The Unified Sportsmen of Pa. By v. the Pa. Game Comm'n (pgc)

• Decision Date: 25 March 2011
• Citation: 18 A.3d 373
• Parties: The UNIFIED SPORTSMEN OF PENNSYLVANIA by And through THEIR MEMBERS, individually And collectively, Petitionersv.The PENNSYLVANIA GAME COMMISSION (PGC), and the Commissioners of the PA Game Commission (in their official capacity) of the Commonwealth of Pennsylvania, Respondents.
• Court: Pennsylvania Commonwealth Court

18 A.3d 373

The UNIFIED SPORTSMEN OF PENNSYLVANIA by And through THEIR MEMBERS, individually And collectively, Petitioners

v.The PENNSYLVANIA GAME COMMISSION (PGC), and the Commissioners of the PA Game Commission (in their official capacity) of the Commonwealth of Pennsylvania, Respondents.

Commonwealth Court of Pennsylvania.

Decided Feb. 8, 2011.Publication Ordered March 25, 2011.

Charles B. Haws, Reading, for petitioners.Timothy P. Keating, Senior Deputy Attorney General, for respondents.OPINION BY Senior Judge FEUDALE.

Before the Court is the motion for summary judgment of the Pennsylvania Game Commission and its Commissioners (Commission).

On September 7, 2010, the Unified Sportsmen of Pennsylvania, by and through its members (Sportsmen), filed a petition for review in the nature of a request for declaratory judgment and equitable relief (petition) in this court's original jurisdiction. In relevant part, Sportsmen aver the following. Sportsmen are a group of hunters and outdoorsmen whose membership exceeds 30,000 individuals. They bring the petition in an effort to protect and preserve Pennsylvania's deer herd. Although not alleged in the petition, the Commission is the executive agency charged with the protection, propagation, management and preservation of game and wildlife in Pennsylvania and administration of the Game and Wildlife Code (Game Code), 34 Pa.C.S. §§ 101–2965.

The petition alleges the Commission failed in its duties and responsibilities to preserve and protect the deer herd for Pennsylvanians generally and for Sportsmen in particular. According to Sportsmen, the Commission abused its discretion and acted in violation of the law and the Deer Management Assistance Program (DMAP) in the allocation of antlerless deer licenses issued for the 2007 hunting season. The petition alleges the Commission intentionally acted to destroy and diminish Pennsylvania's deer herd below natural and sustainable population levels, in violation of Article I, Section 27 of the Pennsylvania Constitution. That Section provides:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

Pa. Const. art. 1, § 27.

The petition further avers the Commission failed to act in accordance with Section 322(a), (c)(11)-(13) of the Game Code, which provides:

§ 322. Powers and duties of commission.

(a) Duties.—It shall be the duty of the [C]ommission to protect, propagate, manage and preserve the game or wildlife of this Commonwealth and to enforce by proper actions and proceedings, the laws of this Commonwealth relating thereto.

...

(c) Specific powers and duties.—In order to administrate and enforce this title, the [C]ommission through proper action shall:

...

(11) Collect, classify and preserve such statistics, data and information as in its judgment will tend to promote the object of this title and take charge of and keep all reports, books, papers and documents which shall, in the discharge of its duties, come into possession or under its control.

(12) Take any necessary action to accomplish and assure the purposes of this title.

(13) Serve the interest of sportsmen by preserving and promoting our special heritage of recreational hunting and furtaking by providing adequate opportunity to hunt and trap the wildlife resources of this Commonwealth.

34 Pa.C.S. § 322(a), (c)(11)-(13) (emphasis added).

The Commission violated this mandate, according to Sportsmen, by failing to collect scientifically reliable reproductive data and issuing too many antlerless deer licenses based on the unreliable data. Specifically, Sportsmen complain the Commission collects reproductive data by examining the pregnancy rates of road-killed deer in each of the state's 22 wildlife management units (WMU). Examination of road-killed deer provides too small a sampling on which to allocate antlerless deer licenses.¹ Sportsmen allege that proper data collected by way of scientifically reliable surveys (including aerial surveys, annual deer harvest reports from hunters, and data collected from deer processing facilities) would provide data that is more reliable. Relying on insufficient data is an abuse of the Commission's discretion, according to Sportsmen. The Commission's reliance on the unreliable data, in turn, affects the number of antlerless deer permits the Commission issues and their allocation throughout the state. According to Sportsmen, the Commission's reliance on insufficient data eventually leads to inadequate opportunities for hunting deer in Pennsylvania.

Sportsmen further allege the Game Code charges the Commission with regulating issuance of antlerless deer licenses under 58 Pa.Code § 143.41. Section 143.41 provides in pertinent part:

(a) The intent of this section is to ensure a fair and equitable distribution of licenses.

(b) The [Commission], after reviewing reproductive data, will establish the number of antlerless deer licenses allocated in each [WMU]. Licenses will be distributed among county treasurers for issuance on the basis of percentage of land each county represents in the unit.

Id.

Sportsmen alleged that reliance on road-killed deer reproductive data is not the type of “careful State-wide study” the Commission performed in Lehman v. Pennsylvania Game Commission, 34 Pa. D. & C. 662 (1938). In that case, Dauphin County, acting as the Commonwealth Court, found the Commission's declaration of a six-day open season on antlerless deer was based on a “careful, expert, and scientific performance by the Commission of its duty as an agency of the Commonwealth to protect, propagate, manage, and preserve the game of the Commonwealth in accordance with its laws.” Pet. for Review, ¶ 23, (quoting Lehman, 34 Pa. D. & C. at 669).

In addition, Sportsmen allege the Commission failed to provide an adequate opportunity for public comment before allocation of antlerless deer licenses, in violation of Section 328(a) of the Game Code, 34 Pa.C.S. § 328(a). That section requires the Commission to implement policies and programs to improve its relationship with the public and its licensees. However, the Commission has failed to implement any policies or programs relating to the antlerless deer allocation program.

The above allegations center on the 2007 hunting season and the 2003–2007 “Population Management Plan for White–Tailed Deer in Pennsylvania” (Management Plan). The Commission's goals, as established in the Management Plan, are to manage a healthy deer population with a focus on deer health, to manage a healthy forest habitat, and to reduce human-deer conflicts. Sportsmen allege the Commission focuses too heavily on the goal relating to habitat health at the behest of Pennsylvania's timber interests.² Moreover, allowing state agencies to enroll public lands in the DMAP, below, further diminishes the strength and continued viability of Pennsylvania's deer herd.

Sportsmen allege that requiring the Commission to review and collect appropriate reproductive data pursuant to 58 Pa.Code § 143.41(b) will serve to ensure that the Commission properly issues and allocates antlerless deer permits, which will in turn ensure that the natural and appropriate population of the deer herd is achieved and maintained. Requiring the Commission to assess data that is more reliable will ensure that the allocation of antlerless deer permits does not have the net effect of authorizing the killing of more antlerless deer than the herd can naturally sustain.

In their petition for review, Sportsmen seek injunctive relief ordering the Commission to collect appropriate reproductive data and to halt the taking of female deer on publicly owned state game and forestland pending collection of data pertaining to the geographic composition and dispersion of Pennsylvania's deer herd. Thereafter, the Commission may issue and allocate proper number of antlerless deer permits.

The Commission filed preliminary objections to Sportsmen's petition for review, which this Court overruled in Unified Sportsmen of Pennsylvania v. Pennsylvania Game Commission, (Pa.Cmwlth., No. 427 M.D. 2005, filed January 10, 2007). The Commission subsequently filed its answer and new matter. In new matter, the Commission generally alleged Sportsmen failed to identify what they believe to be Pennsylvania's deer population, failed to conduct or commission scientific surveys to determine the deer population, failed to request a hearing before the Commission concerning their claims, and failed to gather information regarding how other states determine their deer population. Sportsmen properly filed a reply to the new matter admitting in part and denying in part the allegations of the Commission's new matter.

The parties proceeded to discovery and the Commission subsequently filed the instant motion for summary judgment. In its motion, the Commission contends those members of Sportsmen that testified are only complaining about the reduction of deer in limited geographic areas (specifically, WMUs 2G and 2F) and believe that hunters have the right to hunt deer in the geographic area of their choice. In addition, the Commission alleges Sportsmen failed to produce a single expert supporting its claim that the Commission's Management Plan is not scientifically reliable. Rather, Sportsmen rely on the opinions of its members and have no evidence that the manner in which the Commission conducts its program is an abuse of discretion. Thus, Sportsmen failed to show there are undisputed material facts precluding summary judgment.

After reviewing the list of its “expert” witnesses, Sportsmen's one-page argument in response to the Commission's motion for summary judgment is as...