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UPDATE: FIGHT OVER ORPHANED DEER CONTINUES; JUDGE POSTPONES ISSUING RULING

 

By Sarah Foster
Posted 1:00 AM Eastern
September 12, 2015
2015 NewsWithViews.com

CHITTENANGO, N.Y. -- UPDATE: The case of Cindy McGinley, the wildlife rehabilitator who is engaged in an emotionally bruising legal battle with the New York Department of Environmental Conservation (DEC) to save the lives of two deer she had rescued, unfolded as scheduled on Tuesday, but the outcome is uncertain.

Presiding Judge Donald Cerio listened to arguments from both sides, but declined to make a ruling. Unwilling to hand down a hastily drawn decision, he explained he needed additional time to study the various documents that had been submitted and will render a decision at a later date.

He has 60 days to make a ruling.

In a post on her Facebook page, McGinley gave a brief account of the hearing and its immediate aftermath:

“I know you are all waiting with baited breath. I can say that I think oral argument went well for us, but the judge did not render his decision today. He wants time to consider. The DEC, for their part, is trying to paint me as a criminal who willfully broke the law and so am "unfit" to have a LCPEE. I maintain that I am the only one in this matter who actually CARES what happens to these deer, and if I was so unfit, why did I get a call just today from someone with a baby squirrel who found my name on the DEC website?

So please keep the good energy flowing (and thank you so much for all your prayers, well-wishes, and support) until this matter has been fully resolved.

Judge Cerio allowed TV cameras in the courtroom to film the proceedings, and three local channels posted footage: Time Warner Cable News; WSYR, the ABC affiliate in Syracuse (LOCALSYR.com); and WKTV in Wampsville. To view the videos online and read the transcripts, click here, here and here.

The following report on the hearing is compiled directly from quotes and comments from the videos.

Earlier this [year], the DEC found out Cindy McGinley was keeping the two deer beyond their rehabilitation. She had never applied for a license to possess the animals long-term. McGinley claims she didn’t know she had to and attempted to correct the violation.

Cindy immediately applied for that permit, but that permit was then denied by DEC because she was in violation of her rehabilitator’s license,” said McGinley’s attorney, Thomas Fucillo.

After being denied a license that would allow her to keep the two does that she had raised from fawns, she took the case to Madison County Supreme Court.

“I can’t believe the case that the DEC is trying to create against me, that I’m a heinous criminal because I kept this deer,” says McGinley. “I tried to comply with the law and applied for the license to possess both of [the deer] and they denied me.”

McGinley is asking Judge Cerio to rule that the DEC wrongfully denied her that license. She says when the DEC initially denied her the long-term care license, the DEC did not provide her with a reason. In court on Tuesday, the Assistant Attorney General representing the DEC cited several reasons for denial.

“The record demonstrates that the petitioner has violated the terms of her wildlife rehabilitator license in several aspects, including continuing to possess the five-year-old deer since it’s rescue, failing to report that possession in her yearly log tallies, and displaying the two deer to the public,” said Meredith Lee-Clark, Assistant Attorney General, representing the DEC.

McGinley’s attorney, Thomas Fucillo, said those reasons were only drafted after the case went to court.

“How can they make a case-by-case determination when they did no investigation of the facts?” said Fucillo. “They never called Cindy. They never came out and looked. They kept making this statement about exhibiting the animals. Well, she doesn’t exhibit the animals. It’s not open to the public.”

“The DEC didn’t contend in that June 16 denial letter that Cindy was incapable of properly caring for the does, nor that her facilities are inadequate. If any of those things had occurred, it’d be hard to argue they’re wrong. But, in fact, Cindy has the education and training to care for those deer,” said Fucillo.

Those representing DEC say the older doe, Deirdre, should be released into the wild and Lily, the blind yearling, should be sent to another facility, but McGinley says it is not in the animals’ best interest, which is why she applied for her special license in the first place.

“I want a license to possess the deer for education purposes because it will save their lives, and I’d use the license to teach wildlife conservation to the clients I already serve at the farm,” she said.

McGinley said she tried to “soft release” but she doesn’t show me any evidence of being able to survive in the wild.

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Fucillo agrees. “They [the DEC] never got to see how Lily has adapted incredibly to her infirmity and how the two deer work together. They don’t just survive, they thrive,” he said.

The suggestion by the DEC that Lily might be sent to another facility, runs counter to the terms demanded by the June 16 Letter of Denial, in which it was clearly stated that Lily was to be euthanized – and should have been euthanized as soon as McGinley discovered she was blind.

WSYR reminded viewers and readers that McGinley has an online petition to save her deer, which had garnered over 215,000 signatures. Actually, the total is now over 218,000 and climbing.

NOTE: Cindy McGinley was interviewed on a radio program out of Utica, N.Y., Keeler in the Morning. Host Bill Keeler allowed time for Cindy to make her case and at the end commented that she had changed his mind (favorably) about the situation. To listen to the broadcast click here.

Earlier Stories

1 - Sarah Foster: Woman Carries Fight to Courtroom to Stop Government from Killing Orphaned Deer, Sept. 8, 2015
2 – Sarah Foster: Woman Fights to Stop Government from Killing Orphaned Deer, July 2, 2015

2015 NWV - All Rights Reserved

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McGinley has a new attorney to argue her case: Thomas J. Fucillo, of Menter, Rudin and Trivelpiece, who leads the firm's Environmental Law practice group.