RMAD Lawsuit Challenges Colorado Wildlife Agency Inaction

Colorado voters passed a law in 1996 - known as Amendment 14, or the
anti-trapping initiative - which generally prohibits the killing of most of
Colorado's wildlife by trapping or poisoning. RMAD contends that, by allowing poisoners to indiscriminately poison prairie dogs burrows, the Colorado Division of Wildlife and the state government are failing to protect species as required by the state's constitution, specifically Amendment 14. Whereas prairie dogs are not protected by Amendment 14, scores of species found in and around prairie dog burrows are.

***UPDATE***

DENVER: The Colorado Court of Appeals on March 25, 2004, ruled against Rocky Mountain Animal Defense (RMAD)’s appeal in the organization’s lawsuit against the State of Colorado. The appeal centered on a district court ruling that Amendment 14 permits the "incidental" poisoning of any wildlife, notwithstanding Amendment 14’s ban against such poisoning. The court of appeals agreed with the district court, holding that so long as a person "intends" only to poison prairie dogs, the "incidental" poisoning of other wildlife is not prohibited by Amendment 14.

In the district court ruling, Judge Frank Dubofsky sharply criticized the Colorado Division of Wildlife and Department of Agriculture, ruling that,
even allowing for incidental poisoning, the poisoning of prairie dog
colonies was resulting in the violation of Amendment 14, because the
widespread poisoning of other wildlife in prairie dog burrows could not be considered "incidental." The district court suggested methods of minimizing the killing of other species during prairie dog poisonings, but declined to require that the state agencies comply with any of the methods. RMAD appealed the district court’s interpretation of Amendment 14 and the court’s ruling declining to require state agencies to take action to prevent the violation of Amendment 14.

The Court of Appeals affirmed the district court’s ruling in all respects. Like the district court, the appeals court rejected the state’s argument that RMAD lacked standing, a legal doctrine requiring that a plaintiff has
suffered injury as a precondition to bringing a lawsuit. The appellate court
ruled that Colorado citizens must have intended to permit "incidental"
poisoning when it made an exception permitting the poisoning of certain
rodents. It declined to address the district court’s conclusion that the
widespread poisoning of non-rodent wildlife was not "incidental" and
therefore was a violation of Amendment 14. Essentially, the state was given a green light to proceed with business as usual, doing virtually nothing to minimize injury and death to wildlife when prairie dog burrows are poisoned.

RMAD is appealing the decision to the Colorado Supreme Court.

January 14, 2002

A Win for the Animals, But True Protection Not Forthcoming

Colorado District Court Judge Frank Dubofsky issued an opinion today in Rocky Mountain Animal Defense v. Colorado Division of Wildlife et al. stating that the defendants have “done little to ensure that only the incidental taking of protected species occurs” when prairie dog burrows are poisoned.

Amendment 14 is an initiative passed in 1996 by Colorado voters, which outlawed the trapping and poisoning of most Colorado wildlife species. Although the Amendment’s protections do not apply to prairie dogs, they do apply to salamanders, snakes, rabbits, badgers, and other animals that inhabit prairie dog burrows. RMAD asserted that the poisoning of prairie dog burrows kills these members of these species, and is therefore in violation of the state’s constitution. We claimed that the DOW, the state Department of Agriculture, and Governor Bill Owens were shirking their constitutional responsibilities by not enforcing Amendment 14 when prairie dog burrows are poisoned.

In his ruling, the judge said “poisoners have had a virtual carte blanche to poison colonies irrespective of the evidence of the presence of protected species.”

The judge estimates that upward of 10,000 such exterminations have occurred since the Amendment was passed in 1996. And not one ticket has been issued for an illegal taking during any of these poisonings. According to the judge: “Defendant (DOW) law enforcement officers are not adequately trained in prairie dog colony biology. Their lack of training, understanding and involvement in protecting protected species is reflected through their collective failure to issue one citation for an illegal incidental taking.”

The judge, however, determined that incidental taking is permitted under the law. (The law makes no mention of this, and it was a point of issue in the case.) We intend to appeal this portion of his decision.

Further, the judge declined to mandate any corrective actions for the defendants. He said they should develop a better protocol for determining the presence of protected species; they should monitor poisoners’ observations and investigations; and they should in their discussions with prospective poisoners thoroughly explain and explore relocation alternatives to poisoning. But he didn’t say they “must”.

So, whereas we do expect the DOW and Dept. of Ag to take some steps to minimize the “taking” of protected species, we won’t get a ban or even concrete limitations on the use of poison fumigants, which is what we wanted and what we feel the law prescribes.

Mark it in the win column, but as our attorney Ty Gee says, “Put an asterisk next to it.”

Thanks to Ty and to our other attorney Jen Melton for their incredibly hard work in this case. They spent many long hours and late nights filing motions, interviewing witnesses, researching boxes full of documents, etc. And thanks to Ty’s firm - Haddon, Morgan, and Foreman - and to Jennifer’s firm - Stiner, Beck, and Jonson – for their indulgence with these attorneys’ pro bono efforts. Ty and Jennifer have both already committed to our appeal!

Thanks, too, to the Animal Legal Defense Fund (http://www.aldf.org) and to Bob and Elissa Angell for their financial support of this effort. (Copying costs alone are staggering.) ALDF also provided substantial legal assistance in the person of Nancy Brown Kobil, who flew in several times from the East Coast and made a substantial contribution to our efforts. And thanks to Nicole Rosmarino for working with Ty and Jen, poring over documents and exploring legal angles that indeed made the difference in this case.

And thanks to everyone who testified or otherwise supported this lawsuit.


March 14, 2000
Contact: Jennifer Melton, atty. 303.278.3078

ROCKY MOUNTAIN ANIMAL DEFENSE SUES STATE OVER PRAIRIE DOG POISONINGS

ROCKY MOUNTAIN ANIMAL DEFENSE SUES STATE OVER PRAIRIE DOG POISONINGS March 14--Boulder, CO. Rocky Mountain Animal Defense (RMAD) filed suit against the State of Colorado last Wednesday for failing to prevent prairie dog colonies from being poisoned. The suit was filed in Boulder County District Court and included a request for a temporary restraining order (TRO), aimed at preventing state wildlife officials from continuing to refuse to enforce the state-wide ban on poisoning. The TRO was not granted but the case was set for trial in late March.

In a 400-page complaint, RMAD names Colorado Division of Wildlife (DOW), Colorado Department of Agriculture, Colorado Department of Natural Resources, Colorado Wildlife Commission, and Governor Bill Owens as defendants. It charges that these agencies and officials have failed, and even refused, to enforce Article XVIII, section 12 (b) of the Colorado Constitution, which prohibits the indiscriminate poisoning of wildlife. This constitutional amendment, passed by Colorado voters in 1996, prohibits the use of steel-jaw leghold traps, body-snare gripping devices, and poisons to kill wildlife. Although prairie dogs themselves are not protected under the amendment, many of the animals who inhabit prairie dog burrows, and are killed when prairie dog colonies are poisoned, are protected under this law. Those protected animals-including cottontail rabbits, bull snakes, weasels, badgers, foxes and others-are being poisoned illegally, according to RMAD.

Citing a lack of time, District Court Judge Morris Sandstead ruled that he could not enter a TRO because RMAD's complaint contained such "hard-hitting" and "weighty" issues, and "cutting-edge" legal theories. Sandstead insisted that the case be immediately set for trial, over the objection of the DOW, represented by the State Attorney General's office, who requested a dismissal of the case.The defendants alleged that RMAD did not have standing to pursue the lawsuit, but the judge declined to rule on that matter before a complete trial could be heard. A trial on whether or not the State of Colorado should enforce the law regarding illegal poisonings of wildlife is expected to be held in late March. If RMAD is successful, a preliminary injunction forcing the State to uphold this constitutional provision will be ordered. This order has the potential of effectively halting prairie dog poisonings across the state.

Bettina Rosmarino, RMAD's prairie dog program coordinator, states: "The State of Colorado has shown a continued refusal to adequately protect the prairie dog ecosystem. Species protected by constitutional amendment who use prairie dog burrows are consequently robbed of much needed protection. We demand that the DOW and other agencies and state officials enforce the law, even if that means confronting powerful economic interests."

"Despite our repeated requests, the DOW and the State of Colorado have turned a blind eye to the illegal poisonings taking place on a weekly basis. Protected animals are being poisoned, and it is the DOW's duty to make sure that doesn't happen," states Nicole Rosmarino, RMAD's wildlife coordinator. "We would guess that if a popular hunting species such as elk were being gunned down illegally, the DOW would act."

Rocky Mountain Animal Defense is a non-profit Colorado organization whose mission is to help eliminate the human-imposed suffering of animals in the Rocky Mountain region.

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