A Matter of Discretion

[Outdoor Talk Network by Jim Slinsky]
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A Matter of Discretion ©

By Jim Slinsky
01/20/07

It was all the rage for a few days, but the dismissal of the Unified Sportsmen of PA’s lawsuit against the PGC seems to have been drowned out by a plethora of new controversies. The hunting license increase boiled to the top within days of the court’s ruling. The upcoming PGC Commissioner meeting and the 2007 doe allocations are now on everyone’s mind and lips. The scientific mountain lion permit to Dr. Dennis Wydra was again denied by the PGC. I suppose we can say the beat goes on.

In any event, there was a major lesson to be learned from the Unified court case and it centers on the issue of discretion. Unified originally went to an attorney focused on the issue of accuracy and credibility. We never had 1.6 million deer and Unified believed this should be the focal point of the litigation. The attorney advised “mandamus” should be the legal strategy to provide a path to depositions and the discovery of the truth. Unified deferred to the discretion of the attorney.

Mandamus is Latin for “we command”. In essence, the legal approach was to command the PGC to honor Title 34 and its provision to “provide a reasonable opportunity to hunt”. Unified believed the opportunity to hunt includes a reasonable expectation of success; otherwise, hunting would merely be taking your gun for a walk.

Unfortunately, the judges didn’t agree with the presentation of the mandamus approach and used their discretion to dismiss the suit. The case was over before it began. This is the risk of litigation. One rolls the dice when they go to court, as they say. We are all aware that sometimes the guilty go free and the innocent go to prison.

Toward the end of the judges’ written ruling there is some language discussing the problematic issue of discretion. If Unified had succeeded past the initial phase of presenting the case, discretion may have ultimately decided the case. If Unified or any entity sues a government agency for not operating in an acceptable manner, agency discretion will probably become the issue. Courts tend to defer discretion to the agency as the perceived experts in the debate. Suits are supposed to focus on violation of the law.

There is statewide talk amongst our sporting class of suing the Department of Conservation and Natural Resources (DCNR) for their veneer timbering practices and forest certification program. There is no doubt that DCNR has been a driving political force in the deer reduction effort. There is even less doubt that their efforts have dramatically affected our rural economies. Without discovering and putting forth the proof that DCNR is violating the law, hunters will find themselves fighting the discretion issue once again. No matter how abusive to our forest ecosystems and our wildlife veneer timbering may be, without discovering specific violations, discretion will probably be the deciding factor.

However, I do see an interesting conflict developing. If DCNR’s primary mission is resource extraction and DCNR argues the deer must die to comply with forest certification, how does the PGC promote and preserve the tradition of hunting? Can we allow the mission of one agency to destroy the mission of another? Furthermore, DCNR’s second mission is recreation and hunting is the most popular recreational activity on State Forest Lands. Is it acceptable for DCNR to destroy hunting on State Forest Lands in pursuit of forest certification? Without creating balance are they not in violation of their own second primary mission?

While all of the above creates intriguing cocktail party banter, the tradition and future of hunting is in grave jeopardy. I understand Penn State is reviewing the possibility of the PGC obtaining forest certification for our State Game Lands. This should be interesting.

Our only hope is our legislators are paying close attention. It is time for them to become involved. At this point, we need our legislators to use their discretion and remove some discretion from the agencies before our deer herd reaches the point of no return.

Jim Slinsky is the host and producer of the “Outdoor Talk Network”, a nationally syndicated, outdoor-talk radio program. For a station near you or to contact Jim, visit his website at www.outdoortalknetwork.com.

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