Zimmer, Duncan & Cole

Court Gives Prairie Dogs "Royal" Treatment

A group of ranchers sued the State of South Dakota for failing to control prairie dog incursions from neighboring, public lands. The State didn’t dispute that populations have risen above nuisance levels.  Instead, it argued that the State and its employees were “immune” from being sued. Our state Supreme Court addressed this dispute in William Adrian, et al v. Jeff Vonk, Secretary of the Department of Game, Fish & Parks, et al (2011 S.D. 84).   

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There’s not a lot of middle ground when it comes to prairie dogs.  They are regularly championed by environmentalists but utterly despised by ranchers. Adoring school children write reports extolling their sociability and intelligence.  Rifle enthusiasts use them for target practice at 400 yards.

At the root of the struggle between these ground squirrels and their human counterparts is a common trait:  the ability to establish permanent settlements and towns. A prairie dog “family” includes a handful of adults and their young in a thirty-foot long burrow.  Groups of these burrows are interconnected by a complex network of tunnels and mounds. Commonly, a “town” of several hundred prairie dogs will occupy half a square mile.  Some communities grow much larger, many miles in length, teaming with tens of thousands of cute, furry citizens/outlaws. In South Dakota, prairie dogs occupy almost a thousand square miles, including large swaths of public grasslands.  Their sprawling settlements often spill beyond those unmarked borders. Neighboring ranchers protest these incursions.  Prairie dogs denude the surrounding vegetation and greatly alter the landscape.  They are vectors for the bubonic plague.  (It is also alleged that unsuspecting cattle can break their legs by stepping in a prairie dog hole, though some suggest this is a myth.) Whether their menace is fact or fiction, a massive war was waged to eradicate them.  It nearly succeeded.  Within a hundred-year’s time, America’s prairie dog population was curbed by as much as ninety-eight percent. When prairie dogs faced possible extinction, the government’s goal turned from eradication to management.  A patchwork of state and federal laws highlight the delicate balancing act.

In 2001, our Legislature removed the prairie dog from a list of “pests” and instructed the state agencies to prevent the prairie dog from being listed an endangered species.  The agencies are supposed to foster prairie dog communities on public land, but the State is authorized to compensate landowners for lost income caused by further encroachments onto private lands. Meanwhile, ranchers are given the right to sue neighboring landowners who fail to control their prairie dog populations. Relying on all of these laws, three dozen ranchers joined together in a suit against the state’s Departments of Agriculture and Game, Fish & Parks.  They asked for money damages, alleging that the State had failed to enforce its regulations and that it had been a bad neighbor by failing to control its prairie dog populations. The State agencies argued that they were protected from such a suit by the doctrine of sovereign immunity.

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The rule of sovereign immunity traces its roots to the feudal times.  It is often encapsulated in the phrase, “The King can do no wrong.” It was commonly believed and claimed that a monarch’s power derived from God:  therefore, the exercise of this royal power was not open to challenge. Since kings and queens were above the law, it seemed a logical argument that the Crown could not be sued by its own subjects, in the very courts the Crown had created. This harsh rule was not without its critics, and it has been softened over time.  However, it remains a central feature of many democratic governments.

South Dakota’s constitution says that the State cannot be sued unless the Legislature explicitly gives permission. It has done this on a number of occasions, including the establishment of the PEPL fund in 1986.  This state program serves the same role as insurance, providing a source of payments for those injured in accidents caused by state employees.  By law, those victims are expressly allowed to sue the State.

In the case of prairie dogs, however, the Legislature has not been as clear.  Although one of our state statutes establishes a fund to pay ranchers affected by prairie dog incursions, there isn’t any specific language setting rates or allowing ranchers to enforce them. Similarly, the statute allowing ranchers to sue their neighbors for nuisances doesn’t contain the magic words that explain “in what manner and in what court suit may be brought against the State.”  The absence of this kind of language means those suits are only permitted against private landowners, not the State.

The Court ruled, therefore, that the State is immune from liability here and dismissed the ranchers’ claims.