THAD ALLTON/THE CAPITAL-JOURNAL
A display showing the lesser prairie chicken stands in
the hallway on the second floor of the Kansas statehouse.
By Andy Marso
Topeka Capital-Journal
The U.S. Fish and Wildlife Service's decision to list the lesser prairie chicken as "threatened" spurred House members to act Tuesday, passing a Senate bill telling the feds to back off.
Rep. Sharon Schwartz said the listing, which also caused Gov. Sam Brownback to announce the state will join an Oklahoma lawsuit against the federal action, led her to bring Senate Bill 276 back to the House Agriculture and Natural Resources Committee she chairs.
“If this branch of government wants to have a position on this issue, this is our opportunity,” Schwartz said.
Prairie chicken numbers in their five-state range have dropped from almost 100,000 in 2001 to about 17,500 last year. ButKansas is working with the other four states on a regional conservation plan and had asked the U.S. Fish and Wildlife Service to go along with that.
In rendering the decision to list the bird as threatened, the service said it had carefully weighed those requests against the concerns of environmentalists who said the only way to prevent the species extinction would be to give it the more stringent "endangered" label.
Ron Klataske, executive director of Audobon Kansas, said the state had lost conservationists' trust with half-hearted attempts to stem the declines of species like whooping cranes, black-tailed prairie dogs and black-footed ferrets.
"Unfortunately the state of Kansas is threatening to discard sound science and imperiled species, and its own credibility," Klataske said.
The fish and wildlife service said that in writing its protection rules for the lesser prairie chicken under the threatened designation it would give "unprecedented" deference to the regional five-state plan.
The protection rules haven’t yet been published, but Schwartz echoed dire predictions by Brownback and Kansas Department of Wildlife, Parks and Tourism Secretary Robin Jennison.
"It's going to be devastating to western Kansas," Schwartz said.
Still, Schwartz moved to soften the bill, offering an amendment.
As brought by Secretary of State Kris Kobach and passed by the Senate 30-10, the original bill would have made it a felony for a federal agent to regulate lesser and greater prairie chickens within Kansas.
Schwartz' amendment, adopted by the committee, would decriminalize the actions of federal wildlife agents performing their job duties, while still offering the opportunity to petition courts to stop them.
Rep. Tom Moxley, R-Council Grove, said the bill still runs a strong risk of embroiling the state in a lawsuit that it will be unlikely to win because court precedents have frequently affirmed that federal law trumps state law when the two conflict.
“When it comes to the supremacy clause, it’s been successful to challenge that one or two times in history," Moxley said. "And how many times was it tested? Thousands.”
Rep. Ed Trimmer, D-Winfield, questioned some of the language in the bill, but said he didn’t believe it would be relevant to the prairie chicken question in the end.
“This is going to end up in litigation anyway and the court’s going to make that determination,” Trimmer said.
Rep. Tom Sloan, R-Lawrence, called the bill "unnecessary" given the state's lawsuit with Oklahoma, but "much more palatable than the original version."
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