Decision could seal fate of ferret reintroduction program in Logan County
By MIKE CORN
LARNED -- When the Kansas Court of Appeals travels to Larned Tuesday, the second case on the morning docket will be closely watched by the wildlife community and agricultural interests.
Members of the three-judge panel ultimately will be asked decide if the federal Endangered Species Act trumps state law requiring the extermination of prairie dogs where the highly endangered black-footed ferrets have been reintroduced.
Tuesday's hearing is an appeal of a September 2010 ruling by Kansas Senior Judge Jack Lively, turning aside a bid from Logan County commissioners to force the poisoning of prairie dogs on land owned by Larry and Bette Haverfield and Gordon Barnhardt.
Ferrets were first introduced on what has become known as the Haverfield-Barnhardt complex in December 2007, a move that has been met with controversy.
In his seven-page ruling, Lively granted summary judgment in the case to the Haverfields. His decision meant an earlier ruling by Shawnee County District Judge Charles Andrews would stand, limiting poisoning to a 90-foot barrier surrounding the nearly 10,000 acres of land.
"This court is confronted with an irreconcilable conflict between a Kansas statue passed in 1901, which requires townships to exterminate all prairie dogs in townships 'infested by prairie dogs' and the Endangered Species Act," he said. "It is uncontroverted that the extermination of all prairie dogs ... would result in the death of the black-footed ferrets on the property, which are the most endangered mammals in North America."
Logan County commissioners appealed the decision. The Kansas Farm Bureau filed a friend of the court brief supporting Logan County. KFB had asked and were denied permission by Lively to join in the case earlier.
Logan County's 22-page appeal brief, filed by Great Bend attorney Jim McVay, pointed the finger of blame for the prairie dog problem squarely at Larry Haverfield.
"His lack of proper action to protect his neighbors has been the subject of prior litigation," McVay wrote. "The infestation on the Haverfield Complex is devastating."
McVay also called the 2008 Shawnee County order a "complete failure. This did not even slow down the expansion of prairie dogs. The 90-foot vegetation barrier has not and will not successfully work in short-grass prairies such as Logan County."
Instead, he held up the Nature Conservancy's Smoky Valley Ranch as a shining example of what needs to be done -- eradicating "prairie dogs at the core of the property, giving the prairie dogs room to expand the following breeding and expansion year."
But, McVay said when TNC poisons, it captures the ferrets and moves them.
"None of the cited pages support this position because it simply isn't happening," attorney Randy Rathbun said in his appeal brief on behalf of the Haverfields.
Instead, U.S. Fish and Wildlife Service personnel twice each year survey the two reintroduction sites, but animals captured are vaccinated implanted with a tracking chip and then returned to where they are captured.
Rathbun sought to show FWS has been offering free prairie dog control to landowners within 3 miles of the complex.
McVay's response, he wrote, was simply that "the forms of extermination used by FWS have not been effective."
Until recently, Rathbun said, the county took the position that state law requires them to eradicate prairie dogs.
"Apparently, plaintiffs are now dealing with a kindler, gentler Logan County that wants to work 'in harmony to address the concerns of the federal government in protecting the ESA program," Rathbun said. "The defendant cannot have it both ways."
Rathbun also complained about McVay and Kansas Farm Bureau's assault on federal programs through state courts.
Instead of bringing suit in federal court, he said, "the county has sought to collaterally attack the FWS actions in this action, which it simply cannot do."
The appeals court won't immediately render a decision in the case, handing it down after deliberating.