 27. Finding that the State had failed to present evidence of either element,

the division reversed the district court’s judgment and remanded with instructions

to enter judgment in 5 Star’s favor.5 Id. at ¶¶ 26, 31, 42. Of particular relevance

here, the division explained that, even assuming, as the State contended, that the

taking statutory provisions create strict liability crimes, the State still could not

prevail given its failure to argue, let alone prove, that 5 Star performed an

unlawful voluntary act. Id. at ¶¶ 27, 29, 31.

¶15 Judge Fox concurred in part and dissented in part. Id. at ¶¶ 43–50 (Fox, J.,

concurring in part and dissenting in part). Though she agreed that the State was

5 The division didn’t reach 5 Star’s second and third contentions.

10 not entitled to summary judgment, she disagreed that summary judgment in

5 Star’s favor was warranted. Id. at ¶¶ 43, 49.

¶16 The State then sought our intervention. In its petition for review, it asserted

that (1) it didn’t have to prove that 5 Star acted with a culpable mental state

because, in its view, the taking statutory provisions describe strict liability

offenses, and (2) it was required to prove that 5 Star committed any voluntary act

(not necessarily an unlawful voluntary act). We accepted the State’s appeal.6

II. Analysis

¶17 Before we up-anchor and set sail, we brush up on the applicable standards

of review and the relevant principles of statutory interpretation. With our course

illuminated by these lighthouses, we embark on our analytical voyage and

consider whether the State was required to prove an unlawful voluntary act, as

the division ruled. We hold that the State was required to prove that 5 Star

performed the voluntary act proscribed by the taking statutory provisions (the

actus reus). Consequently, the State had to prove that 5 Star, consciously and as a

6 We decided to address both issues raised by the State: 1. Whether proving a violation of the take statutes requires evidence of knowing conduct. 2. Whether proving a violation of the take statutes requires evidence of a voluntary act that is itself illegal.

11 result of effort or determination, killed or otherwise acquired possession of or

control over the fish without authorization. We end by concluding that the State

presented no such evidence and that, therefore, the district court erred both in

granting the State’s motion for summary judgment and in denying 5 Star’s cross-

motion. In view of this disposition, we leave for a future expedition the question

of whether the taking statutory provisions impose strict liability or require proof

of the culpable mental state of knowingly.

A. Applicable Standards of Review and Relevant Principles of Statutory Interpretation

¶18 We review de novo an order granting summary judgment. People ex rel.

Rein v. Meagher, 2020 CO 56, ¶ 19, 465 P.3d 554, 559. Hence, when reviewing such

an order, we apply the same legal standard as the district court. City of Longmont v.

Colo. Oil & Gas Ass’n, 2016 CO 29, ¶ 9, 369 P.3d 573, 578.

¶19 It is apodictic that summary judgment is a drastic remedy reserved for those

situations in which it is clear that the applicable legal standard has been satisfied.

Rein, ¶ 21, 465 P.3d at 559. Summary judgment is proper only if “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Id. at ¶ 19,

465 P.3d at 559 (quoting C.R.C.P. 56(c)). The court must afford the nonmoving

party the benefit of all favorable inferences that may reasonably be drawn from

12 the undisputed facts. Id. at ¶ 20, 465 P.3d at 559. Conversely, the court must

resolve all doubts against the moving party. Id. That’s not to suggest that the

nonmoving party may simply rest on the allegations and demands in its pleadings.

Id. To survive a summary judgment motion, the nonmoving party must put forth

specific facts demonstrating that there is a genuine issue for trial. Id.

¶20 We also review questions of statutory interpretation de novo. Id. at ¶ 22,

465 P.3d at 559. In interpreting a statute, we aim to ascertain and give effect to the

General Assembly’s intent. Linnebur v. People, 2020 CO 79M, ¶ 9, 476 P.3d 734,

736–37. To do so, we consider first the plain language of the statute, giving the

words and phrases their plain and ordinary meaning. Id., 476 P.3d at 737. We look

to the entire statutory scheme because we are required to give consistent,

harmonious, and sensible effect to all its parts, while simultaneously avoiding

constructions that would either render any of its words or phrases superfluous or

yield illogical or absurd results. Elder v. Williams, 2020 CO 88, ¶ 18, 477 P.3d 694,

698. If the statute is unambiguous—i.e., if it is not reasonably susceptible to

multiple interpretations—we apply it as written and refrain from resorting to

other rules of statutory construction. Id.

13 B. The State Was Required to Prove the Voluntary Act Proscribed by the Taking Statutory Provisions (the Actus Reus)

¶21 5 Star claims, the State concedes, and we conclude that the State could

prevail on its civil claim only if it proved that 5 Star violated at least one of the

predicate taking statutory provisions. While the State had to prove any such

violation only by a preponderance of the evidence (not beyond a reasonable doubt)

because this is a civil (not criminal) case, it was nevertheless required to prove all

the elements necessary for a conviction. § 33-6-110(1); cf. Itin v. Ungar, 17 P.3d 129,

133 (Colo. 2000) (holding that recovery of treble damages under the civil theft

statute requires a plaintiff to prove by a preponderance of the evidence “the

elements” necessary “to establish a defendant’s liability for the crime” of theft).

The plain language in section 33-6-110(1) makes this clear: The State may “bring

and maintain a civil action against any person . . . to recover possession or value

or both . . . of any wildlife taken in violation of articles 1 to 6 of this title.” (Emphasis

added.) All three taking statutory provisions reside in articles 2 and 6 of title 33

and pronounce certain conduct unlawful.7

7 The provisions of the criminal code “do not bar, suspend, or otherwise affect any right [to] or liability [for] damages . . . authorized by law to be recovered . . . in a civil action.” § 18-1-103(3), C.R.S. (2020). However, “unless the context otherwise requires,” the provisions of the criminal code “govern the construction of . . . any offense defined in any statute of this state.” § 18-1-103(1).

14 ¶22 As pertinent here, each taking statutory provision prohibits the

unauthorized taking of protected wildlife. In 2015, when the rainstorm led to

overflow from one of 5 Star’s wastewater containment ponds, section 33-1-102(43),

C.R.S. (2015), defined “[t]ake” to mean “to acquire possession of wildlife; but such

term shall not include the accidental wounding or killing of wildlife by a motor

vehicle, vessel, or train.”8 Possession meant (in 2015) and continues to mean

“either actual or constructive possession of or any control over the object referred

to.” § 33-1-102(34). The parties see eye to eye on the applicability of these

definitions. Where the parties diverge is on the elements of the predicate criminal

offenses defined by the taking statutory provisions. Because this civil action is

moored to those offenses, their elements are pivotal.

¶23 The parties skirmish over two questions related to the elements of the

offenses underlying this civil action: (1) Do the taking statutory provisions impose

strict liability or was the State required to prove that 5 Star acted with the culpable

8 In 2020, the legislature amended the definition of “[t]ake” as follows: “to kill or otherwise acquire possession of wildlife; except that the term does not include the accidental wounding or killing of wildlife by a motor vehicle, vessel, or train.” Ch. 49, sec. 1, § 33-1-102(48), 2020 Colo. Sess. Laws 167, 167 (emphasis added to underscore the substantive part of the amendment). We assume without deciding that, with some exceptions not relevant here, the 2015 definition of “[t]ake” included the killing of the wildlife identified in the taking statutory provisions.

15 mental state of knowingly?; and (2) Was the State required to prove that 5 Star

committed an unlawful voluntary act or simply a voluntary act? Resolution of the

latter is dispositive, so we pass no judgment on the former.

¶24 The State avers that the voluntary act or actus reus prong of criminal liability

in Colorado does not require proof of an unlawful act.9 5 Star counters that the

State was required to prove the voluntary act proscribed by the taking statutory

provisions. We agree with 5 Star.

¶25 Our General Assembly has declared that “[t]he minimum requirement for

criminal liability is 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.”10 § 18-1-502, C.R.S. (2020) (emphasis added). “Voluntary act” means

“an act performed consciously as a result of effort or determination.”

§ 18-1-501(9), C.R.S. (2020). An “[a]ct,” in turn, is defined as “a bodily movement.”

§ 18-1-501(1).

9 Before the division, the State largely sang a different tune. Its chief argument there was that there is no voluntary act requirement in the taking statutory provisions because, in its view, they create strict liability offenses. The division had no trouble rejecting this contention, and we devote no time to it because the State abandoned it before knocking on our door. 10The State does not rely on an alleged omission by 5 Star. For that reason, and for the sake of simplicity, we do not analyze the concept of omission of an act in this opinion.

16 ¶26 Of course, not all voluntary conduct is subject to criminal liability. After all,

the law doesn’t impose liability on the blameless. People v. Marcy, 628 P.2d 69, 73

(Colo. 1981), superseded by statute, § 18-3-102(1)(d), C.R.S. (1986), as recognized in

People v. Lee, 2020 CO 81, ¶¶ 14–16, 476 P.3d 351, 354–55. As we proclaimed in

Marcy four decades ago, a person is generally not subject to criminal liability for

his conduct unless there is “an unlawful act (actus reus) and a culpable mental state

(mens rea).” Id. (emphasis added). Here, our focus is on the actus reus prong of

criminal liability.

¶27 Black’s Law Dictionary defines actus reus as:

1. The wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea to establish criminal liability; a forbidden act .

2. The voluntary act . . . , the attendant circumstances, and the social harm caused by a criminal act, all of which make up the physical components of a crime.—Also termed deed of crime; overt act.

Actus Reus, Black’s Law Dictionary (11th ed. 2019) (first two emphases added); see

also id. (quoting Glanville Williams, Criminal Law: The General Part 19 (2d ed. 1961),

for the following propositions: (1) in the event “the specification of a crime

includes a number of circumstances, all of these are essential and all must be

regarded as part of the actus reus”; and (2) “[t]he view that actus reus means all the

17 external ingredients of the crime is not only the simplest and clearest but the one

that gives the most satisfactory results.”).

¶28 Colorado jurisprudence has long treated the “voluntary act” required by

section 18-1-502 synonymously with the “actus reus” of the offense and has made

clear that the terms refer to the voluntary act proscribed by the statute defining the

offense (i.e., the voluntary act rendered unlawful by the statute defining the

offense). Marcy is illustrative. See 628 P.2d at 73 (pointing out that the minimum

requirements for criminal liability in Colorado are an “unlawful act” or the “actus

reus” and a “culpable mental state” or “mens rea”). And Marcy keeps good

company. See, e.g., Gorman v. People, 19 P.3d 662, 665 (Colo. 2000) (referring to “the

actus reus” as “an unlawful act”); Hendershott v. People, 653 P.2d 385, 390 (Colo.

1982) (same); People v. Hoskay, 87 P.3d 194, 198 (Colo. App. 2003) (same).

¶29 We have made similar declarations in other cases. In People v. Wilhelm, after

acknowledging that the General Assembly has enacted strict liability offenses,

which do not contain a culpable mental state or mens rea requirement, 11 we

explained that such offenses simply require “proof . . . that the prohibited conduct

was ‘the product of conscious mental activity involving effort or determination.’”

11See § 18-1-502 (providing that when a culpable mental state or mens rea is not required for the commission of an offense, “the offense is one of ‘strict liability’”).

18 676 P.2d 702, 706 (Colo. 1984) (emphasis added) (quoting People v. Rostad, 669 P.2d

126, 129 (Colo. 1983)). Similarly, in Rostad, we said that “the minimal requirement

for a ‘strict liability’ offense is proof that the proscribed conduct was performed

voluntarily.” 669 P.2d at 129 (emphasis added). And in People v. Caddy, we noted

that it was “well settled that the legislature may make a prohibited act a crime,

irrespective of the elements of intent or scienter, when public policy so requires.”

540 P.2d 1089, 1090 (Colo. 1975) (emphasis added).

¶30 Not surprisingly, the Colorado Model Criminal Jury Instructions have

followed suit. COLJI-Crim. G1:01 recommends instructing jurors in all but strict

liability cases as follows: “A crime is committed when the defendant has

committed a voluntary act prohibited by law, together with a culpable state of

mind.” (Emphasis added.)

¶31 Therefore, here, the State could not prevail unless it proved that 5 Star

committed the voluntary act proscribed by the taking statutory provisions.12

Though the State disputes this point and argues that any voluntary act—not

necessarily the voluntary act proscribed by the taking statutory provisions—

12To the extent that the division’s references to an “unlawful” voluntary act meant the voluntary act proscribed by the taking statutory provisions, its analysis aligns with ours.

19 would have sufficed, it ultimately concedes in its reply brief that it was required

to prove that 5 Star killed or otherwise acquired possession of or control over the

fish without authorization. But that’s precisely the voluntary act proscribed by the

taking statutory provisions (i.e., the actus reus). As the State reluctantly

acknowledges, what the taking statutory provisions proscribe is any voluntary act

that kills or otherwise acquires possession of or control over certain wildlife

without authorization.

¶32 So, did the State present proof of the voluntary act proscribed by the taking

statutory provisions? We turn to that question next.

C. The District Court Erred in Granting the State’s Motion for Summary Judgment

¶33 In the district court, the State presented no evidence that 5 Star performed a

voluntary act by which it killed or otherwise acquired possession of or control over

the fish without authorization. Accordingly, the State failed to satisfy the

voluntary act or actus reus requirement of the taking statutory provisions.

¶34 The voluntary act the State alleged 5 Star performed was the lawful, years-

long operation of wastewater containment ponds. But 5 Star’s lawful,

longstanding operation of wastewater containment ponds was not proscribed by

the taking statutory provisions because such operation didn’t kill or otherwise

acquire possession of or control over the fish.

20 ¶35 Significantly, the State’s complaint didn’t even allege that 5 Star’s lawful,

longstanding operation of wastewater containment ponds killed or otherwise

acquired possession of or control over the fish. The State’s theory was that the

“discharge” of a mixture of wastewater and rainwater from one of 5 Star’s

containment ponds killed the fish. That discharge, however, was triggered by the

rainstorm, which was certainly not an act performed by 5 Star, much less an act

5 Star undertook “consciously as a result of effort or determination.” § 18-1-501(9).

¶36 The State’s attempt to analogize 5 Star’s lawful, long-term operation of

wastewater containment ponds to the situation we dealt with in People v. Garcia

misses the mark. 541 P.2d 687 (Colo. 1975), superseded by statute, § 18-4-105, C.R.S.

(1977), as recognized in Copeland v. People, 2 P.3d 1283, 1285 (Colo. 2000). Indeed,

Garcia actually undercuts the State’s position. There, the defendant lodged a

constitutional challenge against the fourth degree arson statute, which, at the time,

made it unlawful for anyone to “start[] or maintain[] a fire on . . . his own property

or that of another” when doing so “place[d] any building or occupied structure of

another in danger of damage.” Id. at 688 (quoting section 18-4-105(1), C.R.S.

21 (1973)).13 The defendant argued, among other things, that the statute reached

constitutionally protected conduct. Id. at 689. In rejecting the claim, we relied on

section 18-1-502’s general prerequisites for criminal liability and held that the

prosecution was required to prove that the defendant had performed the

voluntary act proscribed by the statute. Id. We reasoned that a person could not

be found guilty if the fire was started “by events beyond [his] control.” Id.

¶37 Our holding today jibes with Garcia. Just as a defendant can’t be found

guilty of fourth degree arson if the fire was started by events beyond his control,

a defendant can’t be found guilty of taking protected wildlife without

authorization under one of the taking statutory provisions if the taking was

accomplished by events beyond his control. Regardless of whether the culprit was

fire or water, criminal liability may not attach in either scenario if the defendant

did not perform the voluntary act proscribed by the statute defining the offense.

Thus, although the State seeks refuge in Garcia, we perceive nothing in Garcia that

can reasonably be read as relieving the State of its burden to prove that 5 Star

13Two years after we decided Garcia, the legislature amended section 18-4-105 by adding the mens rea of “knowingly or recklessly.” Copeland, 2 P.3d at 1285 (quoting §§ 18-4-105 and 18-4-106, C.R.S. (1999)).

22 performed a voluntary act by which it killed or otherwise acquired possession of or

control over the fish without authorization.

¶38 The flaw in the State’s analytical approach in the district court was that it

seemed to analyze this case through the prism of a negligence tort. 14 But tort

principles can’t be shoehorned into section 33-6-110(1) because that statutory

provision doesn’t authorize the State to recover by proving a civil negligence

claim. Rather, as we observed above, section 33-6-110(1) requires proof

establishing a criminal offense pursuant to one of the taking statutory provisions.

And the voluntary act or actus reus required by each such offense (i.e., the

voluntary act proscribed) is killing or otherwise acquiring possession of or control

over certain wildlife without authorization. Contrary to the State’s suggestion,

that voluntary act or actus reus requirement can’t be satisfied by proof of any

voluntary act without regard to whether such act killed or otherwise acquired

possession of or control over the fish without authorization.

¶39 In short, to borrow from the old idiom, the State brought a negligence-tort

knife to an actus-reus gun fight and, as this opinion demonstrates, it could not

14To establish a prima facie case for a negligence tort claim, a plaintiff must show that the defendant, having a legal duty of care, breached that duty through any act or omission, and that such act or omission caused the plaintiff’s injury. See Rocky Mountain Festivals, Inc. v. Parsons Corp., 242 P.3d 1067, 1074 (Colo. 2010).

23 withstand 5 Star’s summary-judgment salvo. Because the State didn’t even allege

in its complaint that 5 Star’s sole voluntary act—the lawful, years-long operation

of wastewater containment ponds—killed or otherwise acquired possession of or

control over the fish without authorization, the district court erred in granting the

State’s motion for summary judgment.15

¶40 Our work isn’t done yet, though, because the denial of 5 Star’s cross-motion

for summary judgment is also before us. We explore that aspect of 5 Star’s appeal

below.

D. The District Court Also Erred in Denying 5 Star’s Motion for Summary Judgment

¶41 An order denying a motion for summary judgment is generally not

appealable because it doesn’t terminate the litigation. Glennon Heights, Inc. v. Cent.

15The State admits in its opening brief that the issue of “causation . . . is not before this Court.” True to this concession, the State discusses causation and related concepts (such as foreseeability) only in the limited context of arguing that interpreting the taking statutory provisions as imposing strict liability does not give rise to any constitutional infirmities because, in its view, a “proximate cause requirement” is automatically imported into those provisions. Since we do not reach the mens rea question, however, that contention is irrelevant. And we do not otherwise discuss causation because ours is an adversarial system of justice that adheres to the party presentation principle, which puts the onus on the parties to frame the issues to be decided while assigning to courts the role of neutral arbiters of the matters raised by the parties. United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020). As the division put it, courts “should not be making arguments for a party.” Dep’t of Nat. Res., ¶ 40. Attorneys, not judicial officers, should lawyer cases.

24 Bank & Tr., 658 P.2d 872, 875 (Colo. 1983). However, as the division astutely

recognized, where the parties file cross-motions for summary judgment on the

issue of liability and the district court grants one, denies the other, and then

resolves the issue of damages at a bench trial, the judgment is final and we may

review the order denying summary judgment. See Dep’t of Nat. Res., ¶ 36 (citing

Yaffe Cos., Inc. v. Great Am. Ins. Co., 499 F.3d 1182, 1184 (10th Cir. 2007)).

¶42 In its motion for summary judgment, 5 Star relied on the lack of any

argument or evidence by the State regarding the voluntary act or actus reus

required by the taking statutory provisions. As such, it was incumbent on the State

to come forward with evidence demonstrating the existence of a genuine issue of

material fact vis-à-vis that requirement. Rein, ¶ 20, 465 P.3d at 559. Because the

State failed to do so, the district court erred in denying 5 Star’s motion and we now

direct the entry of judgment against the State and in favor of 5 Star. See In re Estate

of Scott, 119 P.3d 511, 515–16 (Colo. App. 2004) (directing entry of judgment for the

party whose summary judgment motion was denied by the district court because

no factual issue remained); Udis v. Universal Commc’ns Co., 56 P.3d 1177, 1183

(Colo. App. 2002) (same); see also Witcher v. Canon City, 716 P.2d 445, 456–57 (Colo.

1986) (explaining that a party’s failure to challenge evidence presented in support

of a motion for summary judgment in the district court waives any such challenge

on appeal).

25 III. Conclusion

¶43 We affirm the division’s judgment, albeit on narrower grounds. And we

remand with instructions to return the case to the district court to enter judgment

JUSTICE MÁRQUEZ concurs in the judgment only. JUSTICE HOOD dissents, and JUSTICE HART and JUSTICE BERKENKOTTER join in the dissent.

26 JUSTICE MÁRQUEZ, concurring in the judgment only.

¶44 The State seeks to hold 5 Star Feedlot, Inc. liable for the effects of an extreme,

fifty-year rainstorm event that caused 5 Star’s wastewater containment ponds to

overflow and allegedly resulted in the death of approximately 15,000 fish several

miles away. The question before us is whether 5 Star may be held liable for this

result, not as a matter of tort (say, as a proximate and foreseeable result of the

negligent construction or maintenance of the containment ponds), but in violation

of statutory provisions that make it unlawful to “take” wildlife. I agree with the

plurality that the State failed to plead a case that could survive 5 Star’s motion for

summary judgment, but I do not join its reasoning. Instead, I conclude that, as a

matter of plain language and viewing the wildlife code as a whole, the “taking” of

wildlife requires knowing or intentional conduct directed at wildlife. Here,

because the State failed to allege knowing or intentional conduct by 5 Star

amounting to a “taking” of wildlife, its case cannot survive summary judgment.

Because I agree that the case should be remanded to the district court for entry of

summary judgment in favor of 5 Star, but do not join the rationale of the plurality

opinion, I respectfully concur in the judgment only.

I. Principles of Statutory Interpretation

¶45 In interpreting statutes, our role is to ascertain and give effect to the

legislature’s intent. See People v. Harrison, 2020 CO 57, ¶ 16, 465 P.3d 16, 20. To this

1 end, we first look to the language of a statute, giving terms their plain and ordinary

meaning. Id. If a word has a recognized common law meaning and history, we

may also look to that history to determine the meaning of ambiguous terms. See

Norton v. Gilman, 949 P.2d 565, 567 (Colo. 1997); Allen v. People, 485 P.2d 886,

887–88 (Colo. 1971). We are also “required to read the words and phrases in a

statute in context.” Harrison, ¶ 17, 465 P.3d at 20. Thus, a statutory term

“appearing in a series should be understood . . . to have a meaning commensurate

with or in the general nature of the things with which it has been grouped.”

People v. Opana, 2017 CO 56, ¶ 14, 395 P.3d 757, 761. And, when interpreting

statutory provisions that are part of a broader legislative scheme, we endeavor to

“read that scheme as a whole, giving consistent, harmonious, and sensible effect

to all of its parts.” Thompson v. People, 2020 CO 72, ¶ 22, 471 P.3d 1045, 1051.

II. “Take” Requires Knowing or Intentional Conduct

¶46 Section 33-6-110(1), C.R.S. (2020), authorizes the Colorado Division of Parks

and Wildlife to bring a civil action to recover possession and/or value of any

wildlife “taken in violation of articles 1 to 6 of this title.” 1 Here, the State alleged

violations of sections 33-2-104(3), 33-2-105(4), and 33-6-109(1), C.R.S. (2020), which

1Consistent with the parties’ usage, I refer to articles 1 to 6 of Title 33 as the “wildlife code.”

2 make it unlawful to “take” certain wildlife. Section 33-6-109(1) makes it unlawful

for anyone to “hunt, take, or have in such person’s possession” any wildlife that is

the property of the State, except as permitted under the wildlife code or by rule or

regulation of the Parks and Wildlife Commission. Sections 33-2-104(3) and

33-2-105(4) similarly make it unlawful to “take” nongame or threatened wildlife.

At the time of 5 Star’s alleged offense, the wildlife code defined “take” to mean “to

acquire possession of wildlife; but such term shall not include the accidental

wounding or killing of wildlife by a motor vehicle, vessel, or train.” § 33-1-102(43),

C.R.S. (2015).

¶47 As Justice Scalia once observed, in the context of wildlife, the term “take” is

“as old as the law itself,” and means “to reduce those animals, by killing or

capturing, to human control.” Babbitt v. Sweet Home Chapter of Cmtys. for a Great

Or., 515 U.S. 687, 717 (1995) (Scalia, J., dissenting) (tracing the right to “take” wild

animals back to ancient Roman law); see also id. (citing, inter alia, 2 William

Blackstone, Commentaries *411 (1766) (“Every man . . . has an equal right of

pursuing and taking to his own use all such creatures as are ferae naturae.”)). Under

the traditional understanding of the term, an individual “takes” a wild animal

through knowing or intentional conduct. See United States v. CITGO Petroleum

Corp., 801 F.3d 477, 489 (5th Cir. 2015) (“One does not reduce an animal to human

control accidentally or by omission; he does so affirmatively.”).

3 ¶48 Thus, the act of “taking” with respect to wildlife has long been associated

with purposeful activities like hunting, fishing, trapping, and the like. Colorado’s

wildlife code reflects this traditional understanding.2 Prior to 1994, “take” and

“hunt” were used interchangeably; the combined definition included exceptions

for watching or photographing wildlife and for the accidental wounding or killing

of wildlife by a car or train:

Take or hunt means to pursue, shoot, wound, kill, trap, possess, capture, collect, attract, stalk, or lie in wait or to attempt any of the foregoing for the purpose of taking wildlife, whether or not such wildlife is then or subsequently taken, but such terms shall not include stalking, attracting, or searching for or lying in wait for wildlife by an unarmed person solely for the purpose of watching wildlife or taking pictures thereof or accidental wounding or killing by a motor vehicle, locomotive, or train.

§ 33-1-102(43), C.R.S. (1993) (emphasis added).

2 Colorado’s original 1899 Game and Fish Act largely concerned hunting- and fishing-related activities but did include a handful of provisions proscribing certain practices that we might today call industrial pollution. For example, the Act provided that “[n]o sawdust, tailings or other deleterious or poisonous substance shall be allowed to run or pass into or pollute any public waters containing fish, or deposited or left where it may be carried by natural causes into such waters, in such quantities as to destroy or be detrimental to the fish or spawn therein.” Ch. 98, sec. 7, 1899 Colo. Sess. Laws 184, 213–14. The General Assembly later removed such provisions, however, narrowing the scope of the wildlife code. To the extent some current provisions still refer to “poisons” in part 2 of article 6, the legislative declaration in that part of the wildlife code makes clear that these provisions are not about curbing pollution but aim to “promote humane methods of animal control and discourage the use of inhumane methods” of controlling wildlife populations. § 33-6-201(1)(b), C.R.S. (2020).

4 ¶49 Amendments in 1994 split apart the definitions of “take” and “hunt” but the

concepts remained linked. See ch. 269, sec. 1, § 33-1-102, 1994 Colo. Sess. Laws

1574, 1575–77. The separate, but broader, definition of “hunt” includes “take” and

lists a variety of purposeful activities, all of which inherently require knowing

conduct directed at wildlife. § 33-1-102(25.5), C.R.S. (2020) (defining “hunt” to

mean “pursue, attract, stalk, lie in wait for, or attempt to shoot, wound, kill, trap,

capture, collect, or take wildlife” (emphasis added)). This definition of “hunt”

carried over and incorporated the earlier exception for the viewing or

photographing of wildlife. Id.; 1994 Colo. Sess. Laws at 1575.

¶50 The narrower term “take,” as amended by the 1994 amendments and at the

time of the 2015 rainstorm event here, was more specifically defined as “to acquire

possession of wildlife.” § 33-1-102(43), C.R.S. (2015) (emphasis added).3 This

definition retained the pre-1994 general exception for the “accidental wounding or

killing” of wildlife, expanding it to refer to accidents involving a “motor vehicle,

vessel, or train.” Id. (emphasis added); see also § 33-1-102(49) (defining “vessel” as

3This provision was amended in 2020 to clarify that “take” includes the killing of wildlife. See ch. 49, sec. 1, § 33-1-102(43), 2020 Colo. Sess. Laws 167, 167 (defining “take” as “to kill or otherwise acquire possession of wildlife” (emphasis added)). This amendment confirms, consistent with the long history of the wildlife code, that “hunt” and “take” require affirmative, knowing conduct.

5 “every description of watercraft used or capable of being used as a means of

transportation of persons or property on water”).

¶51 For purposes of the wildlife code, “possession” is defined as “either actual

or constructive possession of or any control over the object referred to.”

§ 33-1-102(34). Notably, “possession” of wildlife is directly linked to hunting or

related purposeful activities directed at wildlife. Section 33-6-108, C.R.S. (2020),

establishes that “the possession of wildlife shall be prima facie evidence that the

person having such possession is engaged or has been engaged in hunting, fishing,

or trapping.” Moreover, under the criminal code, “possession” can be a crime only

if the defendant is “aware of his physical possession or control thereof for a

sufficient period to have been able to terminate it.” § 18-1-501(9), C.R.S. (2020). In

other words, Colorado law does not criminalize unknowing possession. People v.

Ceja, 904 P.2d 1308, 1310 (Colo. 1995).

¶52 The statutory taking provisions are silent as to the requisite mens rea that

the State must prove. However, such “legislative silence does not always indicate

a strict liability offense because the statute may imply a culpable mental state.”

People v. Manzo, 144 P.3d 551, 556 (Colo. 2006). To the contrary, our legislature has

made clear that “[a]lthough no culpable mental state is expressly designated in a

statute defining an offense, a culpable mental state may nevertheless be required for the

commission of that offense, or with respect to some or all of the material elements

6 thereof, if the proscribed conduct necessarily involves such a culpable mental state.”

§ 18-1-503(2), C.R.S. (2020) (emphases added).

¶53 Given the wildlife code’s longstanding treatment of “take” as synonymous

with hunting and related purposeful activities, the act of taking, by its very nature,

“necessarily involves” knowing or intentional conduct. Id.;4 cf. People v. Gordon,

160 P.3d 284, 289 (Colo. App. 2007) (holding that section 33-6-117(1), C.R.S. (2020),

requires that a defendant knowingly “take and abandon” wildlife).

¶54 This understanding of “take” is confirmed by a multitude of other

provisions throughout articles 1 through 6 of Title 33. Viewed as a whole, the

wildlife code is replete with provisions joining the word “take” with “hunt” or

similar, purposeful acts directed at wildlife, signaling that “take” likewise requires

knowing or intentional conduct. See, e.g., § 33-6-120(1), C.R.S. (2020) (making it

unlawful “to fish, trap, hunt, or take any wildlife outside of the season”);

§ 33-6-123, C.R.S. (2020) (making it unlawful to “hunt or take any wildlife” while

under the influence of alcohol or a controlled substance); § 33-6-124(1)(a), C.R.S.

4Notably, the taking provisions under the wildlife code are not passively phrased in terms of a particular result; they do not, for example, simply prohibit acts that “cause the death of” wildlife. Compare § 18-3-105, C.R.S. (2020) (prohibiting criminally negligent conduct that “causes the death of another person”(emphasis added)). Rather, these provisions forbid the specific act of “taking” wildlife.

7 (2020) (making it unlawful “to hunt, take, or harass wildlife from or with a motor

vehicle”); § 33-6-124(2), C.R.S. (2020) (making it unlawful to spot or locate wildlife

from an aircraft “to pursue, hunt, or take game”); § 33-6-117(1)(a)(I) (making it an

offense “to hunt or take . . . wildlife and detach or remove, with the intent to

abandon the carcass or body, only the head, hide, claw, teeth, antlers, horns,

internal organs, or feathers of any or all of such parts”). And certain wildlife code

offenses make sense only if “take” requires knowing conduct. Logically, persons

must know they are “taking” wildlife when engaging in such activity unlawfully

in excess of a bag limit, see § 33-1-102(1.5); out of season, see § 33-6-120(1); or

without wearing proper fluorescent pink or orange safety garments, see

§ 33-6-121(1), C.R.S. (2020).

¶55 The State argues that “take” cannot require that conduct be knowing

because if it did, there would be no need for the exception for the “accidental

wounding or killing of wildlife” in section 33-1-102(43). I disagree. The wounding

or killing of wildlife with a car, boat, or train can be knowing or intentional and

yet still be “accidental” under the everyday meaning of that term. Anyone who

has driven on a rural Colorado highway has likely faced an errant deer or other

wildlife that has suddenly leapt onto the roadway. In such situations, a driver

may understandably choose to strike the wildlife rather than veer into oncoming

traffic or drive over a cliff. The same goes for an engineer of a train or the pilot of

8 a watercraft who is unable to safely stop or steer to avoid striking wildlife without

causing injury to herself or other people. In such scenarios, the “taking” is

knowing conduct—and yet the General Assembly has recognized that such

takings are nonetheless “accidental” for which liability should not be imposed.

¶56 Similarly, I would decline to infer that the express limitation in

section 33-2-104(3) and section 33-2-105(4) making it unlawful for a common

carrier to “knowingly” transport wildlife reflects the legislature’s determination

that for all other persons, no culpable mental state is required at all. To the

contrary, those provisions—which make it unlawful to “take, possess, transport,

export, process, sell or offer for sale, or ship” wildlife—concern acts that, like

hunting, fishing, and trapping, inherently require knowing conduct.

III. The State Failed to Allege that 5 Star Acted Knowingly or Intentionally

¶57 The State’s theory throughout this litigation has been that the discharge

from 5 Star’s wastewater containment ponds following the rainstorm migrated

into the waterways and ultimately resulted in the death of fish. But as discussed

above, the wildlife code is concerned with hunting, fishing, trapping, and related

purposeful activities directed at wildlife; it does not purport to address industrial

pollution or toxic torts. And even if it did, the State has not alleged that 5 Star

constructed or maintained its wastewater containment ponds in violation of any

statute or regulation. To be clear, the unfortunate events that led to the death of

9 wildlife here is surely a loss to Colorado. Certainly, the discharge of wastewater

under these circumstances might even be deemed tortious under a different

statutory scheme. But it is simply not the type of knowing or intentional conduct

directed at wildlife that is contemplated by the taking statutes at issue here.

IV. Conclusion

¶58 For the foregoing reasons, because the State failed to allege knowing or

intentional conduct by 5 Star amounting to a “taking” of wildlife, its case cannot

survive summary judgment. Although I arrive at my conclusion under different

reasoning than the plurality, I nevertheless agree that the case should be remanded

to the district court for entry of summary judgment in favor of 5 Star. Therefore, I

respectfully concur in the judgment only.

10 JUSTICE HOOD, dissenting.

¶59 The plurality holds that the State failed to present evidence of a voluntary

but prohibited act because 5 Star Feedlot, Inc.’s (“5 Star”) “operation of

wastewater containment ponds . . . didn’t kill . . . fish.” Plur. op. ¶ 34. Instead, the

plurality attributes the deaths to the rain, which was “beyond [5 Star’s] control.”

Id. at ¶ 37.

¶60 But the plurality’s concern implicates causation, not voluntariness. When a

crime prohibits a result—like causing fish to die—proving the actus reus requires

evidence of a voluntary act that actually and proximately caused the forbidden

result. So, the fact that 5 Star exerted conscious effort to store feces-contaminated

water in ponds was sufficient if it actually and proximately caused the deaths.

¶61 The district court found that no genuine dispute existed over whether

5 Star’s conduct was an actual cause of the deaths. Thus, 5 Star performed the

actus reus of the take statutes if it was also foreseeable that the practice of storing

wastewater in ponds would combine with a rainstorm to kill fish.

¶62 Because I would reverse on actus reus, I also address whether the division

correctly held that the take statutes imply a mens rea of “knowingly.” On this

second issue, I would also reverse the division. The text of the take statutes reveals

that the State was right to read them as imposing strict liability.

1 ¶63 Accordingly, I would remand this case to the court of appeals to address

5 Star’s unresolved causation arguments.

I. Actus Reus

¶64 The plurality correctly defines “actus reus” as “[t]he wrongful deed that

comprises the physical components of a crime,” including “the social harm

caused.” Id. at ¶ 27 (emphasis omitted) (quoting Actus Reus, Black’s Law

Dictionary (11th ed. 2019)). I also agree that a crime’s actus reus includes “[t]he

minimum requirement” of “a voluntary act,” id. at ¶ 25 (emphasis omitted)

(quoting § 18-1-502, C.R.S. (2020)), which is “a bodily movement” “performed

consciously as a result of effort,” id. (quoting § 18-1-501(1), (9), C.R.S. (2020)).

¶65 Yet the plurality neglects to mention that, “[a]lthough a voluntary act is an

absolute requirement for criminal liability, it does not follow that every act up to

the moment that the harm is caused must be voluntary.” 1 Wayne R. LaFave,

Substantive Criminal Law § 6.1(c) (3d ed. 2020); accord State v. Burrell, 609 A.2d 751,

753 (N.H. 1992) (holding there’s “no support” for the rule that the prosecution

must “prove that the defendant’s last act was voluntary”). Take the example of a

person subject to fainting spells who passes out while driving and kills a

pedestrian. The driver’s “voluntary act consists of driving the car,” even though

the bodily movements immediately before the crash were involuntary. LaFave,

supra, § 6.1(c); see State v. Newman, 302 P.3d 435, 442 (Or. 2013) (“If the driver . . .

2 loses consciousness with the result that he runs over a pedestrian, . . . a prior

voluntary act, such as the act of driving, . . . may . . . be regarded as sufficient[]

. . . .” (emphasis added) (quoting Model Penal Code § 2.01 cmt. (Am. L. Inst.,

Tentative Draft No. 4 1955))).

¶66 The plurality accepts that storing feces-contaminated water in ponds was a

voluntary act but dismisses the practice as irrelevant. Plur. op. ¶ 34. The take

statutes prohibit voluntary acts that kill fish, and 5 Star’s “operation of wastewater

containment ponds,” voluntary as it was, “didn’t kill . . . fish.” Id. Instead, the

spill “was triggered by the rainstorm, which was certainly not . . . an act 5 Star

undertook ‘consciously as a result of effort or determination.’” Id. at ¶ 35 (quoting

§ 18-1-501(9)).

¶67 But, of course, storing the wastewater in manure ponds did kill fish. The

district court found that rain alone wouldn’t have been a problem. It was the toxic

combination of feces and rainwater that wreaked havoc. Thus, the storm and the

containment ponds were both necessary ingredients for the deaths of the fish. As

such, each was a but-for or actual cause of the accidental killings. Without the

storage of the wastewater in the containment ponds, the spill would not have

occurred.

¶68 While the plurality’s interest in the legal significance of the rain is

understandable, it has conflated the voluntary act requirement with an entirely

3 different aspect of actus reus: causation. Indeed, the plurality’s argument that the

voluntary act of storing wastewater in manure ponds didn’t kill the fish boils

down to the idea that this practice didn’t cause the fish to die.

¶69 Causation is a part of a crime’s actus reus whenever the General Assembly

prohibits a specific result. See 1 Paul H. Robinson, Criminal Law Defenses § 88 (2020)

(“Every criminal code contains offenses defined to include a result element;

implicit in such an element is a requirement that there be a causal connection

between the actor’s conduct and the required result.”). Without meaning to

suggest any moral equivalence between what happened here and the killing of

human beings, I note that a common example of a “result crime” is homicide:

“caus[ing] the death of a person.” § 18-3-103(1), C.R.S. (2020). Analogously, the

take statutes prohibit killing wildlife, which means “to cause physical death.” Kill,

Black’s Law Dictionary (11th ed. 2019).1 For these and other result crimes, courts

1The plurality assumes without deciding that “taking” included killing wildlife at the time of the accident. Plur. op. ¶ 22 n.8. That assumption is correct. Until recently, “take” meant “to acquire possession of wildlife; but such term shall not include the accidental wounding or killing of wildlife by a motor vehicle, vessel, or train.” § 33-1-102(43), C.R.S. (2019). “Possession” means “either actual or constructive possession of or any control over the object referred to.” § 33-1-102(34), C.R.S. (2020) (emphasis added). One exercises some control over an animal by killing it. Moreover, the exclusion of some killings implies that other killings are included. Subsequent statutory history confirms that “taking” has always included killing. See ch. 49, sec. 1, § 33-1-102(43), 2020 Colo. Sess. Laws

4 deploy two principles of causation to decide whether a defendant has done the act

of “causing.” LaFave, supra, § 6.4(a).

¶70 Those principles are actual and proximate cause: “It is required, for criminal

liability, that the conduct of the defendant be both (1) the actual cause, and (2) the

‘legal’ cause (often called ‘proximate’ cause) of the result.” Id. Conduct is an actual

cause when “the result would not have happened in the absence of the conduct.”

Id. at § 6.4(b). And, “[i]n the criminal law, the gist of the concept [of proximate

cause] is the not-so-complex principle that persons normally should be deemed

responsible [only] for the natural and probable consequences of their acts.”

People v. Rostad, 669 P.2d 126, 128 (Colo. 1983).

¶71 So, when a defendant’s conduct and an “intervening cause” combine to

actually cause a forbidden result, the question becomes whether that result was

“the natural and probable consequence” of the conduct, versus something that the

defendant “could not foresee.” People v. Saavedra-Rodriguez, 971 P.2d 223, 226

(Colo. 1998) (quoting 1 Ronald A. Anderson, Wharton’s Criminal Law and Procedure

§ 200 (12th ed. 1957)); see Newman, 302 P.3d at 442 (“[A] defendant may be held

criminally liable for a prior voluntary act if that act, through a course of related

167, 167 (amending the definition of “take” to “to kill or otherwise acquire possession of wildlife” (emphasis added)).

5 and foreseeable events, results in proscribed conduct.”). If the result wasn’t

foreseeable, then there’s no proximate causation and the State hasn’t proven the

actus reus of causing.2

¶72 As Rostad and Saavedra-Rodriguez demonstrate, the plurality shouldn’t

dismiss proximate cause as exclusive to tort law. See plur. op. ¶¶ 38–39 (“[T]ort

principles can’t be shoehorned into section 33-6-110(1) because that statutory

provision doesn’t authorize the State to recover by proving a civil negligence

claim. Rather, . . . section 33-6-110(1) requires proof establishing a criminal offense

pursuant to one of the taking statutory provisions.”). Criminal law implicates

proximate causation whenever the General Assembly criminalizes causing. See

People v. Stewart, 55 P.3d 107, 120–21 (Colo. 2002) (“A [criminal] defendant is

responsible for serious bodily injury to another if the injury is a natural and

probable consequence of his misconduct.”); United States v. Apollo Energies, Inc.,

611 F.3d 679, 690 (10th Cir. 2010) (“Central to all of the Supreme Court’s cases on

the due process constraints on criminal statutes is foreseeability—whether it is

framed as a constitutional constraint on causation and mental state, or whether it

is framed as a presumption in statutory construction.” (citations omitted));

2Logistically, we have held that “an intervening cause defense is properly treated as an affirmative defense.” People v. Stewart, 55 P.3d 107, 118 n.6 (Colo. 2002).

6 Marianne Wesson, Mens Rea and the Colorado Criminal Code, 52 U. Colo. L. Rev. 167,

169 (1981) (“In order to prove causation the prosecution must show that the

defendant’s conduct was the proximate cause of the prohibited result, and not

merely the ‘but-for’ cause.”).

¶73 Tying everything together, to prove the actus reus of the take statutes, the

State needed to show that 5 Star performed a voluntary act that actually and

foreseeably caused fish to die. No one disputes that 5 Star voluntarily stored feces-

contaminated water in ponds. And the State presented evidence that this

wastewater mixed with rainwater, spilled into a river, and then killed fish by

spiking the river’s ammonia levels and depleting its dissolved oxygen. The

superseding event of the rain implicates proximate causation, not the voluntary

act requirement. Thus, the plurality errs by holding that the State “failed to

formally allege, never mind present proof,” that 5 Star committed a voluntary act

prohibited by the take statutes. Plur. op. ¶ 5.3

3The plurality implies that I’m “lawyer[ing]” for the State, injecting causation into the debate over actus reus where the State failed to. Plur. op. ¶ 39 n.15. Not so. Urging us to grant certiorari, the State argued that “5 Star confuses the voluntary act requirement with causation.” And, at oral argument, the State told this court, “Operating wastewater ponds involves any number of voluntary acts. . . . They violate the take statutes when they proximately cause the take, when they foreseeably cause wildlife to die.” But regardless of who thought of what, it is really the plurality that has put causation at issue with its claim that the voluntary

7 II. Mens Rea

¶74 The plurality affirms the division on actus reus, so it doesn’t reach the

division’s other holding that the State failed to present evidence that 5 Star

violated the take statutes’ implied mens rea of “knowingly.” See id. at ¶ 6; Dep’t of

Nat. Res. v. 5 Star Feedlot Inc., 2019 COA 162M, ¶ 25, __ P.3d __; see also

§ 18-1-501(6) (“A person acts ‘knowingly’ or ‘willfully’, with respect to a result of

his conduct, when he is aware that his conduct is practically certain to cause the

result.”). Given my resolution of the actus reus issue, I would decide this question

and hold that the take statutes impose strict liability.

¶75 The State sued 5 Star pursuant to a statute that authorizes “a civil action

against any person . . . to recover . . . value of any wildlife taken in violation of [the

Wildlife Code].” § 33-6-110(1), C.R.S. (2020).4 The State claimed violations of three

predicate take statutes, and none of them specify a mens rea for taking:

act of storing feces-contaminated water in ponds didn’t kill fish. There’s no way to understand that assertion except as a rejection of the district court’s factual finding that 5 Star’s conduct actually caused the fish to die. I raise proximate causation to show that, even if the plurality believes that 5 Star’s conduct was less important than the rain, there’s no need to deny that 5 Star’s conduct was a but- for cause of the fish’s deaths. On remand, proximate causation would have provided a framework for analyzing whether 5 Star is legally blameworthy given the intervening cause of the rain. 4This civil case implicates fundamental principles of criminal law because other provisions in the Wildlife Code make it a misdemeanor to violate the take statutes.

8 • “It is unlawful for any person to hunt, take, or have in such person’s possession any wildlife [within this state and not privately owned], except as permitted by [the Wildlife Code] or by rule or regulation of the [Parks and Wildlife Commission (the “Commission”)].” § 33-6-109(1), C.R.S. (2020) (emphases added).

• “[I]t is unlawful for any person to take, possess, transport, export, process, sell or offer for sale, or ship nongame wildlife deemed by the [C]ommission to be in need of management . . . . [I]t is also unlawful for any common or contract carrier to knowingly transport or receive for shipment nongame wildlife deemed by the [C]ommission to be in need of management . . . .” § 33-2-104(3), C.R.S. (2020) (emphases added).

• “[I]t is unlawful for any person to take, possess, transport, export, process, sell or offer for sale, or ship and for any common or contract carrier to knowingly transport or receive . . . species . . . of wildlife . . . determined to be threatened . . . [by the Commission].” § 33-2-105(4), C.R.S. (2020) (emphases added).

¶76 Although “[t]he legislature can proscribe an act without regard to a culpable

mental state,” People v. Washburn, 593 P.2d 962, 964 (Colo. 1979), “the requisite

mental state may be implied,” People v. Gross, 830 P.2d 933, 940 (Colo. 1992).

Whether a statute implies a mental state requirement turns on “the plain and

ordinary meaning of the statutory language” and “the legislative intent

represented by the statutory scheme.” People v. Manzo, 144 P.3d 551, 554 (Colo.

2006); see also § 18-1-503(2), C.R.S. (2020) (“[A] culpable mental state may . . . be

See § 33-6-109(3), C.R.S. (2020); § 33-6-104(1), C.R.S. (2018). “[W]e must interpret [a] statute consistently, whether we encounter its application in a criminal or noncriminal context . . . .” Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004).

9 required for the commission of [an] offense . . . if the proscribed conduct

necessarily involves such a culpable mental state.”).

¶77 At the time of the accident, the Wildlife Code defined “take” as “to acquire

possession of wildlife; but such term shall not include the accidental wounding or

killing of wildlife by a motor vehicle, vessel, or train.” § 33-1-102(43), C.R.S. (2019).

Since “[t]he presence of one exception is generally construed as excluding other

exceptions,” the exclusion of certain accidental killings reveals that “take” includes

all other accidental killings. Riley v. People, 104 P.3d 218, 221 (Colo. 2004).

¶78 5 Star’s response to the definition of “take” falls flat. It argues that the

exception for some accidental killings is meant to “protect[] individuals from

liability for acts knowingly directed toward wildlife after an accident,” such as

“dislodg[ing], mov[ing], aid[ing], or euthaniz[ing] an animal after an accident.”

But, by its own terms, the exception applies only to accidents and only to acts that

kill or wound by means of a vehicle.5

5 The concurrence reasons that the definition of “take” doesn’t rule out a knowing mens rea because a driver could kill wildlife knowingly and accidentally. Conc. op. ¶ 55. “A person acts ‘knowingly’ . . . with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result.” § 18-1-501(6). So, when a “practically certain” harm materializes, that’s “no . . . ‘accident’”; it is “the result of a deliberate decision to endanger another.” Voisine v. United States, 136 S. Ct. 2272, 2278–79 (2016).

10 ¶79 A second clue that the General Assembly didn’t imply a mens rea for taking

is the express inclusion of a knowledge standard in sections 33-2-104(3) and

33-2-105(4) for the transportation of wildlife by common carriers. The inclusion of

that mental state requirement signals that the General Assembly meant what it

said when it omitted a mens rea for taking in the same subsections.

¶80 5 Star responds that the legislature implied a knowing mens rea for the

entire subsection but included the express language to appease common carriers.

But we read statutes to “avoid[] rendering any words or phrases meaningless.”

People v. Ross, 2021 CO 9, ¶ 34, 479 P.3d 910, 917.

¶81 Further, by drawing the line at knowing conduct, 5 Star (and the

concurrence) would read the Wildlife Code as allowing people to kill wildlife

recklessly or with criminal negligence. See § 18-1-501(8) (“A person acts recklessly

when he consciously disregards a substantial and unjustifiable risk that a result

will occur . . . .”); § 18-1-501(3) (“A person acts with criminal negligence when,

through a gross deviation from the standard of care that a reasonable person

would exercise, he fails to perceive a substantial and unjustifiable risk that a result

will occur . . . .”). That result conflicts with “the policy of the state of Colorado that

the wildlife and their environment are to be protected, preserved, enhanced, and

managed for the use, benefit, and enjoyment of the people of this state and its

visitors.” § 33-1-101(1), C.R.S. (2020). To the extent a statute is ambiguous,

11 Colorado courts may consider “[t]he object sought to be attained,” “[t]he

consequences of a particular construction,” and “[t]he legislative declaration or

purpose.” § 2-4-203(1)(a), (e), (g), C.R.S. (2020).

¶82 The division didn’t analyze the aforementioned textual evidence of strict

liability, see 5 Star Feedlot, ¶¶ 16–26; instead, it extended the reasoning of two

decisions from the court of appeals. In one of those cases, a division held that there

was an implied mens rea of knowing for a statute’s prohibition against “kill[ing]

and abandon[ing] any wildlife.” People v. Lawrence, 55 P.3d 155, 163 (Colo. App.

2001) (quoting § 33-6-117, C.R.S. (2001)), abrogated on other grounds by Crawford v.

Washington, 541 U.S. 36 (2004). The second case reached the same conclusion after

the same statute was amended to prohibit “tak[ing] and abandon[ing]” wildlife.

People v. Gordon, 160 P.3d 284, 289 (Colo. App. 2007) (quoting § 33-6-117, C.R.S.

(2007)). Both divisions reasoned that the statute “logically require[d]” a knowing

mental state. Lawrence, 55 P.3d at 163; Gordon, 160 P.3d at 289.

¶83 The division below thought that the take statutes at issue here also logically

require a knowing mental state since they “proscribe[] conduct that is virtually

identical to the conduct proscribed by the versions of [the statute] construed in

those cases.” 5 Star Feedlot, ¶ 23. The division also conducted a noscitur a sociis

analysis, concluding that “take” requires a mental state of knowingly because it

appears in series with other conduct that implies knowledge: “hunt, take, or have

12 in such person’s possession.” Id. at ¶¶ 23–24 (quoting § 33-6-109(1)). Neither

argument overpowers the textual evidence of strict liability.

¶84 The two court of appeals cases interpreted a statute entitled “Willful

destruction of wildlife—legislative intent.” § 33-6-117, C.R.S. (2020). Since

“willfully” and “knowingly” are synonyms, § 18-1-501(6), it made sense for the

divisions to infer a knowledge requirement. Further, the divisions interpreted the

phrases “kill[ing] and abandon[ing]” and “tak[ing] and abandon[ing].” Since

“abandon” means “[t]o relinquish or give up with the intention of never again

reclaiming one’s rights or interest in,” Abandon, Black’s Law Dictionary (11th ed.

2019) (emphasis added), it was reasonable to require the general intent mental

state of knowledge, see § 18-1-501(6). But, since the titles of the take statutes in this

case don’t imply a mental state requirement and the statutes don’t pair taking with

abandoning, a knowing mental state isn’t logically required here.

¶85 The division’s noscitur a sociis argument doesn’t work either. Sections

33-2-104(3) and 33-2-105(4) make it unlawful to “take, possess, transport, export,

process, sell or offer for sale, or ship” wildlife. It is particularly easy to imagine

the unknowing transportation of wildlife. Presumably, that’s why the General

Assembly expressly imposed a mens rea of knowledge for transportation by

common carriers.

13 ¶86 Further, the noscitur a sociis analysis doesn’t even make sense for section

33-6-109(1) because, at least under the Wildlife Code, one can “have . . .

possession” of wildlife unknowingly. See § 33-1-102(34) (defining “possession” to

include “any control over the object”). Surprisingly, the division’s primary

support for its rule that possession requires knowledge is the definition of

“voluntary act”: “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); see 5 Star Feedlot, ¶ 23. But the fact that mere

possession qualifies as a voluntary act only if a defendant had awareness doesn’t

establish a universal mens rea for possession crimes.

¶87 Having reviewed the take statutes, I would hold that they do not contain an

implied mens rea requirement, let alone a mens rea of knowledge.

III. Conclusion

¶88 Because I would reverse the division on actus reus and mens rea, I would

remand this case to the court of appeals for the resolution of 5 Star’s causation

arguments. One of those arguments is that the district court should have granted

5 Star’s motion for summary judgment because the State’s causation evidence was

insufficient. That issue includes whether 5 Star foreseeably caused the fish to die.

14 I am authorized to state that JUSTICE HART and JUSTICE

BERKENKOTTER join in this dissent.