September 20, 2020

Lawsuit Filed Against Pennsylvania Game Commission By Unified Sportsmen Of Pennsylvania Dismissed

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A lawsuit filed by the Unified Sportsmen of Pennsylvania has been dismissed by a Pennsylvania court claiming that the USP did not provide sufficient argument against the demands of their claim. In short, the Pennsylvania Game Commission proved they have sole ownership of the deer herd and are commissioned by law to maintain it. Therefore, unless USP could show that PGC was not doing what it is commissioned to do, they had no case. Simply disagreeing with how the PGC manages the deer herd wasn’t good enough.

In brief, this is what the USP was requesting of the Court.

Significantly, Sportsmen request the following relief:

a. Order an immediate halt to the taking of antlerless deer (female deer i.e. “does”) in the Commonwealth of Pennsylvania pending a scientific determination of the geographic composition and dispersion of the Pennsylvania deer herd.

b. Order the [Game Commission] to maintain a minimum winter density of 20 deer per square mile in accordance with USDA recommendations.

c. Order the [Game Commission] to immediately cease its current deer herd decimation practices.

d. Order the [Game Commission] to adhere to constitutional and statutory requirements to preserve and protect the deer herd by engaging in forest recovery practices such as liming and fertilization, thinning, “crop tree release” (“crown release”) in lieu of continuous suppression of deer herd numbers.

e. Order the [Game Commission] to eliminate fencing of socalled “regeneration areas[.]”

f. Order the [Game Commission] to include the impact of natural predation (particularly coyotes, but also bears, and now, mountain lions) on deer herd management in Pennsylvania.

g. Order the [Game Commission] to manage Pennsylvania’s deer herd separately on public and private lands and issue unique permits to allow the harvesting of does on state forests and state managed lands.

h. Immediately publish all relevant information in its possession pursuant to 34 Pa. C.S. §322 (c)(11).

i. Order the [Game Commission] to organize an institutional framework permitting [Sportsmen] and other hunter/trapper groups to be afforded the opportunity to participate in policy formulation procedures and enjoy access to heretofore secret [Game Commission] information and decision making practices.

j. Implement a grievance mechanism through which [Sportsmen] and others similarly situated can challenge the implementation of [Game Commission] programs by the [Game Commission] that affect the Pennsylvania deer herd.

The USP’s basis for the lawsuit is its claims of legal Mandamus. This essentially states that the PGC is required to perform its duties in managing deer in a specified way. In this case, USP is asking the Court to force PGC to manage deer in the manner they are requesting because they believe it to be in the better interest of the people of Pennsylvania. The Court can find no justification for a ruling of Mandamus.

Mandamus is an extraordinary writ that will only lie to compel official performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and want of any other appropriate and adequate remedy. Pa. Dental Ass’n v. Ins. Dep’t, 512 Pa. 217, 516 A.2d 647 (1986). While a court may direct that discretion be exercised, it may not specify how that discretion is to be exercised. Id. Stated otherwise, mandamus is not used to direct the exercise of judgment or discretion in a particular way. Id. Further, the purpose of mandamus is not to establish legal rights, but to enforce those rights already established. Jamieson v. Pa. Bd. of Prob. & Parole, 495 A.2d 623 (Pa. Cmwlth. 1985).

While the relief requested in the Amended Complaint differs from that requested in the original complaint, the Amended Complaint is still legally insufficient to state a claim for mandamus. More specifically, Sportsmen do not aver the Game Commission failed to exercise its discretion; rather, they seek to compel the exercise of discretion in a specific manner. Clearly, Sportsmen cannot state a claim in mandamus to compel the Game Commission to exercise its discretion in a particular manner. See Chadwick v. Dauphin County Office of Coroner, 905 A.2d 600 (Pa. Cmwlth. 2006) (mandamus writs are never issued where a plaintiff seeks to interfere with public official’s exercise of discretion).

The Court once again says that even though the USP is claiming the PGC isn’t doing what they think it should to maintain a proper deer herd, they can show neither that PGC is not fulfilling its duties as a mandated commission nor that the need for changing the management practice will significantly change anything. In other words, the USP could not show that the practices of the PGC are injuring the deer herd to a point that if something drastic isn’t done now, further injury to the deer will occur. With all of these findings, the Court ruled accordingly.

Despite purporting to seek these forms of injunctive relief, Sportsmen do not plead sufficient facts to satisfy the essential prerequisites to obtain such relief. In particular, Sportsmen do not aver greater injury will result from refusing rather than granting the relief requested. Given the nature of debate between hunters and farmers, this would seem to be the heart of the issue. Further, as discussed above, Sportsmen do not aver the cessation of so-called deer decimation practices will cause
the deer population to rise, nor do they aver cessation of the practices are necessary to preserve the herd. Finally, Sportsmen do not aver their right to relief is clear. This is particularly important with regard to their requests for implementation of advisory
groups and grievance procedures, which are not required by the Game Code.

For these reasons, we sustain the Game Commission’s demurrer to Sportsmen’s claim for injunctive relief and dismiss this claim.2

In the original complaint filed by the USP, it was dismissed but the Court but granted USP an opportunity to return to the court with an Amended Complaint. It is not clear after this ruling that the court has granted any opportunity for USP to return to the same court with another amendment. This should not prevent USP from seeking further appeal or re-writing a claim that will satisfy the court.

Thank you, goes out to Bob Fuhrman for providing me the link of the court ruling only moments after it was available.

Tom Remington

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