Kansas Farm Bureau request to intervene denied

By MIKE CORN

mcorn@dailynews.net

Senior Judge Jack Liveley has denied a request by the Kansas Farm Bureau to intervene in a case dealing with the battle over prairie dogs in Logan County.

But in doing so, Liveley narrowed the focus of the case to all but avoid the state's law on the county's authority to go in and poison the animals and then bill the landowner -- the heart of Logan County's claim.

With just two paragraphs in a three-page ruling, Liveley dismissed out of hand KFB's request to join in the lawsuit. The case pits the Logan County Commission against Larry and Bette Haverfield and Gordon Barnhardt, owners of the land where the highly endangered black-footed ferrets have been reintroduced.

KFB attorney Mike Irvin had asked Lively at a May 18 hearing in Wichita to allow the group to intervene in the case. Irvin said the farm group's intent is to ensure the state law dealing with extermination of prairie dogs is followed.

"There has been no showing that there is a lack of adequate representation on the other side," Liveley wrote in his order rejecting KFB's request. "It has certainly not shown why Logan County's representation of its residents is inadequate. Logan County is represented by skilled trial counsel and the idea that the KFB's presence in the lawsuit is necessary is unfounded."

Liveley also noted that while neighbors claim an interest in the case, they have not intervened and almost 30 are listed as witnesses.

In something of a bombshell development, Lively went on to say the "issue in this case is whether the federal government can protect an endangered species," such as the black-footed ferret.

"It is not about 80-1202 and KFB's disagreement with the federal government," he wrote, citing the statute number of the law that allows counties to poison prairie dogs and then bill the landowner. "It is about what the Department of Interior has called 'one of our newest and most promising small sites' for the reintroduction of black-footed ferrets."

Liveley told of how the ferrets were reintroduced two years ago and appear to be doing well.

"A memorandum of understanding has been entered into between the plaintiffs and the Department of Interior/Department of Agriculture, which puts the agencies in charge of where and how to control prairie dogs on the Haverfield/Barnhardt complex."

Randy Rathbun, the Wichita attorney representing the Haverfields and Barnhardt, said the judge's decision puts the issue squarely where he's been contending it belongs.

Rathbun has contended that federal law prevails when state and federal laws are at loggerheads.

Because the U.S. Fish and Wildlife Service has reintroduced ferrets, he said, the state's law governing prairie dog control doesn't apply.

Efforts to contact both James McVay, the Great Bend attorney representing Logan County, and Mike Irvin, representing the Kansas Farm Bureau, were unsuccessful.

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In an unrelated development, Rathbun and the Haverfields appeared before the Kansas Court of Tax Appeals recently in Salina, over a disputed poisoning bill from Logan County.

The bill amounts to about $6,000, Haverfield said, and has been paid under protest. The bills stem from county poisoning on at least two occasions.

Despite their appearance, Rathbun said the tax appeals court -- generally dealing with personal and property taxes -- didn't know if they had the authority to render a decision in the case.

"They went ahead and heard our story, but said they they probably wouldn't be the one to rule on it," Haverfield said.

Since the battle over prairie dogs has started, Haverfield said they've spent about $15,000 in poisoning bills to the county and to a commercial applicator.

Trial in the court case is scheduled to begin July 19 in Logan County District Court.

While more than 30 witnesses have been listed to testify, Lively has told attorneys to look at their lists and ensure that there isn't any duplication.