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Audubon blasts 'sovereign' bill

1/31/2014

Group claims Kobach measure could halt state conservation efforts

By MIKE CORN

mcorn@dailynew.net

Audubon of Kansas issued an "action alert" Thursday, urging its supporters to contact Kansas legislators to oppose a bill it said would "criminalize conservation of prairie chickens."

The bill, prepared by Kansas Secretary of State Kris Kobach, is known as the "State Sovereignty Over Non-migratory Wildlife Act."

Kobach apparently offered to assist the 32-county Kansas Natural Resource Coalition in its bid to keep the lesser prairie chicken from being listed as a threatened species.

In the bill and in his testimony last week before the Senate Natural Resources Committee -- chaired by Sen. Larry Powell, R-Garden City -- Kobach sought to suggest the Endangered Species Act was originally based on the premise of interstate commerce.

"... regulating the prairie chicken is not in any way a regulation of interstate commerce," Kobach said in his testimony. "The prairie chicken does not migrate from state to state."

The bill, along with an identical bill in the House, would declare that any federal law regulating either the lesser or greater prairie chicken, its habitats or farming practices that affect them is "null, void and unenforceable within the state."

It would also prohibit state or county employees from enforcing any federal law.

Doing so, according to the law, would be a felony.

"It would make it a crime for a state employee or a county employee to aid in the conservation of prairie chickens," AOK executive director Ron Klataske said of the action alert issued by the group. "It would also be a crime for the Fish and Wildlife Service to do it, but that would be thrown out of court."

Klataske was critical of Kobach's decision to enter the fray, but said he's well known for dabbling in other constitutional issues including voter fraud or issues dealing with illegal aliens.

He went on to say the bill actually might have the opposite effect of preventing the U.S. Fish and Wildlife Service from moving ahead with a proposal to list the lesser prairie chicken as threatened under the Endangered Species Act.

"It might make it more likely that the prairie chicken could be listed as a threatened species," he said, "because the director of the Fish and Wildlife Service could look at this and say Kansas isn't going to do anything.

"I think it's counterproductive for entities that don't want the species listed."

In his testimony before the Senate committee, Kobach said the measure -- if it becomes law -- likely would be challenged in court, something that could cost anywhere from $100,000 to $400,000.

"If we can pass this bill, many of you would go home heroes," Kansas Farmer Bureau's Steve Swaffar told legislators, according to the Lawrence Journal-World.

Kobach said the U.S. Supreme Court never has addressed the state sovereignty issue involving wildlife.

At least two appeals courts have ruled in favor of the federal government, Kobach said in his prepared testimony.

"But the ultimate objective would be to take the case to the United States Supreme Court, where I believe the state of Kansas would stand a good chance of winning."

Kobach told legislators the bill only would strengthen the five-state effort to keep FWS from listing the bird as threatened.

"It makes clear to the federal government that the state of Kansas will not back down in this fight and the federal government will face a significant battle in court if it lists the lesser prairie chicken," he said. "And regardless of the outcome of that legal battle, it is a fight worth having."

Klataske, however, compared it to the effort by Logan County commissioners to force the poisoning of prairie dogs in an area where the endangered black-footed ferrets have been reintroduced.

"They already ran that up the flagpole before the court and it was thrown out," he said. "It's the same mentality to oppose efforts to save endangered species."