Seeton v. Pennsylvania Game Commission

OPINION

Appellant Johnna Seeton filed in the Commonwealth Court a Complaint in Mandamus alleging that the Pennsylvania Game Commission (Commission) improperly concluded that it lacked authority to interfere with what she alleged were the Tioga Boar Hunt Preserve’s (Tioga) ongoing violations of the Pennsylvania Game and Wildlife Code, 34 Pa.C.S. §§ 101, et seq. (Game and Wildlife Code). She asked the Commonwealth Court to reject the Commission’s claim that it lacks *567jurisdiction over Tioga and hold that the Commission’s own regulations as well as its statutory mandate require enforcement of the relevant provisions against Tioga. The Commonwealth Court denied Seeton relief on the basis that the Commission’s interpretations of its own administrative provisions were not inconsistent with the Game and Wildlife Code and therefore are entitled to a court’s deference. Because we find that the Commission’s interpretation of its own regulation is inconsistent with its plain language and irreconcilable with the legislative intent manifest in the Game and Wildlife Code, we reverse.

According to the Commission, Tioga “is in the business of selling ‘canned hunts’ in which customers pay a fee to shoot and kill an animal in an enclosed area which limits the ability of the animal to escape and the amount of pursuit in which the customer must engage.” Brief for Commission at 7. Seeton contends that “[a]nimals used in canned hunts are often drugged, tied to stakes or lured to feeding stations in order to further assure that the ‘hunter’ will get the guaranteed kill that has been promised by the hunting preserve’s proprietor.” Complaint in Mandamus at 2, ¶ 6.

This controversy began when Seeton, a resident of Dauphin County, initiated a correspondence with the Pennsylvania Game Commission seeking to compel enforcement against the Preserve, which Seeton averred serially violated provisions of the Game and Wildlife Code. By responsive letter, the Commission’s Chief Counsel rejected Seeton’s contention that the animals hunted at the Preserve, including wild boar,2 were *568“protected mammals” pursuant to the Commission’s regulations promulgated under the Game and Wildlife Code. See 58 Pa.Code § 133.1.3 In particular, the Commission observed that the term “wild mammals” as used in § 133.1 is defined nowhere in the Game and Wildlife Code or the Commission’s regulations. The Commission, resorting to a dictionary definition of the word “wild,” thus opined that “wild mammals” must apply only to “mammals that are currently living in a state of nature,” Commission Letter to Seeton, 4/29/03 (internal quotation marks omitted), which “excludes mammals that are currently living in a state of captivity, either in pens or within enclosures.” Id. Because the animals at the Preserve are kept within enclosures, the Commission concluded that they are not “wild” for purposes of the Game and Wildlife Code and regulations issued thereunder; rather, they are “the personal property of their owners.” Id.

On October 14, 2004, Seeton filed a Complaint in Mandamus in the Commonwealth Court in its original jurisdiction. See 42 Pa.C.S. § 761(a)(1) (providing original jurisdiction in the Commonwealth Court of civil actions against the Commonwealth). She averred that she had taxpayer standing pursuant to this Court’s decision in In re Application of Biester, 487 Pa. 438, 409 A.2d 848 (1979) (granting taxpayers standing to challenge government action where no one is better situated to challenge that action and it will otherwise evade judicial review). The Commission, she argued, is an arm of Pennsylvania’s executive branch and receives public funding from the sale of timber on game lands owned by the Commonwealth of Pennsylvania. Thus, per In re Biester, where the Commission’s action will *569otherwise go unchallenged, it is subject to challenge by Seeton in her capacity as a Pennsylvania taxpayer.

In her Complaint, Seeton averred that the Commission is aware of Tioga’s ongoing violations of the Game and Wildlife Code, including the restraint and drugging or luring of prey to facilitate a kill by a hunter who has paid for the privilege. She further asserted that the wild boar hunted at Tioga are “protected mammals” under the Game and Wildlife Code and the Commission’s regulations. Because “protected mammals” may be hunted only pursuant to express provisions of the Game and Wildlife Code or the Commission’s regulations, see 58 Pa.Code § 133.1, and because neither the Game and Wildlife Code nor the Commission’s regulations authorize the hunting of boar, Seeton asserted that Tioga is in violation of § 133.1.

The Commission filed Preliminary Objections to Seeton’s Complaint in Mandamus. First, the Commission challenged Seeton’s standing to bring the complaint in the first instance. The Commission contended that Seeton had no interest in the litigation exceeding that of any other member of the public.

In the alternative, the Commission defended the claim on the merits in much the same terms as it had in its prior correspondence with Seeton. Specifically, it argued that “canned hunts” on private property fall outside the Commission’s “realm of regulation” because no animal can be “wild” that is “contained on private property within fenced enclosures.” Preliminary Objections at 2, ¶ 6. It emphasized that its interpretation of the Game Code is entitled to administrative deference. Id. at 2, ¶ 7. It further averred that mandamus is an inappropriate mechanism, as it characterized See-ton’s claim, “to compel the [Commission] to interpret the Game [and Wildlife Code]” as Seeton would prefer. Id. at 2, ¶ 9.

The Commonwealth Court began its ruling by rejecting the Commission’s argument that Seeton lacked standing. The court acknowledged the undisputed point that Seeton lacked traditional standing, which requires a showing of a substantial *570individual interest in the matter, see William, Penn Parking Garage, Inc., v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975), but ruled that Seeton had demonstrated standing pursuant to this Court’s decision in In re Biester, 487 Pa. 438, 409 A.2d 848 (1979). Specifically, the court noted that neither Tioga nor its clients have any incentive to challenge the Commission’s alleged non-enforcement of the Wildlife and Game Code, because they benefit from that non-enforcement. Thus, the court determined that Seeton had standing because the challenge might otherwise evade judicial review.

The Commonwealth Court, however, rejected Seeton’s challenge on the merits. The court found tenable Seeton’s interpretation that wild boar are “protected mammals” subject to the Commission’s protection under 58 Pa.Code § 133.1, but it found equally tenable the Commission’s interpretation that the term “protected mammals,” which includes “wild mammals” under § 133.1, does not apply to wild boar contained in enclosures, because by definition a penned animal cannot be “wild.” Finding both interpretations “reasonable” under the relevant statutory and regulatory provisions, the court determined that it was bound to defer to the Commission’s account. See Bethenergy Mines, Inc., v. Dep’t of Envtl. Protection, 676 A.2d 711 (Pa.Cmwlth.1996). Accordingly, it denied Seeton relief.

Before this Court, the Commission renews its challenge to Seeton’s standing to bring this claim, which we take up as a preliminary question going to this matter’s justiciability.4 In In re Biester, this Court, applying its decision in William Penn Parking Garage, observed that traditional standing requires petitioner to demonstrate a substantial, direct, and immediate interest in the outcome of the suit *571surpassing the common interest of all citizens in procuring obedience to the law. In re Biester, 409 A.2d at 851. We recognized, however, that “[c]ertain cases exist which grant standing to taxpayers where their interest arguably does not meet the [above] requirements of Wm. Penn.” Id. at 852. “[I]n those cases ..., the granting of standing where the degree of causal connection between the action complained of and the injury alleged is small, can be explained by the policy behind granting taxpayers standing.” Id. The “fundamental reason for granting standing” in such cases “is simply that otherwise a large body of governmental activity would be unchallenged in the courts.” Id. (quoting Faden v. Phila. Housing Auth., 424 Pa. 273, 227 A.2d 619, 621-22 (1967)). Thus, taxpayer standing may be granted when it “ensure[s] ... judicial review which would otherwise not occur,” a circumstance that arises where “those directly and immediately affected by the complained of expenditures are beneficially affected as opposed to adversely affected.” Id.

In Seeton’s initial action before the Commonwealth Court, she alleged that, absent her challenge, “the refusal of the Game Commission to take action against Tioga will otherwise go unchallenged,” id. at 4, ¶ 18; that she “has no alternative channels for redress other than [the Commonwealth] Court,” id. at 4, ¶ 21; and that, “[o]n information and belief, there are no other persons better situated than Petitioner to assert the claim raised herein.” Id. at 4, ¶ 23. Thus, she contended, she had standing pursuant to In re Biester.5

*572In response, the Commission failed entirely to address Seeton’s contentions regarding standing under the analysis prescribed by In re Biester, relying instead on its conclusory suggestion that Seeton had no peculiar interest in the matter. Thus, it failed to respond to Seeton’s assertions by identifying who would be better situated to challenge the Commission’s inaction or what alternative channel would be open to such a challenge, matters critical to the In re Biester inquiry.6

In re Biester spoke principally to the importance of assuring that a government agency’s actions not evade review for want of an aggrieved party under the limited terms of traditional standing. As noted, standing under In re Biester aims to “ensure .•.. judicial review which would otherwise not occur,” when “those directly and immediately affected by the complained of expenditures are beneficially affected as opposed to adversely affected.” 409 A.2d at 852. There appears to be no one better situated than Seeton to challenge the non-enforcement asserted here. Moreover, we perceive no alternative means to invoke judicial review of the important question before us. Thus, we find no error in the Commonwealth Court’s determination that Seeton had standing to bring the instant claim.

Next, we are faced with a second preliminary matter: the Commission’s argument that mandamus is an inappropriate remedy in this context and that Seeton’s claim must fail for that infirmity. The Commission correctly notes that *573mandamus does not permit a court to direct a government agency to exercise in a particular fashion a matter entrusted to that agency’s discretion. Rather, mandamus is a common-law mechanism by which a court may compel a government body to perform a mandatory act where the moving party has a clear right, the government body has a corresponding duty, and the moving party demonstrates that no other remedy at law is adequate to secure relief. Phila. Newspapers, Inc., v. Jerome, 478 Pa. 484, 387 A.2d 425, 430 n. 11 (1978). The Commission characterizes Seeton’s prayer as “seeking] to have [the court] impose a different interpretation of the Game and Wildlife Code than that of the Game Commission.” Brief for Commission at 18.

Seeton responds that mandamus is the proper remedy where, as here, a government agency “has failed to perform [a mandatory] statutory duty.” Brief for Seeton at 14. Seeton contends that the Commission’s discretion is not at issue in this case, and that she does not seek to compel the Commission to act in any particular manner. Rather, she seeks to establish only that the Commission is required under the Game and Wildlife Code to bring Tioga into compliance with that Code and the regulations promulgated thereunder in a suitable fashion entrusted to its discretion. See Phila. Newspapers, Inc., 387 A.2d at 430 n. 11 (“A court issuing a writ of mandamus may direct the exercise of discretion, but not performance of a particular discretionary act.”).

We agree with Seeton that, assuming the validity of her allegations (as we must in the context of reviewing the Commonwealth Court’s grant of preliminary objections), and assuming she prevails in establishing that the Commission’s interpretation of its own regulations is inconsistent with that body’s statutory mandate, mandamus is an appropriate remedy. Seeton’s original prayer for relief, in full, provides:

WHEREFORE, Petitioner Johnna Seeton demands entry of judgment against Respondent Pennsylvania Game Commission directing the enforcement against Tioga Boar Hunt Preserve of 55 Pa.Code § 133.1, ordering Tioga to cease and desist from causing or permitting the killing of protected *574mammals on its premises or otherwise directing the Commission to bring Tioga into compliance with the Game Law, and for costs and such further relief as this Court deems proper.

Complaint in Mandamus at 4-5 (emphasis added). Her demand that the Commission be ordered “to bring Tioga into compliance with the Game Law,” were it to be granted without directing any particular action in furtherance of that goal, would not impose upon the Commission’s discretion. The Commission does not have the power to redefine its authority at will; the courts are an appropriate destination, and mandamus an appropriate remedy, to direct the Commission to comply with its statutory mandate to the extent it misapprehends it. See Taylor v. Abernathy, 422 Pa. 629, 222 A.2d 863, 868 (1966)(observing that, “while mandamus may not compel a body vested with discretionary power to exercise that power in a certain manner or to arrive at a certain decision, mandamus will lie to compel a body so empowered to exercise its discretion within the prescribed limits,” and so ordering (emphasis added)). Thus, we disagree with the Commission’s contention that this case is about the substitution of Seeton’s judgment for that of the Commission. We hold that mandamus is an appropriate remedy under these circumstances, and proceed to address the substantive issue at the heart of this case.

The instant dispute essentially focuses on the Commission’s regulation concerning defining “protected mammals” and outlining the degree to'which they are to be protected.

Wild mammals not defined in the act as furbearers or game animals shall be classified as protected mammals to be taken only under the act and this part. See Chapter 21, Subchapters B and C of the act (relating to destruction for agricultural protection; and destruction of game or wildlife in self-defense) and § 141.3 (relating to protection removed under certain circumstances).

58 Pa.Code 133.1.7 The parties agree that the wild boar here *575in question are neither furbearers nor game animals.8 Thus, this dispute turns on whether “wild mammals” include wild boar; if so, they must be protected mammals under the Commission’s own regulation. Cf Town of Sullivan v. Strauss, 171 A.D.2d 980, 567 N.Y.S.2d 921, 922 (1991) (describing, inter alia, Russian boar as “exotic animals generally considered wild and undomesticated”).

Seeton argues that the Commission’s interpretation of its own regulation is unsustainable under the language of that provision and the Game and Wildlife Code, and that the Commission, in fact, is bound to enforce its regulations against Tioga notwithstanding that the alleged violations harm only privately owned and fenced-in wild boar rather than free-roaming quarry. Seeton maintains that wild boar are “wild mammals” under the Game and Wildlife Code and thus “protected mammals” under § 133.1, regardless of whether they are enclosed. The Game and Wildlife Code, Seeton emphasizes, empowers and directs the Commission “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.” 34 Pa.C.S. § 322(a).9 Pointing as well to the discretion conferred upon the Commission to regulate hunting, id. §§ 322(c)(l)-(7), classify wild birds and animals, id. § 322(c)(8), manage and develop game lands, id. § 322(c)(10); and to promulgate necessary and appropriate regulations concerning hunting and fur-taking in the Commonwealth, id. § 2102(a), Seeton argues that “the Code makes clear that the Game Commission has *576jurisdiction over all ‘wildlife’ in the Commonwealth.” Brief for Appellant at 8. “Wildlife,” Seeton observes, is defined by the Game Code as “wild birds, wild mammals, and facsimiles thereof, regardless of classification, whether protected or unprotected, including any part, product, egg or offspring thereof.” 34 Pa.C.S. § 102 (defining terms)(emphasis added). See-ton avers that wild boar therefore are “wild mammals” subject to the Commission’s unqualified protection, notwithstanding the Commission’s claim to the contrary.

The Commission acknowledges that § 133.1 binds it to police the “taking” of “wild mammals,” but takes the position that boar are not “wild mammals” for purposes of that regulation. Particularly, the Commission maintains that, because the term “wild mammals” is not defined by the Game Code or the Commission’s regulations, it should be understood according to its common usage. “Wild,” the Commission asserts, connotes “mammals living in a state of nature,” which the Commission maintains cannot include privately owned animals living in enclosures. Brief for Commission at 12. In support of this interpretation, the Commission cites sections of the Game Code that it believes support its reading of the relevant terms. At 34 Pa.C.S. § 2161(a) (“Declaration of policy”), for example, the General Assembly refers to the Commission’s “proprietary ownership, jurisdiction and control of game or wildlife living free in nature,” which the same provision identifies as “a renewable natural resource of this Commonwealth.” 10

*577The linchpin of the Commission’s argument, however, is not the superiority of its interpretations over alternative readings, per se. Rather, the Commission argues that it is entitled to prevail for precisely the reason relied upon by the Commonwealth Court: that the Commission’s interpretations of its enabling statute and its regulations are at least as defensible as Seeton’s, and therefore must be vindicated in light of the “strong deference” the courts typically show administrative interpretations such as those forwarded by the Commission in this case. See Winslow-Quattlebaum v. Maryland Ins. Group, 561 Pa. 629, 752 A.2d 878, 881 (2000) (“It is well settled that when the courts of this Commonwealth are faced with interpreting statutory language, they afford great deference to the interpretation rendered by the administrative agency overseeing the implementation of such legislation.”). Subject to this deference, the Commission contends, its reading of “wild mammals” to apply only to mammals that are in fact free to roam must be sustained to the detriment of Seeton’s cause of action, as the Commonwealth Court held. The Commission concludes that “it would not be reasonable for the Game Commission to contemplate that the General Assembly intended that its jurisdiction over ‘protected mammals’ would extend to animals which are not indigenous to Pennsylvania and naturally do not live in the wild.” Brief for Commission at 15.11

*578While an agency’s interpretation of an ambiguous statute it is charged with enforcing is entitled to deference, courts’ deference never comes into play when the statute is clear. See Phila. Suburban Corp., 635 A.2d at 118 (quoting Girard Sch. Dist. v. Pittenger, 481 Pa. 91, 392 A.2d 261, 263 (1978) (“While courts traditionally accord the interpretation of the agency charged with administration of the act some deference, the meaning of a statute is essentially a question of law for the court....”)). Notably, the United States Supreme Court, in its extensive precedent concerning judicial deference to administrative interpretations of ambiguous enabling statutes, see, e.g., Chevron, U.S.A., Inc., v. Natural Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), has recognized the dangers of deferring to interpretations developed in anticipation of litigation. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (declining to defer to agency interpretations forwarded for the first time in connection with litigation).12

*579The Game and Wildlife Code defines “wild animals” as “all mammals” that are not designated “domestic” pursuant to 1 Pa.C.S. § 1991. As noted, supra n. 11, we reject the Commission’s attempt to identify wild boar as “domestic” by reclassifying it without any authority, legal or taxonomical, as a member of the supposed “pig family.” Thus, wild boar necessarily are “wild animals” under the Game and Wildlife Code. If they are “wild animals” pursuant to the Game and Wildlife Code, however, it is difficult to see how they are not also “wild mammals” pursuant to 58 Pa.Code § 133.1. Wild boar are undisputedly mammals, of course, and their classification as “wild” plainly is consistent with the General Assembly’s use of that term in the definitional section of the Game and Wildlife Code, pursuant to which the Commission exists and has authority to promulgate regulations.

This understanding of the Game and Wildlife Code finds further support in the larger statutory scheme, as well. “Wildlife,” as we have noted, is defined by the Game and Wildlife Code as, inter alia, “wild birds” and “wild mammals.” 34 Pa.C.S. § 102. Thus, while the Commission is correct that the term “wild mammals” is not itself defined by either the Game and Wildlife Code or the Commission’s regulations, it is not wholly undetermined within the statutory scheme. Rather, “wild mammals” plainly are a subset of the term “wildlife.” Thus, whatever is true of “wildlife” must also be true of “wild mammals,” barring an explicit statutory exception. Interestingly, 34 Pa.C.S. § 2163(b) prohibits, inter alia, the release within the Commonwealth of “imported game or wildlife or game or wildlife reared in captivity ” (emphasis added). This provision undermines the Commission’s claims regarding the meaning of the word “wild” in at least two dimensions. First, insofar as “wildlife” is defined to include “wild animals” and “wild mammals,” as explained above, the notion of “wildlife reared in captivity” (which posits the prospect of “wild animals” and “wild mammals” reared in captivity), is wholly *580antithetical to the Commission’s attempt to tie the word “wild” to the degree of freedom enjoyed by a given animal. Similarly, it is impossible to “release” “wildlife” (and hence “wild animals” and “wild mammals”), the activity proscribed in the abovementioned section, if the animal’s liberty is a necessary condition to its status as “wild,” since one cannot release an animal from a non-captive state.13

Notably, the Commission does not dispute Appellant’s assertion that Tioga drugs or otherwise disables wild boar to facilitate easier kills, nor does it argue that, were it bound to enforce the law against Tioga, the alleged conduct would be permissible. The Game and Wildlife Code makes it illegal to hunt through use of poison or chemical of any kind. 34 Pa.C.S. § 2308(9). Thus, the Commission effectively argues that the hunting of captive animals on fenced, private property may be undertaken by means such as drugs or restraint that violate, at a minimum, the spirit of the Game and Wildlife Code. This is an untenably narrow interpretation of its statutory mandate. Cf, inter alia, 34 Pa.C.S. § 103(a) (vesting the Commission with “ownership, jurisdiction over and control of game or -wildlife ... to be controlled, regulated and disposed of in accordance with this title”); 34 Pa.C.S. § 2102(a) (directing the Commission “to promulgate regulations as it deems necessary and appropriate to protect[ ], preserv[e] and manage[] game or wildlife and game or wildlife habitat”); 34 Pa.C.S. §§ 2163-64 (charging the Commission with regulating the unlawful importation of game, wildlife, and protected birds).

Interestingly, the Commission does not in all instances espouse such a restrained view of its authority. In Commonwealth v. Gosselin, 861 A.2d 996 (Pa.Super.2004), appellants rescued and effectively domesticated an injured squirrel, Nut-*581kin, while residing in South Carolina, where to do so was legal. Later, however, appellants moved to Pennsylvania, where they had some dealings with the Commission. Specifically, a Wildlife Officer, while investigating an unrelated tip lodged by appellants, observed Nutkin in the house, explained that appellants were barred by Pennsylvania law from housing a squirrel, and cited them for a violation when they refused to surrender custody of Nutkin to the officer. In resolving the case, the Commission agreed that Nutkin was a “wild animal” under the Game and Wildlife Code.

Gosselin does not command our holding in this case. Rather, it suggests the difficulty the Commission would encounter were it permitted to restrict “wild” to refer only to animals not in fact penned or otherwise restrained on private property. If the Game and Wildlife Code is to cohere, “wild” must refer to a category of animals based upon inherent qualities, not transient circumstances, a fact the Commission surely recognized when it insisted upon its authority to cite the appellants in Gosselin for failing to turn over Nutkin to the Wildlife Officer when he demanded it.

We hold that the Commonwealth Court erred in deferring to the Pennsylvania Game Commission’s interpretations of the Pennsylvania Game and Wildlife Code and regulations promulgated thereunder because those interpretations are patently at odds with the enabling Game and Wildlife Code. Accordingly, the Commonwealth Court’s order granting the Commission’s preliminary objections on the merits is reversed, and the case remanded for further proceedings as required.14