     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                            October 24, 2019

                               2019COA162

No. 18CA1131, State of Colorado v. 5 Star Feedlot — Parks and
Wildlife — Unlawful Taking; Criminal Law — Mens Rea — Actus
Reus

     A division of the court of appeals addresses whether 5 Star

Feedlot, a cattle feedlot in eastern Colorado, can be liable under

section 33-6-110, C.R.S. 2019, for “taking” wildlife in violation of

sections 33-2-104(3), 33-2-105(4), and 33-6-109(1) after an

unusually heavy rainstorm caused one of its wastewater

containment ponds to overflow, allegedly killing nearly 15,000 fish

in a river three miles away. The division concludes that, to prove a

violation of those statutes, the State must prove that a defendant

acted knowingly, or at least that it performed some voluntary act,

and the State failed to present evidence of either in this case. As a
result, the division reverses the summary judgment in favor of the

State and remands for entry of judgment in 5 Star’s favor.
COLORADO COURT OF APPEALS                                         2019COA162


Court of Appeals No. 18CA1131
Yuma County District Court No. 16CV30022
Honorable Carl S. McGuire III, Judge


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

Plaintiffs-Appellees,

v.

5 Star Feedlot Inc.,

Defendant-Appellant.


                        JUDGMENT REVERSED AND CASE
                         REMANDED WITH DIRECTIONS

                                  Division VII
                          Opinion by JUDGE J. JONES
                                Tow, J., concurs
                  Fox, J., concurs in part and dissents in part

                          Announced October 24, 2019


Philip J. Weiser, Attorney General, Jake Matter, Senior Assistant Attorney
General, Joseph G. Phillips, Assistant Attorney General, Denver, Colorado, for
Plaintiffs-Appellees

Richards Carrington, LLC, Christopher P. Carrington, Ruth M. Moore, Denver,
Colorado, for Defendant-Appellant

Witwer, Oldenburg, Barry & Groom, LLP, John J. Barry, David J. Skarka,
Greeley, Colorado, for Amici Curiae Colorado Livestock Association, Colorado
Farm Bureau, and Colorado Corn Growers Association.
¶1    Defendant, 5 Star Feedlot Inc. (5 Star), appeals the district

 court’s order denying its motion for summary judgment and

 granting summary judgment in favor of plaintiffs, the State of

 Colorado, Department of Natural Resources, Parks and Wildlife

 Commission and Division of Parks and Wildlife (the State). The

 State sued 5 Star pursuant to section 33-6-110(1), C.R.S. 2019, for

 unlawful taking of wildlife after an unusually heavy rainstorm

 caused one of 5 Star’s wastewater containment ponds to overflow.

 It alleged that wastewater from the pond eventually entered the

 Republican River, leading to the deaths of almost 15,000 fish. In

 ruling on the parties’ cross-motions for summary judgment, the

 district court interpreted “take” in title 33 to mean “kill,” ruled that

 section 33-6-110 creates a “strict liability offense,” and, finding no

 genuine issue as to causation, concluded that 5 Star is strictly

 liable for the deaths of the fish.

¶2    We disagree with the district court’s interpretation of the

 relevant wildlife statutes. Those statutes required the State to

 prove that 5 Star acted knowingly, or at least that 5 Star performed

 some voluntary act that caused the fish to die. The State didn’t

 present any evidence of either a knowing or a voluntary act. We


                                      1
 therefore reverse the summary judgment for the State and remand

 for entry of judgment in 5 Star’s favor.

                           I.   Background

¶3    5 Star operates a cattle feedlot in eastern Colorado near the

 South Fork of the Republican River and Hale Ponds. It stores its

 wastewater from the feedlot in containment ponds built and

 maintained in compliance with Colorado Department of Health and

 Environment regulations. 1

¶4    In the spring of 2015, a severe rainstorm hit the feedlot and

 surrounding areas. Over six inches of rain fell over three days,

 including two inches within thirty minutes on the first day of the

 storm. 2 Despite 5 Star’s rapid repair efforts, approximately 500,000

 gallons of wastewater mixed with rainwater escaped from one of the

 ponds via overflow and a partial breach and flowed several miles

 over land into the South Fork of the Republican River. 3 A few days




 1 The State concedes that 5 Star’s containment ponds comply with
 all relevant Colorado laws.
 2 5 Star presented evidence that such intense rainfall over a

 thirty-minute period occurs in this area, on average, once every fifty
 years.
 3 The wastewater from the feedlot made up a minute portion of the

 approximately 134 million gallons of runoff water from thousands of

                                    2
 later, the State recovered 379 dead fish from the Republican River

 and Hale Ponds.

¶5    The State sued 5 Star under section 33-6-110(1), which

 authorizes the Colorado Division of Parks and Wildlife to bring a

 civil action “to recover possession or value or both possession and

 value of any wildlife taken in violation of articles 1 to 6” of title 33.

 In its amended complaint, the State alleged violations of sections

 33-2-104(3), 33-2-105(4), and 33-6-109(1), C.R.S. 2019. Section

 33-6-109(1) makes it unlawful for any person to hunt, take, or have

 in his possession any wildlife that is the property of the State,

 unless otherwise permitted; sections 33-2-104(3) and -105(4)

 similarly proscribe taking and other conduct relating to nongame

 wildlife and threatened wildlife, respectively.

¶6    5 Star moved to dismiss the State’s amended complaint under

 C.R.C.P. 12(b)(5), arguing that it didn’t “take” the fish under the

 wildlife code’s definition of “take.” The district court denied that

 motion. Later, both sides filed motions for summary judgment.




 acres of land that entered the Republican River upstream from
 where the dead fish were found.

                                      3
 The State argued that 5 Star is strictly liable for and had caused the

 deaths of the fish. 5 Star argued that the State must prove both a

 mens rea (mental state) and an actus reus (unlawful voluntary act),

 and that the State hadn’t presented evidence of either. It also

 argued that the State hadn’t established the existence of a genuine

 issue of material fact as to whether 5 Star had proximately caused

 the fish to die.4

¶7    The district court denied 5 Star’s motion and granted the

 State’s motion as to liability, concluding that 5 Star “took” the fish

 in violation of the wildlife statutes. Specifically, the court ruled that

 “take” in section 33-6-109(1) includes “kill,” and that 5 Star had

 killed the fish; 5 Star is strictly liable for the killings; and there was

 no genuine issue of material fact as to causation (that is, 5 Star had

 caused the fish to die). The court later ordered 5 Star to pay the

 State $625,755.5



 4 5 Star laid out these arguments in its “Combined Response to
 State’s Motion for Summary Judgment” and “Reply in Support of 5
 Star’s Motion for Summary Judgment.”
 5 Though the State had recovered only 379 dead fish, it

 “extrapolated” from that number to claim almost 15,000 total fish
 deaths. The court based its damage calculation on that higher,
 extrapolated figure.

                                     4
                              II.   Discussion

¶8        5 Star argues on appeal that the district court erred by (1)

  imposing liability on it for taking wildlife because it didn’t “take”

  any fish, didn’t “knowingly” take any fish, and didn’t perform any

  voluntary act causing the fish to die; (2) granting summary

  judgment for the State because there were genuine issues of

  material fact; and (3) not granting 5 Star’s motion for summary

  judgment because the State didn’t present sufficient evidence that 5

  Star caused the fishes’ deaths. Because we conclude that the

  district court misinterpreted the wildlife statutes in imposing

  liability on 5 Star, we don’t address 5 Star’s second and third

  contentions.

     A.   Standard of Review and Principles of Statutory Interpretation

¶9        We review de novo a district court’s order granting or denying

  summary judgment. Westin Operator, LLC v. Groh, 2015 CO 25,

  ¶ 19. We also review de novo questions of statutory interpretation.

  Colo. Oil & Gas Conservation Comm’n v. Martinez, 2019 CO 3, ¶ 19.

¶ 10      When interpreting a statute, our task is to discern and give

  effect to the General Assembly’s intent. Krol v. CF & I Steel, 2013

  COA 32, ¶ 15. In doing so, we look to the entire statutory scheme


                                       5
  to give consistent, harmonious, and sensible effect to all of its parts,

  and we apply words and phrases in accordance with their plain and

  ordinary meanings. Id.; see Denver Post Corp. v. Ritter, 255 P.3d

  1083, 1089 (Colo. 2001). Unless the statute is ambiguous, we

  enforce it as written without resorting to other rules of statutory

  construction. Denver Post Corp., 255 P.3d at 1089; Krol, ¶ 15.

                                 B.   Analysis

      1.    Section 33-6-110(1) Requires the State to Prove All Elements
           of a “Violation of” the Criminal Statutes Underlying the State’s
                                         Claim

¶ 11       5 Star’s statutory interpretation arguments are, in relevant

  part, premised on the assertion that the State can prevail on a

  claim under section 33-6-110(1) only if it proves everything required

  to prove a violation of the criminal statutes underlying the claim,

  including a culpable mental state and an unlawful voluntary act. 6

  The State concedes that it must prove all elements of a violation of

  the underlying statutes on which it relies — sections 33-2-104, 33-

  2-105, and 33-6-109 — albeit by only a preponderance of the




  6The State concedes that 5 Star preserved all of its arguments for
  appeal.

                                       6
  evidence. But it argues that the mens rea and actus reus concepts

  that 5 Star invokes don’t apply to section 33-6-110(1) and the

  underlying statutes because they create only strict liability offenses.

¶ 12   Looking to the plain language of section 33-6-110(1), we agree

  with the parties that the State can’t establish liability under that

  statute without also proving all elements of culpability under the

  predicate criminal offenses.

¶ 13   As noted, section 33-6-110(1) authorizes the State to bring a

  civil action to recover the value of wildlife taken “in violation of

  articles 1 to 6” of title 33. (Emphasis added.) So by the statute’s

  plain language, the State can’t recover unless it proves a violation of

  a provision of articles 1 to 6 of title 33. As a matter of logic, doing

  so necessarily requires that the State prove all of the elements of

  whatever underlying violation the State alleges.

¶ 14   In this way, section 33-6-110(1) is similar to the civil theft

  statute, § 18-4-405, C.R.S. 2019. That statute allows the owner of

  stolen property to file a civil action against someone who took his

  property or who has possession of it. But to prevail on a civil claim

  under that statute, the owner must prove all of the elements of

  criminal theft, even though the burden of proof is only


                                      7
  preponderance of the evidence. Itin v. Ungar, 17 P.3d 129, 133

  (Colo. 2000); Scott v. Scott, 2018 COA 25, ¶ 26; Black v. Black, 2018

  COA 7, ¶ 93.

¶ 15   We turn, then, to 5 Star’s contentions that the underlying

  statutes require proof of a culpable mental state and a voluntary

  act, and that the State didn’t present any evidence of either.

                             2.    Mens Rea

¶ 16   5 Star contends that the mental state of “knowingly” applies to

  violations of section 33-6-109(1),7 and by extension to the State’s

  claim in this case, and that the State didn’t present any evidence

  that it acted knowingly. The State counters that section 33-6-

  109(1), and by extension section 33-6-110, creates a strict liability

  offense. We agree with 5 Star.

¶ 17   Section 33-6-109(1) provides that “[i]t is unlawful for any

  person to hunt, take, or have in such person’s possession any




  7 The parties focus their arguments on section 33-6-109(1), C.R.S.
  2019, as they did in the district court. We will as well, because
  section 33-2-104(3), C.R.S. 2019, and section 33-2-105(4), C.R.S.
  2019, are worded very similarly to section 33-6-109(1). Though
  those sections, unlike section 33-6-109(1), don’t include a provision
  for criminal liability, another statute makes it a misdemeanor to
  violate those sections. § 33-6-104(1), C.R.S. 2019.

                                    8
  wildlife that is the property of this State as provided in section 33-1-

  101, except as permitted by articles 1 to 6 of this title or by rule or

  regulation of the commission.” A violation of this provision is a

  misdemeanor. § 33-6-109(3).

¶ 18   Section 33-6-109(1) doesn’t specify any culpable mental state

  that must be proved to show a violation thereof. But the lack of an

  expressed mental state in that section doesn’t mean there isn’t a

  required mental state: “because a crime ordinarily requires the

  conjunction of an act and a culpable mental state, legislative silence

  on the element of intent in a criminal statute is not to be construed

  as an indication that no culpable mental state is required.” People

  v. Moore, 674 P.2d 354, 358 (Colo. 1984). If “the proscribed

  conduct necessarily involves such a culpable mental state[,]” one

  may be implied. § 18-1-503(3), C.R.S. 2019. We conclude that the

  culpable mental state of “knowingly” is implied in section 33-6-

  109(1).

¶ 19   “A person acts ‘knowingly’ or ‘willfully’ with respect to conduct

  or to a circumstance described by a statute defining an offense

  when he is aware that his conduct is of such nature or that such

  circumstance exists.” § 18-1-501(6), C.R.S. 2019. With respect to a


                                     9
  result of his conduct, a person acts “knowingly” or “willfully” “when

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

  result.” Id. Divisions of this court have concluded that this mental

  state is implied in certain offenses under title 33 that are similar to

  that created by section 33-6-109.

¶ 20   In People v. Lawrence, 55 P.3d 155, 162 (Colo. App. 2001),

  abrogated on other grounds by Crawford v. Washington, 541 U.S. 36

  (2004), a division held that the trial court didn’t err when it

  instructed the jury that “knowingly” was the culpable mental state

  for killing and abandoning wildlife as proscribed by section 33-6-

  117, C.R.S. 2001. The statute then read as follows:

             [I]t is unlawful for any person to hunt or take,
             or to solicit another person to hunt or take,
             any wildlife and detach or remove, with the
             intent to abandon the carcass or body, only
             the head, hide, claws, teeth, antlers, horns,
             internal organs, or feathers or any or all such
             parts or to kill and abandon any wildlife.

  § 33-6-117(1), C.R.S. 2001. Rejecting the defendant’s argument

  that proof of specific intent applied to a prosecution under the last

  phrase — “to kill and abandon any wildlife” — the division held that

  the language “with the intent” in the statute didn’t apply to that

  phrase. Lawrence, 55 P.3d at 162-63. But, noting that a mental


                                     10
  state can be inferred from a statute when none is expressed, the

  division concluded that “knowingly” applied to “to kill and abandon

  any wildlife” because (1) the first part of the statute established a

  specific intent crime, suggesting that the General Assembly wanted

  to make the second part only a general intent crime; and (2) the

  language of the statute “logically requires ‘knowing’ that one killed

  and abandoned wildlife.” Id. at 163.

¶ 21   Addressing a later version of section 33-6-117(1), which made

  it unlawful “to abandon the carcass or body of such wildlife; or to

  take and abandon wildlife,” § 33-6-117(1), C.R.S. 2007, another

  division of this court applied the same reasoning, holding that the

  statute required only that an offender knowingly take and abandon

  wildlife, People v. Gordon, 160 P.3d 284, 289 (Colo. App. 2007).

¶ 22   In both Lawrence and Gordon, the divisions viewed the

  question of the required mental state as whether a showing of

  specific intent or mere knowing conduct was required. Neither

  division appears to have regarded requiring no culpable mental

  state as an option. To the contrary, both divisions considered the

  nature of the conduct proscribed to require knowing conduct.




                                     11
¶ 23   We conclude that the reasoning of Lawrence and Gordon —

  that the statutory language “logically requires ‘knowing’” — applies

  to the offenses described in section 33-6-109(1), including unlawful

  taking. Gordon, 160 P.3d at 289; Lawrence, 55 P.3d at 163; see

  § 18-1-503(2) (a mental state may be implied “if the proscribed

  conduct necessarily involves such a culpable mental state”).

  Section 33-6-109(1) proscribes conduct that is virtually identical to

  the conduct proscribed by the versions of section 33-6-117

  construed in those cases. It makes it unlawful to “hunt, take, or

  have in such person’s possession” wildlife that belongs to the State.

  § 33-6-109(1). Logically, a person can’t hunt without knowing he is

  doing so; hunting requires some deliberate action. See § 33-1-

  102(25.5), C.R.S. 2019 (“‘Hunt’ means to pursue, attract, stalk, lie

  in wait for, or attempt to shoot, wound, kill, trap, capture, collect,

  or take wildlife.”). Likewise, interpreting “have in such person’s

  possession” consistent with generally applicable principles of

  criminal law, a person can’t possess something without knowing he

  is doing so. See § 18-1-501(9) (possession isn’t a voluntary act, and

  therefore isn’t a crime, unless the actor was aware of his physical

  possession or control over the property); Patton v. People, 35 P.3d


                                     12
  124, 131 (Colo. 2001) (construing a statute proscribing possession

  of a controlled substance and concluding that “‘possession’ requires

  immediate and knowing control over the substance”).

¶ 24   Like “hunt” and “have in such person’s possession,” we

  conclude that “take,” a term at issue in Gordon, also logically

  requires knowing conduct. We don’t see any indication in the

  statute that different mental states would apply to different acts

  within the phrase “hunt, take, or have in such person’s possession.”

  § 33-6-109(1). We also observe that the term “take” is defined in

  title 33 as “to acquire possession of wildlife.” § 33-1-102(43). In

  turn, “possession” is defined as “either actual or constructive

  possession of or any control over the object referred to.” § 33-1-

  102(34). As noted, to establish possession it must be shown that

  the person was aware of his possession. “Control,” as well, implies

  some knowledge or awareness. See Black’s Law Dictionary 416

  (11th ed. 2019) (“[t]o exercise power or influence over”). 8




  8 The State’s theory of liability is that 5 Star controlled the fish —
  that is, took them — by killing them.

                                     13
¶ 25   In sum, we conclude that the culpable mental state of

  “knowingly” is implied in section 33-6-109(1)’s prohibition of

  hunting, taking, or having in one’s possession wildlife belonging to

  the State. The State, however, didn’t present any evidence that 5

  Star “knowingly” took the fish. (Indeed, the State never even alleged

  that 5 Star acted knowingly in any way.) Instead, it argued, and the

  district court erroneously ruled, that 5 Star was strictly liable for

  the fishes’ deaths. 9

¶ 26   During oral argument, but only in response to a judge’s

  question, counsel for the State suggested that 5 Star’s mere

  operation of the feedlot subjected it to liability. Even assuming that

  we can consider that assertion, but see McGihon v. Cave, 2016 COA

  78, ¶ 10 n.1 (appellate court won’t address arguments first offered



  9 The State’s answer brief on appeal cites an unpublished opinion
  by a division of this court which, it says, holds that section 33-6-
  109 creates a strict liability offense. By citing that case, the State
  violated this court’s formal policy prohibiting parties from citing
  unpublished decisions of this court, with exceptions that don’t
  apply in this case. See Colorado Court of Appeals, Citation Policies,
  Policy Concerning Citation of Unpublished Opinions (2019),
  https://perma.cc/5GTB-QMA5. Indeed, the State expressly
  acknowledged its awareness of that policy in its brief. The State’s
  willful violation of our policy is appalling. We trust that it won’t be
  repeated.

                                     14
  at oral argument), we reject it. Counsel didn’t assert that in

  building and operating the containment ponds, 5 Star did so with

  the awareness that this conduct was “practically certain to cause”

  the deaths of almost 15,000 fish (or any fish) in a river miles away.

  See § 18-1-501(6). And we can’t glean any reasonable inference of

  such knowledge from the evidence the State submitted on summary

  judgment.

                             3.   Actus Reus

¶ 27   5 Star also contends that, to prove a violation of section 33-6-

  109(1), the State must prove that the defendant committed a

  voluntary act, or actus reus, and that the State failed to present any

  evidence of such an act by 5 Star. This is so, 5 Star argues, even if

  the underlying statutes create only strict liability offenses — that is,

  even if the underlying criminal statutes don’t require proof of a

  culpable mental state. The State argues that the voluntary act

  requirement doesn’t apply to strict liability offenses. We agree with

  5 Star in full.

¶ 28   “In order to subject a person to criminal liability for his

  conduct, there generally must be a concurrence of an unlawful act

  (actus reus) and a culpable mental state (mens rea).” People v.


                                     15
  Marcy, 628 P.2d 69, 73 (Colo. 1981). With respect to the unlawful

  act, criminal culpability requires “the performance by a person of

  conduct which includes a voluntary act or the omission to perform

  an act which he is physically capable of performing.” § 18-1-502,

  C.R.S. 2019. A “voluntary act” means “an act performed

  consciously as a result of effort or determination, and includes the

  possession of property if the actor was aware of his physical

  possession or control thereof for a sufficient period to have been

  able to terminate it.” § 18-1-501(9). An omission is “a failure to

  perform an act as to which a duty of performance is imposed by

  law.” § 18-1-501(7).

¶ 29   Though, as noted, most criminal offenses require a

  concurrence of a voluntary act and a culpable mental state, see

  Marcy, 628 P.2d at 73, the General Assembly “may create offenses

  requiring only the voluntary performance of an act, requiring proof

  only that the prohibited conduct was ‘the product of conscious

  mental activity involving effort or determination,’” People v. Wilhelm,

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

  Rostad, 669 P.2d 126, 129 (Colo. 1983)). In the case of such a




                                    16
  strict liability offense, 10 an actor may be liable even if it didn’t

  expect the consequences of its action. And so it follows that even if

  we were to agree with the State and the district court that section

  33-6-109(1) creates a strict liability offense, proof that the

  defendant performed a voluntary act (or failed to perform an act

  that it had a legal duty to perform) is still required.

¶ 30   Our conclusion finds additional support in decisions

  construing other strict liability offenses. For instance, in People v.

  Garcia, 189 Colo. 347, 351, 541 P.2d 687, 689 (1975), a case

  involving fourth degree arson, the court held, relying on section 18-

  1-502, that proof of a voluntary act was required: a person could

  not be found guilty if the fire was started “by events beyond the

  actor’s control; the actor must purposefully start a fire, though he

  may not intend or foresee the consequences.” Indeed, our appellate

  courts have applied this principle in a variety of other strict liability

  contexts, apparently without exception. See, e.g., Rostad, 669 P.2d



  10 Strict liability crimes are different in at least one important,
  relevant way from strict liability torts. Strict liability in tort “may
  arise regardless of the defendant’s conduct[,]” while a strict liability
  crime “requires . . . that proscribed conduct be voluntarily
  performed.” Lui v. Barnhart, 987 P.2d 942, 944 (Colo. App. 1999).

                                       17
  at 129-30 (vehicular homicide, though a strict liability offense,

  requires proof of a voluntary act; “the minimal requirement for a

  ‘strict liability’ offense is proof that the proscribed offense was

  performed voluntarily — i.e., that such act must be the product of

  conscious mental activity involving effort or determination”); People

  v. Caddy, 189 Colo. 353, 355, 540 P.2d 1089, 1091 (1975) (though

  speeding is a strict liability offense, proof of a voluntary act is

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

  (public indecency is a strict liability offense but proof of a voluntary

  act is required).

¶ 31   In this case, the State didn’t argue below or present any

  evidence to the district court showing that 5 Star performed a

  voluntary act or failed to perform an act that it had a legal duty to

  perform. Nor did it argue anything to that effect in its answer brief

  on appeal. As noted, at oral argument counsel for the State

  suggested that 5 Star’s mere lawful operation of its feedlot could

  constitute the requisite culpable conduct. That suggestion fails in

  this context as well, for three reasons.

¶ 32   First, the operation of the feedlot wasn’t, even according to the

  State, the act that killed the fish. Rather, it was — and remains —


                                      18
  the State’s theory that the discharge from the feedlot killed the

  fish. 11 But the discharge wasn’t an act by 5 Star, or at least wasn’t

  a voluntary act: it wasn’t “an act performed consciously [by 5 Star]

  as a result of effort or determination.” § 18-1-501(9).

¶ 33   Second, and relatedly, a lawful voluntary act that alone

  doesn’t result in any transgression of the law can lead to criminal

  culpability only if coupled with an unlawful voluntary act. See, e.g.,

  Martin v. State, 17 So. 2d 427 (Ala. Ct. App. 1944) (the defendant

  didn’t perform a voluntary act, and therefore didn’t commit public

  intoxication, when he got drunk at home and was brought out into

  the public by police officers); State v. Turner, 953 S.W.2d 213, 216

  (Tenn. Crim. App. 1996) (no crime of being in control of a vehicle

  while intoxicated, a strict liability offense, if an intoxicated person’s

  friends carry him into his car and leave him there); see also Marcy,

  628 P.2d at 73 (“there generally must be . . . an unlawful act”);

  COLJI-Crim. G1:01 (2018) (“A crime is committed when the

  defendant has committed a voluntary act prohibited by law,



  11The State admitted in the district court that the “discharge” from
  the containment ponds was the sole event resulting in the fishes’
  deaths.

                                     19
  together with a culpable state of mind.”) (emphasis added); cf.

  Commonwealth v. Collier, 693 N.E.2d 673, 676 (Mass. 1998) (state

  was required to prove that the defendant, a mere passenger in a

  vehicle, intended for the vehicle to pass close to his former wife to

  show a violation of a protective order barring him from being within

  100 yards of her; a voluntary act cannot be merely accidental or

  mistaken). The only “act” combining with 5 Star’s lawful operation

  of the feedlot that allegedly caused the fishes’ deaths was the

  rainstorm. That event was neither unlawful nor voluntary nor an

  act on 5 Star’s part.

¶ 34   Third, 5 Star’s operation of the feedlot wasn’t an “omission to

  perform an act.” § 18-1-502. Recall, an omission for which one

  may be culpable is a “failure to perform an act as to which a duty of

  performance is imposed by law.” § 18-1-501(7). The State has

  never even alleged that 5 Star violated any law or regulation giving

  rise to a legal duty to prevent the spill in question. See 1 Wayne R.

  LaFave, Substantive Criminal Law § 6.2(a), at 590, Westlaw (3d ed.

  database updated Oct. 2018) (the duty to act must be “a legal duty

  and not simply a moral duty”).




                                    20
                           III.   Disposition

¶ 35   5 Star asks that we reverse the judgment and remand for

  entry of judgment in its favor: it appeals not only the summary

  judgment in the State’s favor, but also the district court’s denial of

  its motion for summary judgment.

¶ 36   Ordinarily, an order denying a motion for summary judgment

  isn’t appealable. Feiger, Collison & Killmer v. Jones, 926 P.2d 1244,

  1251 (Colo. 1996) (a party can’t appeal the denial of a summary

  judgment motion following a judgment entered after a trial);

  Glennon Heights, Inc. v. Cent. Bank & Tr., 658 P.2d 872, 875 (Colo.

  1983) (“[A] denial of a motion for summary judgment is not an

  appealable order when it does not otherwise put an end to the

  litigation.”); see Chase v. Farmers Ins. Exch., 129 P.3d 1011, 1015

  (Colo. App. 2004). But when a district court rules on cross-motions

  for summary judgment — denying summary judgment for one party

  and granting summary judgment for the other — the judgment is

  final and we may review the denial. See Yaffe Cos., Inc. v. Great Am.

  Ins. Co., 499 F.3d 1182, 1184 (10th Cir. 2007) (“[A]n order denying

  summary judgment is reviewable when . . . it is coupled with a

  grant of summary judgment to the opposing party.” (quoting


                                     21
  Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1124 (9th Cir. 2002)));

  In re Estate of Scott, 119 P.3d 511, 515-16 (Colo. App. 2004), aff’d

  on other grounds, 136 P.3d 892 (Colo. 2006); Udis v. Universal

  Commc’ns Co., 56 P.3d 1177, 1183 (Colo. App. 2002).

¶ 37   When 5 Star moved for summary judgment, pointing out the

  lack of any allegation or supporting evidence of a culpable mental

  state or voluntary act, it was incumbent on the State to come

  forward with evidence demonstrating a genuine issue of material

  fact. Cont’l Air Lines, Inc. v. Keenan, 731 P.2d 708, 712-13 (Colo.

  1987). It failed to do so. Because it failed to do so, we may direct

  the entry of judgment against it and for 5 Star. In re Estate of Scott,

  119 P.3d at 515-16 (where party failed to show genuine issue of

  material fact on cross-motions for summary judgment, appellate

  court directed judgment against that party); Udis, 56 P.3d at 1183

  (if the record shows that no issue of fact remains, appellate court

  may direct entry of judgment in favor of party who unsuccessfully

  cross-moved for summary judgment); see Witcher v. Canon City,

  716 P.2d 445, 456-57 (Colo. 1986) (a party’s failure to challenge

  evidence submitted in support of summary judgment in the district

  court waives any such challenge on appeal); 11 James Wm. Moore


                                    22
  et al., Moore’s Federal Practice § 56.81[2] (3d ed. 2015) (a party’s

  failure to timely respond to the moving party’s characterization of

  material facts as undisputed justifies entry of summary judgment

  for the moving party if the test for summary judgment is met).

¶ 38   The partial dissent’s assertion that “there was no need for the

  State to come forward” with “evidence of a knowing or voluntary

  act” “[b]ecause the trial court applied an incorrect legal standard” is

  contrary to the well-settled law cited above. 12 Infra ¶ 43. 5 Star

  made its required showing and the State was therefore obliged to

  counter it. The fact the State chose not to do so, but instead chose

  to rely solely on a legal argument — that it didn’t have to show a

  mens rea or a voluntary act — doesn’t entitle the State to a second

  bite at the apple (a second bite that the State didn’t even ask for in

  its brief on appeal). Put differently, the district court’s erroneous

  acceptance of the State’s legal argument didn’t retroactively relieve

  the State of its obligation to come forward with evidence showing



  12 None of the cases cited by the partial dissent support its
  conclusion. None of them concern cross-motions for summary
  judgment where the party which lost in the district court satisfied
  its burden of showing the nonexistence of any genuine issue of
  material fact.

                                     23
  the existence of a genuine issue of fact. The State put all of its eggs

  in one basket at its peril. It isn’t our job to rescue the State from

  the consequences of its litigation strategy.

¶ 39   Contrary to the partial dissent’s suggestion, we haven’t

  considered any evidence outside the summary judgment record.

  (Indeed, no party has presented to us any such evidence.) We have

  considered only the summary judgment filings, which, it seems

  appropriate to point out, include the State’s sworn discovery

  response that the discharge from the containment ponds was the

  only event that caused the fish to die.

¶ 40   To the extent the partial dissent deems there to be a genuine

  issue of material fact as to whether the containment ponds were

  “suitable to provide capacity for a twenty-five year, twenty-four-

  hour storm event,” infra ¶ 49, we can’t agree with the premise of

  that assertion. The State has never even argued that 5 Star failed

  to comply with any law relating to the construction and

  maintenance of the containment ponds. Indeed, it has conceded

  that 5 Star complied with all such laws. Even putting aside the fact

  that we should not be making arguments for a party, especially

  arguments contrary to that party’s concessions, the law is clear that


                                     24
  for a failure to act to constitute the requisite actus reus, the act

  must be one as to which the law imposes a duty to perform. § 18-

  1-501(7). Again, the State has never even alleged such an act, and

  the partial dissent doesn’t cite any legal authority imposing the

  duty it implicitly would fault 5 Star for failing to meet.

¶ 41   Lastly, the fact that “causation remains hotly disputed” is

  irrelevant. 13 Infra ¶ 49. If a party fails to establish a genuine issue

  of material fact on an element as to which it bears the burden of

  proof, it matters not that there is a genuine issue of material fact on

  another element: summary judgment is proper. E.g., Nelson v.

  Elway, 908 P.2d 102, 106-07 (Colo. 1995) (summary judgment

  proper where the plaintiffs failed to establish a genuine issue of

  material fact on one element of a civil conspiracy claim); Casey v.

  Christie Lodge Owners Ass’n, Inc., 923 P.2d 365, 366-67 (Colo. App.

  1996) (summary judgment proper where the plaintiff failed to show

  existence of a genuine issue of material fact on knowledge element

  of premises liability claim); see Celotex Corp. v. Catrett, 477 U.S.



  13Given our resolution of other issues, we need not address 5 Star’s
  contention that there is a genuine issue of material fact as to
  causation.

                                     25
  317, 322 (1986) (summary judgment is required “against a party

  who fails to make a showing sufficient to establish the existence of

  an element essential to that party’s case”).

                           IV.   Conclusion

¶ 42   We reverse the summary judgment in favor of the state and

  remand the case for entry of judgment in 5 Star’s favor.

       JUDGE TOW concurs.

       JUDGE FOX concurs in part and dissents in part.




                                    26
  JUDGE FOX, concurring in part and dissenting in part.

¶ 43       I concur with the majority’s conclusions that the operative

  statutes required the State to prove that 5 Star acted knowingly and

  performed some voluntary act that caused the fish to die. But I

  dissent from its conclusion that summary judgment should enter in

  5 Star’s favor because the State did not present evidence of a

  knowing or voluntary act. Because the trial court applied an

  incorrect legal standard, there was no need for the State to come

  forward with such evidence and genuine issues of material fact

  remain regarding whether 5 Star acted knowingly and voluntarily;

  summary judgment for 5 Star is therefore not proper. Likewise,

  causation is disputed and is a material fact question that is not

  appropriate for summary judgment disposition at the appellate

  level.

                           I.   Standard of Review

¶ 44       Summary judgment is a drastic remedy, appropriate only

  where there are no disputed issues of material fact and the moving

  party is entitled to judgment as a matter of law. C.R.C.P. 56(c);

  Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 570 (Colo.

  2008). We review a summary judgment ruling de novo. Gibbons v.


                                       27
  Ludlow, 2013 CO 49, ¶ 11; see also Churchey v. Adolph Coors Co.,

  759 P.2d 1336, 1340 (Colo. 1988) (“[A] party’s failure to satisfy the

  burden of proof on its own motion for summary judgment ‘does not

  automatically indicate that the opposing party has satisfied [its]

  burden and should be granted summary judgment on the other

  motion.’”) (citation omitted). Moreover, we may only consider the

  record as presented to the trial court and not consider additional

  arguments or evidence offered on appeal. Mohr v. Kelley, 8 P.3d

  543, 545 (Colo. App. 2000) (appellate jurisdiction limited to issues

  which had been before the district court in proper procedural

  posture (citing Cty. Court v. Ruth, 194 Colo. 352, 575 P.2d 1

  (1977))).

¶ 45   Because the majority sets out the correct review standard for

  statutory interpretation, I do not repeat it here.

                       II.   The Trial Court’s Ruling

¶ 46   Having concluded that the wildlife statutes at issue gave rise

  to strict liability, the trial court concluded that there was “no

  genuine issue of material fact as it relates to liability . . . [and given

  the] clear showing that the controlling standards” were met, it

  proceeded to set the case for trial on damages. Thus, there was no


                                      28
  inquiry — or factfindings — made regarding 5 Star’s knowledge or

  whether its acts were voluntary.

                              III.   Analysis

¶ 47   I cannot say on the sparse summary judgment record that the

  parties agree that 5 Star acted — or failed to act — voluntarily or

  with knowledge. Acting voluntarily and with knowledge is the

  standard the division announces today; matters like voluntary

  action and knowledge are fact-laden and inappropriate for

  disposition on summary judgment, especially by an appellate court.

  See, e.g., Lombard, 187 P.3d at 572 (holding that a genuine issue of

  material fact existed as to whether a conference center had

  constructive knowledge that a ladder from a loft constituted a

  danger and so summary judgment was inappropriate); Mancuso v.

  United Bank of Pueblo, 818 P.2d 732, 740-41 (Colo. 1991) (holding

  that a genuine issue of material fact existed regarding whether the

  bank had actual knowledge of customer’s son’s alleged breach and

  reversing part of a summary judgment grant); People v. Madison,

  176 P.3d 793, 798 (Colo. App. 2007) (“A fact finder may infer intent

  to cause the natural and probable consequences of unlawful




                                     29
  voluntary acts, and pertinent to the inquiry is the defendant’s

  conduct and the circumstances surrounding any act or omission.”).

¶ 48   There is another reason I disagree with the majority’s decision

  to remand for entry of summary judgment in 5 Star’s favor.

  Because the trial court’s findings were based on an erroneous view

  of the law, see, e.g., Pullman-Standard v. Swint, 456 U.S. 273, 287

  (1982), the record does not permit only one resolution of material

  issues of fact, Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240,

  1248 (Colo. 1987) (reversing court of appeals’ holding affirming

  district court’s granting of defendant’s motion for summary

  judgment dismissing plaintiff’s products liability action against

  motorcycle manufacturers after reinterpreting the standard for

  when a product is defective and unreasonably dangerous and

  remanding where the court noted that the answer to this issue

  could not be determined based on the “limited facts thus far

  presented to the trial court”); see also Jolly v. People, 742 P.2d 891,

  898-900 (Colo. 1987) (recognizing that when an appellate court

  holds that different elements apply than those applied at trial, a

  remand for a new trial is appropriate); People v. Riley, 708 P.2d




                                    30
  1359, 1366 (Colo. 1985) (reversing and remanding for a new trial

  after the trial court misinterpreted the applicable statute).

¶ 49   What the State can prove under the standards the majority

  announces here remains to be seen and does not need to be

  detailed here. The State’s representation that the discharge from

  the containment ponds caused the fishes’ deaths is not dispositive,

  especially where the record indicates that, according to the State,

  the impoundments from which the materials left 5 Star’s property

  following the storm had eroded and may not have been suitable to

  provide capacity for a twenty-five-year, twenty-four-hour storm

  event, much less for the actual rain event in question. The record

  contains competing expert opinions concerning this and other

  relevant issues. For example, in addition to questions whether 5

  Star acted with knowledge and voluntarily, the record discloses that

  causation remains hotly disputed. A remand, therefore, is

  necessary, Swint, 456 U.S. at 292, because genuine issues of

  material fact remain, see, e.g., Smith v. Boyett, 908 P.2d 508, 515

  (Colo. 1995); Struble v. Am. Family Ins. Co., 172 P.3d 950, 957

  (Colo. App. 2007).




                                    31
¶ 50   I therefore respectfully dissent from the part of the majority’s

  decision that remands for entry of summary judgment in 5 Star’s

  favor. In all other respects, I join the majority.




                                     32
