Judge Rules Oglebay Deer Hunt Can Proceed
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WHEELING -- Circuit Judge Jason Cuomo on Friday dismissed a petition filed by Wheeling residents seeking to prohibit Oglebay's urban deer hunt, stating the petitioners had no standing to bring the case.
This lack of standing stems from Cuomo's finding that attorney Teresa Toriseva, who is representing the petitioners, could not prove plaintiffs would suffer "sufficient, concrete and particularized injury" due to the culling. Without standing, the Court lacks the jurisdiction to preside over this case, requiring Cuomo to dismiss the case.
The judge concurred with Oglebay attorneys in his filing that plaintiffs "suffered no invasion of a concrete legally produced interest because they have no ownership interest in the deer and no legal right to prohibit hunting."
With Cuomo granting Oglebay attorneys' motion to dismiss Toriseva's case, the Nov. 6-8 urban deer hunt will occur at Oglebay.
The Wheeling Park Commission devised the culling in an effort to address what they found to be an overpopulation of deer at the park.
Toriseva's reasoning for canceling the culling was that Oglebay deer are part of public property that roam portions of Ohio County. In the original Oct. 3 petition filed to cancel the culling, the attorney outlined that Oglebay Park had created a problem of a tame, hand-fed deer herd by allowing locals and tourists to feed them.
Toriseva also took issue with defendants using deer as a "marketing tool to raise money."
Asking Cuomo for an injunction to prevent the culling, plaintiffs stated in the petition that the Wheeling Park Commission, which has authority over the park, "abused, usurped and exceeded its legitimate power to govern the Park" by ordering the hunt.
Toriseva's original filing and an amended petition filed on Oct. 6 set off legal sparring between the WPC, represented by the law firm of Phillips, Gardill, Kaiser & Almeyer, and Toriseva.
While a hearing had been set for Oct. 13, where Cuomo would decide whether the culling would take place, Oglebay attorneys filed a motion to continue the hearing, which Cuomo granted.
Defendants then filed to dismiss the case on Oct. 11, as they believed the petitioners lacked standing for the case, failed to add indispensable parties to the case and failed to state claims against Oglebay Park and Oglebay Foundation, Inc.
Cuomo granted this motion, finding petitioners "failed to identify or present" any specific claim or right to Oglebay's deer. By failing to establish their claim to the deer, Cuomo outlined that petitioners suffered no "concrete and particularized" injury to give the suit standing.
Cuomo went on to use the case State v. Humane Society of Raleigh County, Inc. as an example of a similar filing in which prosecutors did not prove standing.
The judge explained that in the case, the Humane Society could not prove "concrete and particularized injury" to prevent the euthanasia of a dog determined to be vicious as the organization could not demonstrate ownership of the dog in question.
In the case of the deer culling, Cuomo found petitioners also could not demonstrate "actual ownership" over Oglebay's deer.
The judge explained that simply being a patron, donor or contributor to Oglebay Park does not give someone a claim to the deer at the park sufficient to cancel a deer hunt at Oglebay.
"Such alleged generalized injuries are shared in common with not only every citizen of West Virginia who has or will visit Oglebay Park, but also every citizen anywhere in the world who has or will visit Oglebay Park," stated Cuomo. "This is far too generalized to constitute the specific type of injury contemplated by well-recognized jurisprudence on the issue of standing."
Cuomo added that the West Virginia Division of Natural Resources was "likely the only entity in this State" that would have the standing in a suit to stop a deer culling or enforce regulations to prevent deer from being improperly fed.
"Unfortunately for the petitioners, and despite the fact that the petitioners claim that the WV DNR has knowledge of the prospective deer culling, the WV DNR has yet to do so," stated Cuomo. "Whether the WV DNR actually believes it is not improper or illegal for the respondents to have this deer culling, this court cannot say."
Oglebay CEO Bob Peckenpaugh said the park would continue to work with the WV DNR leading up to the culling, adding that they appreciated the effort Cuomo put into researching the issue and the response that he gave on behalf of the situation.
On the continued public backlash surrounding the culling that has now taken the form of a recent change.org petition to cancel deer hunt with over a thousand signatures, Peckenpaugh said he had heard about the petition but "not seen anything" himself.
Regarding Cuomo's ruling, Toriseva said she is assessing the court's opinion and consulting with clients. She added she would release a statement Monday.
On what Oglebay's response would be if Toriseva would file anything new to prevent the culling, Peckenpaugh responded, "Anything that she wants to do from this point forward, we will take the same process and will respond appropriately."