By MIKE CORN
Gordon Barnhardt was delighted when he learned Senior Judge Jack Lively ruled earlier this week that there's no need for a trial on Logan County's bid to expand its prairie dog poisoning campaign onto land he owns.
But he doubts that is the end of it.
"It's not over," he said of the fight to keep prairie dogs and the highly endangered black-footed ferrets on his land. "It's an ongoing deal."
Barnhardt, along with Larry and Bette Haverfield, collectively own or operate nearly 10,000 acres of land in southwest Logan County that are now home to ferrets, through a reintroduction program by the U.S. Fish and Wildlife Service.
The Haverfield/Barnhardt complex is at the heart of a controversy and a lawsuit that had Logan County asking for permission to poison prairie dogs where the endangered ferrets have been reintroduced.
The Coffeyville-based Lively, in a ruling handed down Monday, denied that request. In doing so, he made permanent an injunction issued by Shawnee County District Judge Charles Andrews. In 2008, Andrews ruled the county could poison in the vegetative barriers surrounding much of the Haverfield/Barnhardt complex.
Those barriers are 90 feet wide, and fenced off to keep cattle from grazing, allowing the grass to grow taller as a detriment to the spread of prairie dogs.
Barnhardt was critical of the Logan County Commission for its insistence over poisoning of the prairie dogs.
"They're going to keep working on it," Barnhardt said of the fight to kill prairie dogs.
To do so, Logan County will either have to appeal Lively's decision, or take the issue into federal court.
Logan County's attorney Jim McVay wouldn't comment on the judge's ruling, or say if the county would appeal the decision.
Lively chastised Logan County and McVay for suggesting he had jurisdiction to find the U.S. Fish and Wildlife Service was arbitrary and capricious in deciding to release ferrets on the complex.
"This court does not have jurisdiction to consider defendant's collateral attack on the decision to introduce black-footed ferrets onto the property," Lively said in his seven-page ruling.
That can be done, he said, in U.S. District Court, the argument advanced a week ago by Randy Rathbun, the Wichita attorney representing Haverfield and Barnhardt.
"I've been practicing law for 32 years, and I apparently went to a different law school than Jim did," Rathbun said of McVay. "I've never heard a state court has jurisdiction over federal agencies. This turns law on its head."
Rathbun and McVay slugged it out in Sedgwick County District Court on Sept. 17, making final arguments in the issue pending before Lively.
"If they want to argue Fish and Wildlife was arbitrary and capricious, they can go to federal court and get a judge to tell them to take the ferrets out," Rathbun said. "They can do that if they want to, but they don't want to because they don't have a prayer."
Lively's refusal to dissolve Andrews' restraining order means a trial set for October in Logan County no longer will be needed.
It also means the county can't poison prairie dogs other than in the 90-foot barrier surrounding the Haverfield/Barnhard complex.
In his arguments, McVay sought to provide additional affidavits from area landowners and a series of photographs before the judge. Lively, however, told McVay to file the documents directly with Logan County's district court rather than with him.
In his oral arguments, McVay sought to suggest Logan County was willing to cooperate with Haverfield and Barnhardt, provided they allow an active poisoning program such as that in use at the Nature Conservancy's Smoky Valley Ranch on the east side of the county. Ferrets have also been introduced at the TNC site, which has about 2,500 acres of prairie dogs.