WHEELING – A recent filing by the defendants in a lawsuit attempting to stop a scheduled deer hunt at Wheeling’s Oglebay Park was an attempt to “muddy the waters” with “numerous false and misleading statements,” according to the plaintiffs.
On October 16, the plaintiffs in the case filed their answer to the defendants’ motion to dismiss that was filed last week. The plaintiffs, who are Wheeling residents, also claim the defendants – Oglebay Park, the Oglebay Park Foundation Inc. and the Wheeling Park Commission – “maintain untenable positions that are contrary to the facts” in the case, according to the filing.
“The defendants have made contrary and conflicting statements to the public, the government and to this court and others,” the plaintiffs’ answer states. “In their October 11, 2023 response, the defendants attempt to reference materials, largely from jurisdictions other than West Virginia, not contained within the four-corners of the amended petition.
Toriseva
“The defendants are attempting to circumvent the limitation … requiring the movant to argue within the four corners of the plaintiffs’ complaint or petition.”
Earlier this month, the group of residents filed their complaint claiming Oglebay Park and Wheeling Park Commission officials have “consistently and repeatedly lied” about the planned deer hunt.
In their answer, the plaintiffs list what they call the untrue or misleading statements in the defendants’ motion. They say the defendants falsely assert that the state Division of Natural Resources gave it permission to do the urban deer hunt without a permit. They also list what they call “several misleading statements” by the defendants about the alleged deer overpopulation at Oglebay Park.
The answer also challenges the defendants’ motion that says Oglebay Park is not a public park and is not public land, citing the defendants’ own website, literature about the planned hunt and previous court cases that says “Oglebay is a beautifully landscaped 2,000-acre public park.”
Because it is a public park, the plaintiffs say the DNR has authority to regulate deer hunting and feeding. And, the answer says the DNR has “specific rules regulating the very type of hunt” scheduled and has rules for hunts to control deer damaging an ecosystem and natural habitat.
For those reasons, the plaintiffs say the court needs to have an evidentiary hearing on their claims.
In the defendants’ October 11 filing, they also say Oglebay Park and Oglebay Park Foundation Inc. should be dismissed as defendants because they are not proper parties in the case. 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.”
The defendants also say the plaintiffs lack standing to bring the case. They also claim the plaintiffs 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.
The plaintiffs counter those claims in their answer and ask the judge to deny the defendants’ motion to dismiss and set up an evidentiary hearing or at least temporarily suspend the hunt scheduled for November 6-8 until a true deer population study is completed and the handfeeding is stopped.
When he continued a scheduled October 13 hearing in the case, Circuit Judge Jason 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 previously told The West Virginia Record.
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 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 WPC 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