In Defense of Deer v. Cleveland Metroparks, 00-LW-2710
| Decision Date | 08 June 2000 |
| Docket Number | 00-LW-2710,75760 |
| Parties | IN DEFENSE OF DEER, ET AL, Plaintiffs-Appellants v. CLEVELAND METROPARKS, ET AL., Defendants-Appellees CASE |
| Court | Ohio Court of Appeals |
Civil appeal from Common Pleas Court, Case No. CV 365541.
For Plaintiffs-Appellants: Kenneth D. Myers, Avery S. Friedman 701 Citizens Building, 850 Euclid Avenue, Cleveland, Ohio 44114.
For Defendants-Appellees: Thomas R. Lucchesi, Rebecca C. Lutzko, Baker & Hostetler, 3200 National City Center, 1900 East Ninth Street, Cleveland, Ohio 44114-3485.
For State of Ohio, et al.: Betty Montgomery, Attorney General, Joan C. Weiser, Eva M. Brault, Assistant Attorney Generals, Fountain Square D-2, 1930 Belcher Drive, Columbus, Ohio 43224-1387.
Appellants In Defense of Deer, an Ohio not-for-profit corporation, Bonnie Vlach, and Denise Olaszak (collectively "IDOD") brought a declaratory judgment action seeking to prevent the controlled killing of 300 deer located within the Bedford and Brecksville Metroparks Reservations during the winter months of 1998-1999. It filed this action against appellees Cleveland Metroparks, the president of the Board of Park Commissioners, John K. O'Toole, the vice presidents of the Board, David W. Whitehead and Fred Rzepka (collectively, "Metroparks"), the Division of Wildlife of the Department of Natural Resources, the Division of Wildlife Council, and the Wildlife Management Supervisor for Wildlife District Three, Dan Kramer (collectively, "Division") alleging that the Division had unlawfully delegated its authority to manage wildlife to the Metroparks.[1]
IDOD contends that Judge Frank D. Celebrezze erred when he granted the various appellees' motions to dismiss. We disagree and affirm.
This dispute centers upon Metroparks, September 16, 1998 second request to the Division for a deer management permit for the winter of 1998-1999 pursuant to Ohio Admin. Code 1501:31-15-08. Along with the request, Metroparks submitted a document titled "A Deer Management Proposal" which stated that The proposal further noted that with the "ever-expanding browsline" came "a loss of biodiversity":
Woody seedlings ate rapidly disappearing * * * and upsetting future woodland regeneration. On-going studies indicate a decline in song bird and herbaceous, plant diversity. Planting within the parks without total deer protection is a lost cause. Complaints concerning "park deer" by nearby residents are on the rise. Visitors and nearby residents are concerned with the possibility of deer/vehicle encounters.
The proposal set forth Metroparks, deer management activities to date and indicated that, after a review of options available, it had elected to employ lethal means, specifically sharpshooting, during hours the park would be closed. It estimated a density of 119 deer per square mile in the Bedford reservation and 69 deer per square mile in the Brecksville reservation and contended that 300 antler-less deer needed to be removed from the reservations to "lessen the starvation potential in late winter * * * and allow the recovery of the forest understory and related biodiversity." The long term goal was to reduce the number of deer to 20 per square mile.
On September 21, 1998, IDOD re-filed its verified complaint for declaratory relief, which included a request for a preliminary and permanent injunction, and attached copies of the September 16, 1998 permit request and deer management proposal.[3] The complaint alleged IDOD's "principal organizational objective * * * is to promote tolerance, co-existence and balance between mankind and wildlife, to educate the public regarding same, to protect and preserve indigenous wildlife and their habitats, and to maintain a workable biodiversity between all living things." Both Vlach, a trustee and officer of IDOD, and Olaszak alleged they were "frequent visitors" to the Bedford and Brecksville reservations. They claimed that, by issuing a deer damage control permit without first holding a public hearing, the Division of Wildlife impermissibly delegated its wildlife management authority to the Metroparks, that the Metroparks did not apply for such a permit, and that it did not furnish to the Division evidence that it had sustained actual and substantial damage to its properties. As a result, IDOD claimed Metroparks was not entitled to a permit.
On September 23, 1998, the Division moved to dismiss IDOD's verified complaint under Civ.R. 12(B)(6) on the basis that Chapters 1531 and 1533 of the Revised Code conferred broad discretion upon the Department of Natural Resources, Division of Wildlife, to manage wild animal populations and that it held title to all wild animals in.trust for the benefit of the people of Ohio. Because IDOD had admitted in the complaint that the Division has exclusive legal authority and discretion to authorize or implement any deer management plan, MOD had no basis, the Division argued, for asserting that it would not exercise its discretion in issuing such a permit, nor could IDOD argue that the issuance of a permit somehow constituted an unlawful delegation of its authority.
IDOD responded that the Division merely "rubber stamped" the unsupported, conclusory statements made by Metroparks contained in its proposal. Morever, MOD asserted, there was an important distinction between "nuisance control" by the private individual who applies for such a permit and "management" or "population control." Because the delegation of "management" and "population control" is a delegation of rule-making authority to the Metroparks, IDOD argued, a public hearing would be required under.R.C. Chap. 119.
On October 14, 1998, Metroparks filed its motion to dismiss, arguing that IDOD failed to assert any claim whatsoever against its officers. It also asserted that the Division is vested with discretion to approve the permit application upon a showing of actual and substantial damage and that neither statute nor administrative rule requires particular scientific evidence in order to support such approval.
On October 30, 1998, IDOD filed a motion for leave to file an amended complaint which the judge granted. On November 4, 1998, Metroparks filed its "renewed" motion to dismiss. In response, IDOD
asserted that "there clearly is at least one unresolved legal issue assert in the case[:] * * * whether the issuance of such a permit under the particular facts and circumstances herein amounts to an unlawful delegation of the wildlife management authority of Defendant Division."
On November 18, 1998, the Division of Wildlife issued a "Deer
Damage Control Permit" authorizing "ANY BONE [sic] FIDE EMPLOYEE OF
CLEVELAND METROPARKS" to kill up to 300 deer between November 18, 1998 and March 1, 1999 on the Bedford and Brecksville reservations subject to detailed record keeping and reporting requirements. The Division approved the permit "based on our confirmation of actual and substantial property damage," citing, in part, the "obvious and devastating `browseline'" where low-level vegetation had been "browsed to the point where an observer could look into the woods and visually identify the lack of green vegetation."[4] It noted that "[n]ot immediately reducing the number of deer per square mile [in both] * * * reservations will very likely damage the ecosystem to a point where some species of plants might never regenerate." Additional reasons cited for the issuance of the permit included eliminating herd starvation due to decreased food supply, maintaining herd health at a reasonable level, and curtailing both property damage to private property located adjacent to the parks and human injury.
On November 23, 1998 IDOD filed its amended complaint, both unsigned and unverified, which was identical to the original except that IDOD excluded from the amended complaint the allegation that Metroparks did not apply for a deer damage control permit.
On November 23, 1998, IDOD filed the second motion for a temporary restraining order which the judge denied. On December 1, 1998, the day before the order was journalized, IDOD filed an appeal and asked this court for a temporary injunction pursuant to App.R. 7. By order and journal entry dated December 7, 1998, we denied the motion and outlined the statutory authority of the Division of Wildlife, pointing out that R.C. 1531.08 specifically granted the chief of the Division of Wildlife authority and control in all matters pertaining to the protection, preservation, and management of wild animals. In Defense of Deer v. Cleveland Metro Parks (Dec. 7, 1998), Cuyahoga App. No. 75620 (), unreported, at 9. We also noted:
It is clear from the record that Metroparks' application for the deer damage control permit was based on actual and substantial damage to the park property and its ecosystem. * * * In deciding whether or not to issue a permit pursuant to the Division's rule, (Sec. 1501:31-15-081, it is exercising the authority explicitly conferred at R.C. 1531.02 to allow wild animals to be "taken, hunted, killed, or had in possession."
After review of the affidavits purporting to support or negate the grant of a restraining order, we concluded that IDOD did not make "a substantial showing of likelihood of success on the merits which would warrant the issuance of temporary injunctive relief in this Court" and pointed out that the grant of a restraining order might...
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