Posted on January 20, 2016
Normally we limit our blog to legal articles that directly impact business issues, but today we will talk about something different. Those who know us also know that we regularly support causes to advance stewardship of Ohio’s wildlife, because we care deeply about preserving and protecting our natural resources. Our State Supreme Court does not take many game law violation cases, so when it does, it gets attention. The Ohio Supreme Court’s decision in Risner v. Ohio Dept. of Natural Resources, 144 Ohio St.3d 278 (2015) is significant because it validates the State’s approach to dealing with illegally harvested trophies by seeking enhanced restitution, a relatively new concept in game law enforcement in Ohio.
It has always been illegal to hunt on property you don’t own without the landowner’s permission, but fines are so low and enforcement so lax that many unethical hunters willingly take the risk. The same is true for many game law violations, where the penalties are usually only a few hundred dollars, regardless of whether poached animal is considered a trophy. This reality means that poachers are willing to take the risk of a marginal fine to harvest a real trophy, and with Ohio now considered a top whitetail hunting destination, there is more opportunity for damage to be done to this resource. After the Ohio Supreme Court’s ruling in Risner, poachers will think twice.
In Risner, the defendant, Arlie Risner pled no contest and was convicted of hunting on property he did not own without the landowner’s permission after he shot a record buck with his crossbow. Risner claimed he shot the buck on property he was allowed to hunt, but that the deer then ran to neighboring property, where it died, and from where he retrieved it without the landowner’s permission. According to the Supreme Court’s opinion, the State had DNA and other evidence refuting Risner’s claim that he shot the buck on the property he had permission to hunt. The trial court imposed a $200 fine and ordered Risner to forfeit possession of the antlers and meat to the State. It is easy to see how the penalty for shooting a record buck in violation of the law is not much of a deterrent, and, as the State noted in its argument, such trivial penalties are willingly paid by some as part of the “cost of doing business” when the business is poaching trophy deer.
The State has always been able to seek restitution for game animals harvested illegally, but, because the value of such animals were very low – about $400 for a deer – it served no deterrent to poaching trophies. Enter the Ohio State Legislature, who, in anticipation that cases like Risner’s would eventually come along, added language to the civil enforcement statute in 2008 requiring a person that illegally takes an antlered white-tailed deer with a gross score above 125 inches to pay an additional restitution value. After Risner was convicted, the State sent him a restitution order for an additional $27,851.00, even though the State had already been awarded possession of the antlers as part of the criminal case.
Risner filed a court action to have the restitution order declared null and void – claiming, among other things, that because the State already received restitution of the antlers, it could not then demand money too. The legal issue was whether the statute allowed the State to take the antlers and then pursue the enhanced restitution value in a later civil action. Risner argued the State should have to choose between the two. Risner also claimed that, because the State got to keep the antlers as part of the criminal case, it was double jeopardy for it to later demand the $27,851.00 in enhanced restitution.
The Supreme Court rejected Risner’s arguments, instead siding with the State’s position that the enhanced restitution requirement was written into the statute specifically to deter poachers. The Court observed that “requiring ODNR to choose between possession of the deer’s remains and restitution when a white-tailed deer of this caliber is poached removes all deterrent effect and allows the ‘cost of doing business’ mindset to prevail.” The Court determined that it was the intent of the Legislature to allow the State to take the antlers and make the poacher pay enhanced restitution.
The Court did not rule on the double jeopardy argument because Risner had failed to preserve it for appeal but left open the opportunity for Risner to make this argument in the lower court in a second round of litigation. For now, the law in Ohio is that under the enhanced restitution statute, any person who illegally harvests an antlered deer that scores more than 125 inches is going to face some serious financial consequences in addition to forfeiting their trophy. Of course we don’t need laws like this to keep the honest hunters honest – but for those who break the law to poach a record deer, they should receive a record penalty.
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