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Ohio Supreme Court agrees to hear appeal of $27,851 deer hunting fine

By:Peggy Kirk Hall, Attorney and Director, Agricultural & Resource Law Program Tuesday, June 17th, 2014

UPDATE:  The Ohio Supreme Court affirmed the decision of the Court of Appeals on September 17, 2015.  Read the Court's decision here

Hunting laws don't often reach our highest court, but the Ohio Supreme Court has agreed to review one man's challenge to an unlawful hunting action by the Ohio Department of Natural Resources (ODNR).  The case resulted in a fine of $27,851 against Huron County hunter Arlie Risner for the unlawful taking of an antlered white-tailed deer. 

The case began in 2011, when ODNR charged Risner with “taking a white-tailed deer from the lands of another without first obtaining written permission from the landowner or an authorized agent in violation of R.C. 1533.17.”  The Norwalk Municipal Court fined Risner $200 plus court costs and ordered forfeiture of the meat, which ODNR had seized from a processor.  Risner also had to reimburse ODNR $90 for meat processing costs.  The court later ordered Risner to turn over the deer's antler rack also, which he had taken to a taxidermist.

A few months following the court hearing, ODNR advised Risner that he also owed the state $27,851.33 as restitution for the value of the deer and that his hunting license was suspended until he paid the amount.   ODNR based its claim on Ohio Revised Code section 1531.201, which states:

“(B) The chief of the division of wildlife or the chief's authorized representative may bring a civil action to recover possession of or the restitution value of any wild animal held, taken, bought, sold, or possessed in violation of this chapter or Chapter 1533 of the Revised Code or any division rule against any person who held, took, bought, sold, or possessed the wild animal.”

$27,851 for killing a deer?

ODNR's claim for $27,851 in restitution derived from ORC 1531.201, which contains a formula for calculating the minimum restitution value of an illegally taken antlered white-tailed deer.  The formula determines the deer's value based on its the size.  The law also includes additionall provisions for exceptionally large deer, stating that a convicted violator who takes a deer with a gross score of more than 125 inches  "shall pay an additional restitution value that is calculated using the following formula:  Additional restitution value = ((gross score - 100)2 x $1.65)."

The deer Risner killed exceeded the 125 gross score limit, with a 20-point rack and a gross score of 228 inches.  ODNR thus used the additional formula to determine Risner's restitution, which escalated the demanded payment to over $27,000.

Challenges by both parties

Risner refused to pay ODNR’s restitution order and the agency began enforcement proceedings in court.  Risner argued that the fee violated his constitutional rights and that ODNR could not seek restitution because the agency had already chosen its remedy of seizing the deer meat and antlers.  The Huron County Court of Common Pleas avoided the constitutional issues but agreed with Risner that the plain language of ORC 1531.201 prevented further restitution because ODNR had already been awarded possession of the deer and antlers in prior court proceedings.   Both Risner and the Huron County court focused on the “or” in the statute’s language, which states that ODNR “may bring a civil action to recover possession of or the restitution value of…” an animal.  The "or" set up a choice either one remedy or the other, according Risner and to the common pleas court.

ODNR appealed the decision to Ohio’s Sixth District Court of Appeals.  The appeals court disagreed with the lower court.  The court unanimously concluded that ODNR did in fact have authority to recover the restitution value for the deer.   “The statute, on its face, does not restrict ODNR from bringing a civil action to recover the restitution value if wildlife officers have already seized parts of the wild animal,” said the court.  “Since Risner had no title to or ownership interest in the seized wild animal parts,” the court explained, “ it is illogical to construe ORC 1531.201 to require ODNR to choose between possession of the unlawfully taken parts or restitution for the unlawfully taken deer.” 

Additionally, the appellate court noted that ORC 1531.201 contained “additional” provisions for restitution assessments for deer in excess of 125 points, explaining that "[w]e must presume that in enacting a statute, the General Assembly intended for the entire statute to be effective. * * * Thus, all words should have effect and no part should be disregarded."  The court also stated, however, that nothing in its decision would prevent Risner from arguing for a deduction of the restitution value based on the monetary value the seized deer provided the state.

Risner requests review by Ohio Supreme Court

Risner asked the Ohio Supreme Court to review the decision.  “To allow the chief to bring a second action when a remedy has already been provided, chosen and carried out is nonsensical, frivolous, a violation of law and due process, and a waste of the Court's time and resources,” argued Risner.  “A second action provides for multiple sanctions and double (if not more) remedies…”

ODNR argued that the Supreme Court should not accept the case for review because the appeals court made a correct interpretation of the statute and because Risner had not been doubly penalized, as he had claimed.  “It is clear the General Assembly recognized the need to create R.C. 1531.201(B) as a separate civil mechanism to recoup the full economic loss of this valuable resource,” stated ODNR.   “The return of evidence did not make the State whole, nor should it be construed as a satisfaction of restitution liability…”

The question before the Supreme Court

Challenges to hunting laws don’t often pique the interest of the Ohio Supreme Court, especially those that don’t revolve around constitutional issues.  But this case does carry serious implications for both ODNR and Ohio hunters.   Does ORC 1531.201 allow ODNR to recover the parts of an antlered white-tailed deer and also to seek payment from the violator for the value of the deer, with additional payment for large animals?  If this is the correct interpretation, we can conclude that our legislature intended strong sanctions against violators in addition to ensuring that a violator would not be able to keep a poached animal.   Is this outcome more severe a punishment for unlawful takings of deer than the legislature intended? 

Or does the statute require ODNR to choose either possession or a restitution payment, but not both?   If this is the case, then ODNR must strategically determine how to handle an illegal taking of an antlered white-tailed deer.  Should ODNR claim the meat and antlers so that a violator does not benefit from breaking the law?  Or should ODNR allow the violator to keep the animal so that it can seek payment from the violator?  If the deer is quite large and the restitution payment high, should ODNR choose the higher payment and higher economic value over reclaiming the animal from the violator?  Is the goal of the statute punishment or regaining the economic value of an animal?

The Ohio Supreme Court will answer these and other questions when it determines the correct interpretation of ORC 1531.302 later this year or next.

Read the Court of Appeals decision in Risner v. Ohio Dept. of Natural Resources, Div. of Wildlife.

UPDATE:  The Ohio Supreme Court affirmed the decision of the Court of Appeals on September 17, 2015.  Read the Court's decision here

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