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Sides Continue Sparring Over Oglebay Deer Hunt

In their reply to the plaintiffs' response to the motion to dismiss the case, the attorneys representing Oglebay Park and the Oglebay Foundation remain steadfast that plaintiffs do not have the standing to cancel Oglebay's deer hunt.

In their Tuesday night filing, the defendants specify the plaintiffs' motion should be dismissed as they not only lack standing for the case but have failed to add indispensable parties to the case and failed to state claims against Oglebay Park and Oglebay Foundation, Inc.

Attorney Teresa Toriseva, who is representing the locals that oppose the hunt, submitted a reply to the defendant's recent filing Wednesday morning.

In this response, Toriseva asked the court to grant the request to cancel the hunt or set a hearing date.

Oglebay's Urban Deer Hunt is scheduled to take place Nov. 6-8 in an effort by the park to curb what they believe to be an overpopulation of deer at the park.

A group of 14 Wheeling residents represented by Toriseva Law filed a petition to cancel the culling on Oct. 3. A hearing was scheduled for Friday, Oct. 13, where Brooke County Circuit Court Judge Jason Cuomo would decide whether the hunt would be canceled.

This hearing was continued to a later date after the attorneys representing Oglebay, the law firm of Phillips, Gardill, Kaiser and Altmeyer filed a motion to dismiss the suit. The new hearing date remains unscheduled.

Oglebay attorneys believe Toriseva lacks the standing to cancel the culling because she has failed to prove the injury plaintiffs have suffered is "concrete and particularized."

The plaintiffs' argument of injury is that the filers are residents of Wheeling who visit Oglebay Park, with some also being donors. Since deer are a part of Oglebay Park and the park markets itself as a wildlife sanctuary, the Oglebay Park Foundation markets deer to attract donors.

Defendants explain that these alleged irreparable injuries fail to be particular because they are "shared in common by every citizen of West Virginia who visit the Oglebay Park."

Defendants also believe the plaintiffs lack standing due to Toriseva's claim that the West Virginia Division of Natural Resources has the authority to regulate deer hunting and feeding in Oglebay, with her citing West Virginia Code of State Rules that states, "It is illegal to bait or feed any wildlife on public land at any time."

Specifying that the WV DNR does not manage the wildlife at Oglebay Park, Oglebay attorneys state that the organization "merely sets forth hunting rules and regulations that apply to all hunting in the state," which includes rules for hunting on Oglebay land.

In an affidavit, Steven Rauch, the Assistant Chief in charge of the Game Management Unit for the WV DNR, confirmed that Oglebay is "not owned, leased, managed under cooperative agreement with or under the control of the WVDNR for any purpose."

In their Wednesday reply, Toriseva states that Rauch continues to "confuse the issue," adding that the plaintiffs have a right to depose the affiant under oath or "at a minimum" clear up the conclusions made in the document.

"For example, was the affiant told Oglebay is private land, who advised the affiant of this, etc.?" asked Toriseva in the document. "Without the opportunity to explore the affiant's conclusions, the affidavit must not be considered by this Court."

Outlining that the rule prohibiting baiting and feeding deer on public land only applies to property under WV DNR control, Oglebay attorneys specify that the Wheeling Park Commission, not the DNR, controls Oglebay Park.

"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 the feeding of deer," added defendants. "Therefore, the WPC has not failed to enforce a prohibition against feeding deer because there is none."

Elaborating on Toriseva's point that it is illegal to feed wildlife on public land, the defendants state that the plaintiffs are trying to "equate the term public park" with the term "public land." Oglebay attorneys believe plaintiffs do this in an effort to bring Oglebay Park under the regulation that prohibits feeding deer on "public land."

While the defendants agree with the plaintiffs that the park is public, they specify Oglebay is not located on "public land," as the City of Wheeling, Oglebay Foundation Properties, Inc. and Parks System Trust Fund own the land.

Oglebay attorneys claim plaintiffs have also argued the landowners of Oglebay are not indispensable parties, meaning the plaintiffs have denied the absent parties "their property rights" by not allowing them the "opportunity to protect their interests."

"Even if the court enjoined the WPC from permitting the hunt, the non-party landowners would not be enjoined from permitting the hunt," added the defendants. "Because necessary parties to this action are not included, this case should be dismissed."

On top of the indispensable party of Oglebay landowners not included in the case, the defendant's filing also claimed the plaintiffs failed to join the other indispensable party of the WV DNR in their suit.

"Plaintiffs promise to remedy the DNR's incompetence by convincing this Court to issue rulings setting forth the DNR's responsibilities, authority and jurisdiction over Oglebay Park," stated defendants. "Plaintiffs argue, herein that the Court should do this in the absence of the DNR."

By doing this, Oglebay attorneys believe the plaintiffs seek to "usurp the DNR's legislative authority" by conducting court proceedings without the DNR present to "protect its statutory rights and interests."

On top of the indispensable parties of Oglebay Park landowners and the WV DNR not being included in the case by plaintiffs, the defendants believe the case should be dismissed as Oglebay Park and the Oglebay Park Foundation, Inc. are "not the proper parties."

Stating that Oglebay Park is "not a legal entity," the defendants add that "a simple Secretary of State Search reveals no entity called Oglebay Park."

The defendants specify that the Oglebay Park Foundation, Inc. is not to be the proper party in the suit since plaintiffs have "alleged no wrongdoing" on their behalf. This belief in failure to allege wrongdoing stems from the plaintiff's only allegations against the Oglebay Foundation, Inc., is that they use photographs of deer in advertising.

In her response to the defendant's reply, Toriseva remained steadfast in the belief that defendants violated West Virginia law by encouraging and marketing hand feeding of Oglebay Deer "to increase donations and sales."

Citing WV Code §20-2-14, stating, "No person shall propagate wildlife for commercial purposes except when licensed to do so," Toriseva explained plaintiffs can prove that "this is exactly what the Defendants have done."

"As stated in the Plaintiffs' previous filing with exhibits to support it, the Plaintiffs have claimed the Defendants have marketed Oglebay Deer to the general public as a reason to come spend their money at Oglebay," stated plaintiffs. "This is a clear violation of law in addition to hand feeding wild deer in a public park."

Toriseva added that it was "important to note the limited relief the Plaintiffs are requesting."

Clarifying that the plaintiffs are not asking the court to stop all deer hunts in the park permanently, Toriseva explained they are asking the court to temporarily prohibit the deer hunt until Oglaby restricts the handfeeding that brings deer to the park as well as establishing that deer are overpopulated in Oglebay.

"Oglebay Deer may not be overpopulated; they may be only overly-congregated in certain areas of the Park," said plaintiffs. "If that is the case, stopping the handfeeding may solve the problem without the need for a hunt."

While Jeffery Kaiser, an attorney with Philips, Gardill, Kaiser & Altmeyer, was unable to comment on Toriseva's Wednesday filing, he explained that the WPC has an obligation to manage the property of Oglebay park in a way "that's best for the community as a whole."

"While I'm sympathetic that there are individuals that don't agree with that, inevitably, it's the Wheeling Park Commission who makes that decision," added Kaiser. "The commission has followed every law that they need to, followed whatever regulation they need to and gone above and beyond to make sure of that, and that's why this lawsuit is misplaced in our eyes."

Toriseva had no further comments regarding her reply to the defendants but noted a petition started by Wheeling Residents on Change.org to stop the culling had reached more than 1,000 signatures.