Purchase photos

Supreme Court won't review ruling

9/6/2013

By MIKE CORN

mcorn@dailynews.net

The Kansas Supreme Court has refused a request to review a Court of Appeals decision rejecting Logan County's request to move ahead with poisoning of prairie dogs where endangered black-footed ferrets have been released.

The decision was made Friday, but the court didn't notify attorneys in the case until Wednesday.

"It just means the case is over with," said Randy Rathbun, who represented Larry and Bette Haverfield and Gordon and Martha Barnhardt, owners of the nearly 10,000-acre Logan County complex where the ferrets have been released.

Logan County's attorney, James McVay, Great Bend, didn't respond to an email asking for comment.

The lawsuit has been ongoing since 2007, working its way through courts in Shawnee County, Logan County and then the Kansas Court of Appeals.

Along the way, the appeals courts upheld a 2010 decision by Senior Judge Jack Lively who agreed to leave in place a 2008 restraining order.

That restraining order, issued by a Shawnee County judge, limited poisoning of prairie dogs to a 90-foot barrier surrounding what's become known as the Haverfield-Barnhardt complex south of Russell Springs.

Ferrets also have been released on the Smoky Valley Ranch owned by The Nature Conservancy southwest of Oakley, but they haven't been part of the legal battle with the county.

"I like it," Haverfield said of the court's decision.

He went on to say that Rathbun also told him that was the end of the case.

"I hope so," he said. "If Randy said so, it's probably right."

When the state appeals court issued its ruling, it said the federal Endangered Species Act trumps state law requiring eradication of prairie dogs.

"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, the appeals court left open the possibility Logan County could pursue the issue at the federal level, either administratively or through a citizen-suit provision allowed by the Endangered Species Act.

Rathbun doubts that will happen, contending the county tried to make "a collateral attack" on the U.S. Fish and Wildlife Service in the case against Haverfield rather than take the case to federal court.

"I'm delighted," Audubon of Kansas executive director Ron Klataske said, criticizing Logan County and the Kansas Farm Bureau. "It's a good opportunity for good news."

The Kansas Farm Bureau sought to join the lawsuit, but the request was denied by Lively.

"These are some brave folks who stood up to government for six years," Rathbun said of the Haverfields and Barnhardts. "It's so good to see some folks stand up to government when the government tries to bully you around. Not many folks will do that."