Attorney argues against motion for dismissal of case; hearing Sept. 17

By MIKE CORN

mcorn@dailynews.net

Rising in opposition to a motion for summary judgment, Logan County's attorney disagreed at the outset that the issues in the lawsuit are simple.

Instead, Great Bend attorney James McVay contends, the analysis under the Endangered Species Act and the state law governing prairie dog control "are extremely complex and are of great importance to the people of Logan County."

McVay's disagreement came in a 19-page brief opposing a motion for summary judgment. A hearing on that motion is set for Sept. 17 in Wichita.

In the event the summary judgment request is denied, the case would go to trial in late October in Oakley.

The summary judgment issue was raised soon after Senior Judge Jack Lively ruled the Kansas Farm Bureau would not be allowed to join in to defend the state's law on prairie dog eradication.

But even Lively agreed the case is simple, detailing that Larry and Bette Haverfield and Gordon Barnhardt entered into an agreement allowing for the reintroduction of ferrets on their land.

In early 2009, a Topeka judge issued a restraining order limiting Logan County to poisoning prairie dogs in a 90-foot barrier along the perimeter of the Haverfield/Barnhardt complex.

Since then, however, the case has been moved to Logan County and the county commission has asked to dissolve the restraining order, allowing the entire ranch to be poisoned.

Generally, McVay argued against the request for summary judgment, contending there are several issues remaining for trial, not the least of which deals with the U.S. Fish and Wildlife Service's actions in reintroducing the ferrets into Logan County.

"Federal pre-emption only occurs in specific factual settings, and it does not exist in this case," McVay said in his legal brief opposing the motion. "The plaintiffs have failed to show that the eradication of prairie dogs will likely cause a taking of an endangered species."

Wichita attorney Randy Rathbun, representing the Haverfields and Barnhardt, had contended the poisoning of prairie dogs on the 10,000-acre complex would cause "irreparable harm" to the reintroduction project and the ferrets.

McVay's brief also seeks to show the prairie dogs make it difficult, if not impossible, to operate a cattle operation. He said Haverfield lost 700 cattle in 2007 through weather-related deaths, and suffered additional losses last winter.

"The sheriff of Logan County, Kansas, was able to photograph at least 50 dead cattle laying on the Haverfield complex," he wrote, referring to a Jan. 15 sheriff's report.

"By simple observation, it is easy to tell that Mr. Haverfield's cattle are in a weakened and unhealthy condition due to a lack of nutrition," McVay said, referring to affidavits from cattle ranchers. "It is affiants' professional opinion that in normal weather patterns, prairie dog infestations would prevent effective cattle operations. Also, no other cattle rancher in Logan County had the types of weather-related deaths suffered by Mr. Haverfield in the winters of 2007 or 2009."

McVay also took aim at the federal wildlife agency for failing to follow the law and for failing to "cooperate in good faith with local officials."

That includes a 2007 commission-passed resolution that "clearly states that the FWS was not to release the endangered species in Logan County."