Unified Sportsmen v. Game Com'n

• Decision Date: 20 July 2006
• Citation: 903 A.2d 117
• Parties: The UNIFIED SPORTSMEN OF PENNSYLVANIA By and through THEIR MEMBERS, Individually and Collectively, and Individual Plaintiffs (John F. Gilmore through and including Florence Reeder totaling 13,216 plaintiffs As evidenced by Exhibit "A" hereto), Petitioners v. The PENNSYLVANIA GAME COMMISSION (PGC), The Pennsylvania Department of Conservation and Natural Resources (DCNR), Edward Rendell, Governor of Pennsylvania (in his official capacity only), the Commissioners of the Pennsylvania Game Commission (all in their official capacity only) and Richard DiBerardinis (in his official capacity only), Respondents.
• Court: Pennsylvania Commonwealth Court

Page 117

903 A.2d 117

The UNIFIED SPORTSMEN OF PENNSYLVANIA By and through THEIR MEMBERS, Individually and Collectively, and Individual Plaintiffs (John F. Gilmore through and including Florence Reeder totaling 13,216 plaintiffs As evidenced by Exhibit "A" hereto), Petitioners v. The PENNSYLVANIA GAME COMMISSION (PGC), The Pennsylvania Department of Conservation and Natural Resources (DCNR), Edward Rendell, Governor of Pennsylvania (in his official capacity only), the Commissioners of the Pennsylvania Game Commission (all in their official capacity only) and Richard DiBerardinis (in his official capacity only), Respondents.

Commonwealth Court of Pennsylvania.

Submitted on Briefs June 9, 2006.

Decided July 20, 2006.

COPYRIGHT MATERIAL OMITTED

Don Bailey, Harrisburg, PA, for petitioners.

R. Douglas Sherman, Sr. Deputy Attorney General, Susan J. Forney, Chief Deputy Attorney General, Harrisburg, PA, for respondents.

BEFORE: COHN JUBELIRER, Judge, and SIMPSON, Judge, and McCLOSKEY, Senior Judge.

OPINION BY Judge SIMPSON.

Before this Court in our original jurisdiction are the preliminary objections of the Pennsylvania Game Commission (Game Commission), the Pennsylvania Department of Conservation and Natural Resources (DCNR) and certain Commonwealth officers¹ (collectively, Respondents) to a Complaint/Request for Writ of Mandamus filed by the Unified Sportsmen of Pennsylvania and its members (Sportsmen). The Complaint seeks an order directing Respondents to provide the data and information on which the Game Commission relies in setting "harvest"² figures for Pennsylvania's deer population. For the reasons that follow, Respondents' preliminary objections are sustained in part, and overruled in part.

Through their Complaint, Sportsmen seek "consideration . . . of certain alleged actions and policies by [Respondents]" as they relate to attempts to reduce Pennsylvania's deer population. Compl. at p. 1. Sportsmen identify themselves as a group of Pennsylvania hunters and outdoorsmen whose membership exceeds 40,000 individuals. Sportsmen assert standing to bring suit "on behalf of their constitutionally and statutorily recognized rights as outdoorsmen and hunters ... asserting that they have been expressly entrusted by the Commonwealth with the responsibility to protect and preserve Pennsylvania's deer herd." Compl. at p. 2.

In the "Introductory Statement" of their Complaint, Sportsmen further explain:

The gravaman [sic] of this [C]omplaint is that [Respondents] have not only failed in their duties and responsibilities to preserve and protect the deer herd as a ward of, and for, the citizens of Pennsylvania and particularly the sportsmen and women of Pennsylvania, but that [Respondents] have intentionally acted to destroy and diminish Pennsylvania's deer herd, in contravention of law, below a reasonable or rational level. Further, . . . [Respondents] have[,] in their official capacities, intentionally embarked upon the promulgation of policies designed to deplete and diminish the deer herd in support and pursuit of other political and policy interests which are in conflict with, and in derogation of, the intent and purpose of established Pennsylvania law to the contrary. [Sportsmen] seek the intervention of this Honorable Court to require [R]espondents through a writ of mandamus ... to reveal the basis of their decisions affecting the well-being of the [deer] herd. . . .

Compl. at p. 2-3.

Sportsmen aver the Game Commission possesses a mandatory duty to manage wildlife in accordance with Sections 322(a), (c)(11)-(13) of the Game and Wildlife Code (Game Code), 34 Pa.C.S. §§ 322(a), (c)(11)-(13), and it lacks discretion to avoid these enumerated duties. Those Sections state, as relevant:

§ 322. Powers and duties of commission

(a) Duties. — It shall be the duty of the commission 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 commission 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 its 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.

Id.³

In carrying out these duties, Sportsmen allege, the Game Commission must base its decisions on scientific evidence rather than arbitrary speculation or an undisclosed political agenda. Compl. at ¶ 11. Sportsmen aver the Game Commission never conducted a reliable or scientific census of Pennsylvania's deer herd at any time in its history. Rather, they allege,

[B]ased upon information and belief, in seeking to trade political decisions encouraging increased forest growth at the expense of the deer herd, the [Game Commission], in conjunction with the DCNR and the other Respondents in their official capacities, have engaged in a policy not guided by information or scientific knowledge but rather have engaged in a consistent year in year out policy of engineering the rapid decimation of Pennsylvania's deer herd from an estimated 1.5 million to less than half that number.

Compl. at ¶ 13.

In carrying out their policy objectives, Sportsmen aver, Respondents intentionally excluded the public, particularly hunters and sportsmen, who are recognized by law "as partners and participants in the protection and preservation of the Pennsylvania deer herd" from "a proper role in the formulation and application of public policies" relating to the herd. Compl. at ¶¶ 14-15.

Sportsmen seek an order directing the Game Commission to disclose the information and sources of information on which they rely in setting deer harvest figures. Sportsmen also ask this Court to set a discovery schedule to allow them to collect information. In addition, they ask this Court to allow the parties to engage in a briefing schedule to generate findings of fact and conclusions of law concerning the parties' respective rights under the Pennsylvania Constitution and the Game Code. Alternatively, Sportsmen seek a declaration of the parties' rights and duties under Section 102 of the Game Code, 34 Pa.C.S. § 102.

Respondents filed preliminary objections, asserting: Sportsmen lack standing to bring this action; the Complaint is legally insufficient to state a claim for relief; and, DCNR, its Secretary and the Governor are not proper parties to this action. These preliminary objections are now before us for disposition.

I. Standing

Respondents first argue the Complaint should be dismissed because Sportsmen lack standing to bring this action. Specifically, they assert, Sportsmen do not possess an interest in the subject matter of this litigation separate and apart from that of the general public. Respondents contend the deer herd is owned exclusively by the Game Commission, and it alone is authorized to manage the herd. They argue Sportsmen do not allege harm to any protected interest by virtue of the Game Commission's deer management program, and, absent such, they lack standing. We disagree.

The concept of "standing," in its accurate legal sense, is concerned only with the question of who is entitled to make a legal challenge to the matter involved. Pa. Nat'l Mut. Cas. Ins. Co. v. Dep't of Labor & Indus., Prevailing Wage Appeals Bd., 552 Pa. 385, 715 A.2d 1068 (1998); Pa. Game Comm'n v. Dep't of Envtl. Res., 521 Pa. 121, 555 A.2d 812 (1989). Standing may be conferred by statute or by having an interest deserving of legal protection. Pa. Game Comm'n. As a general matter, the core concept of standing is that a person who is not adversely affected by the matter he seeks to challenge is not aggrieved thereby and has no right to obtain a judicial resolution of his challenge. Id. In determining whether a party has standing, a court is concerned only with the question of who is entitled to make a legal challenge and not the merits of that challenge. In re T.J., 559 Pa. 118, 739 A.2d 478 (1999).

To possess standing, a party must have an interest in the controversy that is distinguishable from the interest shared by other citizens. Sierra Club v. Hartman, 529 Pa. 454, 605 A.2d 309 (1992). A party possesses standing if he has a "substantial, direct, and immediate interest" in the subject matter of the litigation. Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). Recently, in Pennsylvania Bankers Ass'n v. Department of Banking & Trumark Financial Credit Union, 893 A.2d 864 (Pa.Cmwlth.2006) (en banc), we elaborated on the elements of the "substantial-direct-immediate" test, explaining:

To establish an `aggrieved' status, a party must have a substantial interest, that is, there must be some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law. Also, an interest must be direct, which `means that the person claiming to be aggrieved must show causation of the harm to his interest by the matter of which he complains.' Further, the interest must be immediate and not a remote consequence of the judgment, a requirement addressing the nature of the causal connection.

Id. at 870 (citation omitted) (emphasis deleted).

"An association, as a representative of its members, may have standing to bring a cause of action even in the absence of injury to itself; the association must allege that at least one of its members is suffering immediate or threatened...