After a long-winded battle, a Colorado feedlot is finally in the clear since facing a $625,755 penalty from the state of Colorado for an alleged fish kill.
The 5 Star Feedlot has a 28,000-head capacity and is located on the Colorado/Kansas border, near Idalia, CO. The Republican River flows nearby, which stretches eastward for 450 miles. It is from this river that the State of Colorado said 5 Star Feedlot caused “one of the largest fish kill events in recent Colorado history.”
A 25-year storm
In January 2015, the water quality control division of the Colorado Department of Public Health and Environment (CDPHE) inspected the feedlot’s containment ponds. The inspectors found that one of the pond’s depth markers had fallen over and needed to be adjusted, and some surrounding vegetation around the ponds needed to be cut.
The feedlot hired an engineer to make the requested technical and corrective actions. In March 2015, the state sent a letter saying the ponds were back in full compliance, 5 Star’s lead attorney Chris Carrington told WLJ.
In June 2015, a severe rainstorm and flood swept through the area, dumping six inches of rain in a span of three days. Water from one of the feedlot’s containment ponds breached during the flood, allegedly mixing approximately 500,000 gallons of wastewater and rainwater, and flowing several miles into the south fork of the Republican River.
Several days after the area flooded in June, a Colorado Parks and Wildlife (CPW) official was walking the river and noticed some dead fish. CPW and CDPHE launched an investigation to see if there was evidence of a fish kill and ended up finding 397 dead fish.
The two groups concluded that water from 5 Star’s containment ponds traveled 3.5 miles through ditches and reached the river, killing the fish due to a toxic level of ammonia. The fish were extrapolated to determine nearly 14,000 fish were killed in the incident, and the State blamed 5 Star Feedlot.
“What they ignored was that our hydrologist concluded the water that would’ve escaped from the pond would not have been even 1 percent of the water that ran over all the agricultural land, through corn fields and other feedlots into the river,” Carrington said. “Even if our water did escape and enter the river, it was very diluted by the time it traveled 3.5 miles and joined up with 134 million gallons of other water.”
Going to court
The state sued 5 Star Feedlot, even though CDPHE determined through its own investigation that the discharge was not a violation of regulation—there is an exception in the regulations if your facility is in full compliance and designed to withstand a 25-year flood, and precipitation causes a discharge, you will not be liable.
In this case, Carrington said, some parts of the storm were so severe they were closer to a 50-year flood.
Even though CDPHE determined the feedlot to be in the clear, the state sued the feedlot under the Colorado statutes of the wildlife code for unlawful taking of wildlife.
“This is the same statute an individual would be prosecuted under for shooting game out of season,” Carrington said. “In this case, the feedlot ‘fished’ without a license and took non-game, according to the state’s theory.”
The District Court in Yuma County ruled the feedlot was liable for the fish killings on Jan. 26, 2018. The judge said it was a strict liability crime regardless of the intent, although Carrington argued the two components of a crime were not present: a culpable middle state and a voluntary act.
The ruling was appealed and the Colorado Livestock Association, the Colorado Farm Bureau, and the Colorado Corn Growers Association submitted legal briefs in support of 5 Star Feedlot.
On Oct. 24, 2019 the Court of Appeals agreed with 5 Star that a violation of the wildlife statue requires that a defendant has acted “knowingly” and “voluntarily.”
“I think this was a test case for the attorney general—because the case would have set the precedent,” Carrington said. “It means just incidental of operating a business, if wildlife die—even remotely connected to your business—then you can be held liable with these massive fines. The state can come in and collect revenue from these small agriculture businesses—and it’s largely going to affect them because they’re the one with large pieces of land that interact with wildlife—so all industry groups were interested in the case.” — Anna Miller, WLJ editor
