NJ Gov. Murphy Just Effectively Privatized The Black Bear Population
Executive Order Blocking Bear Hunt on Public Lands Contradicts Science and Law
Gov. Murphy’s Statement Contradicts “Ineluctable” NJ Supreme Court Ruling
[Update below – 9/21/18]
Caveat: I have not been following the bear hunt issue and am not a legal or technical expert on bear management, but I just learned that back on August 20, 2018, Gov. Murphy issued Executive Order #34 that effectively blocked the bear hunt on State lands, but allows it on private lands.
Although I have not followed this issue closely (since 2010), based on reading the documents, it seems pretty clear the Gov. got it wrong and is ducking the issue.
Under the misguided – and I argue illegal – Murphy policy, it is private landowners who will decide if there is a bear hunt. Private landowners will decide if, when, and where a hunt occurs. Private landowners will decide who hunts, effectively usurping State power to issue hunting licenses and regulate hunting. Wealthy private landowners also will extract a rent, by charging hunters access fees – a premium in addition to State license fees.
That makes bear hunting a private privilege – just like some billionaire’s and elite hunting clubs prefer.
None of this is legal and all of it is wrong.
Bears obviously do not live or migrate according to the ownership of lands that comprise their habitat. The Gov.’s distinction between public and private lands has no scientific basis, conflicts with science, and defies common sense.
Legally, the bear population is a natural resource that is held in trust by the State, not private land owners, just like fish. For example, a private land owner along a trout stream can limit public access to the stream, but they can not disregard State restrictions on trout. There can not be State fishery restrictions in streams flowing through public lands that are different from restrictions in streams flowing through private lands. The State management policy runs with the wildlife natural resource, not the ownership of the land.
Similarly, the rain that falls on private land can not be impounded and taken for private use without State approval, just like the groundwater under the land is not privately owned but held in trust and managed by the DEP.
At a fundamental level, Gov. Murphy’s distinction between public and private lands with respect to wildlife management contradicts all legal principles and traditions of wildlife management.
The Gov.’s Office is defending this blatantly political “compromise” on the basis that the Governor and the DEP Commissioner lack legal authority to ban the hunt statewide – claiming that the legislature must act. The Bergen Record reported:
Murphy couldn’t issue a complete ban on bear hunting because of a New Jersey Supreme Court decision in 2005 and other court decisions, which ruled that if the state Fish and Game Council recommends a bear hunt and properly adopts regulations implementing it, the governor does not have the ability to unilaterally cancel it, Murphy’s office said. In order for the hunt to be stopped, either the Legislature must act or the council must adopt new regulations that do not include provisions for the hunt.
That legal position is reflected in the text of Murphy’s Ex. Order #34, which states:
WHEREAS, the authority over the black bear hunt rests with the Council and several court decisions have made it clear that neither the Governor nor the Commissioner have the authority to unilaterally alter or cancel the black bear hunt;
WHEREAS, while neither the Governor nor the Commissioner can unilaterally prevent a black bear hunt, the Commissioner has clear authority to direct and coordinate the use of all public lands under DEP’s jurisdiction, including instituting a ban on hunting on said lands
While the Gov. and DEP may not have the authority to “alter or cancel” the bear hunt, the statements are highly misleading.
In contrast to the Gov.’s claims, the DEP Commissioner clearly has the authority to block the hunt via the Commissioner’s powers pursuant to N.J.S.A. 13:1B-28 which provides: (my emphasis):
In addition to its powers and duties otherwise hereinafter provided, the Fish and Game Council shall, subject to the approval of the commissioner, formulate comprehensive policies for the protection and propagation of fish, birds, and game animals and for the propagation and distribution of food fish and for the keeping up of the supply thereof in the waters of the State.
That specific power has been upheld by the NJ Supreme Court, in the case cited by the Governor.
The Supreme Court’s 2005 ruling was a comprehensive exposition on and resounding support of upholding the DEP Commissioner’s powers over the Fish and Game Council with respect to the bear hunt – the exact opposite of Gov. Murphy’s claims.
As NJ.Com reported:
Murphy’s office, in a statement accompanying his announcement Monday, offered an explanation.
The statement noted that the N.J. Fish and Game Council is separate from the governor’s office, is composed primarily by “sportsmen and farmers,” and has the sole authority to authorize a bear hunt.
“Pursuant to a New Jersey Supreme Court decision in 2005 and other related court decisions, if the council recommends a bear hunt and properly adopts regulations implementing a hunt, the governor does not have the ability to unilaterally cancel it,” read the statement.
“In order for the hunt to be stopped, either the Legislature must act or the council must adopt new regulations that do not include provisions for the hunt.”
The Murphy statement is highly misleading and outright false.
The Gov. ignores the powers of his DEP Commissioner.
DEP Commissioner can block the bear hunt by refusing to approve [*or repealing or amending] the “comprehensive policies” for black bear management recommended by the Fish and Game Council, which must be reviewed and approved by DEP and promulgated via regulation as the Comprehensive Black Bear Management Plan. [*See update below]
And, as the NJ Supreme Court’s 2005 decision clearly found, the Fish and Game Council clearly does not have “sole authority” to authorize a bear hunt.
The Gov. is referring to a 2005 NJ Supreme Court decision in: U.S. SPORTSMEN’S ALLIANCE FOUNDATION; v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION.
In that case, the Supreme Court that ruled on the powers of the DEP Commissioner and the Fish and Game Council with respect to the bear hunt.
The decision went into great detail on the history of the formation of the DEP and the powers of the DEP Commissioner with respect to the Fish and Game Council.
The decision explicitly reversed a prior 2004 NJ Appellate Court decision that found that the DEP Commissioner lacked statutory authority to block the bear hunt.
Here is the procedural history the Supreme Court restated:
The complete facts and procedural history of this case are reported in U.S. Sportsmen’s Alliance Foundation v. New Jersey Department of Environmental Protection, 372 N.J.Super. 598, 860 A.2d 463 (App.Div.2004). In a nutshell, in early 2004, the Fish and Game Council considered a proposal to hold a bear hunt similar to the hunt that had taken place in 2003. The 2003 bear hunt was the first authorized in New Jersey since 1970.1 The Commissioner publicly supported the 2003 hunt; it was not until 2004 that he opposed a hunt outright due to fiscal concerns, the decrease in bear-human interactions, and the lack of data supporting the Division of Fish and Wildlife’s (Division) projections regarding the bear population. Notwithstanding that opposition, the Fish and Game Council adopted the 2004-2005 Fish and Game Code that authorized the bear hunt. The Commissioner subsequently directed the Division not to issue or process applications for bear hunting permits. The U.S. Sportsmen’s Alliance Foundation, New Jersey State Federation of Sportsmen’s Clubs, Gerald McCusker, Anthony Cali, and Edward O’Sullivan filed a notice of appeal challenging the Commissioner’s directive.
The Appellate Division held that the Commissioner lacks the statutory authority to enjoin the issuance of bear hunt permits or to otherwise interfere with Fish and Game Code regulations governing the hunt.
The DEP, the Commissioner, the Division, and the Director of the Division (collectively the Commissioner) petitioned for certification, which we granted. U.S. Sportsmen’s Alliance Found. v. N.J. Dept. of Envtl. Prot., 182 N.J. 151, 862 A.2d 59 (2004).
(for context, here are DEP Commissioner Campbell’s initial objections to the hunt, expressed in a March 6, 2003 letter to the Fish and Game Council (see disclosure below). After reading that letter, I find it hard to understand how the Court found “The Commissioner publicly supported the 2003 hunt“. Maybe I’m confused about timing.)
Here is the Supreme Court’s ruling:
Within DEP divisions are agencies like the Fish and Game Council. Although not identical due to amendments at various times, the leitmotif that runs through all of the relevant enabling legislation is the interconnection between the councils and the Commissioner and the recognition that while those entities possess authority in varying levels, their independence is constrained by their uniform subjugation to DEP authority.2 Specifically in the instance before us, the Fish and Game Council’s ability to authorize a bear hunt is subject to the statutory condition precedent of the Commissioner’s earlier approval of the very comprehensive policies governing the propagation of black bears.
Our conclusion regarding the Commissioner’s authority is ineluctable not only because of the approval language but because the entire statutory scheme was intended to create a unified approach to conservation and environmental protection under the authority of the Commissioner. Although the Fish and Game Council may act without day-to-day veto by the Commissioner, its actions exist within a larger universe of comprehensive environmental policies. If it does not act in accord with those policies, the Commissioner is empowered to intervene. …
The judgment of the Appellate Division is reversed.
Recall that the Appellate Division ruling the the Supreme Court reversed found:
The Appellate Division held that the Commissioner lacks the statutory authority to enjoin the issuance of bear hunt permits or to otherwise interfere with Fish and Game Code regulations governing the hunt.
This Supreme Court ruling “reversed” that Appellate Division and that ruling very clearly contradicts the Governor’s claims.
What am I missing? Was there a subsequent Supreme Court case that clarified this decision and restricted the DEP Commissioner’s powers?
I found a 2010 Appellate Division opinion that upheld the hunt, but that case was NOT based on the powers of the DEP Commissioner, but instead was an arbitrary and capricious challenge to Fish and Game Council’s comprehensive management plan.
Readers and DEP experts that know this issue, please educate me. Send corrections to me at: bill_wolfe@comcast.net
[Full disclosure: I was hired by and worked as a policy advisor to Commissioner Campbell from 2002-2005. Aside from involvement in drafting the Highlands Act that increased protections of 800,000 acres of black bear habitat, I had no role in bear management policy.]
[Update – 9/21/18 – A source I know to be knowledgeable and in a position to know sent me a not for attribution email that confirmed my analysis, but suggested DEP could not act until current rules expire
Bill, it’s XXXXXXXXXXX. I just read your piece on the bear hunt. Please don’t quote or attribute this to me, but the piece you are missing on the Commissioner’s authority is that the regulations and black bear management plan are already in place and had been approved previously. The Commissioner lacks the power to now go back and reverse those previous approvals. Your analysis would be correct when they expire (five year plan which I think ends next year) and thus requiring a new black bear management plan to be approved by the Council and signed off by the Commissioner
Now on the Governor’s power I will note that the SC did not address that and it remains an open question to me if the Governor could have stopped the hunt by his own EO. Obviously they decided not to take this route.
I replied as follows:
I considered that issue – i.e. adopted rules in place.
But as you know, DEP has power to amend rules at any time. No need to wait for expiration.
McCabe got questions on bear hunt during her **DEP budget hearing and she said she had no power unless the “science” changes.
That’s nonsense.
The “policy” can change. The SC noted DEP powers to reject Council’s hunt for consistency with statewide “conservation policies”.
DEP could simply say that the policy has changed, that a hunt is no longer an acceptable management tool. Public recreational values in observation, photography, and the “existence value” of bears by far outweighs the recreational uses of a handful of hunters. DEP balances competing interests all the time, e.g. classification of uses for surface and groundwaters; designation of acceptable degradation of surface and groundwaters, wetlands classifications, et al. All that is necessary is legislative authority to do so and the SC clearly found DEP powers exist.
DEP could boot strap that with assertion of the public trust doctrine.
DEP could avoid the legal issues Trump EPA is facing in reversing policy by asserting that SC recognized DEP’s executive branch policy making role delegated by the Legislature in 2005. They could add that this policymaking power was democratically legitimized because the Gov. campaigned on stopping the bear hunt, thereby responding to an argument of abuse of unelected executive power and “executive branch legislating by rule-making”.
My question to you is: How did the SC decision get so incorrectly interpreted? The statements in DEP 2010 public notice and rulemaking summary amending the BBCMP were flat out false in summarizing that decision.
Why didn’t ENGO’s challenge DEP on this?