A federal judge again dismissed a lawsuit against the U.S. Department of Agriculture in which plaintiffs alleged the government acted unlawfully by exterminating prairie dogs in urban areas.

Prairie Protection Colorado and prairie dog advocate Michaela Hinerman sued the USDA’s Wildlife Services program based on three agreements it entered into for prairie dog “management activities” in Castle Rock, Colorado Springs and Pueblo. The plaintiffs argued Congress has not authorized Wildlife Services to undertake prairie dog killings in urban areas and sought a court order blocking similar efforts in the future.

On Dec. 13, U.S. District Court Judge William J. Martínez dismissed the lawsuit, concluding the plaintiffs had not shown they were about to suffer near-certain injury from the government’s actions and they lacked standing to sue. Moreover, the federal law they claimed USDA violated was not, Martínez determined, intended to protect wildlife.

“It is, rather, an authorization to ‘control’ – in most cases, a euphemism for ‘kill’ – ‘nuisance mammals and birds,'” Martínez pointed out in his order.

Prairie Protection Colorado advocates for the conservation of prairie ecosystems, and also for prairie dogs. In its lawsuit, the group described its goal of preventing Wildlife Services from using “lethal and inhumane methods of wildlife demand management.” It also recited statistics showing Wildlife Services kills more than one million animals annually – 1.75 million specifically, according to the program’s 2021 report.

The plaintiffs raised three agreements Wildlife Services entered into with the town of Castle Rock, Colorado Springs Utilities and the U.S. Fish and Wildlife Service in Pueblo. With an estimated total cost of $105,000, Wildlife Services would conduct “management activities” on prairie dogs through the “application of pesticides.” In addition to altering the ecosystem and posing a danger to other animals, the plaintiffs claimed the government’s techniques violated a provision of the federal Animal Damage Control Act.

The agriculture department is authorized, the law states, to enter into agreements for the control of nuisance mammals and birds, “except for urban rodent control.”

Consequently, the parties disputed the meaning of “urban rodent control.” The government argued it refers to rats and mice, such that the USDA is not competing with private pest control companies in cities.

“Had Congress intended the term to literally encompass all rodents that happen to be living in an urban area, as plaintiffs suggest, it would have made clear that ‘urban’ was modifying where the ‘control’ could take place (i.e., ‘rodent control in urban areas’), not the type of rodent,” wrote Assistant U.S. Attorney Laura Ellis.

“The ordinary and plain meaning of urban is a city; the ordinary and plain meaning of rodent is an order of mammals that are small in size and gnaw with prominent incisors but no canine teeth; and the ordinary and plain meaning of control is to exercise restraint or direction over or to hold in check,” countered lawyer Michael M. Frandina for the plaintiffs. “When those common terms are used together, the result plainly describes management of a rodent within a city.”

Prairie Protection Colorado previously filed another lawsuit in federal court for similar prairie dog extermination in Commerce City. Martínez also handled that case and found that, regardless of the meaning, Congress was not trying to protect “urban rodents” with the law’s exception. 

The exception was “meant to avoid usurping business opportunities for private exterminators,” he wrote in 2019.

In the plaintiffs’ current lawsuit against the USDA, Martínez first found they lacked standing to sue. Although Hinerman alleged the three prairie dog extermination agreements injured her because she unfairly competes against the lower-cost Wildlife Services for “prairie dog relocation work,” Martínez saw no allegations in the lawsuit that Hinerman actually provides the services outlined in the agreements.

“Plaintiffs also fail to allege that Hinerman … competed with Wildlife Services in the past or imminently will compete with it to perform the full range of work that a future entity seeking to manage prairie dog damage may wish to hire,” he wrote.

Further, the plaintiffs did not fall under the “zone of interests” the Animal Damage Control Act protects. While the plaintiffs wanted Martínez to declare the USDA abused its authority by implementing the agreements to kill prairie dogs, the goal of the act “was something other than protecting rats, mice, and other urban rodents,” the judge concluded.

Hinerman and the plaintiffs’ attorney did not immediately respond to a request for comment. At the time of the prior lawsuit involving Commerce City, FOX31 profiled Hinerman as she discarded poisoned prairie dog carcasses left over from Wildlife Services’ operation.

“It’s very painful. Anything that eats those animals – the prairie dogs – will also suffer the same horrific death,” she said.

The case is Prairie Protection Colorado et al. v. USDA APHIS Wildlife Services et al.