OHIO COUNTY, W.Va. — Ohio County Circuit Court Judge Jason A. Cuomo has granted a motion to dismiss the lawsuit to stop the urban deer culling scheduled for next month.
In a court order, it is stated that “Having thoroughly considered the parties’ briefings, the Court finds the facts and legal arguments to have been adequately presented, and that the decisional process would be not significantly aided by oral argument. The issue is mature for consideration.”
On October 3, the petitioners, 13 residents of Wheeling, filed a Writ of Mandamus and Petition for Injunctive Relief to Stop the Defendant’s Hand Feeding and Taming of Deer and to Stop the Defendant’s Urban Deer Hunt Scheduled for November 6-8, 2023 against Oglebay Park, The Oglebay Park Foundation Inc., and the Wheeling Park Foundation.
The petitioners argued that Oglebay Park is a public park and that the Oglebay deer are part of a public property deer herd that roams portions of Ohio County. They argued that the defendants created a problem of a tame, hand-fed deer herd by allowing locals and tourists to feed the deer and used the deer as marketing tools to raise money.
The petitioners argued that the West Virginia Department of Natural Resources (WVDNR) never gave final approval for the deer hunt and that the WVDNR was never contacted about damages to crops, trees, nurseries, or vegetable gardens that the deer may have caused.
On October 11, the respondents filed a Motion to Dismiss, arguing that the petition and amended petition should be denied based on the following:
- The petitioners lacked standing to bring the petition because the WVDNR has the sole authority and jurisdiction over the wildlife in the State of West Virginia and its property.
- Petitioners failed to join indispensable parties, namely the WVDNR, the City of Wheeling, the Oglebay Foundation, Inc., and the Parks System Trust Fund
- The WVNDR does not control the respondent’s property because it is not “public land” as defined by West Virginia law, and there is no state rule or regulation law prohibiting the feeding of deer on said property.
- Oglebay Park is not a legal entity, and Oglebay Foundation Inc. does not own any of the real estate that comprises Oglebay Park, nor does it have any operational or management duties with respect to Oglebay Park, and petitioners have failed to allege any wrongful conduct on behalf of Oglebay Foundation.
The order granting the motion to dismiss concluded, stating that the petitioners failed to demonstrate the existence of a legally cognizable “injury-in-fact,” which is a necessary pre-requisite to have “standing’ to bring suit and to establish the court’s jurisdiction over the case.
Without jurisdiction, the court cannot address the merits of any of the remaining arguments of the parties.
In order for the culling to be stopped, if it can be stopped at all, a petition would likely have to be filed by the WVDNR, which has not done so.
The decision by Judge Cuomo can be appealed.
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