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Logan County seeking court review

8/10/2012

By MIKE CORN

By MIKE CORN

mcorn@dailynews.net

OAKLEY -- Logan County is asking the Kansas Supreme Court to review a district court decision already upheld by the Kansas Court of Appeals.

The appeals court decision, handed down in July, rejected a request from Logan County to let it move ahead with the poisoning of prairie dogs where endangered black-footed ferrets have been released.

Logan County commissioners, in late July, unanimously agreed to a request from prairie dog opponents Sheila Ellis, Monte Beagley and Steve and Diane Schertz to let Great Bend attorney Jim McVay ask the Kansas Supreme Court to review the decision.

McVay's petition was filed Thursday and asks the court to review lower court rulings.

In its July 13 decision, a three-judge Court of Appeals panel upheld the Sept. 17, 2010, decision by Senior Judge Jack Lively leaving in place a 2008 restraining order.

That restraining order effectively limits any poisoning of prairie dogs to a 90-foot barrier surrounding a 10,000-acre complex where ferrets have been released.

Logan County sought to have that restraining order overturned, but Lively refused to do so.

The complex, owned by Larry and Bette Haverfield and Gordon and Martha Barnhardt, is the center of the controversy surrounding the reintroduction of ferrets and the prairie dogs necessary for them to survive. Ferrets use prairie dog burrows for shelter and almost exclusively eat prairie dogs.

Ferrets also have been reintroduced at the Smoky Valley Ranch owned by the Nature Conservancy, but it has remained quietly on the sidelines during the controversy, primarily because the group has an intensive poisoning program limiting prairie dogs to about 2,500 acres on the nearly 18,000 acre ranch.

The battle over poisoning of prairie dogs dates back to 2007 when a district judge in Topeka first was asked to issue a restraining order preventing Logan County from poisoning on the Haverfield-Barnhardt complex.

In its ruling, the Court of Appeals 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.

With the filing of the request, an attorney for the Court of Appeals will respond to the petition and offer a recommendation on the review question.

Supreme Court justices will review the petition and the appeals court response.

If the review is granted, attorneys on both sides of the case will restart the appeal process, including the filing of new legal briefs.

The review is not guaranteed, however, according to Kansas Supreme Court spokesman Ron Keefover.

There's no set time schedule for deciding if a review will be granted. It could take as long as a year for that decision to be made.