# Kaper v. Pennsylvania Game Commission

> District Court, M.D. Pennsylvania · October 7, 2024

URL: https://www.frixlaw.com/law-library/cases/10667862

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** October 7, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RICHARD KAPER, on behalf of : CIVIL ACTION NO. 1:24-CV-164
himself and all others similarly :
situated, : (Judge Conner)
:
Plaintiff :
:
v. :
:
PENNSYLVANIA GAME :
COMMISSION, :
:
Defendant :

MEMORANDUM

Plaintiff Richard Kaper advances claims against defendant the Pennsylvania
Game Commission for disability discrimination under Title II of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and Section 504 of the
Rehabilitation Act, 29 U.S.C. § 701 et seq. Kaper alleges the Commission violated
his rights under those laws by failing to provide meaningful access to state game
lands and the hunting opportunities those lands offer. The Commission moves to
dismiss Kaper’s claims pursuant to Federal Rule of Civil Procedure 12(b)(6). We
will deny the motion.
I. Factual Background & Procedural History

Kaper is a 71-year-old resident of Renfrew, Pennsylvania, who suffers from
“spinal stenosis, which is a narrowing of the spinal column as a result of arthritis.”
(See Doc. 10 ¶¶ 11-12). Due to his medical condition, Kaper experiences difficulty
walking and other mobility issues. (See id. ¶ 13).
The Commission “purchases, manages and maintains” state game lands to
provide recreational sport-hunting opportunities to the public. (See id. ¶ 29). There
are over 1.5 million acres of state game lands across the Commonwealth, split into

six regions (southwest, southcentral, southeast, northwest, northcentral, and
northeast).1 (See id. ¶ 30). According to Kaper, the game lands provide access to
two sporting programs; each requires a distinct permit or tag issued by the
Commission. (See id. ¶¶ 31-39). “The first program is the general ability to hunt
and trap wildlife” in all six regions, which members of the public access by
obtaining a hunting license. (See id. ¶¶ 31-34). The second, more exclusive program
is the ability to hunt and trap elk within designated zones of the elk management

area, located within the northcentral region of the state game lands. (See id. ¶¶ 37-
38). Individuals must possess an elk-specific permit or “tag” to hunt elk. (See id.
¶ 39). The Commission issues those tags in an annual randomized lottery; however,
the number of lottery applicants greatly exceeds the limited supply of elk tags
issued annually. (See id. ¶¶ 40-42). For example, the Commission issued just 178
elk tags for the 2022-2023 season in a lottery of over 100,000 applicants. (See id.

¶ 42).
The Commission “promote[s] public access . . . for persons with mobility
disabilities” by creating and maintaining “designated routes” throughout the state
game lands. (See id. ¶¶ 47-48 (citations omitted)). The designated routes allegedly

1 The six regions comprise 314 separately numbered state game lands. (See
id. ¶ 65).
are the only means for disabled individuals to access the state game lands. (See id.
¶ 51). They are also only available to those with disabled access permits. (See id.
¶ 52 (citation omitted)). Kaper had two such permits. He was permitted to use
certain types of vehicles as hunting blinds,2 (see id. ¶¶ 53, 55), and to access the

designated routes using mobility devices and motor vehicles, (see id. ¶¶ 59-60
(citation omitted)). Kaper owns a Mahindra 750 utility task or terrain vehicle
(“UTV”) and he claims it is covered by both permits. (See id. ¶¶ 55-56).
In addition to the disability-specific permits, Kaper possessed a general-
purpose hunting license at all relevant times. (See id. ¶¶ 34-36). After entering the
elk tag lottery for over 20 years, Kaper finally won an elk tag, allowing him to hunt

female elk (“cow”) in elk zone 13 during the 2022-2023 season. (See id. ¶¶ 38, 45).
On December 31, 2022, Kaper set out for an eight-day hunting trip to elk zone 13.
(See id. ¶ 81). Nine other individuals who are not disabled joined him. (See id.
¶ 109). During the trip, Kaper attempted to access state game land 100—which
consists of over 21,000 acres within elk zone 13—using three designated routes
provided by the Commission. (See id. ¶¶ 81, 85). According to Kaper, the routes

were geographically clustered in the northeast quadrant of game land 100 and were
not subject to any posted restrictions. (See id. ¶¶ 86-87).

2 Under Pennsylvania law, a “blind” is “[a] manmade structure of any size,
shape or design constructed or arranged of any material in such a manner as to
conceal the body of any person, either in whole or part.” See 34 PA. CONS. STAT.
§ 102.
Kaper alleges the three routes were not accessible to him. The first was too
narrow to accommodate his UTV. (See id. ¶ 88). He fell twice while attempting to
walk into the first trail. (See id. ¶¶ 89-90). He then discovered the access gates to

the two other trails were locked, but ultimately gained access by driving around the
gates. (See id. ¶ 93). He could only proceed for a short distance because the trails
were too narrow for his vehicle and a fallen tree blocked the path. (See id. ¶ 93).3 At
some point during his trip, Kaper spoke about his experience with a local land
manager who informed him that “additional locked gates likely could have been
opened for him.” (See id. ¶ 100). Kaper alleges the nine non-disabled travelers had
access to far more game lands than he did. (See id. ¶ 109). He asserts that he spent

more than $3,000 on travel, lodging, a guide, the elk tag, and other expenditures for
the trip. (See id. ¶¶ 82-83).
Apart from his individual experience, Kaper also advances more general
allegations regarding accessibility of the state game lands. (See, e.g., id. ¶¶ 69-72,
99). He contends, for example, that just 24% of the 314 game lands have designated
disabled-access routes. (See id. ¶ 99). He alleges the existing routes are either too

narrow for mobility devices by design, (see id. ¶ 70), or are inaccessible due to
detritus, including fallen trees and other blockages, (see id. ¶ 71). He also cites
comments supposedly made by a Game Commissioner during a September 2017
Commission meeting concerning amendments to the regulatory framework

3 It is unclear from the amended complaint whether the fallen-tree allegation
applies to the second designated route, the third, or both.
governing disabled access to state game lands. The (unnamed) Commissioner
allegedly stated that ADA “lawsuits are history” thanks to the new regulations, (see
id. ¶¶ 75-76), and he “expect[ed] to see more” large four-wheel vehicles on state

game lands as a result, (see id. ¶¶ 78-79). Kaper avers the Commission, despite
these comments, did not take any further action to maintain the accessible routes
after amending the regulations. (See id. ¶¶ 76, 78-79).
Kaper brings two claims on behalf of himself and a putative class, which he
defines as “all Pennsylvania residents who have a mobility disability and have
attempted to or will attempt to access the State Game Lands.” (See id. ¶¶ 117-118).
First, he asserts that the Commission violates Title II of the ADA (Count I) by failing

to provide meaningful access to the state game lands. (See id. ¶¶ 129-140). He
specifically alleges that there are too few designated routes, and those in existence
are poorly maintained, too narrow, or both, rendering them inaccessible. (See id.
¶¶ 135-137). Kaper also brings a claim under Section 504 of the Rehabilitation Act
(Count II) based on the same alleged facts. (See id. ¶¶ 141-147). He seeks
compensatory damages, declaratory relief, attorney’s fees, expenses, and costs, as

well as an injunction compelling the Commission to: (1) prepare a Self-Evaluation
Plan and Transition Plan; (2) remediate, clear, and repair all existing disabled
access routes; (3) construct new compliant disabled access routes; (4) adopt and
implement methods, policies, and practices to gain and maintain compliance with
federal accessibility standards; (5) continually ensure a sufficient number of
disabled access routes exist; and (6) issue replacement elk tags for himself and the
putative class members who won the elk tag lottery, but were unable to access state
game lands. (See id. at 19-20 ¶¶ C-H).
The Commission moves to dismiss the amended complaint pursuant to

Rule 12(b)(6). The motion is fully briefed and ripe for disposition.
II. Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the
dismissal of complaints that fail to state a claim upon which relief may be granted.
See FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under
Rule 12(b)(6), the court must “accept all factual allegations as true, construe the
complaint in the light most favorable to the plaintiff, and determine whether, under

any reasonable reading of the complaint, the plaintiff may be entitled to relief.”
Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker
v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).
Federal notice and pleading rules require the complaint to provide “the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint, we conduct a
three-step inquiry. See Santiago v. Warminster Township, 629 F.3d 121, 130-31 (3d
Cir. 2010). In the first step, “the court must ‘tak[e] note of the elements a plaintiff
must plead to state a claim.’” Id. at 130 (alteration in original) (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a claim
must be separated; well-pleaded facts are accepted as true, while mere legal
conclusions may be disregarded. Id. at 131-32; see Fowler v. UPMC Shadyside, 578
F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual
allegations, it must determine whether they are sufficient to show a “plausible claim
for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly, 550

U.S. at 556. A claim is facially plausible when the plaintiff pleads facts “that allow[]
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
III. Discussion
The Commission advances three arguments in support of its motion. First, it
asserts that Kaper fails to plausibly allege the state game lands program, when
viewed in its entirety, is not readily accessible to and usable by persons with

disabilities. (See Doc. 17 at 5-12). Second, it argues Kaper has not pleaded
entitlement to compensatory damages. (See id. at 12-18). Lastly, it contends we
should dismiss Kaper’s request for a replacement elk tag because it will not remedy
his alleged injury. (See id. at 18-19). We address each argument seriatim.
A. Discrimination Claims
Courts within our circuit review discrimination claims under Title II of the

ADA and Section 504 of the Rehabilitation Act “together because ‘the substantive
standards for determining liability are the same.’” Furgess v. Pa. Dep’t of Corr., 933
F.3d 285, 288 (3d Cir. 2019) (quoting McDonald v. Pa. Dep’t of Pub. Welfare, 62 F.3d
92, 95 (3d Cir. 1995)). Title II forbids public entities from discriminating against
disabled individuals by excluding them from participating in, or denying them the
benefits of, certain services, programs, or activities. See 42 U.S.C. § 12132. To plead
a prima facie case, Kaper must plausibly allege that: (1) he has a qualifying
disability; (2) he was denied the benefits of a program, service, or activity or was
otherwise subjected to discrimination; and (3) the discrimination was on account of
his disability. Furgess, 933 F.3d at 288-89 (citing Chambers ex rel. Chambers v. Sch.

Dist. of Phila. Bd. of Educ., 587 F.3d 176, 189 (3d Cir. 2013)).
The Attorney General is charged with promulgating regulations to enforce
Title II and define programmatic accessibility. See 42 U.S.C. § 12134(a). The
Department of Justice has issued regulations pursuant to that authority, which
prohibit public entities from using “facilities . . . inaccessible to or unusable by
individuals with disabilities.” See 28 C.F.R. § 35.149. The regulations define
accessibility by distinguishing between existing facilities, i.e., those constructed

prior to January 26, 1992, and newly constructed or altered facilities.4 A more
lenient standard applies to existing facilities because Congress “does not generally
mandate that existing . . . facilities be made accessible.” Disabled in Action of Pa.
v. SEPTA, 635 F.3d 87, 92 (3d Cir. 2011). Those regulations dictate that “a public
entity shall operate each service, program, or activity so that the service, program,
or activity, when viewed in its entirety, is readily accessible to and usable by

individuals with disabilities.” 28 C.F.R. § 35.150(a) (emphasis added).
Programmatic access, not facility access, is the focus, and the regulations offer
several ways to achieve programmatic compliance even if some existing facilities
are inaccessible. A public entity may deliver the services at alternative, accessible

4 Buildings constructed or altered after January 26, 1992, are themselves
subject to different standards of review depending on when work commenced. See
28 C.F.R. § 35.151(c)(1)-(3).
sites, for example, or they may employ “any other methods that result in making its
services, programs, or activities readily accessible to and usable by individuals with
disabilities.” 28 C.F.R. § 35.150(b)(1).

The regulations treat newly constructed and altered facilities differently.
They require “each part of” a newly constructed or altered facility to be “readily
accessible.” See 28 C.F.R. § 35.151(a)(1), (b)(1). Their focus is on facility access,
rather than programmatic access. A stricter standard therefore applies.
The Commission argues we must view the hunting program5 in its entirety
when evaluating accessibility—an argument that presumes the stricter standard for
existing facilities applies because the complaint does not state when the disabled

access routes were built or last altered. (See Doc. 17 at 5-12). Kaper rejoins that the
program need not be considered holistically for these purposes. (See Doc. 18 at 8-
10). He emphasizes the early stage of this litigation; he is operating in an
information void and cannot reasonably know the relevant dates without the benefit
of discovery. (See id. at 8-10 & n.1). We agree with Kaper.

5 As we will discuss, see infra pp. 15-19, the parties dispute the scope and
characterization of the program(s) at issue. To Kaper, the game lands provide
access to two distinct programs: (1) “the general ability to hunt and trap wildlife,”
(see Doc. 10 ¶ 32); and (2) “the specific ability to hunt and trap elk,” (see id. ¶ 37).
The Commission asks us to dismiss all claims regarding the proposed stand-alone
elk program. (See Doc. 17 at 6-7). We will address this argument below because the
parties agree on the scope of the first proposed program—the ability to hunt wildlife
on state game lands generally—and because the propriety of an additional elk-
specific program relates to Kaper’s request for a replacement elk tag, a request the
Commission urges us to dismiss.
Though our court of appeals has not squarely addressed the issue, other
courts have denied motions to dismiss programmatic access claims when the
pleading of record omits the dates facilities were constructed or last altered. See,

e.g., Twede v. Univ. of Wash., 309 F. Supp. 3d 886, 904-05 (W.D. Wash. 2018)
(collecting cases).6 In Twede, plaintiffs alleged the parking lots at the defendant
university violated Title II. See id. at 891. The university moved to dismiss under
Rule 12(b)(6) because the pleadings did not contain the date any of the parking
facilities were constructed or last altered. See id. at 905. The court denied
defendant’s motion and allowed discovery to proceed. See id. “Plaintiffs,” the
court explained, “are at an informational disadvantage and likely will be able to

provide evidentiary support for their claims . . . only after conducting discovery.”
See id. at 905. And allowing discovery is particularly appropriate when defendants
have exclusive possession of the information required to plead with additional
specificity. See id. (citing Hamblen v. Diamante Crossroads Plaza, LLC, No. 08-CV-
0561, 2009 WL 825809, at *2 (D. Ariz. Mar. 30, 2009); Burrell v. Akinola, No. 3:15-CV-
3568, 2016 WL 3523781, at *5 (N.D. Tex. June 27, 2016)).

We find these authorities persuasive. It would be premature to delve into
factual questions required to determine the applicable legal standard in response to
a Rule 12(b)(6) motion. Here, as in Twede, the information necessary to
demonstrate when the designated trails were constructed or last altered is in the

6 We acknowledge these authorities are not binding. Citations to nonbinding
decisions reflect we have carefully considered and are persuaded by the decisions’
ratio decidendi.
Commission’s possession—a fact the Commission does not dispute. The
Commission responds by arguing disabled persons can access the general hunting
program by using non-designated trails with a manual or automatic wheelchair.

(See Doc. 17 at 8). But the amended complaint’s allegata—which we must accept as
true—belie that assertion. Kaper alleges that the designated routes are inaccessible
and that alternative means of access are deficient due to locked gates, inadequate
design, debris, and other issues. (See Doc. 10 ¶¶ 51, 69-72). He claims that he fell
twice when he attempted to traverse a designated route on foot, (see id. ¶ 90), and
that a tree blocked all wheelchair and vehicle access to at least one other trail,
rendering it unusable, (see id. ¶ 93). These allegations suffice to defeat the

Commission’s motion at this stage.
Moreover, the cases the Commission cites are inapposite. Kirola v. City and
County of San Francisco, 860 F.3d 1164 (9th Cir. 2017), addressed an appeal taken
from a motion for judgment as a matter of law following a five-week bench trial
concerning access to public parks. The Kirola court rejected the plaintiffs’
accessibility claims despite statistical evidence showing the overwhelming majority

of curb ramps and intersections contained “major barriers to accessibility,” because
the parks were still accessible when viewed as a whole. See Kirola, 860 F.3d at
1184. Not only did Kirola involve factual determinations made after an extensive
trial, it also applied the standard for accessibility of existing facilities. Yet here we
lack sufficient factual information to determine the proper standard at this
juncture. Kirola is not persuasive in this context.
The Commission’s reliance on Creel v. Rowan University, No. 16-CV-2883,
2017 WL 2734709 (D.N.J. June 26, 2017), similarly misses the mark. There, plaintiff
advanced ADA claims based upon allegations that the defendant’s parking lots were

inaccessible because they were not located on the safest and most direct route, and
contained curb ramps that sloped more than five feet. Creel, 2017 WL 2734709, at
*4. The court classified those allegations as conclusory and dismissed the complaint
for lack of factual information regarding the specific routes and lots at issue and
their alleged deficiencies. Id. at *4. Lacking “the actual contours of th[e] suit,” the
court dismissed the case with leave to amend. See id. Kaper’s amended complaint,
by contrast, specifically identifies three designated trails within state game land 100.

(See Doc. 10 ¶¶ 85-89, 93). It also includes details of the conditions he confronted at
the trails—narrow or locked entryways, overturned trees, and other blockages—all
of which impeded access to the game lands. (See id.) Creel does not undermine our
conclusion that Kaper has adequately pleaded a programmatic access claim.
B. Compensatory Damages

The Commission next urges us to dismiss Kaper’s request for compensatory
damages. (See Doc. 17 at 12-18). To state a claim for compensatory damages,
Kaper must “show intentional discrimination under a deliberate indifference
standard.” Durham v. Kelley, 82 F.4th 217, 225 (3d Cir. 2023) (citing Furgess, 933
F.3d at 289). He “must allege ‘(1) knowledge that a federally protected right is
substantially likely to be violated . . . and (2) failure to act despite that knowledge.’”
Id. at 226 (quoting Haberle v. Troxell, 885 F.3d 170, 181 (3d Cir. 2018)) (alteration in
original). The claimant need not prove the defendant personally harbored “ill will
or animosity toward the disabled” individual; the standard simply requires “a
deliberate choice, rather than negligence or bureaucratic inaction.” S.H. ex rel.
Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 263 (3d Cir. 2013) (internal

citations and quotation marks omitted). In other words, “[d]eliberate indifference
requires actual knowledge; allegations that one would have or ‘should have known’
will not satisfy the knowledge prong of deliberate indifference.” Id. at 266 n.26
(citing Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012), abrogated on other grounds
as recognized in Mack v. Yost, 968 F.3d 311, 319 n.7 (3d Cir. 2020)) (emphasis in
original). A plaintiff who alleges an entity’s policies and procedures resulted in a
substantial likelihood of harm can satisfy its burden by alleging facts that suggest

either “existing policies caused a failure to adequately respond to a pattern of past
occurrences of injuries like” those suffered by the plaintiff, or that “the risk of
cognizable harm was so great and so obvious that the risk and the failure . . . to
respond will alone support finding deliberate indifference.” Haberle, 885 F.3d at
181 (quoting Beers-Capitol v. Whetzel, 256 F.3d 120, 136-37 (3d Cir. 2001)) (alteration
in original) (internal quotation marks omitted).

The facts in Kaper’s amended complaint, taken together and with all
reasonable inferences in his favor, plausibly allege deliberate indifference. As a
preliminary matter, Kaper’s interaction with the land manager is insufficient in and
of itself. The manager’s comment that the policy needs to be “reassessed” only
suggests that the Commission knew it could have done better, which does not
demonstrate deliberate indifference. See S.H., 729 F.3d at 266 n.6. One employee’s
failure to respond to an anecdotal complaint is closer to “negligence or bureaucratic
inaction” than it is “a deliberate choice,” and only the latter entitles a plaintiff to
compensatory damages. See id. at 263.
Kaper’s other factual allegations are enough to plausibly establish a

significant and obvious risk of harm resulting from the Commission’s policies and
procedures. For example, Kaper asserts that, in 2017, the Commission adopted
revised regulations intending to improve ADA compliance and avoid related
lawsuits—and then did nothing to comply with its own directives. (See Doc. 10
¶¶ 75-76). As a result, the designated routes allegedly have “fallen into disrepair”
and cannot accommodate disabled hunters or their mobility devices. (See id. ¶¶ 70-
71, 76). Kaper also alleges the Commission does not provide maps of the designated

routes, or updates regarding which trails are open or accessible at any particular
time. (See id. ¶ 72). At this procedural juncture, a claim that a public entity
allegedly adopted regulations with the goal of achieving or improving ADA
compliance and then did nothing to maintain the resources provided by those
regulations is sufficient to demonstrate deliberate indifference. Discovery may
reveal circumstances demonstrating entitlement to compensatory damages based
on obvious risk. Kaper’s claim for compensatory damages stands.7

7 The Commission’s other arguments on this point are unconvincing. It
argues, first, that the temporal gap between the 2017 adoption of updated
regulations and Kaper’s experience in 2022 is too great to plausibly demonstrate
deliberate indifference. (See Doc. 17 at 16). We reject this argument because the
amended complaint alleges the Commission recognized its updated regulations
would increase ADA compliance. (See Doc. 10 ¶¶ 74-76). The Commission’s
obligation to comply with the ADA did not change over time, and thus a choice to
abandon its program would result in an obvious likelihood of harm. In any event,
that argument speaks to the weight of evidence, a forbidden consideration on a
motion to dismiss. See Phillips, 515 F.3d at 233 (quoting Pinker, 292 F.3d at 374
C. Replacement Elk Tag
The Commission argues we should dismiss Kaper’s request for a replacement
elk tag because there is no elk-specific program. (See Doc. 17 at 6-7, 18-19). From

Kaper’s perspective, a replacement elk tag would remedy barriers to accessing an
adequately pleaded elk-specific program. (See Doc. 18 at 17-19).
Accurate characterization of a service, program, or activity is critical to the
Title II analysis. Unfortunately, the regulations do not provide objective criteria for
determining programmatic scope, and there is little caselaw interpreting the
regulations in this context. See G.P. v. Claypool, 466 F. Supp. 3d 875, 887-88 (N.D.
Ill. 2020) (citing, inter alia, Daubert v. Lindsay Unified Sch. Dist., 760 F.3d 982, 987

(9th Cir. 2014)), reconsideration granted in part on other grounds in G.P. v. Chi. Bd.
of Educ., No. 17-CV-1891, 2021 WL 681120 (N.D. Ill. Feb. 22, 2021). In our circuit,
“[t]he phrase service, program, or activity under Title II is extremely broad in scope
and includes anything a public entity does.” Geness v. Admin. Off. of Pa. Cts., 974
F.3d 263, 275 (3d Cir. 2020) (quoting Furgess, 933 F.3d at 289 (cleaned up)). For
example, our court of appeals has characterized the judicial process used to

determine whether a mentally ill person may be forcibly medicated as a service,
program, or activity. See Disability Rts. N.J., Inc. v. Comm’r, N.J. Dep’t of Hum.

n.7). Next, the Commission submits that the Commissioner’s comments were made
in the context of adopting regulations that expanded access to the hunting program
and thus cannot plausibly demonstrate deliberate indifference. But that is
immaterial. The ADA is not satisfied by a comprehensive regulatory scheme;
rather, it focuses on access to public programs and facilities. See 42 U.S.C. § 12132;
see also 28 C.F.R §§ 35.150-35.151. What matters is how the regulations are carried
out in practice, not the content of the regulations themselves.
Servs., 796 F.3d 293, 303-04, 307 (3d Cir. 2015). The court also has recognized that
providing inmates showers while incarcerated is a service, program, or activity. See
Furgess, 933 F.3d at 291.

Here, the Commission argues the proposed elk-specific program is too
narrow. In its view, to define the program too narrowly would end-run the safe-
harbor, alternative compliance provisions of 28 C.F.R. § 35.150. It cites to G.P.
v. Claypool for support. There, the plaintiff parent sued the Chicago Board of
Education on behalf of her minor child, G.P. G.P., 466 F. Supp. 3d at 882. When
G.P. was three years old, her family won a school-choice lottery and subsequently
enrolled G.P. in the Drummond Montessori Magnet School. Id. at 882-83. The

Board operated the school in the Drummond Building, which had been completed
in 1893. Id. at 880. Three years after being enrolled at Drummond, G.P. began to
experience Gaucher Disease, which prevented her from using the stairs as required
to attend her classes and other activities. Id. at 882-83. G.P.’s parents then began to
negotiate with (and litigate against) the Board regarding appropriate
accommodations for their daughter’s mobility issues. Id. at 883.

The Board eventually moved for summary judgment. Id. at 878. The parties
disputed the programmatic definition, with G.P. taking the position that each
individual school in the charter system was a distinct program, service, or activity.
Id. at 890. After summarizing Ninth Circuit caselaw on the subject,8 the district
court rejected G.P.’s proposed definition as too narrow. Id. at 890-91. Noting that
“‘perfect accessibility is not the applicable standard under 28 C.F.R. § 35.150,’” the

court concluded that G.P.’s definition conflated facilities and programs, a mistake
that would render Section 35.150(b)’s alternative accessibility provisions
superfluous. Id. at 891 (quoting Kirola, 860 F.3d at 1184). The court rejected G.P.’s
position because it “would make a hash” of the regulatory framework. Id. at 890.
Instead, the court defined the program at issue as the Montessori school choice
program in its entirety, found that G.P. had adequate access to alternative schools
within the program, and granted the Board’s motion. See id. at 891-92.

Here, the Commission argues characterizing the provision of land on which
to hunt elk as a program distinct from the provision of land for hunting other
wildlife would lead us down the dubious path the G.P. court avoided. (See Doc. 19
at 5-6). We disagree. The relationship between the elk program and the general
hunting program is notably different than the relationship between Chicago’s
charter school system and each individual school within it. First, in G.P., students

required physical access to a school to benefit from the charter-school system at all.
To define each individual school as a program would thus conflate program access

8 The Ninth Circuit applies a standard analogous to the one used in our
circuit—one that defines a program as “a normal function of a government entity,”
which is “anything a public entity does.” See Daubert, 760 F.3d at 987 (quoting
Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir. 2002) (internal quotation
marks omitted)); see also Geness, 974 F.3d at 275 (articulating the Third Circuit’s
standard as “anything a public entity does” (quoting Furgess, 933 F.3d at 289)).
with facility access under the regulations. That is not the case here, insofar as the
Commission offers a unique license to hunt wildlife generally and a different, very
exclusive license for hunting elk. (See Doc. 10 ¶¶ 34, 39-40). Access to the elk-

specific program is not necessary to benefit from the general hunting program.
Further, like access to the charter-school program in G.P., access to elk tags is
controlled by a lottery system. (See id. ¶ 39). The issuance of permits in a lottery
does not prevent us from construing elk hunting on state game lands as its own
program.
Lastly, although the designated trails connect hunters to both the general
hunting and elk-specific programs, recognizing that the identified routes—i.e.,

facilities—provide access to two distinct programs does not run the risk of
conflating programs with facilities. This approach simply recognizes that while a
public entity may use the same facilities to support access to multiple programs,
each program must be accessible to disabled persons. Kaper has adequately
pleaded the existence of an elk-specific program for present purposes, and, unlike
the G.P. court, we do not yet have the benefit of fact discovery needed to assess the

veracity of that allegation. The Commission is correct that, in federal court, “the
nature of the violation determines the scope of the remedy.” (See Doc. 17 at 18
(quoting Imprisoned Citizens Union v. Ridge, 169 F.3d 178, 188 (3d Cir. 1999)). But
Kaper has plausibly alleged that he was denied the enjoyment of an elk-specific
hunting program due to accessibility issues. A replacement elk tag, coupled with
access reforms, logically would remedy the injury he allegedly suffered.
Accordingly, we will deny the Commission’s motion to dismiss Kaper’s
request for a replacement elk tag.
IV. Conclusion

We will deny the Commission’s motion (Doc. 12) to dismiss the amended
complaint for failure to state a claim. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania

Dated: October 7, 2024

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10667862. Public record. Not legal advice.