Agriculture, Exclusives, Land Use, Politics, Uncategorized

Guest editorial: A win for agriculture in the war on rural Colorado

The Colorado Supreme Court handed down a small victory for Colorado agriculture this May, narrowly preventing the state from imposing a $625,000 penalty against a Yuma County cattle operation. The family-operated 5 Star Feedlot, Inc. was accused of “taking” more than 15,000 fish when a once-in-a-century rainstorm in 2015 caused one of its wastewater ponds to overflow into the nearby Republican River. The state ultimately recovered 1,768 fish from the river but estimated that 15,000 had died in total.

As a result, Colorado Parks and Wildlife filed suit against 5 Star under a law allowing the state to recover the value of the illegally “taken” wildlife. The district court in Yuma County sided with the state. It held that the feedlot, despite following every last Colorado Department of Public Health and Environment regulation with respect to wastewater ponds, was responsible for the $625,000 in dead fish (a number the state calculated) because the feedlot should have known this rainstorm could occur.

The case demonstrates the state’s newfound willingness to go after family-owned agricultural operations. Against a backdrop of demographic changes, it also embodies a growing identity crisis for Coloradans.

Colorado has experienced massive growth in recent years, with an estimated 15% increase in population from 2010–2020, according to U.S. Census data. This rapid population influx has been a boon to an economy ranked 2nd best in the nation from 2009–2019, according to the American Legislative Exchange Council. But it has also been a massive disruption to the political, economic, and cultural balance of a traditionally purple western state.

Newcomers to Colorado skew heavily urban, suburban, and college-educated, bringing along the left-wing politics typically associated with that mix. Meanwhile, populations in more conservative, rural communities continue to either stagnate or decline. This lack of parity between blue and red enclaves has been the subtext for a number of other rural–urban culture war struggles in the state over the past year.

Last November, Colorado voters narrowly approved Proposition 114, which mandates the forced introcution of gray wolves to the state. Voters in the liberal counties of Boulder and Denver voted for the measure with two-thirds majorities while counties with ranching communities on the Western Slope, where introduction will actually take place, voted against it overwhelmingly.

Earlier this March, Governor Polis ignited the culture-war flames with his “meat out” proclamation. The proclamation, while nonbinding, was nevertheless a bold statement to make in a state where cattle ranching is still a $3.7 billion industry annually and central to the state’s historical identity.

That same month, news broke of a 2022 ballot initiative gaining steam that once again put Colorado farmers and ranchers in the crosshairs. The PAUSE Act, championed by a Denver-based animal rights group, sought to expand the state’s animal cruelty statutes to classify standard animal husbandry procedures as “illegal sex acts.”

The initiative would also more than double the age at which ranchers would be legally able to slaughter their cattle, long past the time at which the meat is best-fit for consumption. This would add a substantial cost to an industry with notoriously slim margins. Governor Polis, to his credit, publicly spoke out against the initiative, and the Colorado Supreme Court eventually struck it down for violating the state constitution’s single-subject requirement.

This urban–rural tension came to a boiling point in the 5 Star case. Although only one among many examples of the cultural divide, the case is the most recent and perhaps the most pointed. Indeed, the temperature even prompted some rather strained legal arguments.

Before the supreme court, the Assistant Attorney General attempted to convince the justices that 5-Star had “knowingly” taken fish from the state because the wastewater-pond overflow was foreseeable. This, again, despite a rainfall not seen in fifty years, and despite 100% compliance with state regulations. Further, the regulations themselves only require businesses to safeguard against rainfalls not seen in the past twenty-five years. The storm, therefore, was an unforeseeable anomaly even by relevant legal standards.

The state argued that no “voluntary act” need exist to hold the feedlot liable for the large fine. It argued that “knowledge”—which 5 Star hardly had despite the state’s accusation—should be sufficient. In taking this position, the state argued for strictly attaching a criminal penalty to a very low civil negligence standard, which itself could not even be found in the statute but was rather a standard the state had constructed for this case.

The state further argued that even if 5 Star’s conduct were considered a negligent “accident,” it was still able to both “accidentally” and “knowingly” kill the fish at the same time. To illustrate that point, the state offered an unreasonable hypothetical. It said that if you were to drive around a mountain corner at night and be surprised by a deer, you could accidentally hit the deer (rather than drive off the cliff) and still do so knowingly enough to potentially be liable for killing it.

Luckily, the supreme court rejected the state’s argument. Nonetheless, these incursions into the lifestyles and livelihoods of rural Coloradans represent a stark shift in the attitude of a state historically proud of its frontier heritage. Colorado has long been known and celebrated for its live-and-let-live ethos, libertarian in spirit if not always in governance. But Colorado’s influx of newcomers, with their different values in tow, present an uncertain future for Colorado ranching and farming.

The Colorado Supreme Court narrowly staved off a troubling precedent this time, but with the trajectory of increasing antagonism toward rural Coloradans, how long will it be until Colorado’s ranchers and farmers succumb to the “blue wave?”

Clayton Calvin and Jake Fogleman are part of the Future Leaders program at the Independence Institute, a free market think tank in Denver. Calvin is a recent graduate of Pepperdine Law School, while Fogleman is a recent graduate of Metropolitan State University.

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