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Appeals court affirms decision

7/17/2012

By MIKE CORN

By MIKE CORN

mcorn@dailynews.net

A Kansas Court of Appeals panel has affirmed a decision by Senior Judge Jack Lively, turning aside Logan County's request to let it poison prairie dogs where endangered black-footed ferrets have been reintroduced.

The decision, handed down Friday, leaves in place a restraining order effectively limiting any poisoning of prairie dogs to a 90-foot barrier surrounding the nearly 10,000-acre complex where the ferrets have been reintroduced.

The three-judge Appeals Court panel heard oral arguments on the case in May during a hearing in Larned.

The court's ruling essentially mirrored what Wichita attorney Randy Rathbun -- representing Logan County landowners Bette and Larry Haverfield and Gordon Barnhardt -- said was at the heart of the case.

"I think the judges understand this is a problem with a state statute flying right in the face of the Endangered Species Act," he said immediately after the hearing.

Jim McVay, Logan County's attorney, sought to strike a middle ground in the wake of Lively's decision upholding an existing restraining order against Logan County.

The Endangered Species Act, the court said in its opinion, "preempts the county from a unilateral eradication of all prairie dogs within the complex. An eradication as authorized ... would destroy the food supply and habitat of the black-footed ferret, constituting an unlawful taking under ESA."

Eradicating some of the prairie dogs, the judges went on to say, "can only be addressed with the participation of necessary federal authorities through negotiation or federal litigation.

"A state court with only state actors lacks jurisdiction to resolve the underlying issues. Consequently, the district court's imposition of an injunction will not be disturbed."