Legal Sparring Continues Over Oglebay Park Deer Hunt
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WHEELING -- Protesters opposed to the announced bow hunting of deer on Oglebay Park property have filed their response to why their legal case shouldn't be dismissed.
Attorney Teresa Toriseva -- representing the protesters -- submitted the legal response Monday evening in Ohio County Circuit Court.
Officials with Oglebay Park and the Wheeling Park Commission contend the popular park -- known for its friendly deer -- is now overrun with them. A bow hunt with the intent to thin the herd has been set for Nov. 6-8.
A group of residents led by Toriseva next filed a petition to prohibit the urban deer hunt. A hearing on the matter was scheduled for Oct. 13, but was continued. It has not been rescheduled.
Also last week, the law firm of Phillips, Gardill, Kaiser and Altmeyer filed a request on behalf of Oglebay Park and the Oglebay Park Foundation to dismiss the case.
It set forth the park's position that the deer do not belong to Oglebay Park, but rather are owned by the state and come under "the exclusive jurisdiction" of the West Virginia Department of Natural Resources.
The legal action from Toriseva on Monday responds to arguments put forth by the Oglebay attorneys.
First, the Oglebay attorneys dispute Oglebay Park "isn't a public park."
"These assertions could not be further from the truth," Toriseva states. "Frankly, it is preposterous for anyone to argue that Oglebay Park is anything but a public municipal park open to all citizens."
She cites the history of Oglebay Park as listed on its website, and how it was bequeathed by Earl W. Oglebay to the city of Wheeling "as long as they shall operate it for public recreation."
Additionally, the Wheeling Park Commission previously argued in court Oglebay Park is a public park "in order to avail itself to governmental immunities," according to Toriseva. And since Oglebay Park "is a public park," the DNR has the authority to regulate deer hunting and the feeding of deer in the park, she states.
Toriseva notes there is no evidence Oglebay sought permission from the DNR for the deer hunt there. The park needed to ask the DNR for permission to do the hunt prior to Aug. 1 in order to hold a special hunting season in the fall.
"The DNR does regulate and control deer hunting in urban areas and in municipal parks. Oglebay Park is a public municipal park as it is owned by the City of Wheeling, and its municipal corporations, and is a public park," she states. "If a West Virginia city, like the City of Wheeling, wants to hold an urban deer hunt, which the defendants do, the city must notify the DNR by Aug. 1 in order to hold the hunt. In this matter, it appears the Defendants failed to follow (state code)."
Oglebay's request for dismissal had asserted the protestors also did not have legal standing to bring the suit. But Toriseva describes them as "all residents of West Virginia (who) visit, patronize, and enjoy Oglebay Park." Some are financial donors, and all would be affected by the loss of deer, she added.
In its motion to dismiss, Oglebay attorneys claim that the plaintiffs failed to include several "indispensable parties." Those parties are the state DNR, the city of Wheeling, the Oglebay Foundation Properties Inc. and Parks System Trust Fund.
The motion to dismiss also contends that Oglebay Park and Oglebay Park Foundation Inc. are not the proper parties in the case.
"This argument is premature," Toriseva states. "The extent of Oglebay Park Foundation Inc.'s ownership in Oglebay Park and its authority to manage and operate the park remain undetermined. Likewise, the same holds true for Oglebay Park and any other entity to coordinate with (Wheeling Park Commission) to present Oglebay Park to the public as a public park.
"The Plaintiffs need the ability to explore the defendants' interrelationships with Oglebay Park and to develop the organizational structures and involvement with the planned urban deer hunt," she concluded.
Staff Writer Shelley Hanson contributed to this report.