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Federal court could handle prairie dogs
Published on -9/22/2007, 11:35 PM
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By MIKE CORN
Hays Daily News
Logan County's push to eradicate prairie dogs likely will end up in federal court, Commissioner Nick Scott predicts.
But first, the county will be going into Shawnee County District Court asking the judge to dissolve a restraining order.
That order was obtained by landowners who want to keep prairie dogs on their land in hopes of providing a suitable site for the reintroduction of the nation's most endangered mammal -- the black-footed ferret.
Scott said the commission planned to ask Logan County Attorney Andrea Wyrick to proceed with efforts to get rid of the restraining order, which prevents the Kansas Department of Wildlife and Parks from issuing additional permits to use Phostoxin and the Logan County Commission from proceeding with plans to poison prairie dogs on land owned by Gordon Barnhardt.
Exterminator Don Walter already poisoned a three-quarter-mile-long barrier 100-yards wide on Larry Haverfield's land.
"Probably, it's going into federal court," Scott predicted of the case.
The county, he said, has insurance and will be turning over the case to them.
Scott said there is some room for compromise in the county's approach to how to deal with prairie dogs.
"To a point," he said of the county's flexibility on dealing with the issue. "But we still have a problem that we've got to take care of. I think Larry would probably get along with people; he's doing some treating on his borders and stuff like that. But Barnhardt, that's out of the question."
Although Haverfield has built barriers on the Barnhardt land, Scott said the county never had the chance to treat the borders on Barnhardt's property. That process was halted by the restraining order.
The restraining order request was filed Sept. 10 -- the Monday following the county's move to start poisoning prairie dogs on Haverfield's land. The county's exterminator moved in on Sept. 7, a Friday, and shortly after courts had closed for the weekend.
Walter was asked to leave Haverfield's land, but he refused to do so, saying instead he had a permit from KDWP and had been told by Logan County Commissioner Carl Uhrich to move ahead with the process.
The request for the permit was made by Walter rather than by the county, a process that leaves landowners out of the loop.
Initially, Walter -- on behalf of the county -- asked for a permit to treat about 10,000 acres of land -- the amount of land in the Haverfield-Barnhardt properties.
Although KDWP generally has been able to stay out of the prairie dog controversy, the size of the request made them take a closer look.
And rather than issue the permit for the entire amount, KDWP issued a permit for about 100 acres, noting any additional requests would be subject to review and discussion.
KDWP's Keith Sexson, assistant secretary for operations, in a letter to Walter, the commissioners and Haverfield, noted the agency must consider the effect of other wildlife.
Phostoxin is a poisonous gas that reacts with water and essentially kills everything in the burrow where it is placed.
As a result, the impact would have been tremendous, according to assessments obtained by The Hays Daily News independent of an Open Records request made to KDWP. Those assessments, as well as others made by agency biologists, were not provided despite the records request.
Had a permit for the entire 10,000 acres been issued, amphibian, reptile and turtle mortality could have been as high as 1.4 million animals, according to estimates prepared by Travis Taggart, Joseph Collins and Curtis Schmidt, all of Sternberg Museum of Natural History.
Sternberg's curator, Jerry Choate, writing about mammals, didn't add up the totals but indicated the losses could be significant.
The losses could include the eastern spotted skunk, a protected species in Kansas. Choate also noted losses could include the swift fox, with as many as five dozen being killed.
While his report was only a page long, the response from Elmer Finck, professor and chairman of the biological sciences department at FHSU, was staggering.
"My knowledge of Phostoxin is somewhat limited, but I do know it typically must be applied when it is above 40 degrees and that (it) is very toxic to all vertebrates," his letter states.
Finck said his only experience and research with vertebrates in Logan County involves the burrowing owl.
Based on his estimates, poisoning the entire 10,000 acres would have killed 1,000 breeding pairs.
"This would be devastating to burrowing owl, a species of concern and that has been suggested for listing under the Endangered Species Act," he wrote.
He went on to say the poisoning would affect other species, such as the swift fox.
"I suggest that such action will lead to the petition for listing of black-tailed prairie dogs, swift fox and burrowing owl under the Endangered Species Act," he states.
He notes he would suggest a smaller area of poisoning.
"However, I prefer the permit not be granted," he said.
It's not known when the county might contest the restraining order, which was issued ex parte -- without the appearance of either the county or KDWP.
Randy Rathbun, the attorney who obtained the order on behalf of Haverfield and Barnhardt, said it would stand unless it is protested.
The county's push to exterminate prairie dogs has focused on the Haverfield-Barnhardt land.
The county has not pursued poisoning on land owned by the Nature Conservancy, which owns a nearly 17,000-acre ranch and has joined Haverfield and Barnhardt in agreeing to be a site for the reintroduction of black-footed ferrets.
Speaking about the Nature Conservancy, Scott said, "They've come around. They're treating further in all the time. I think they realized the problem they have. They've been working with their's all summer."
Scott was aware they had been using Phostoxin this summer, even though TNC never was issued a permit for its use.
"They have their own people to do it and things like that, so they can probably get it a little cheaper."
Scott said the county has not yet received the bill for the Phostoxin treatment on Haverfield's land.
Special-projects coordinator Mike Corn can be reached at (785) 628-1081, Ext. 129, or by e-mail at mcorn@dailynews.net.
