N.J. Outdoor All. v. N.J. Dep't of Envtl. Prot.

• Decision Date: 16 November 2018
• Docket Number: DOCKET NO. A-0525-18T4
• Parties: NEW JERSEY OUTDOOR ALLIANCE, SAFARI CLUB INTERNATIONAL, and SPORTSMEN'S ALLIANCE FOUNDATION, Appellants, v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, and CATHERINE R. McCABE, Commissioner of the New Jersey Department of Environmental Protection, in her official capacity, Respondents.
• Court: New Jersey Superior Court — Appellate Division

NEW JERSEY OUTDOOR ALLIANCE,SAFARI CLUB INTERNATIONAL,and SPORTSMEN'S ALLIANCE FOUNDATION, Appellants, v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION,and CATHERINE R. McCABE,Commissioner of the New Jersey Department of Environmental Protection,in her official capacity, Respondents.

DOCKET NO. A-0525-18T4

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued telephonically November 7, 2018

November 16, 2018

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Sabatino, Haas and Mitterhoff.

On appeal from the New Jersey Department of Environmental Protection.

James H. Lister (Birch Horton Bittner & Cherot) of the Alaska and District of Columbia bars, admitted pro hac vice, argued the cause for appellants (Law Offices of John C. Lane, Van Dalen Brower, LLC, and James H. Lister, attorneys; Peter Caccamo-Bobchin and John M. Van Dalen, of counsel and on the joint brief; Anna M. Seidman, of the District of Columbia bar, admitted pro hac vice, Douglas S. Burdin, of the District of Columbia bar, admitted pro hac vice, and James H. Lister, on the joint brief).

Jung W. Kim, Deputy Attorney General, argued the cause for respondents (Gurbir S. Grewal, Attorney General, attorney; Jason W. Rockwell, Assistant Attorney General, of counsel; Jung W. Kim, on the brief).

Doris K. Lin argued the cause for amicus curiae Animal Protection League of New Jersey.

PER CURIAM

This accelerated appeal represents the latest chapter of the recurring controversy over the hunting of black bears in New Jersey.

The present case involves the executive branch's closure of State lands¹ to the bear hunt. Currently, bear hunts are conducted in accordance with the 2015 Comprehensive Black Bear Management Policy ("CBBMP"). The first phase of the 2018 hunt was completed in early October and the second phase is scheduled to begin very soon on December 3.

For the reasons that follow, we deny appellants' emergent request to invalidate and enjoin the closure of State lands for the hunt's second phase. We reject appellants' contention that the closure requires the adoption of regulatory rules, because, as settled precedent has held, a closure such as this involves the State's proprietary interests and not the State's role as a regulator. We also reject appellants' claim that the closure must be halted in this private civil action because of federal law.

Nevertheless, we remand this matter pursuant to Rule 2:5-5(b) for the development of a suitable plenary record and fact-finding in the Office of Administrative Law ("OAL"). That neutral quasi-judicial forum shall address the hotly-disputed and fact-dependent claims that the closure is arbitrary and capricious, conflicts with the scientific underpinnings of the CBBMP, and imperils public safety. In the meantime, we are unpersuaded appellants have met their considerable burden of demonstrating they are entitled to injunctive relief nullifying the State's restrictions on the imminent second phase of the 2018 hunt.

I.

The hunting of black bears has frequently been the subject of litigation in our courts. Several units of State Government have a role in the development of plans for a seasonal bear hunt. When it occurs, the hunt typically is held in the fall before the bears hibernate for the cold weather.

Subject to the approval of the Commissioner of the Department of Environmental Protection ("DEP"), the State Fish and Game Council² ("Council") is empowered to "formulate comprehensive policies for the protection and propagation of fish, birds, and game animals," "for the propagation and distribution of food fish," and "for the keeping up of the supply thereof in the waters to the State." N.J.S.A. 13:1B-28. Pursuant to that delegated authority, the Council has periodically adopted a CBBMP, most recently in 2015.³

Over the past decades, the Supreme Court and this court have issued several opinions addressing challenges to previous actions of the Commissioner and Council regarding black bear hunting. Sometimes those challenges have been mounted by animal rights groups and individuals opposed to bear hunting; at other times the litigation, as here, has been brought by sporting groups and persons who partake in or otherwise support such hunting. See, e.g., U.S. Sportsmen's All. Found. v. N.J. Dept. of Envtl. Prot., 182 N.J. 461, 476 (2005) (holding that the Council's "ability to authorize a bear hunt is subject to the statutory condition precedent of the [DEP] Commissioner's earlier approval of the very comprehensive policies governing the propagation of black bears"); Animal Prot. League of N.J. v. N.J. Dep't of Envtl. Prot., 423 N.J. Super. 549 (App. Div. 2011) (upholding the validity of the 2010 CBBMP); N.J. Animal Rights All. v. N.J. Dep't of Envtl. Prot., 396 N.J. Super. 358 (App. Div. 2007) (invalidating the 2005 CBBMP and affirming the Commissioner's subsequent failure to implement a policy); Safari Club Int'l v. N.J. Dep't of Envtl. Prot., 373 N.J. Super. 515 (App. Div. 2004) (upholding the Commissioner's order to close all lands "owned, managed or controlled" by DEP to black bear hunting).

As the result of decisions by State Government and the impact of judicial opinions, bear hunts recently have been conducted in some years and not in others. In 2003, the Council authorized the first bear hunt since 1970, in response to reports of bears interacting with people and property. U.S. Sportsmen's All. Found. v. N.J. Dep't of Envtl. Prot., 372 N.J. Super. 598, 600 (App. Div. 2004). That 2003 hunt resulted in the harvest of 328 bears. Ibid. No hunt was conducted in 2004. N.J.A.C. 7:25-5.6 App. The hunt was resumed in 2005, yielding a harvest of 298. 42 N.J.R. 753(a) (Apr. 19, 2010). No hunts took place in 2006, 2007, 2008, or 2009. N.J.A.C. 7:25-5.6 App. Hunts again took place in 2010, 2011, 2012, 2013, 2014, 2015, 2016, and 2017, yielding fluctuating harvests for those respective years of 592, 469, 287, 253, 273, 510, 636, and 409 bears.

The current CBBMP was approved, after public notice and comment, by then-Commissioner of the DEP, Bob Martin, and adopted as an Appendix to N.J.A.C. 7:25-5.6 effective on November 16, 2015 (operative on November 21, 2015). 47 N.J.R. 2753(c) (Nov. 16, 2015). The 2015 CBBMP expires on June 12, 2021. Ibid. Among other things, the 2015 amendment to the regulation prescribes the bear hunt season to consist of two six-day segments, one in October and one in December. N.J.A.C. 7:25-5.6(a); 47 N.J.R. 929(a), 933 (May 18, 2015). The second hunting segment was initiated 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. at 930. The regulations also address the timing of the closure of the hunt. If the rate of harvest reaches thirty percent,⁴ the hunting season concludes. N.J.A.C. 7:25-5.6(a). Conversely, if the harvest rate at the end of the December segment is below twenty percent, the hunt will be extended for an additional four consecutive days. N.J.A.C. 7:25-5.6(b). As of 2015, hunters are allowed to purchase two permits, but can only harvest one bear per bear management zone. N.J.A.C. 7:25-5.6(a)(1), (2); see 47 N.J.R. at 939. The boundaries of the hunting zones were changed in 2015, and a new zone was created. N.J.A.C. 7:25-5.6(a)(3); 47 N.J.R. at 934-35. The number of permits for sale was increased from 10,000 to 11,000, and the lottery to determine who would receive a permit was eliminated. N.J.A.C. 7:25-5.6(a)(1); 47 N.J.R. at 934.

The present litigation arises out of actions taken in August 2018 by the Executive Branch, first by the Governor and then by the DEP Commissioner, both of whom were sworn into office earlier this year.

On August 20, 2018, Governor Philip D. Murphy issued Executive Order 34 ("EO 34"). Executive Order No. 34 (Aug. 20, 2018), 50 N.J.R. 2039(a) (Oct. 1, 2018). The Executive Order declares:

WHEREAS, New Jersey is home to abundant and diverse wildlife, including many threatened and endangered species and species that are critical to the State's varied ecosystems; and

WHEREAS, among those species is the American black bear (Ursus americanus), which is found primarily in the northern part of the State but has been sighted statewide; and

WHEREAS, the State of New Jersey, through the Department of Environmental Protection ("DEP") and its predecessors, has long authorized hunting and trapping of certain species in New Jersey for several purposes, including recreation and wildlife management; and

WHEREAS, there has been considerable debate over the last several decades as to whether New Jersey should authorize a black bear hunt; and

WHEREAS, in 2010, despite considerable public outcry against a hunt, the New Jersey Fish and Game Council (the "Council) published a Comprehensive Black Bear Management Plan ("CBBMP") which recommended the reintroduction of a black bear hunt to take place every year in December; and

WHEREAS, the Council also promulgated regulations through the New Jersey Game Code authorizing and setting forth the parameters of a black bear hunt to take place beginning in 2010; and WHEREAS, a new CBBMP was finalized in 2015 that continued the recommendation to permit a black bear hunt; and

WHEREAS, as a result of the 2010 and 2015 CBBMPs and corresponding authorizations in the Game Code, a black bear hunt has been held in New Jersey for the past eight years; and

WHEREAS, the Council has refused to reconsider its authorization of a black bear hunt for 2018 despite a clear call to action by the Governor; and

WHEREAS, in light of the significant opposition to the black bear hunt and continuing debate about techniques for management of the black bear population, and in an effort to promote public safety on public

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