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Arguments resume in lawsuit aimed at stopping deer harvest

Deer graze in Mill Creek Park.

YOUNGSTOWN — Even though more than 100 deer already have been killed by hunters and sharpshooters in Mill Creek MetroParks since Oct. 1, the four people who filed suit to stop it are still challenging the injunction ruling of Mahoning County Magistrate Nicole Alexander when she refused to stop the deer reductions.

The plaintiffs and MetroParks recently have filed briefs in the case. Attorneys Marc Dann and Jeffrey Crossman asked Alexander’s boss, Judge Anthony Donofrio of Mahoning County Common Pleas Court, to overturn her decision.

The MetroParks, meanwhile again argued that the park district has the authority to carry out deer reduction program, and the judge should affirm Magistrate Alexander’s decision.

Dann, who represents the four property owners fighting the deer reduction plan, focused his argument Oct. 11 on a section of Ohio law that requires park districts to adopt bylaws for “protection and preservation of the parks” and “of property and natural life therein.”

Dann argues that the MetroParks has “not offered any statutory or other legal basis for allowing a park district like the MetroParks “to engage in killing the park’s wildlife as proposed in its Deer Slaughter Plan, nor has (the MetroParks) cited any ‘broad authority’ referenced in (Magistrate Alexander’s) decision.”

The magistrate’s Sept. 29 ruling was to deny a preliminary injunction to the four plaintiffs to stop the deer reduction plan from being implemented “pending a trial and decision” on the “merits” of the lawsuit overall. Dann’s filing states that Judge Donofrio should approve the preliminary injunction so that the “pending trial is not a hollow proceeding.”

Dann cites two earlier cases related to park districts in his argument. One is the ruling by a visiting panel of appeals judges from the Circleville area regarding the dispute involving Diane Less of Green Township over the MetroParks’ attempt to use eminent domain to acquire a former railroad bed on Less’ land. The purpose was to complete the final phase of the MetroParks Bikeway. When the Ohio Supreme Court reviewed that ruling, it returned the case to common pleas court for a hearing it said should have been held.

Dann stated that the appeals judges in that MetroParks case ruled against the MetroParks on the grounds that park districts can “not exercise any more authority than the statute expressly provided.” Dann argued that the same concept applies in the deer matter because Ohio appeals courts have ruled to limit “a park district’s authority where, as in (the deer case) there is no explicit authority to engage in the challenged conduct.”

PRO DEER REDUCTION

Attorneys Gregory Beck and Elizabeth Farbman filed the MetroParks’ brief Oct. 24, telling Judge Donofrio not only does the MetroParks have the statutory authority to reduce the deer population in the parks, the four citizens who filed the lawsuit do “not have any standing to oppose this management program, as they have no legally protected interest in it and have failed to prove that harm will occur … apart from mere speculation” if the court allows the deer reduction plan to continue.

The MetroParks filing cites a section of Ohio law that gives the chief of the Division of Wildlife the “authority to control in all matters pertaining to the protection, preservation, propagation, possession and management of the wild animals.”

It calls the law “incredibly broad, and grants park districts the authority to ‘protect and preserve the parks.'” It adds that during a hearing before Magistrate Alexander, it was testified that the deer management program “would protect the parks from further deterioration due to overpopulation of deer in the park district.”

It adds that the program is intended to “preserve the balance of an ecosystem needed to keep all wildlife and plants alive and thriving within the park, including the white-tailed deer population, which suffers from malnourishment and disease when overpopulated.”

It furthermore argues that “countless Ohio park districts have deer management plans such as this one in place to prevent damage to their parks due to overpopulation of deer. To allege that none of these parks have the authority to do so or that Mill Creek Park in particular does not share that same authority, defies logic. There simply is no authority to support this argument.”

As to the plaintiffs’ claims that they will suffer harm from the deer reduction plan, the MetroParks’ lawyers call that “nothing more than speculation. They merely claim that there is a potential for property damage or that the program may cause the residents some kind of trauma. They have provided no evidence whatsoever to support these allegations.”

PARK’S AUTHORITY

But Dann’s filing states that the plaintiffs are not challenging ODNR’s authority to carry out the deer reduction program; it is challenging the park district’s authority.

It states that the magistrate’s ruling cites “deer cases” such as one involving the Cleveland Metropark in her decision, but that case involves the ODNR’s authority to authorize a deer reduction program, not a park district’s authority.

“Plaintiffs have not and do not intend to raise legal challenges related to ODNR’s authority related to sharpshooting permits. This case is squarely focused on the … park district’s legal imitations and directive to ‘preserve’ the park’s ‘natural life,” Dann stated.

No hearings are planned on the matter, and Donofrio can rule at any time.

erunyan<\@>vindy.com

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