The federal government may try to regulate the Lesser Prairie Chicken in Kansas.

Kansas lawmakers will consider a bill to keep that from happening, setting up a possible game of chicken between Topeka and D.C.

Committees can introduce legislation in Kansas. On Jan. 16, the Senate Committee on Federal and State Affairs introduced SB276. The House Committee on Agriculture and Natural Resources introduced an identical measure (HB2499) the following week. The legislation builds upon a Tenth Amendment argument asserting the federal government has no constitutional grounds to regulate the birds.

The Lesser Prairie Chicken and the Greater Prairie Chicken are non-migratory species that are native to the grasslands of Kansas. Members of such species that exist in the state live their entire lives within the borders of Kansas. The Lesser Prairie Chicken and the greater prairie chicken do not inhabit or swim in any static bodies of water, navigable waterways or non-navigable waterways.The existence and management of the Lesser Prairie Chicken and the Greater Prairie Chicken do not have a substantial effect on commerce among the states.

The bill then declares all federal attempts to regulate the Lesser Prairie Chicken, the Greater Prairie Chicken, the habitats of the birds or farming practices that impact the birds “null, void and unenforceable within the state.”

The legislation does not stop at making a proclamation. It prohibits any agency or employee of Kansas from enforcing a federal law regulating Prairie Chickens, and criminalizes federal enforcement.

It is unlawful for any official, agent or employee of the government of the United States, or employee of a corporation providing services to the government of the United States to enforce or attempt to enforce any federal law, treaty, regulation or executive action that specifically regulates the following within the state…”

Federal agents violating the law would be subject to level 10 nonperson felony charges. Prosecutors would pursue charges through a summons, avoiding putting state or local law enforcement officers in the position of having to arrest federal agents.

All of this raises an interesting question. Why in the world do the feds want to regulate Lesser Prairie Chickens in Kansas?

The Basehor Sentinel reports that the U.S. Department of Fish and Wildlife claims conversion of grassland to farmland has reduced the historic range of the Lesser Prairie Chicken some 80 percent.

The decline of the Lesser Prairie Chicken sends a signal that native grasslands are in trouble. By taking actions to conserve the species, we can also restore the health of our native grasslands that support local economies and communities in addition to migratory birds and other wildlife.

The agency is reportedly considering declaring the bird a threatened species under the Endangered Species Act. Agriculture and energy interests said federal regulation would have a devastating impact on the economy of western Kansas. Ironically, it would likely limit another popular environmental initiative, restricting placement of wind turbines for power generation.

The Greater Prairie Chicken is not considered threatened at this time, but state lawmakers included the bird in the bill to cover future contingencies.

Kansas Secretary of State Kris Kobach testified in front of the Senate Natural Resources Committee in support of the bill. He said he was testifying as a former constitutional lawyer, not as secretary of state.

“This is a fight worth fighting,” he said. “There is nothing in the Constitution that mentions the federal regulation of species.”

The federal government would certainly challenge any criminal charge against a federal agent, and in today’s legal environment, the state would have a tough time prevailing, despite the fact it stands on indisputable constitutional ground. But state refusal to help the feds enforce any regulations could prove much more effective. The feds always depend on state agents to do their dirty work. Refusing to cooperate could effectively nullify the federal regulation.

This debate exemplifies just how far reaching the long arm of Washington D.C. has become. In another time, suggesting that bureaucrats more than 1,000 miles away should regulate a bird that remains within the borders of a state would have produced howls of laughter. Today, this counts as business as usual.

People in Kansas should make decisions about issues that only impact Kansans. That was the intended structure of the American system. James Madison laid it out in Federalist 45.

The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State.

Clearly, regulating Lesser and Greater Prairie Chickens fall under that category.

Mike Maharrey

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