Prairie dog case takes center stage as Supreme Court begins three days of arguments in MitchellDozens of ranchers asked the South Dakota Supreme Court on Monday in Mitchell to reinstate their lawsuit seeking state compensation for damage from prairie dogs.
By: Anna Jauhola, The Daily Republic
Dozens of ranchers asked the South Dakota Supreme Court on Monday in Mitchell to reinstate their lawsuit seeking state compensation for damage from prairie dogs.
The case was one of three heard by the South Dakota Supreme Court during the first of three days of oral arguments in the Sherman Center on the Dakota Wesleyan University campus. The court travels around the state each year to hear arguments and allow the public better access to its proceedings.
Several ranchers and families in western South Dakota brought a lawsuit against the state in 2005 for the destruction prairie dogs caused to farm and pasture land.
The court heard the ranchers’ appeal Monday, which came on the heels of Circuit Judge Janine Kern vacating former Circuit Judge A.P. Fuller’s original decision in favor of the ranchers.
Fuller said the state was required to control the prairie dogs and a trial could be held to determine ranchers’ financial damages.
The state Supreme Court refused to hear the state’s appeal of that decision, and the case was sent back to the circuit court to determine financial damages.
But Fuller was no longer on the bench, so the case was assigned to Kern, who dismissed the lawsuit after determining Fuller had not given enough attention to the state’s argument it was immune from lawsuits.
Jim Hurley, of Rapid City, attorney for the ranchers, said the damage caused loss of crops, pasture land and finances.
“They need grass and crops and pasture land to make a living,” Hurley said.
The ranchers live in an area around the Buffalo Gap National Grasslands and graze cattle on private land and pastures leased from the federal government.
The prairie dog population expanded after controls were relaxed with the reintroduction of black-footed ferrets, a prairie dog-eating species once thought extinct.
The area was chosen to reintroduce ferrets because it had a substantial prairie dog population.
Also, poisoning was restricted while federal officials considered listing prairie dogs as endangered or threatened. They eventually decided against listing the black-tailed prairie dog as endangered or threatened because the animals showed signs of rebounding from earlier population declines.
Hurley said prairie dogs have encroached on privately owned land from state land, and the animals have inflicted extensive damage causing ranchers to rent acres to make up for lost use of their own.
“This is awful. It’s a financial disaster,” Hurley said.
Hurley argued the state failed to properly control prairie dogs, allowing them to roam onto private lands and cause damage. He said land prairie dogs have ruined is not only affecting the ranchers, but public entities as well.
In many areas, plants disappeared from acres of land, causing dirt to fill ditches, drift over roadways and forcing one county to reduce real estate taxes because some land was no longer useable.
Hurley argued that the state has several options to control the prairie dog population, including the use of an animal damage control fund and reintroduction of the black-footed ferret.
When the federal government reintroduced the ferrets, the South Dakota Legislature passed a law requiring that prairie dogs be limited to the 6,180 acres set in a federal management plan for the Conata Basin and the national grasslands, Hurley said. The law also said if more land was needed for prairie dogs, the state had to compensate landowners for their losses.
Other laws require state officials to use money from the state’s Animal Damage Control Fund, which is supported by money from state and counties, to control prairie dogs that have spread from public to private lands.
“There is a lot of money in the fund,” Hurley said. “We ask the statutes be enforced.”
Defense attorney Douglas Abraham said control of prairie dogs can come from the fund, but compensation for damage caused by the animals cannot.
“There is no state liability for damage caused by wild animals,” he said.
Abraham argued the circuit court’s decision was correct and “saved both sides a substantial amount of resources and time.” He added that the money from the Animal Control Fund is used at the state’s discretion because the money is also used to control coyotes and other nuisance animals.
Hurley disagreed, saying his clients’ case deals with specific statutes regarding prairie dogs and how their populations should be controlled.
“There is no discretion here. You have to control prairie dogs,” Hurley said.
Supreme Court Chief Justice David Gilbertson said the court will resolve the issue by a written decision at some time in the future. The decision will appear on the court’s website 24 hours after the court finalizes its decision.
In other cases heard Monday:
• Christopher “Brian” Fisher appealed a jury decision on his guilt in the death of his girlfriend’s 16-month-old son. Fisher was found guilty of manslaughter and sentenced to 60 years in the state prison.
Fisher raised the issues of whether a confession during an interrogation was voluntary, whether redacted video information was prejudicial and whether a pediatrician was qualified to testify about abusive head trauma.
The child was found to have died of blunt force trauma on Nov. 27, 2008, in Sioux Falls.
Shortly after the child was pronounced dead, Fisher was taken into custody, interrogated for 6.5 hours and, after a detective handed him a doll, he admitted to shaking the child.
Nicole Laughlin, Fisher’s attorney, argued that the detective pushed Fisher to agree with him.
Matt Roby, assistant attorney general, said Fisher had been read his Miranda rights twice, was old enough and had sufficient intelligence to realize his situation. He said Fisher was not so overwhelmed during the interrogation that he made a confession.
The interrogation was recorded and shown to the jury during Fisher’s trial. While the court allowed the video at trial with the image of the doll redacted, Laughlin said this was overly prejudicial. She said Fisher’s actions and the environment were not the same when shaking a 9-ounce doll compared to how he might have shaken a 26-pound toddler.
“From the state’s point of view, it was beneficial from both sides to let the jury see him shaking the redacted doll,” Roby said. “I could have told the jury he shook the child violently, then the jury could speculate it was more violent than was done.”
Laughlin also said the court erred in allowing Dr. Nancy Free, a pediatrician, to testify. She said Free is not qualified to testify to abusive head trauma and had no basis for giving her opinion. She said the two forensic pathologists who testified could not give a conclusive report as to how the child died other than blunt force trauma.
Roby said Free had 20 years in pediatrics, served several years as a child advocate and indicated the child’s injuries matched with nothing else but abusive trauma.
• Dr. Kevin Ronan appealed the decision of a 2010 case against Sanford Health and doctors employed by the company.
Ronan and his wife, Patricia, of Sioux Falls, sued Sanford Health for negligence in a timely diagnosis of cocci, or Valley Fever, in Ronan.
The Ronans entered an appeal because evidence of a meeting between them and Sanford Health employees was not allowed in trial and the trial court did not allow the impeachment of an expert witness.
In September 2006, the Ronans met with the chief operations officer and risk manager of Sanford. Patricia Ronan kept notes that stated both officials apologized for issues regarding Kevin Ronan’s treatment. The notes also included statements like, “We let you down. We failed you. Dr. Hruby got everything off on the wrong track and it snowballed from there.”
Michael Henderson, the Ronans’ attorney, said these did not come into trial, but were placed into the court as a supplement. He said the statements were more than apologies and should have been allowed as evidence of the companies’ and its employees’ negligence.
As for impeaching Dr. John Galgiani, Reed Rasmussen, attorney for Sanford, said Galgiani was not associated with Ronan other than canceling an appointment with him. Galgiani testified about cocci in general, that steroids didn’t cause the issue and symptoms Ronan suffered were not consistent with cocci.
— The Associated Press’ Chet
Brokaw contributed to this
South Dakota Supreme Court Chief Justice David Gilbertson, left, and Justice John Konenkamp listen to attorney Michael Henderson as he makes his appeal in the case Kevin Ronan and Patricia Ronan v. Sanford Health on Monday morning at the Sherman Center on Dakota Wesleyan University’s campus.
Attorney Nicole Laughlin makes her appeal to the South Dakota Supreme Court during the case State v. Fisher on Monday in Mitchell. The Sherman Center was filled with a large number of college and high school students who came to hear arguments before the Supreme Court.