WHEELING – Oglebay Park and Wheeling Park Commission officials have “consistently and repeatedly lied” about a planned deer hunt, according to an amended complaint by city residents who want to stop the hunt scheduled for next month.
The original petition was filed October 3 in Ohio Circuit Court, and the amended petition filed October 6 includes documents obtained in a Freedom of Information Act from the state Division of Natural Resources that show what the petition calls previously unknown “critical facts.”
On September 26, DNR Wildlife Biologist Thomas K. Pratt sent an email that said, “This is the only email communication that I have had with Oglebay. It is a draft of their rules that Oglebay put together and asked me to look over to which corrections had to be made and I was never sent a final copy. Not sure this fits what is asked for in the FOIA as no surveys, population estimates, nor permits were discussed or given.”
Toriseva
The plaintiffs say the defendants – Oglebay Park, the Oglebay Park Foundation and the Wheeling Park Commission – have incompletely communicated with the DNR by not submitting a final version of the rules to Pratt “leaving it with unanswered questions about Oglebay’s final rules of the hunt and deer populations.”
“The defendants have consistently and repeatedly lied in both their printed materials and lied to news outlets regarding the DNR has stated Oglebay Deer are ‘five times the regional average per square mile per reporting from West Virginia DNR,’” the amended complaint states, quoting the documents acquired under the FOIA. “The DNR did not conduct a population study, count or estimation of Oglebay Deer. There is no document from the DNR that states Oglebay Deer are overpopulated.
“The defendants baselessly invoked the authority of the DNR so completely that many news outlets believe they are truthfully reporting these facts. Hearing this repeated and relentless reporting, the public believes the DNR has counted the Oglebay Deer, found them to be overpopulated and because of that, authorized this hunt.”
The newly obtained documents also show that Oglebay Vice President of Sales and Marketing Herb Faulkenberry asked DNR Law Enforcement Sgt. Steve Himmelrick if it was “illegal” to “move” deer to another part of the state. Himmelrick confirmed that it is illegal to do so without prior approval of the DNR.
“The defendants continued to lie (and still do to this day) to the public in its marketing materials promoting the hunt that relocating deer was against West Virginia state law,” the amended petition states. “Relocating is permissible with DNR approval, but the defendants did not seek any such approval.”
It also says there is no document from the DNR that states Oglebay Deer are diseased. It also says if the defendants suspect Oglebay Deer are damaging flora and fauna on Park property, West Virginia law provides a solution for the owners of the property to filed a damage report with the DNR, which would then investigate and possibly issue a permit for the owner to kill one or more deer.
“The FOIA results indicate the defendants never reported damage to ‘cultivated crops, fruit trees, commercial nurseries, homeowners' trees, shrubbery or vegetable gardens’ to the DNR,” the amended petition states. “The DNR, therefore, did not investigate alleged damage to flora and/or fauna at Oglebay or Oglebay Deer.
“The DNR has not authorized the Oglebay Urban Deer Hunt scheduled for November 6-8, 2023.”
Oglebay issued a statement in response to the petition.
"Currently, our team is reviewing the legal filing and preparing to proceed with a thoughtful and appropriate course of action that best fits with the needs of our park and local community," Oglebay said in the statement. "Accordingly, we are proud to say that the scheduled hunt is part of a much larger environmental sustainability and wildlife management plan that we started back in 2017, and look forward to continuing to sustain the greater ecosystem of the park."
Circuit Judge Jason Cuomo already has scheduled a hearing in the case for October 13. But later on October 6, attorneys for the defendants filed a motion to continue the hearing because Oglebay Park CEO Robert Peckenpaugh is scheduled to be out of town that day on a personal matter and because Oglebay Park Foundation Preident and CEO Eriks Janelsins will be traveling back from a family funeral that day as well.
“Hunting on public land is illegal in West Virginia,” Wheeling attorney Teresa Toriseva told The West Virginia Record after filing the amended petition on behalf of the residents. “Contrary to what Oglebay has stated publicly and repeatedly, the West Virginia Division of Natural Resources has not permitted or approved this hunt. Worse than that, DNR did not do population studies in Oglebay and weren’t asked to do so.
“This hunt must be cancelled. Oglebay belongs to us all.”
She said the community is outraged about the planned hunt and wants Oglebay to “follow the law.”
“Instead of looking for non-lethal alternatives to a problem of their own making, Oglebay Park and the Wheeling Park Commission are spending $41,000 on a public relations firm to handle the bad press. Other options were not seriously investigated,” she told The Record.
Toriseva said Oglebay also misrepresented details of the hunt and used marketing as science.
“For example, there is no study showing the deer population is five times that of West Virginia, as they have claimed in their expensive marketing ‘information sheets,’” she told The Record. “There is a survey from 2017, producing an estimate based on two rides through the park counting congregations of deer and then assuming that the population is similarly dense over 2,000 acres.
“Further, if the herd is sick or diseased, how does shooting the healthy and the trophy bucks help cure that problem?”
Toriseva said the planned hunt isn’t the answer to the problem.
“Oglebay must stop the persistent, illegal hand feeding of wildlife in a public park and then do an actual scientific study and then come up with a plan that isn’t based on PR spin,” she said. “That would be money well spent.
“What they are doing won’t solve the problem, will forever change the nature of Oglebay Park, and is only even being considered because of their own negligent wildlife management.”
In the 16-page filing, the plaintiffs seek a writ of prohibition and a petition for injunctive relief to stop the deer hunt scheduled for November 6-8. They also seek to stop the defendants’ hand feeding and taming of the deer.
The filing also includes more than 300 pages of exhibits, including Freedom of Information Act responses from state and local officials.
It also says Dr. Karl Yurko, a Wheeling veterinarian whose animal hospital borders Oglebay Park, has reviewed the facts of the case and agrees the hunt is, at minimum, premature. It also says he will testify as an expert if needed.
“This lawsuit is not about stopping the hunting of wild animals in West Virginia,” the complaint states. “Hunting in West Virginia is a respected and time-honored tradition that holds a special place in the history and culture of the Mountain State. This lawsuit makes no attempt to stop the hunting of wild animals in West Virginia, nor does it attempt to stop all future public hunts at Oglebay.
“This lawsuit is about a beloved local, municipal park resorting to a public hunt of a tame deer herd within the park boundaries when the park executives have no scientific basis for the perceived overpopulation of deer, have made no attempts to stop the reason the deer are tame, and have marketed and benefitted from the hand-feeding of the deer herd.
“Both baiting and hand-feeding are illegal on public land in West Virginia to prevent the very problem created here.”
The filing goes on to say the defendants have created the problem of a tame, hand-fed deer herd.
“Oglebay Deer have been hand-fed by both locals and tourists who stay at Oglebay for generations of deer,” it states. “As a result, Oglebay Deer have become tame.”
The plaintiffs also note that it is illegal to bait or feed any wildlife on public land at any time, but they say the defendants have created “a sanctuary like setting for wildlife, including white-tailed deer, while knowing that hand-feeding deer is against West Virginia law.”
“Oglebay Deer can be seen on any given day congregating at the Oglebay Park sites where they have been trained to know they are most likely to be hand-fed,” the filing states. “The Oglebay Foundation uses these tame deer as marketing for the Park and for its encouragement for donors to give money to the Park.
“The Foundation calls Oglebay Deer ‘special’ and encourages you to make memories that include guests being near Oglebay Deer.”
They also say the defendants waited years to do anything about the park’s deer issues, including documents from as early as 2016.
In 2021, a representative of the Good Zoo (in Oglebay Park) described the problem in an email as deer “damaging plants” and about “challenges with guests to the Park feeding the deer on the Park property.”
The plaintiffs also say the defendants could have stopped the illegal hand-feeding of deers in the park at any time.
“There has been no attempts at less violent and drastic measures to address any possible overpopulation,” the petition states. “There has been no scientific study regarding the number of and/or the health of Oglebay Deer.”
They also say there is no scientific basis to conclude there is an overpopulation of deer in the park despite claims that the herd is five times the regional average per square mile, which is based on West Virginia Division of Natural Resources reporting.
The only basis for that assertion, according to the petition, is a 2017 “survey” conducted by a West Virginia University Extension Wildlife Specialist Sheldon Owen.
“This ‘survey’ consisted of driving determined routes within selected areas and visibility counting deer,’” the petition states. “‘The effective strip was 156 yards. … This survey was conducted in excess of six years ago and consisted of pre-determined routes and areas.
“This survey could show there may have been an over-congregation of deer in the 156 yards of sampled area of hand-feeding, but not necessarily an overpopulation throughout the entire 2,000 acres.”
The petition says the “junk survey” from 2017 produces an “estimate” based on two rides through the park counting congregation of deer and then assuming that the populations are similarly dense over 2,000 acres.
The plaintiffs also claim the Wheeling Park Commission knew there would be public backlash to the planned deer hunt even before it was announced. It hired Charleston-based public relations firm Orion Strategies to “manage the public outcry” and handle the public relations for the event before and after the hunt.
The total paid to Orion for the issue will be $41,000, according to Toriseva.
“The defendants did not spend these funds on enforcing the hand-feeding laws,” the petition states. “The defendants did not spend these funds on a current or comprehensive scientific study regarding the health and population of Oglebay Deer.
“The defendants have spent funds to publish a ‘Deer Management Plan’ in an effort to calm individuals who object to the intentional killing of Oglebay Deer.”
The petition says Orion Strategies created the Deer Management Plan, which the plaintiffs say is “dividing the community with half-truths and unsupported factual claims regarding the Oglebay Deer herd population.”
They say the plan misstates state code by saying transporting wildlife out of state is illegal, and it omits the act that hand-feeding is illegal under state code. It also falsely states Oglebay has a partnership with the Mountaineer Food Bank, according to the petition.
In addition, they say the plan has no solution for adjacent landowners when a deer injured in the hunt wanders onto their property.
“The Deer Management Plan makes no requirement of the hunters to kill sick or weak deer,” the petition states. “Hunters are permitted to take large, healthy, even trophy-sized specimens. The hunters certainly will do that and leave the sick and unhealthy deer which negates the asserted benefit of the hunt.
“In addition to using Oglebay Deer as a marketing tool, the defendants are charging $25 per hunter per day to participate in the Urban Deer Hunt.”
The plaintiffs say the Wheeling Park Commission has abused and exceeded its legitimate power in authorizing the planned hunt. They say the court is authorized to stop the hunt.
They say “there is no other remedy for this hunt.”
“Once the Oglebay Deer are killed, the chance to manage the herd with conservative methods is gone,” the petition states. “Further, when the reputational damage to Oglebay Park, a reputation all plaintiffs enjoy, is done, it is done; it cannot be redeemed.
“Oglebay Park is viewed as a sanctuary, not a killing grounds. Once it is labeled as such, that label may never leave.”
The plaintiffs also note they aren’t asking the court to prohibit all urban deer hunts, even ones at Oglebay.
“These plaintiffs only ask that the commission order and authorize such a hunt within the bounds of its authority,” the petition states. “That means before it orders a hunt of tame deer on public lands, it attempts to comply with the existing laws designed to prevent exactly what may be happening with the Oglebay Deer herd, that is, handfeeding resulting in tame deer that congregate when the public shows up to feed them. It also means the commission must endeavor to have a scientific basis for its conclusions that Oglebay Park has deer overpopulation problem.
“If the Commission commits itself to complying with the handfeeding laws and has a scientific study done that concludes there is a deer overpopulation problem, then it may be within the bounds of its authority to order this hunt. But that is not the case here.”
They say legal action to stop the hunt is in the public interest.
“The deer are an important part of Oglebay Park,” the petition states. “Oglebay Park is a public park for the benefit of all people. People visit the park to enjoy wildlife and learn about nature.
“The deer culling will not only kill dozens of deer, but will harm the park and its reputation. The deer at Oglebay Park are enjoyed by the public. The preservation of Oglebay Park’s wildlife is clearly in the publics’ best interest.”
The plaintiffs ask the court to temporarily and preliminarily enjoin the defendants from allowing the hunt to happen November 6-8 and to direct the defendants to immediately prohibit the feeding of the Oglebay Deer.
The hunt is scheduled because, according to the DNR, the park’s deer population presents a safety concern for both park guests and the deer. In an area is overpopulated by deer, the animals are more susceptible to disease, malnutrition and poor health. And dangerous interactions with humans, such as vehicle accidents, are more likely.
The Wheeling Park Commission says a limited number of applicants will be selected through a lottery system to participate in the three-day hunt. Those selected will be given a zone each day, and the hunters only will be allowed to use bows from a tree stand.
The commission says affected areas will be closed to the public during the hunt, and the hunters will not be allowed to stalk deer on the ground or track them within 300 feet of personal property.
The complaint was filed by Toriseva and Joshua D. Miller of Toriseva Law in Wheeling. The plaintiffs are Cynthia Hubbard, Patricia Fahey, Leslie Kusic, Sam Kusic, Michael Alvarez, Marilyn Rasz, Anita VanDyne, Peggy McClure, Joanna Merriman, Mary Ellen Bennett, Carole Wack, Jill Jebbia, Sherry Tweedlie, Doug Merriman, Shannon Kear, Amber Bruce, Patricia Pogue, Jennifer Kokosinski, Rebecca Collilns, Madeline Marple and Whitney Lopez.
The defendants are being represented by James C. Gardill, Richard N. Beaver and Jeffery D. Kaiser of Phillips Gardill Kaiser @ Altmeyer in Wheeling.
Ohio Circuit Court case number 23-P-183
