Court ruling brings mixed response
Published on -7/20/2012, 2:12 PM
By MIKE CORN
The Kansas Court of Appeals ruling limiting the poisoning of prairie dogs came as no surprise to Logan County Commissioner Nick Scott.
"I kind of figured that was going to happen," Scott said when first told of the outcome.
Supporters of the black-footed ferret reintroduction program heralded the decision.
"I guess we all hoped and thought things would go that way," rancher Larry Haverfield said of how the three-judge panel ruled. "And it did. I'm happy."
Haverfield has been the chief target of a push by the Logan County Commission -- and other landowners in Logan County -- to eradicate prairie dogs that were central to the reintroduction of the highly endangered ferrets.
Ferrets were first introduced five years ago on the nearly 10,000-acre Haverfield-Barnhardt complex south of Russell Springs and the Nature Conservancy's Smoky Valley Ranch southeast of Oakley.
The focus of the eradication program, however, has been on the Haverfield complex.
The appeals court ruling lets stand a restraining order first issued by a Topeka judge after Haverfield sought to stop Logan County -- by way of a permit issued by the then Kansas Department of Wildlife and Parks -- from poisoning prairie dogs using Phostoxin, a gas that essentially kills everything in a burrow.
In that instance, the Topeka judge issued a restraining order limiting the area that could be poisoned by Logan County to a 90-foot barrier surrounding the nearly 10,000 acre complex.
The appeals court said the federal Endangered Species Act trumps state law requiring eradication of prairie dogs, and as a result refused to lift the injunction.
"The county argues on appeal that ... it has discretion to exterminate prairie dogs in a manner that avoids harming black-footed ferrets within the complex," the court said in its eight-page ruling. "This argument fails."
Instead, they continued, the law "requires that 'the township trustees ... make diligent effort to exterminate all prairie dogs... .' If the township does not fulfill its statutory duty, then the trustees are guilty of a misdemeanor."
The court did leave open the opportunity for Logan County to pursue the issue further, through administrative procedures at the federal level and through a citizen-suit provision.
Scott isn't sure what more needs to be done.
"Oh, I don't know," Scott said of if the county will go to federal court. "We have sunk a lot of money into that. We're actually working for all the townships. We'll have to visit, see what they want."
He said James Mcvay, the Great Bend lawyer who handled the appeal of the injunction and the appeals court issue, was hired by the county. Scott said he's unsure how much has been spent on legal fees.
Audubon of Kansas director Ron Klataske heralded the court's decision, and said he hopes it's enough.
"After harassing the Haverfields and Barnhardts now for seven years, I think it's time to accept there should be a place for wildlife on the Kansas landscape," he said. "I think the county's wasted an awful lot of public resources and good will pursing this all those years rather than working together."