WHEELING – The defendants in a lawsuit attempting to stop a scheduled deer hunt next month at Wheeling’s Oglebay Park have filed a motion to dismiss the complaint, saying the plaintiffs lack standing to bring the case.
And the circuit court judge hearing the case has continued a hearing scheduled for Friday.
In the motion to dismiss and the accompanying memorandum to support it, Oglebay Park, the Oglebay Park Foundation and the Wheeling Park Commission also say the plaintiffs have failed to include indispensable parties, namely the state Division of Natural Resources, the City of Wheeling, the Oglebay Foundation Properties Inc. and Parks System Trust Fund.
In addition, the October 11 filing also says Oglebay Park and Oglebay Park Foundation Inc. should be dismissed as defendants because they are not proper parties in the case.
Last week, a group of Wheeling residents filed their amended complaint that claims Oglebay Park and Wheeling Park Commission officials have “consistently and repeatedly lied” about the planned deer hunt. 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.”
The plaintiffs say the defendants 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 plaintiffs' FOIA 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.”
But, the defendants’ memorandum says the Wheeling Park Commission engaged the West Virginia University Extension Service to conduct a deer survey in 2017 that estimated the park has 212.1 deer per square mile when 40 deer per square mile is considered overpopulated.
The defendants also say no state law or regulation requires a study to be completed, but WPC had it done anyway.
They say WPC also had Summit Forestry Group create a Forest Resources Steward Plan to document conditions at the park and to make recommendations regarding steps to develop a forest management program to promote good growth and improve the quality of the forested area.
“The high deer population has resulted in a shortage of reliable year-round browse and is impacting the habitat for other species,” that plan states, according to the defendants’ memorandum. “Destructive grazing by livestock and deer can be extremely detrimental to forest trees and regeneration. … A sound deer harvest management plan should be adopted by the landowner to ensure that the deer population is maintained at a level compatible with the capacity of the habitat.”
The defendants also say WPC kept in contact with the state DNR, which advised it that it did not need a permit to schedule a hunt on the property. But it did limit the number of deer permitted to be culled by each hunter consistent with the regulations for bow and archery season.
“The DNR had no other objections to the WPC’s plan,” the filing states.
The defendants say the plaintiffs fail to allege any wrongful act or violation of law by the Oglebay Foundation and that Oglebay Foundation does not own any of the land in the park.
They say the plaintiffs “will suffer no invasion of a concrete legally protected interest and they cannot prevail on the merits.”
To support that argument, the defendants say the plaintiffs wrongfully assert that WPC has failed to enforce laws prohibiting the feeding of deer by citing a state rule that “It is illegal to bait or feed any wildlife on public land at anytime.”
“‘Public lands’ means lands owned, leased, licensed, managed under the cooperative agreement with or under the control of the DNR for wildlife management purposes,” the defendants’ filing states. “Thus, the rule applies only to property under DNR control.
“Oglebay Park is under the control of the WPC, not the DNR. The fact that there is no prohibition to feeding deer at Oglebay Park is supported by the DNR email to WPC dated September 22, 2023, confirming that there is no state law prohibiting feeding of deer. Therefore, the WPC has not failed to enforce a prohibition against feeding deer because there is none.”
Circuit Judge Jason Cuomo already had 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.
On October 12, Cuomo issued an order granting the order to continue. In that order, Cuomo also said he may reset the hearing after giving a ruling on the defendants' motion to dismiss.
Wheeling attorney Teresa Toriseva, who is representing the plaintiffs, has 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 West Virginia Record.
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 plaintiffs also claim the WPC 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 plaintiffs say the WPC 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 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
