What Constitutes a "Taking"?
Written by Kayla Kolbe, Fall 2021 Wildlife Law student under Carol Frampton at Michigan State University College of Law
The first principle of the North American Model for Wildlife Conservation (“North American Model”) provides that wildlife resources are a public trust and that it is the duty of the government to protect wildlife for the public and future generations. The U.S. Supreme Court applied the Public Trust Doctrine in the 1842 case, Martin v. Waddell. Then in 1896, in the Court applied the concept of a public trust to wildlife in Geer v. Connecticut. It is this doctrine of state ownership that gives states the primary authority to manage wildlife.
To effectively manage wildlife resources, takings are heavily regulated. Generally, a taking of wildlife means to “pursue, hunt, shoot, wound, kill, trap, capture, or collect.” However, the definition of take can vary, and controversy often arises over whether accidental takings should be included in the definition of take. Moreover, the fourth principle of the North American Model states that wildlife can only be killed for legitimate purposes; frivolous takings are not allowed under the Model. The Colorado Supreme Court was recently challenged with questions surrounding the definition of take in the 2021 case State Department of Natural Resources v. 5 Star Feedlot, Incorporated.
In the spring of 2015, a severe, three-day rainstorm inundated eastern Colorado with over six inches of rain near the South Fork of the Republican River, where 5 Star Feedlot Incorporated (“5 Star”) runs a cattle feedlot operation. The feedlot is just three miles from the South Fork, where the southernmost population of the threatened fish species, the Brassy Minnow, and other rare fish species live. The heavy rainfall caused an overflow and partial breach in one of 5 Star’s wastewater containment ponds. As a result, roughly 500,000 gallons of wastewater made its way into the Republican River, killing approximately 15,000 fish.
On June 27, 2016, the Colorado Division of Parks and Wildlife Resources (the “State”) brought a civil action against 5 Star to recover the value of the dead fish. The State claimed that 5 Star “violated the [State’s] taking statutory provisions, which make it unlawful to ‘take’ protected wildlife.” In response, 5 Star filed a motion to dismiss, claiming that they had not taken any wildlife and arguing that under the statute the State “was required to prove that 5 Star both acted with the culpable mental state of knowingly and preformed an unlawful voluntary act.” On the contrary, the State filed for summary judgment arguing that the fish had died and 5 Star was strictly liable. In September of 2016, the district court sided with the State and ordered 5 Star to pay damages in the amount of $625,755.
On appeal, 5 Star maintained its argument that it was not liable 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.” The appellate court agreed with 5 Star, concluding that the plain language of the takings statute requires that the State establish the elements of culpability, meaning that the State had to show that 5 Star acted knowingly and with intent to take the fish. Finding that the State had failed to show any such evidence, the appellate court reversed the district court’s holding, and the State petitioned for review.
In 2021, the Supreme Court of Colorado heard the case and ultimately sided with 5 Star in a 4 to 3 decision. The plurality ruled that the district court had misinterpreted the takings statutory provisions, and that the State was required “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.” The Court noted that the State failed to present evidence of any voluntary, illegal conduct on 5 Star’s behalf. The feedlot’s longstanding containment ponds were built and maintained in compliance with State laws and regulations. As such, the discharge of wastewater was not done “consciously as a result of effort or determination” by 5 Star. It was simply the result of a severe, once-in-a-half-century rainstorm, and 5 Star was found not liable.
The holding in State Department of Natural Resources v. 5 Star Feedlot, Inc. established that accidental takings are not included in Colorado’s definition of take. In order for the State to collect damages, it has to prove that the culprit acted with knowledge. Applied broadly, this means that industrial polluters are less likely to be held liable for the unpermitted taking of wildlife when accidents occur as they did in 5 Star.
Due to these high stakes, the outcome of 5 Star was closely monitored by Colorado agriculturists and state wildlife managers. Colorado’s agricultural industry feared that a holding in the State’s favor would open the door to never-ending liability, meaning that every time a state official found a dead animal near a farming operation, the business would be financially liable. On the other side, more than 70 percent of Colorado’s Parks and Wildlife fund comes from fishing and hunting licenses, habitat stamps, and taxes on hunting and fishing equipment. As such, wildlife managers see the loss of wildlife as a loss of revenue for conservation efforts, for which the State must be compensated. The case holding also leaves wildlife managers questioning how they are to effectively manage wildlife resources if liability for unauthorized takings is so limited. Such relief may only come if the State decides to amend its definition of take to include accidental takings
 John F. Organ, The North American Model of Wildlife Conservation and the Public Trust Doctrine, in North American Wildlife Policy and Law 125, 126 (Boone and Crockett Club, 2018).  Martin v. Waddell, 41 U.S. 367 (1842).  Geer v. Connecticut, 161 U.S. 519 (1896).  Organ, supra note 1, at 129.  Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712 (1918).  Definition of Take and Taking, Ass’n of Fish & Wildlife Agencies (2019), www.fishwildlife.org/search?search_paths%5B%5D=&query=definition+of+take&submit=Search.  Organ, supra note 1, at 129.  State, Dep’t of Nat. Res. v. 5 Star Feedlot, Inc., 486 P.3d 250 (Colo. 2021).  Id. at 253.  Id.  Id.  Id. at 252-53.  Sam Brasch, Yes, Cow Poop May Have Killed Thousands Of Fish. But A Court Says This Feedlot Isn’t To Blame, CPR News (Oct. 5, 2019), www.cpr.org/2019/10/25/yes-cow-poop-may-have-killed-thousands-of-fish-but-a-court-says-this-feedlot-isnt-to-blame/.  Co Div. of Parks & Wildlife v. 5 Star Feedlot, Inc., No. 2016CV30022, 2016 LEXIS 1529 (D. Colo. 2016).  State, Dep’t of Nat. Res., supra note 8, at 254.  Co Div. of Parks & Wildlife, supra note 14.  State, Dep’t of Nat. Res., supra note 8, at 254 (emphasis added).  Id.  Id.  State, Dep’t of Nat. Res., supra note 8, at 254 (emphasis added).  State v. 5 Star Feedlot Inc., 487 P.3d 1183 (Colo. App. 2019).  Id.  State, Dep’t of Nat. Res., supra note 8, at 255.  Id.  Id. at 253.  Id.  Id.  Id. at 257.  Id. at 253.  See id.  See id.  See id.  Brasch, supra note 13.  Id.  Join Colorado Parks and Wildlife in celebrating National Hunting and Fishing Day, Colorado Parks & Wildlife (Sept. 24, 2020), https://cpw.state.co.us/aboutus/Pages/News-Release-Details.aspx?NewsID=7599.  Brasch, supra note 13.  Id.