A three-judge Pennsylvania Commonwealth Court panel has concluded that a Pennsylvania sportsmen’s organization, the Unified Sportsmen of Pennsylvania, is within its legal rights to challenge the method the state Game Commission uses to estimate the state’s deer herd.
Specifically, the panel wrote that “despite asserting (that the USP) did not exhaust an available administrative remedy, the Game Commission does not identify a specific remedy Sportsmen may pursue to challenge the Game Commission’s deer management policies and practices. Absent such a prescribed remedy, the Game Commission argument fails.”
The legal skirmish began last fall when USP, a group with more than 30,000 members statewide, filed for a permanent injunction asking the appellate court to put a halt to the hunting of antlerless deer on state game and forest land until the game commission could justify the need to issue 865,000 licenses to hunt does and thousands more deer management and assistance program permits. The USP maintained that the commission’s current deer plan, based on faulty herd estimates, has led to a decimation of the deer herd.
The USP ultimately sued, requesting that the court:
a. Order the [Game Commission] to collect the appropriate reproductive data required to be considered pursuant to 58 Pa. Code [§]143.41(b), including but not limited to the collection of aerial survey data.
b. Order the [Game Commission] to put an immediate halt to the taking of antlerless deer (female deer i.e. “does”) on publicly owned State Game land and State Forest land within the Commonwealth of Pennsylvania, pending the collection and proper scientific determination of the geographic composition and dispersion of the Pennsylvania deer herd, to allow for the proper number and allocation of antlerless deer permits for 2007, in accordance with 58 Pa. Code §143.41(b).
c. Order the [Game Commission] to put an immediate halt to the taking of deer under the DMAP [] on publicly owned State Forest land pending the collection and proper scientific determination of the appropriate number of DMAP permits to be issued on each parcel of property enrolled in the DMAP [] for 2007. Pet. at 15-16.
In response, the Game Commission filed preliminary objections, arguing that the Petition is legally insufficient to state any claim for relief; the Petition lacks sufficient specificity; Sportsmen did not exhaust their administrative remedies; Sportsmen are collaterally estopped from raising the claims in the Petition; and, Sportsmen lack standing.
The panel sided with the USP on each of the above arguments.
“Here, it is simply too early to state with certainty that the Petition fails to state any claim for relief. Sportsmen aver the Game Commission violated its duties under the Game Code and applicable regulations by failing to collect appropriate data to protect and preserve the deer population,” the court wrote.
The panel went on to note that “in sum, Sportsmen plead cognizable causes of action. We do not decide whether they will ultimately be successful in proving the Game Commission abused its discretion in deciding what data to collect or how to preserve the deer herd.”
Addressing the defendant’s specificity argument, the court found that “despite the fact Sportsmen do not identify precisely what they consider to be a ‘natural and sustainable level’ for the deer population, when read as a whole, the Petition is sufficiently specific to allow the Game Commission to prepare a defense. Therefore, we overrule the preliminary objection to lack of specificity.”
On the USP’s alleged failure to exhaust their administrative remedies, the court again sided with the plaintiff, noting that the Game Commission “does not identify a specific remedy Sportsmen may pursue to challenge the Game Commission’s deer management policies and practices.”
Finally, the court dispensed with the standing argument, finding that “Sportsmen had standing based on Section 322(c)(13) of the Game Code as well as under the traditional substantial-direct-immediate test.”
The Unified Sportsmen of Pennsylvania by and through their members, individually and collectively v. The Pennsylvania Game Commission (PGC), and the Commissioners of the PA Game Commission (in their official capacity) of the Commonwealth of Pennsylvania; Commonwealth Ct. Pa.; No. 427 M.D. 2007; 2008 Pa. Commw. LEXIS 277; 6/16/08
Attorneys of Record: (For plaintiff) Charles B. Haws, Reading. (for defendant) Timothy P. Keating, Sr. Deputy Attorney General, Harrisburg.
