League of Humane Voters of N.J. v. N.J. Dep't of Envtl. Prot.

• Decision Date: 12 February 2019
• Docket Number: DOCKET NO. A-4630-15T4
• Parties: LEAGUE OF HUMANE VOTERS OF NEW JERSEY, ANIMAL PROTECTION LEAGUE OF NEW JERSEY, DOREEN FREGA, ANITA ROSINOLA, CATHERINE MCCARTNEY, and ROBERTA SHIELDS, Appellants, v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION; BOB MARTIN, in his capacity as Commissioner of the NJDEP; DIVISION OF FISH & WILDLIFE; DAVID CHANDA, in his capacity as Director of the Division; NEW JERSEY FISH & GAME COUNCIL; and DAVID BURKE, in his capacity as Acting Chair of the Council, Respondents.
• Court: New Jersey Superior Court — Appellate Division

LEAGUE OF HUMANE VOTERS OF NEW JERSEY,ANIMAL PROTECTION LEAGUE OF NEW JERSEY, DOREEN FREGA,ANITA ROSINOLA, CATHERINE MCCARTNEY,and ROBERTA SHIELDS, Appellants, v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION;BOB MARTIN, in his capacity as Commissioner of the NJDEP;DIVISION OF FISH & WILDLIFE; DAVID CHANDA,in his capacity as Director of the Division;NEW JERSEY FISH & GAME COUNCIL;and DAVID BURKE, in his capacity as Acting Chair of the Council, Respondents.

DOCKET NO. A-4630-15T4

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued November 9, 2018

February 12, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Simonelli, Whipple and DeAlmeida.

On appeal from the adoption of 47 N.J.R. 2753(c) by the New Jersey Department of Environmental Protection.

Doris Lin argued the cause for appellants.

Jacobine K. Dru, Deputy Attorney General, argued the cause for respondents (Gurbir S. Grewal, Attorney General, attorney; Jason W. Rockwell, Assistant Attorney General, of counsel; Jacobine K. Dru and Cristin D. Mustillo, Deputy Attorneys General, on the brief).

PER CURIAM

Appellants League of Humane Voters of New Jersey (LOHV), Animal Protection League of New Jersey (APLNJ), Doreen Frega, Roberta Shields, Catherine McCartney, and Anita Rosinola appeal from the November 16, 2015 adoption of the 2015 Comprehensive Black Bear Management Policy (CBBMP). Having reviewed the record, we affirm.

In 2015, the New Jersey Fish and Game Council (Council), an entity of the New Jersey Division of Fish and Wildlife (DFW) (a division of the New Jersey Department of Environmental Protection (NJDEP)), proposed certain amendments to the Fish and Game Code (Code), regulating black bear hunting. The amendments proposed a two-part bear hunt to take place in October and December, respectively, and adopted the 2015 CBBMP as an appendix to the Code. 47 N.J.R. 929(a) (May 18, 2015). The proposal was published in theNew Jersey Register, and after a sixty-day comment period and public hearing, during which the Council received over 10,000 written and oral comments, the rule was adopted. 47 N.J.R. 2753(c) (Nov. 16, 2015). The final rule adoption was published in the New Jersey Register. Ibid.

Appellants are all individuals and organizations who participated in the commenting process and filed emergent petitions with this court and the Supreme Court seeking a stay of the hunt pending their appeal. LOHV and APLNJ are non-profit animal protection organizations, which work to enact animal-friendly legislation and work towards educating the public on nonviolent coexistence with animals. Frega, Shields, McCartney, and Rosinola are individual residents of New Jersey who commented on the CBBMP during the public comment period.

There is a lengthy history of litigation regarding the decision to permit black bear hunting in New Jersey dating back to 1953 when the Council designated black bears as a game animal. Ibid. That history has been well chronicled and need not be restated here. See U.S. Sportsmen's All. Found. v. N.J. Dep't of Envtl. Prot., 182 N.J. 461, 466 (2005) (U.S. Sportsmen's); Animal Prot. League of N.J. v. N.J. Dep't of Envtl. Prot., 423 N.J. Super. 549, 555-57 (App. Div. 2011) (Animal Prot. League). In Animal Protection League, weupheld the 2010 CBBMP and bear hunts were held in 2010, 2011, 2012, 2013, and 2014. See Animal Prot. League, 423 N.J. Super. at 554.

On March 3, 2015, the Council held a public meeting to present the proposed updates to the 2015 CBBMP. After a brief presentation and questions from the public, the Council approved the 2015 CBBMP. On April 10, 2015, the NJDEP Commissioner approved the proposed 2015 CBBMP. On May 18, 2015, the Council published a proposal in the New Jersey Register to make certain amendments to N.J.A.C. 7:25-5.6 and 5.24 and to adopt the 2015 CBBMP as an appendix. 47 N.J.R. 929(a). A public hearing was scheduled for June 2, 2015, and the original deadline for the submission of public comments was July 17, 2015. Ibid.

At the hearing, twenty-one members of the public presented oral comments and questions. APLNJ members attended and generally objected to the policy, the procedures governing the hunt, and the introduction of an October hunting season. Others generally objected to the hunt, the increase in permit numbers, the allowance of bow-hunting, and the methods used to collect data on bear complaints. No oral responses to the comments were provided at the hearing.

On November 16, 2015, the Council published the notice of rule adoption in the New Jersey Register. 47 N.J.R. 2753(c). The publication included the Council's responses to comments, which were grouped into forty-two objection categories corresponding to various parts of the 2015 CBBMP and rule amendments. Ibid. The proposed amendments to N.J.A.C. 7:25-5.6 included the following:

• The hunting season will consist of two six-day segments, one in October and one in December, to "allow for more consistent harvests, with essentially all bears available for hunting and with fewer complications due to weather events." 47 N.J.R. 929(a). Prior to this amendment, the bear hunting season ran concurrently with the firearm deer season. Ibid.

• A method to prematurely close the hunt was created. "If the harvest rate reaches [thirty] percent [of tagged bears] during the bear season, the season will be closed [twenty-four] hours from the day on which [that] harvest rate was achieved." Ibid. Prior to this amendment, the Council had the discretion to close the season early but was not required to do so at any point.

• Hunters can only use archery equipment and muzzleloaders during the hunt's October segment. Ibid. No archery was permitted prior to this amendment.

• Hunters are permitted to purchase one permit per segment, allowing for a new bag limit of two bears per hunter. Ibid. Previous rules imposed an annual one-bear-per-hunter limit.

• The boundaries of the Bear Management Zones (BMZs) were changed, and a new BMZ was created. Ibid.

• If the harvest rate at the end of the December segment is below twenty percent of tagged bears, the season will be extended for an additional four consecutive days. Ibid.

• The total number of permits for sale was increased from 10,000 to 11,000, and the permit lottery was ended. Ibid.; N.J.A.C. 7:25-5.6(a)(1).

• Archery is now a permissible method of harvest. 47 N.J.R. 929(a); N.J.A.C. 7:25-5.24.

On November 25, 2015, APLNJ wrote to the NJDEP Commissioner and the DFW requesting a stay of the hunt pending an appeal of the rule adoption. On December 1, 2015, APLNJ requested a stay of the 2015 hunt from the Council.¹ Unsuccessful, APLNJ filed an emergent application with this court, requesting a stay of the 2015 hunt pending the outcome of their appeal. We denied the emergent application. The Supreme Court also denied an emergent application, and a bear hunt has been held uninterrupted since.² Appellants appealed on June 29, 2016.

Appellants contend: (1) the CBBMP was not adopted in compliance with U.S. Sportsmen's, (2) no determination of a need for a bear hunt, pursuant to N.J.S.A. 13:1B-30, was made, (3) the Council was arbitrary and capricious in its rule adoption, (4) the rule was not adopted in compliance with the Administrative Procedure Act (APA), and (5) bow hunting is cruel. We will address, and reject, each argument.

I.

We apply the following standard of review. We will not overturn an administrative action "in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence[.]" In re Carter, 191 N.J. 474, 482 (2007) (quoting Campbell v. Dep't of Civil Serv.,39 N.J. 556, 562 (1963)). "A reviewing court 'must be mindful of, and deferential to, the agency's expertise and superior knowledge of a particular field.'" Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 158 (2018) (quoting Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009)). Therefore, "we grant administrative agency action a 'strong presumption of reasonableness.'" Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 16 (2006) (quoting City of Newark v. Nat. Res. Council, 82 N.J. 530, 539 (1980)).

An agency's findings of fact "are considered binding on appeal when supported by adequate, substantial and credible evidence[.]" In re Taylor, 158 N.J. 644, 656 (1999) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "Even if we might have chosen a different course, the agency's decision must be affirmed if supported by the record." In re Visiting Nurse Ass'n of Sussex Cty., Inc., 302 N.J. Super. 85, 95 (App. Div. 1997). "We are not free to substitute our judgment as to the wisdom of a particular agency action so long as it is statutorily authorized and not otherwise defective as arbitrary and capricious." Ibid. Ultimately, we will not "micromanage" an agency, but recognize that unless the agency's action is inconsistent with itslegislative authority, we will act with restraint and not intervene. In re Failure by the Dep't of Banking & Ins., 336 N.J. Super. 253, 262 (App. Div. 2001).

II.

We turn to appellants' first argument that the Council did not meet the requirements established by U.S. Sportsmen's when adopting the 2015 CBBMP. Appellants assert the 2015 CBBMP did not set "end-point goals" or describe the factors to be considered when choosing the tools at DFW's disposal to be utilized. We reject both arguments because the Council set an identifiable harvest rate and provided a list of its bear management tools with discussion of how certain factors influence use of certain tools.

Pursuant to N.J.S.A. 13:1B-28, the "Council shall, subject to the approval of the...