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American Farm Bureau Fed'n v. Block

ELR Citation: 14 ELR 20763
Nos. No. 80-5070, (D.S.D., 03/12/1984) Summary judgment on damages

The court holds that the federal government is not liable to plaintiffs for its alleged failure to control black-tailed prairie dog populations. The court first holds that it is without subject matter jurisdiction over the counts involving claims for money damages against federal defendants in their official capacities because those defendants are protected by sovereign immunity. Plaintiffs failed to plead or fulfill the requirements of the Federal Tort Claims Act by which they might have overcome the sovereign immunity defense.The court proceeds to reject plaintiffs' taking claim. First, a mere tortious invasion of property is insufficient to work a taking. Second, the government has not reduced the ferae naturae prairie dog to ownership by skillful capture or any other affirmative action. As to plaintiffs' claims that federal defendants violated eight federal statutes, the court holds that, though the Tucker Act might have provided a waiver of sovereign immunity, none of the statutes involved expressly provide a substantive, private right to recover money damages. The court can find no reason to imply a private right-of-action. Finally, the claims seeking damages from government officials in their individual capacities for negligence and nuisance torts fail for three reasons: plaintiffs failed to allege diversity jurisdiction; the prairie dogs were not reduced to the defendants' possession; and none of the federal statutes creates a private right-of-action.

[A second opinion in the case appears at 14 ELR 20765.]

Counsel for Plaintiffs
Gary G. Colbath
Banks & Johnson
3202 W. Main St., Rapid City SD 57701
(605) 348-7300

Richard L. Krause
American Farm Bureau Federation
225 Touhy Ave., Park Ridge IL 60068
(312) 399-5700

Counsel for Defendants
Philip N. Hogen, U.S. Attorney; Reed Rasmussen
P.O. Box 1073, Sioux Falls SD 57101
(605) 336-2980, ext. 395

Donald A. Carr
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7352