AOK Applauds Appeals Court Decision
Audubon of Kansas E-Newsletter
July 18, 2012
Kansas Court of Appeals Supports Position of Landowners Hosting Reintroduction of Black-footed Ferrets
Audubon of Kansas is applauding the decision of a Kansas Court of Appeals panel that affirmed an earlier decision by Senior Judge Jack Lively, which permanently enjoined the Board of County Commissioners of Logan County from eradicating prairie dogs on approximately 10,000 acres of ranchland owned by Larry and Bette Haverfield, Gordon Barnhardt and Maxine Blank.
Prairie dog colonies are scattered over several thousand acres of rangeland on these jointly managed ranches, making it the largest and possibly the most ecologically important Black-tailed Prairie Dog complex in the state of Kansas. It serves as a principle focus for the reintroduction of federally endangered Black-footed Ferrets in Kansas. This small predator relies almost exclusively on prairie dogs for prey and lives in the burrows they create.
After being regarded as extinct in the state for fifty years, fourteen captive-raised ferrets were released on the Haverfield/Barnhardt complex in December 2007. Several additional releases followed, and the ferrets have been reproducing in the wild on the property and another nearby reintroduction site.
In addition, prairie dog colonies provide prey and habitat for several other imperiled species, including Ferruginous Hawks, Golden Eagles, Burrowing Owls and Swift Foxes.
As argued by attorney Randall Rathbun on behalf of the landowners--who wanted to retain prairie dogs, the ferrets and other wildlife on their land-the Endangered Species Act (ESA) preempts the county from unilateral eradication of prairie dogs within the complex. Eradication as "authorized" under K.S.A. 80-1202 would destroy the food supply and habitat of the Black-footed Ferret, constituting an unlawful taking under the ESA.
In summary, the Court of Appeals declared that the ESA preempts K.S.A. 80-1202 because eradication may constitute an unlawful taking within the meaning of the act. The district court was correct that it did not have jurisdiction to determine the issues the County has presented that clearly fall under federal jurisdiction. "The County's contention lacks legal merit because it is an attempt to do an end run around the ESA and the protection afforded the black-footed ferret."
The Logan County Commission began a campaign to force landowners throughout the county to eradicate prairie dogs in the summer of 2005. During the past seven years the commission has hired and sent extermination contractors and a county employee to the Haverfield ranch complex with mandates that the land be poisoned with toxicants including Rozol Prairie Dog Bait and Phostoxin, a dangerous gas that kill everything in treated burrows. The Logan County Commission and the Kansas Farm Bureau have spearheaded litigation to force landowners to comply with eradication orders. The landowners have defended their interests in various court proceedings.
The recent Kansas Court of Appeals decision is likely to bring the string of litigation on this ranch complex to a close. However, the property rights of other landowners who seek to provide refuge for the diverse species that depend on prairie dog colonies for existence may encounter similar assaults on their stewardship efforts.
Audubon of Kansas and other wildlife conservation organizations have argued in the Kansas Legislature that the eradication statutes (K.S.A. 80-1202) used by counties to force landowners to poison prairie dogs, enacted more than a century ago, is antiquated and should be repealed. When eradication mandates are imposed, they drastically infringe on private property rights and they promote extinction of wildlife when conservation and stewardship should be the state's role.
A detailed article on the controversy and issues relating to the efforts of these landowners to protect prairie dog colonies and host the reintroduction of Black-footed Ferrets was published in Audubon of Kansas' PRAIRIE WINGS magazine. Entitled "CONSERVATION of Prairie Dogs and Reintroduction of Black-footed Ferrets REQUIRES COURAGE", the article can be viewed online at http://www.prairiewingsmagazine.org, pages 14-18.
Larry and Bette Haverfield, Gordon and Martha Barnhardt, and Maxine Blank are regarded by many wildlife enthusiasts throughout the country as wildlife conservation heroes.
Ron Klataske, Executive Director
Audubon of Kansas
Phone during July: 785-313-1138