Why Unified Lost The Lawsuit - The HuntingPA.com Outdoor Community
Reply
 
LinkBack Thread Tools
post #1 of 220 (permalink) Old 08-30-2011, 11:08 AM Thread Starter
Sage
 
Join Date: Oct 2003
Location: Franklin County
Posts: 24,796
Back To Top
Why Unified Lost The Lawsuit

Looking at the decision of the court, it is easy to see why Unified lost the lawsuit.

This would be the third one - or the second depending if you think the first one was a single effort or seperate events. I think that when the court gives you a mulligan - and tells you to refile and try again - that is a seperate event.



The depositions given by USP are very instructive in where the thrust of this case was. Mainly focused on just two WMU's - not statewide deer hunting.



From the court decision of Feb 8th 2011:



IN THE COMMONWEALTH COURT OF I?ENNSYLVANIA
v.
The Pennsylvania Game Commission

No. 427 M.D. 2007

FILED: February 8, 2011


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.


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


Page 6

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 follows
, In relevant part.


[The Commission] propounded two sets of
interrogatories and a request for the production of
documents. The parties also conducted a total of
seven depositions. As set out above, all of that
discovery has demonstrated to the parties how
different their view on deer management are.




CONCLUSION

Based on the foregoing, it is clear that there are
Issues of material fact in dispute and that as a result,
the [Commission] is not entitled to summary
judgment. Moreover, viewing the record In the light
most favorable to [the Sportsmen],
this Honorable
Court must deny [the Commission'S] Motion for
Summary Judgment.



[Sportsmen's] Brief In Support of Response to [the Commission's] Motion for
Summary Judgment, at 17-18 (emphasis added).
Based on our review, we do not discern any material questions
of fact precluding consideration of summary judgment In favor of the
Commission.


We begin by reviewing the various depositions taken In this matter.



Charles Bolgiano, Ph,D" was also deposed,


Bolgiano is a
member of Sportsmen. He believes a "sustainable deer population" is that
number of deer that over time will not be reduced to zero due to biological
reasons or any other reason.



Bolglano admitted he Is not qualified to determine what a
reasonable number of doe licenses would have been In 2007; rather, the
Commission should discuss the number of deer licenses with Sportsmen.


He would like to see better communication between the
Commission and Sportsmen. He testified Sportsmen have no input into
management of the deer herd.



Bolglano admitted he Is not qualified to determine what a
reasonable number of doe licenses would have been In 2007
; rather, the
Commission should discuss the number of deer licenses with Sportsmen.


Bolglano stated the Commission should base reproduction
data on examination of 100 deer per WMU; this would be a reliable number.


The Commission should conduct its own aerial surveys, at Its own expense If
necessary, and collect additional data from deer harvesting reports and
information collected from meat processing facilities and deer check stations.



Bolgiano testified that some WMUs have too many deer and others have too
few.

Notably, Bolglano testified that the Commission Is properly managing
the WMUs in urban areas. He Identified WMU 2G and 2F as particularly
problematic.



Bolgiano testified that the CommIssion has open public
meetings but he believes Sportsmen should be more involved in the




Page 12


Commission's determinatIon of how many deer licenses it issues and
distributes.



He testified the habitat should determine how many deer are In
an area.



He believes that if hunter success rates returned to the levels
experienced In the 1980s, It would evidence an adequate opportunity to hunt
in Pennsylvania.

Is your position a short term gain - or a long term loss? Separate the issues.
Bluetick is offline  
Sponsored Links
Advertisement
 
post #2 of 220 (permalink) Old 08-30-2011, 11:17 AM Thread Starter
Sage
 
Join Date: Oct 2003
Location: Franklin County
Posts: 24,796
Back To Top
Re: Why Unified Lost The Lawsuit

Stephen Mohr, also a member of Sportsmen and former Game
Commissioner
, testified.


Like Bolgiano, Mohr could not testify as to the
number of hunting licenses the Commission should have issued in 2007.



Mohr testified that the Commission lacks any scientific data to support its
determinations as to the numbers of licenses issued; he Is waiting for the
necessary information to be <u>developed</u>.




He believes that Pennsylvania
should incorporate data used by other states
in the management of their
deer herd, <span style='font-size: 14pt'>although he failed to identify what types of data other states use</span>.


Mohr recognized that deer management in Pennsylvania must
satisfy <span style='font-size: 14pt'>all social, economic, political and scientific concerns.</span>



He stated that
<u>there is no problem with the entire deer population in Pennsylvania</u>
, <span style='font-size: 17pt'><u>just in
specific WMUs.</u></span>




Of particular note, Mohr stated that one proven method of
assessing the health of the deer herd Is to collect road-killed deer and
determine the number of fetuses. The problem, however, is that the
Commission is not collecting enough deer for examination. Some WMUs
collect more samples than other WMUs.


Mohr stated that examination of
100 deer per WMU is needed to satisfy the political, social, and economic
impact deer have.


He believes the Commission should have mandatory
reporting of deer harvest
and utilize check stations.



He otherwise could not
identify what specific types of surveys the Commission should conduct to
assess the deer population.




Page 13



Mohr believes the Commission should publish In the
Pennsylvania Bulletin the number of licenses it will issue at least 60 days
prior to the public meeting announcing the number of licenses.


He believes
the maximum sustainable yield would vary by WMUs <span style='font-size: 17pt'>depending on the
habitat.</span>




Of interest, Mohr testified that hunters should have the right to
pursue a deer population in the WMU of their choosing.

Is your position a short term gain - or a long term loss? Separate the issues.
Bluetick is offline  
post #3 of 220 (permalink) Old 08-30-2011, 11:21 AM Thread Starter
Sage
 
Join Date: Oct 2003
Location: Franklin County
Posts: 24,796
Back To Top
Re: Why Unified Lost The Lawsuit

Greg Levengood was also deposed.


Levengood, a hunter since
age 12, was the Chairman of Sportsmen at the time of filing of the instant
petition.


Levengood acknowledged that the Legislative Budget and Finance
Committee commissioned the Wildlife Management Institute (WMI) to audit
the Commission's deer management program.


He disagreed, however, that
the resolution properly focused the inquiry.


In particular, Levengood agreed
that the Commission's method of managing the deer herd is appropriate
and
that the independent audit confirmed the Commission's methodology.


However, his concern is whether there was a scientific justification for
reduction in the deer herd In the first instance.



Levengood recognized that
the WMI report was in favor of the deer management program.

Is your position a short term gain - or a long term loss? Separate the issues.
Bluetick is offline  
Sponsored Links
Advertisement
 
post #4 of 220 (permalink) Old 08-30-2011, 11:26 AM Thread Starter
Sage
 
Join Date: Oct 2003
Location: Franklin County
Posts: 24,796
Back To Top
Re: Why Unified Lost The Lawsuit

Finally, James Slinksy was deposed.

Slinksy is a radio talk
show host, and his show focuses on outdoor issues.

He claims to have
Interviewed over 1,031 persons, including every major deer project leader in
the country.

In preparation for his radio show, Slinsky stated he does
significant amounts of research into hunting game management,
fishing
management, and issues of global warming, and he has published numerous
articles.


He is an advisor to Sportsmen.


He testified there are three
methods of deer management:


traditional, where there is a two-week buck
season followed by a three-day doe season;

an "either/or" system, where a
hunter may kill either a buck or a doe;

or "annihilation," where doe and buck
seasons are run concurrently.


According to Slinsky, the Commission is in
the annihilation mode.




In his opinion, Slinky believes the deer population to
be less than three deer per square mile
. Some WMUs have more deer, and



Page 14



others have less.


He believes the deer population is dangerously low and
the deer management program is too aggressive.


He opined habitat is key;


better habitats result in greater deer reproduction.



Slinksy stated Pennsylvania's deer management program is
out of line with other states, although he offered no specific examples of
other states' programs.




He believes the Commission based its program on
fraud and lies.



He spoke briefly on WMUs 2F and 2G, two big wooded areas,
which form a "V'" in the Commonwealth.


He said he would be happy with a
10-15% buck harvest rate.

Is your position a short term gain - or a long term loss? Separate the issues.
Bluetick is offline  
post #5 of 220 (permalink) Old 08-30-2011, 11:39 AM
The Man
 
Join Date: Oct 2004
Location: Pa.--2A
Posts: 5,693
Back To Top
Re: Why Unified Lost The Lawsuit

Blue--your to considerate--The reason they lost is simple---The evidence presented--stunk---The witnesses presenting the evidence---stunk--The USP--stinks.

I'm glad that last thread was pulled, or I might of really told the unifiedsportsman how I felt

Genesis 27:3
TBO2 is offline  
post #6 of 220 (permalink) Old 08-30-2011, 11:39 AM Thread Starter
Sage
 
Join Date: Oct 2003
Location: Franklin County
Posts: 24,796
Back To Top
Re: Why Unified Lost The Lawsuit

We agree with the Commission that Sportsmen have failed to
show that the Commission's implementation of its deer management




Page 16



program Is an abuse of discretion.


Initially, we address the claims that the
Commission's use of road-killed deer to determine reproduction rates and
deer health is unscientifically reliable and the number of samples upon which
the Commission relies Is Inadequate.



Sportsmen have failed to demonstrate that use of road-killed
deer reproductive rates is unscientific. To the contrary, Sportsmen witness
Mohr testified that a proven method of estimating the deer herd health is the
collection of road-killed deer and examination of any fetuses. Nearly every
witness testified that examination of approximately 100 deer would be an
ideal sampling In order to estimate reproductive rates.




Notwithstanding,
Sportsmen failed to present
any evidenice that the Comission's "target
rate" of a 1.5 embryo per doe reproduction rate is based on wholly arbitrary
grounds.


Roseberry testified that a larger sampling Is not always necessary
so long as the sample size produces a coefficient of less than 13%, which Is
sufficient for accurate population management.? Sportsmen offered no
testimony disputing Rosenberry's opinion that a 13% coefficient of variation
is scientifically reliable .


In addition to reproductive data, and with the exception of
aerial surveys and check stations, it appears the Commission utilizes those
methods of managing the deer population proposed by Sportsmen.




Page 17



reporting rate.



Sportsmen failed to refute the Commission's reliance on
harvest data
as the primary source of population trend information.


Sportsmen have likewise failed to establish the Commission's
goal of a healthy habitat, and the method by which the Commission
attempts to meet this goal,
is an abuse of discretion.


To the contrary,
<span style='font-size: 17pt'>Bolgiano</span> testified that one way to measure deer health is to view the state of
the habitat.


Documents, Vol. II, Ex. F, at 78, 97 (<u>"I think that the habitat in
[the] area determines how many deer there should be.</u> ").



Similarly, Slinsky
testified that habitat is a key component in determining the number of deer
per WMU.


Documents, Vol. III, Ex. I, at 54 C'WMUs vary. You see, habitat
is the key. And you know, habitat, of course, Is food based and nutrition
and so forth.
").



The Commission relies on reports issued by the U.s. Forest
Service to ascertain the health of Pennsylvania's forest habitat. Sportsmen
have offered nothing to suggest the Commission's reliance on the Forest
Service's methodology and appraisals lack scientific basis or are in some
other way unreliable.




Likewise, Sportsmen do not contend the Commission's
reliance on the U.S. Forest Service's reports constitute fraud, bad faith,
capricious action or an abuse of discretion.




Page 18

Is your position a short term gain - or a long term loss? Separate the issues.
Bluetick is offline  
post #7 of 220 (permalink) Old 08-30-2011, 11:56 AM Thread Starter
Sage
 
Join Date: Oct 2003
Location: Franklin County
Posts: 24,796
Back To Top
Re: Why Unified Lost The Lawsuit

We further agree Sportsmen failed to demonstrate the
Commission's management of the deer herd has reduced the deer
population to below sustainable levels
, as alleged in the petition for review.


Our review of the deposition testimony reveals that Sportsmen do not
contest the Commission's management of the deer herd generally;
<u><span style='font-size: 17pt'>the
concern is limited to specific WMUs</span>.</u>

Documents, Vol. II, Ex. F. at 90-92; Ex.
G, at 36,118-119; Vol. III, Ex. I, at 54. In fact, Slinsky testified he believes
hunters are generally happy with the Commission's antlered deer
restrictions, but are unhappy about the doe program
, Documents, Vol. III,


Page 19



Ex. I, at 58, and nearly every Sportsmen witness testified some WMUs have
too many deer and others have too few
.


In addition, Bolgiano testified "the
sustainable population is not the important thing
. '" [T]he [Commission]
must provide adequate opportunity to hunt the wildlife resources of the
State." Documents, Vol. II, Ex. F, at 66.



We recognize the Commission does not physically count the
deer population and perhaps it needs to look at arguably more efficient
methods of estimating deer counts/harvest rates and communicating such to
the public. Nevertheless, the WMI provided an estimated deer population
per WMU in its report. Documents, Vol. IIIJ Ex. K, at App. e. Sportsmen
offered no evidence estimating the number of deer in Pennsylvania contesting the WMI's estimate.
.


Sportsmen's witnesses base their testimony
regarding an inadequate opportunIty to hunt on anecdotal statements from
other hunters who complain that they are not seeing deer while hunting.



This is Insufficient to raise a material issue of fact as to whether the
Commission's Management plan is reducing the deer herd below a
sustainable level and/or whether hunters are deprived of an adequate
opportunity to hunt.



Finally, the petitIon for review alleges the CommissIon does
not allow for public input.
We disagree.



All witnesses, Including those of
Sportsmen, testified that Sportsmen are members of the CAC, or community
advisory committee.
When the CAC members reach a consensus on a
particular matter, they submit their recommendation to the Commission.
Indeed, the Commission based its current Management Plan goals in part on
the recommendation of the CAC.

Although Sportsmen would like a bigger


Page 20


voice in the Commission's deer management related decisions, they must
recognize it is not the only member of the CAC
and the Commission is in the
unenviable position of trying to satisfy all CAC members and their divergent
views. Perhaps each WMU could have a representative on the CAC.



In sum, Sportsmen's position is merely a disagreement with
the Commission's method In managing the deer herd.


Sportsmen offered
nothing to suggest the Commission based Its Management Plan on fraud or
bad faith or that the Commission's actions constitute capricious action or an
abuse of discretion.



"<u>Bold unsupported assertions of conclusory accusation
cannot create genuine issues of material fact</u>." Brecher v. Cutler, 578 A.2d
481,483 (Pa. Super. 1996); see alsO .Mld-Aflanticower SupPlY [censored]'ri v.pa.
Public Uti!. Comm'n, 746 A.2d 1196, 1200 (Pa. Cmwlth. 2000)

( "mere bald
assertions, personal opinions or perceptions do not constitute evidence").



ccordingly, we grant the Commission's motion for summary judgment.

Is your position a short term gain - or a long term loss? Separate the issues.
Bluetick is offline  
post #8 of 220 (permalink) Old 09-05-2011, 03:54 PM
Diehard Outdoorsman
 
Join Date: May 2001
Location: Dead end holler, WV
Posts: 4,038
Back To Top
Re: Why Unified Lost The Lawsuit

Am I missing something here? Their suit was tossed 9 months ago and they crawled back under the rock they came from.

Did they just file an appeal or another suit or something?

It was getting kind of boring and they were good for a laugh.

WV Gino
WV Gino Home is offline  
post #9 of 220 (permalink) Old 09-05-2011, 04:27 PM
Sage
 
Join Date: Mar 2001
Location: Lancaster County
Posts: 27,829
Back To Top
Re: Why Unified Lost The Lawsuit

There was a thread on here, by a Unified guy, that got deleted. BT started this thread to refute some of the fallacies.



"It only takes one person to care in order to get something changed." Bryan S.
Guest is offline  
post #10 of 220 (permalink) Old 09-06-2011, 10:26 PM Thread Starter
Sage
 
Join Date: Oct 2003
Location: Franklin County
Posts: 24,796
Back To Top
Re: Why Unified Lost The Lawsuit

In response to several requests for the entire decision, here is a link to the thread with the entire court decision posted.

https://www.huntingpa.com/forums/ubbt...128165&fpart=1

Is your position a short term gain - or a long term loss? Separate the issues.
Bluetick is offline  
Reply

Quick Reply
Message:
Options

Register Now



In order to be able to post messages on the The HuntingPA.com Outdoor Community forums, you must first register.
Please enter your desired user name, your email address and other required details in the form below.

User Name:
Password
Please enter a password for your user account. Note that passwords are case-sensitive.

Password:


Confirm Password:
Email Address
Please enter a valid email address for yourself.

Email Address:
OR

Log-in










Thread Tools
Show Printable Version Show Printable Version
Email this Page Email this Page



Posting Rules  
You may not post new threads
You may post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Trackbacks are On
Pingbacks are On
Refbacks are On

 
For the best viewing experience please update your browser to Google Chrome