Purchase photos

Kansas courts back federal endangered species law

5/9/2014

By MIKE CORN

mcorn@dailynews.net

Up and down the Kansas court system, judges have been clear: The federal Endangered Species Act preempts state law.

The Kansas Supreme Court refused to reconsider a decision by a three-judge Court of Appeals panel, which upheld a decision by Senior Judge Jack Lively.

The decision was all part of a long running battle between Logan County commissioners and the U.S. Fish and Wildlife Service, which reintroduced endangered black-footed ferrets onto a 10,000 ranch south of Russell Springs.

FWS also released ferrets onto the Smoky Valley Ranch owned by the Nature Conservancy, but it was not part of the lawsuit that eventually went to the state's supreme court.

In his September 2010 decision, Lively granted a motion for summary judgment sought by Larry and Bette Haverfield and Gordon Barnhardt, upon whose land most of the ferrets were reintroduced.

Logan County wanted Lively to dissolve a 2008 restraining order by Shawnee County District Judge Charles E. Andrews limiting prairie dog extermination activities to a 90-foot vegetative barrier surrounding what's now known as the 10,000-acre Haverfield-Barnhardt complex.

"This court is confronted with an irreconcilable conflict between a Kansas statute passed in 1901, which requires townships to exterminate all prairie dogs in townships 'infested by prairie dogs' and the Endangered Species Act," Lively wrote in his decision granting summary judgment.

He went on to criticize the defendant for operating under the "mistaken option that this court has jurisdiction to find that the U.S. Fish and Wildlife Service's actions under the Endangered Species Act were arbitrary and capricious."

That power, Lively said, "lies in the district courts of the United States."

Logan County appealed Lively's decision, and the appeals court said three issues were raised:

* Does the ESA preempt the country from eradicating the infestation of prairie dogs within the complex?

* Would eradication of prairie dogs within the complex constitute an unlawful take of black-footed ferrets?

* Did the court fail to find the FWS arbitrarily and capriciously abused its discretion in the implementation of the ferret release program?

"We affirm the decision of the district court," the appeals court said. "The ESA preempts the country from a unilateral eradication of all prairie dogs within the complex."

Doing so, the court said, would destroy the food supply and habitat of the ferret, constituting an unlawful taking under the ESA.

Logan County argued on appeal Lively erred in finding the ESA trumped state law.

"Because prairie dogs are essential to the survival of endangered black-footed ferrets, the district court found that eradication of all prairie dogs under (state law) was an irreconcilable conflict with the ESA's obligation to ensure the survival of black-footed ferrets," the court's decision said.

"The doctrine of preemption, which is derived from the Supremacy Clause of the United State's Constitution, invalidates state laws that interfere with, or are contrary to, federal law."

Partial eradication only can be approved by FWS, the court said, through negotiation or federal litigation.

"A state court with only state actors lacks jurisdiction to resolve the underlying issues," the court said.

The Kansas Supreme Court in September denied a request by Logan County to review decisions by the lower courts.