WHEELING – An Ohio County judge has decided the planned deer hunt at Wheeling’s Oglebay Park can go on as scheduled next month.
In his October 20 order, Circuit Judge Jason Cuomo granted the defendants’ motion to dismiss the case, saying the Wheeling residents who filed the petition to stop the hunt failed to assert any specific claim to the deer that will be the subject of the hunt set for November 6-8.
“Without asserting such a specific claim or interest in and to the deer, it is legally impossible for the petitioners to demonstrate a sufficient, concrete and particularized injury that can be redressed by this court,” Cuomo wrote in his 15-page order. “In other words, the petitioners have failed to demonstrate the existence of a legally cognizable ‘injury-in-fact’ which is a necessary pre-requisite to have ‘standing’ in order to bring suit and to establish this court’s jurisdiction over the case.”
Toriseva
Without that jurisdiction, Cuomo says he can’t address the merits of any of the remaining arguments of the parties.
“In order for this culling to be stopped (if it can be stopped at all), or in order to enforce some existing regulation regarding any alleged improper feeding of deer, a petition will likely have to be filed by the WVDNR (West Virginia Division of Natural Resources),” Cuomo wrote. “Unfortunately for the petitioners, and despite the fact the petitioners claim that the WVDNR has knowledge of the prospective deer culling … the WVDNR has yet to do so.
“Whether the WVDNR actually believes it is not improper or illegal for the respondents to have this deer culling this court cannot say – that issue is not currently before this court. However, the petitioners cannot be permitted by the lawsuit that they have filed to usurp the WVDNR’s legislatively granted authority over the wildlife in this state where the petitioners have failed to allege and demonstrate a sufficiently concrete or particularlized injury.”
Teresa Toriseva, one of the attorneys representing the 20-plus Wheeling residents who filed the petition, said she was disappointed in the ruling.
“We are assessing the court’s opinion and consulting our clients and will have a statement on Monday,” she told The West Virginia Record.
Since the petition was filed October 3, attorneys for the petitioners and the respondents (Oglebay Park, the Oglebay Park Foundation and the Wheeling Park Commission) have argued back and forth in legal filings.
“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,” Toriseva previously told The Record.
The amended petition included 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 petition states. “Both baiting and hand-feeding are illegal on public land in West Virginia to prevent the very problem created here.”
The petitioners also claimed 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 petitioners 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 petition was filed by Toriseva and Joshua D. Miller of Toriseva Law in Wheeling. The petitioners were 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 respondents 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