WHEELING – Attorneys on both sides of a petition attempting to stop a planned deer hunt at Wheeling’s Oglebay Park continue to attack each other's arguments in court filings.
On October 17, defense attorneys for Oglebay Park, the Oglebay Park Foundation and the Wheeling Park Commission filed a reply to the plaintiffs’ response to their October 16 motion to dismiss. In it, the defense says the plaintiffs lack a legal or factual basis for the relief sought and “resort to accusing defense counsel of making false and misleading statements to the court.”
The defense also say the plaintiffs devote much of their response to “irrelevant issues such as alleged false statements and criticism of the methods used” to decide on permitting the bow hunt scheduled for November 6-8.
Toriseva
The defense counter the plaintiffs’ arguments, saying they agree Oglebay Park is a public park and maintain the plaintiffs have failed to join the indispensable parties of the state Division of Natural Resources, the City of Wheeling, the Oglebay Foundation Properties Inc. and Parks System Trust Fund. They again say Oglebay Park and the Oglebay Park Foundation should be dismissed from the case because they are not proper parties.
The defense again says the plaintiffs – a group of more than 20 Wheeling residents – have failed to prove they have standing to bring the suit.
In addition, the defendants say the plaintiffs’ allegations of numerous false and misleading statements are easily refuted, namely their assertion that the DNR gave the WPC permission to conduct an urban hunt while also saying Oglebay Park is “substantially outside the limits of the City of Wheeling; therefore, it is not part of the urban area of the City of Wheeling.”
The defense also refutes the plaintiffs’ claims that the DNR does not have the authority to regulate the feeding of deer in Oglebay Park. It also says the “Special Urban Deer” statute doesn’t apply here because Oglebay Park is not within city limits nor it is a special hunt. Instead, the hunt is during the regular hunting season. It also says hunt rules to control deer causing damage to homeowners’ property does not apply because Oglebay is not a homeowner.
In another reply filed October 18, the plaintiffs explain to Circuit Judge Jason Cuomo they understand he’s been “bombarded with filings and information” about the case, especially with the short time window before the planned hunt. So, they limit their reply to make four key points.
They again say Oglebay Park is within Wheeling city limits, and they again say the defendants have violated state law by encouraging and marketing hand feeding of deer in the park to increase donations and sales.
In addition, they say a defense affidavit of DNR Assistant Chief of Game Management Steven Rauch is confusing, saying he “opines as an expert in these matters and draws conclusions of law.” They say they have a right to depose Rauch to clear up conclusions made in his affidavit.
And finally, the plaintiffs note the “limited relief” they are seeking.
“The plaintiffs are not asking this court to stop all deer hunts at Oglebay permanently,” the three-page reply states. “The plaintiffs are asking this court to temporarily enjoin this deer hunt until the defendants curtail the handfeeding that brings Oglebay Deer to the park and also, before conducting a hunt based on overpopulation, establish Oglebay Deer are in fact overpopulated at Oglebay.
“Ogleybay Deer may not be overpopulated; they may only be over-congregated at certain areas of the park. If that is the case, stopping the handfeeding may solve the problem without the need for a hunt.”
Those latest filings follow an October 16 answer by the plaintiffs saying the defendants were trying to “muddy the waters” with “numerous false and misleading statements” and “maintain untenable positions that are contrary to the facts” in the case, according to the filing.
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.
The plaintiffs also asked Cuomo to deny the defendants’ motion to dismiss and set up an evidentiary hearing or at least temporarily suspend the hunt until a true deer population study is completed and the handfeeding is stopped.
When he continued a scheduled October 13 hearing in the case, 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 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,” the complaint states. “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