In November 2010, Ohio Department of Natural Resources (“ODNR”) officers received a complaint that Arlie Risner was hunting on CSX Railway property without written permission. During the ensuing investigation, wildlife officers discovered a tree stand, deer entrails and organs, and a blood trail on CSX property.
That investigation led to a case that eventually came before us – the Ohio Supreme Court.
Samples of the deer’s organs and blood were taken as evidence. As part of the investigation, the officers seized a set of antlers from a taxidermist and deer meat from a butcher, both of which had been brought in by Risner. The officers paid the butcher $90 for the remaining amount owed for the deer-processing fee.
The officers took the antlers to be measured. The official score was 228 6/8 inches – an extraordinarily large and unusual deer in Ohio.
Blood and organ samples, along with samples of the processed meat and tissue collected from the antler skull plate, were sent to a lab for DNA testing, which confirmed that all the samples came from one white-tailed deer.
In January 2011, Risner was charged with hunting without permission, a violation of Ohio’s poaching law. He pled no contest and the court found him guilty. The court imposed a $200 fine, restitution of $90 to ODNR for the processing fee, and court costs of $55. The court also ordered the meat forfeited to ODNR and suspended Risner’s hunting license for one year. And, the court ordered the antlers forfeited to ODNR.
In April 2011, ODNR notified Risner that because of his conviction, he owed $27,851.33 in restitution to the state, and his hunting license was immediately revoked. He wouldn’t be able to obtain another until restitution was made in full.
Risner filed an action against ODNR in court, alleging that an order of restitution was illegal because the state had taken possession of the deer – in lieu of restitution – in the criminal proceeding. ODNR filed a counterclaim to recover the restitution value of the deer.
The trial court concluded that the plain language of the law prevented ODNR from seeking restitution for the deer after ODNR had been awarded possession of the deer and antlers in prior proceedings.
ODNR appealed. The court of appeals reversed the trial court’s judgment, holding that the plain meaning of the law did not “restrict ODNR from bringing a civil action to recover the restitution value if wildlife officers had already seized parts of the wild animal.” After that, Risner brought his appeal before us.
Risner contended that the plain language of the poaching law permits ODNR to seek either possession of the deer or restitution for the deer – but not both.
In response, ODNR argued that the restitution imposed upon Risner was mandatory, and that its attempt to recover restitution is not affected by an order imposed in a criminal proceeding. ODNR further stated that the law permits it to recover both the poached animal and the restitution value of the animal.
By a four-to-three vote, we found that the law is unambiguous and that it clearly expresses the intent of the legislature. The law states that ODNR may “recover possession of or the restitution value of any wild animal” when the poaching law is violated.
There’s no language qualifying ODNR’s authority to recover possession of the animal or its civil restitution value upon whether either had been previously awarded to ODNR in a related criminal proceeding. The only condition in the law for ODNR to bring civil action is that there must have been a violation of the law.
Certain sections of the law are mandatory. One of those sections states that a person convicted of a violation involving an antlered white-tailed deer with a gross score over 125 inches “shall pay an additional restitution value.” Another section states that upon a conviction, ODNR “shall revoke” the offender’s hunting license until restitution is paid.
When the poaching law was updated in 2007, the testimony presented by proponents discussed the problem Ohio faced from poachers. “Poachers don’t take just one animal. There have been numerous cases in recent years involving multiple deer, turkeys, small game and sometimes endangered species for which there is no legal hunting season.”
Ohio’s poaching laws hadn’t been updated in years, and fines and restitution were so low, poachers considered them simply a “cost of doing business.” The proposed changes were meant to make poachers take our wildlife laws seriously.
If $27,851.33 in restitution sounds like a lot, consider this: In 2007, ODNR’s chief of the Division of Wildlife testified that the restitution value for a white-tailed deer was $400. But the price for taking a 190-class trophy buck in a hunting preserve cost about $15,000. The chief asserted that the fines, jail time and restitution – as they were in 2007 – were not a deterrent to poaching.
Thus, the intent of the legislature in enacting the updated poaching law was to preserve Ohio’s wildlife for legitimate hunters and naturalists and to provide a significant deterrent to those seeking to harm the state’s aesthetic, economic, and recreational interests.
Risner’s purposed interpretation of the law would eviscerate this purpose. 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 would allow the “cost of doing business” mindset to prevail.
We concluded that the poaching law is unambiguous and clearly expresses the intent of the legislature. Therefore, we held that the law mandates that ODNR recover the civil restitution value of an antlered white-tailed deer with a gross score of more than 125 inches from an offender who has been convicted of violating the poaching law.
We affirmed the court of appeals’ judgment that the law permits ODNR to file a civil action to recover the restitution value even though it had seized the deer’s meat and antlers as evidence during the criminal investigation and was awarded possession of that evidence as a result of a conviction.
EDITOR’S NOTE: The case referred to is: Risner v. Ohio Dept. of Natural Resources, Ohio Div. Of Wildlife, 144 Ohio St.3d 278, 2015-Ohio-3731. Case No. 2014-242. Decided September 17, 2015. Majority opinion written by Justice Sharon L Kennedy.
Paul Pfeifer is a justice of the Ohio Supreme Court.