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The Unified Sportsmen of v. the Pennsylvania Game Commission

February 8, 2011

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



Per curiam.

ORDER

AND NOW, this 25th day of March, 2011, it is ordered that the above-captioned opinion filed on February 8, 2011, shall be designated

OPINION, rather than MEMORANDUM OPINION, and it shall be reported.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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

No. 427 M.D. 2007

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.*fn1 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 ...


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