We wrote recently about the Denver teenager who jumped into a fish tank at Bass Pro Shops in Stapleton and the potential criminal charges he could have faced. This week we take another look at the incident, this time from the perspective of wildlife protection and possible injury to the fish species living in the Bass Pro Shops aquarium. While he was fortunate to escape serious personal injury and to avoid damaging the tank itself, could our young diver still face liability for harming or disturbing the fish?
Title 33 of the Colorado Revised Statutes governs parks and wildlife, and Article 6 of that title contains wildlife-related crimes and penalties. Specifically relevant here is section 33-6-128, which makes it a misdemeanor “for any person to willfully damage or destroy any wildlife den or nest or their eggs or to harass any wildlife.” In this case, it remains unclear whether the jumper’s landing may have damaged or destroyed a fish nest or eggs inhabiting the aquarium. At last report, Bass Pro Shops had retained an animal care team to assess potential damage to the fishes’ health after the incident.
But even if no evidence turns up of destruction to the fishes’ nests or eggs, the aquarium dive might still carry criminal penalties if the diver is considered to have “harass[ed] . . . wildlife.” Assuming no nest or egg damage, the possibility of criminal charges then depends on two questions: was jumping in the aquarium “harass[ment]” for legal purposes, and are fish living in a tank inside a store considered “wildlife?” Let’s take a look at both issues.
“Harass” is defined broadly in the wildlife statutes. It includes any action that would “unlawfully endanger, worry, impede, annoy, pursue, disturb, molest, rally, concentrate, harry, chase, drive, herd, or torment wildlife.” One would imagine that the diver’s landing in the fish tank could very easily have “worr[ied],” “annoy[ed],” or “disturb[ed]” the fish. Indeed, as the captive fish were contained in a relatively small environment without the ability to swim upriver or to another area of lake or pond, the sudden arrival of a terrifyingly large and unexpected object (i.e., the diver) from which there appeared to be no escape could have been highly worrisome.
If, that is, the fish are to be considered “wildlife.” Of course, these particular fishes are not living in the wild, but instead swimming about in a temperature-controlled environment inside the Bass Pro Shops store. So we turn again to the statutes for guidance. Title 33 defines “wildlife” as “wild vertebrates, mollusks, and crustaceans, whether alive or dead, including any part, product, egg, or offspring thereof, that exist as a species in a natural wild state in their place of origin, presently or historically, except those species determined to be domestic animals by rule or regulation . . . .” The definition is silent as to the living environment of the individual fish or animal at issue. Instead, classification as “wildlife” depends on the animal’s species as a whole, and the existence of that species in a natural wild state.
According to the Bass Pro Shops website, the aquarium in Stapleton “holds 22,000 gallons of fresh water and is full of fish native and new to Colorado waters. Some of these include: rainbow trout, large and small mouth bass, sturgeon, crappie, blue gill, fresh water drum, and walleye.” All of these fish are vertebrates, and while they are not all native to Colorado waters, their species all exist in a natural wild state in their places of origin. While they have been introduced in many other locations, rainbow trout are native to North American rivers and lakes west of the Rocky Mountains, where many of them still live. Similarly, large and small mouth bass are native to North America, and large populations live in the fresh waters of much of the United States. The same could be said of crappie, blue gill, fresh water drum, and walleye. So they are indeed “wildlife,” as that term is defined in Colorado, even though the individual fish at issue here live in an aquarium instead of a naturally occurring environment.
Thus it would appear that misdemeanor charges for wildlife harassment are possible in this case. Fortunately for our young aquarium diver, however, substantial consequences stemming from Colorado’s wildlife protection statutes are unlikely. A conviction under section 33-6-128 results in punishment by “a fine of one hundred dollars and an assessment of ten license suspension points.” Relatively minor penalties, even for an adult, but here we are dealing with a juvenile, for whom the rules are typically a bit different). Besides, given that the incident appears to have been the result of a teenaged lapse in judgment (rather than any malicious intent toward the fishes), the likelihood that the state would pursue such charges is low. Really, as far as the fishes were concerned, was it all that different from taking a cannonball leap off a tire swing over a favorite swimming hole? Maybe not. Without the fishes’ perspective, it’s tough to say.
But, for anyone who may seek social media attention for risky stunts like this one (and for any parents seeking to counsel their children on the potential repercussions of attention-seeking behavior), please allow us to reiterate the importance of stopping to consider the consequences of one’s actions, including not only the risk of personal injury, but also the possibility of criminal or civil liability under property damage, wildlife protection, or other relevant statutes.
By Chelsy Weber, Esq., Consulting Counsel to the Eichner Law Firm, licensed to practice in the District of Columbia, New York, and Connecticut
 Tom McGhee, Teen Diver Causes No Damage to Denver’s Bass Pro Shops Aquarium, Denv. Post, May 1, 2017, available at http://www.denverpost.com/2017/05/01/teen-diver-bass-pro-shop-aquarium/; Melissa Garcia, Charges Possible: Teen Hits Head Jumping Into Bass Pro Aquarium, CBS News Denv., Apr. 30, 2017, available at http://denver.cbslocal.com/2017/04/30/bass-pro-shops-teen-aquarium-jump/.
 Colo. Rev. Stat. § 33-6-128(1).
 Garcia, supra note 1.
 Colo. Rev. Stat. § 33-1-102(24).
 Colo. Rev. Stat. § 33-1-102(51).
 Bass Pro Shops: Denver, Colorado, http://www.basspro.com/webapp/wcs/stores/servlet/CFPageC?appID=94&storeID=43&storeId=10151 (last visited June 5, 2017).
 John P. Rafferty, 5 Vertebrate Groups, Encyclopedia Britannica, https://www.britannica.com/list/5-vertebrate-groups (last visited June 5, 2017).
 National Geographic, Animals, www.nationalgeographic.com/animals/fish/r/rainbow-trout/ (last visited June 5, 2017).
 Md. Dep’t of Natural Res., Maryland Fish Facts: Largemouth Bass, http://dnr2.maryland.gov/fisheries/Pages/Fish-Facts.aspx?fishname=Largemouth%20Bass (last visited June 5, 2017); Md. Dep’t of Natural Res., Maryland Fish Facts: Smallmouth Bass, http://dnr2.maryland.gov/fisheries/Pages/Fish-Facts.aspx?fishname=Smallmouth%20Bass (last visited June 5, 2017).
 Colo. Rev. Stat. § 33-6-128(1).
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