WolfeNotes.com

A Kafkaesque Nightmare

Absent “an imminent peril to the public health, safety, or welfare,” the APA requires public notice and an opportunity for comment before the adoption of any rule. See N.J.S.A.52:14B–4. (NJ Supreme Court)

It is obvious that DEP Commissioner LaTourette – based on the egregiously biased “science” of the pro-hunt faction in DEP’s Division of Fish and Wildlife and political pressure from the Fish and Game Council and pro-hunt lobby – has cynically manufactured a pretext to justify a black bear hunt.

They have done so to eliminate public participation in that decision and evade political accountability, in a bad faith violation of law.

Instead of responding to a true emergency and making a valid trade-off between efficient, timely necessary action and public participation, the DEP is perversely using emergency rulemaking to evade a longstanding public controversy and to impose controversial and discretionary long term management requirements. There is nothing “imminent” and DEP is not reacting to an “emergency”. DEP had many months to plan for this hunt – and therefore plenty of time to consult and conduct traditional notice and comment rulemaking.

The decision-making is so blatantly flawed and illegal that a reasonable observer can reach no other conclusion.

Here’s my letter to DEP Commissioner LaTourette, urging him to revoke his decision to adopt emergency rules to authorize the hunt, just like he withdrew his ill advised decision to adopt emergency flood rules earlier this year.

Expect the legal eagles to tee up a similar but far more credible legal brief:

Dear Commissioner LaTourette:

I understand, via reading a press release, that the Gov. has *supported consideration by the Fish and Game Council (FGC) of a black bear hunt for 2022, based upon NJ DEP’s Comprehensive Black Bear Management Plan (Plan). Apparently, the FGC will consider and vote on approval of amendments to that Plan that authorize the hunt on November 15. If approved, the DEP then will implement the Plan based on an emergency rulemaking pursuant to the NJ Administrative Procedure Act (APA).

I strenuously object to this hunt and blatantly illegal and Kafkaesque procedure on multiple scientific and legal grounds, as outlined below.

1. Under the NJ APA, the Department may issue emergency rules only under conditions of “imminent peril”, see: N.J.S.A.52:14B–4.

At this time, there is no “imminent peril” associated with risks to public health, safety or welfare from black bears. Current data suggested in the Gov.’s press release is not an adequate basis for any assertion that there is. Regardless of the forum, the data do not deviate significantly from prior years when no emergency existed and none was declared.

Any delays to procedural Plan amendments and DEP implementing regulations that would impinge upon authorization of a 2022 hunting season are due to the delays by the DEP. DEP may not declare an “emergency” of their own creation.

The Plan is a deliberative and forward looking multi year policy and management plan. It is not a reaction to an emergent or imminent peril. The DEP is manufacturing an “imminent peril” and attempting to impose discretionary long term management requirements for foreseeable issues under cover of that pretext.The DEP emergency rule is not adoption of necessary short term regulatory remedies required to respond to an emergent or imminent peril.

As you know, there has been enormous public controversy regarding a hunt, including protests, civil disobedience, arrests and litigation, over many years. Bear protectors have met with your personally on these issues. The DEP is now cynically trying to eliminate and bypass public participation via emergency rulemaking and thereby evade public accountability.

This violates basic Constitutional due process concerns as well as the APA statutory requirements.

The 60 day limit on emergency rules under the APA is not an adequate safeguard in this case, because the hunt will be over after 60 days and the public will have no effective participation in the hunt decision.

Absent litigation, in addition to an inability to review and comment, the public will have no legal recourse either – the bears will be dead.

All of these facts suggest bad faith on the part of the Department.

2. As determined by the NJ Supreme Court, final decisions on black bear management issues, including the decision to authorize a hunt, are under the control of the Commissioner of DEP, see: SPORTSMEN ALLIANCE FOUNDATION v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION NJDEP:

“In the event that comprehensive policies are agreed on and a dispute arises between the Commissioner and the Fish and Game Council over whether a hunt or any other preservation or propagation methodology is justified, the [DEP’s] comprehensive policies will provide the standard for adjudicating the issue”

https://caselaw.findlaw.com/nj-supreme-court/1054774.html

The DEP can not delegate this issue to the FGC.

3. Under the NJ APA, the Gov. must sign off to concur and approve the DEP’s basis for and finding of an “imminent peril” that would justify emergency rulemaking, see: N.J.S.A.52:14B–4 and NJAC 1:30-6.5, which provides a 4 step procedure, as follows: .

1. A Certificate of Proposal, Adoption, and Promulgation (form OAL APF-(year)-(version) (for example, Form OAL APF-17-1)) signed by the agency head adopting the emergency rule;

2. A written summary of the subject matter of the emergency rules, which includes a finding that there is an imminent peril that necessitates emergency proceedings; the basis for the finding; and social and economic factors that bear upon the finding;

3. A signed statement from the Governor concurring as to the existence of an imminent peril that justifies the emergency rulemaking proceeding; and

4. The text of the emergency rule.

The Governor violated that procedure by publicly announcing his support in a press release, in advance of and PRIOR to the DEP’s basis for “imminent peril”, thereby making a mockery of the scientific basis for DEP’s non-existent “imminent peril” determination.

The Gov. and the DEP also violated general legal norms of decisionmaking  by announcing public support for the hunt, before the DEP “imminent. peril” findings were issued AND before the Fish and Game Council reviewed and approved the Plan and hunt.

4. The Department posted a link to the Gov.’s press release on the DEP website, along with a link to the Division of Fish and Game website. But nowhere is there a link to: a) the Plan; b) contemplated amendments; or c) the DEP’s “imminent peril” findings and emergency rule text.

It is therefor impossible for the public to meaningfully participate in the review and comment on decisions, including such core considerations as access to the relevant documents pending review and decision by the FGC and DEP and the Gov.

[the camera pans to a little old lady in an overcoat who demands: “Where’s the beef?”]

5. l am attempting to obtain a copy of the DEP’s Comprehensive Black Bear Management Plan (plan), the amendments contemplated by the FGC, the DEP “imminent peril” findings, and the emergency rule text.

I am unable to locate them on line at the DEP website, the Division of Fish and Game website, then FGC website, or the Governor’s website.

6. The FGC public hearing announcement for Nov. 15 stated that public comment would be allowed by “in person” testimony only. That restriction frustrates public involvement in the FGC and the DEP’s decisions on the hunt.

7. There are several examples of flaws in the basis of prior DEP scientific justifications in support of the hunt that I have read.

At this time, I am limiting comments to procedural and legal matters, but reserve my right to provide scientific and other substantive comments.

Based on the foregoing, I urge you to issue a public statement revoking prior announcements to support a hunt for 2022.

Respectfully,

*revised – deleted “authorized” as not accurate