NJ Courts Will Block Gov. Murphy And DEP’s Bear Hunt Scheme
There Is No”Imminent Peril” & “Emergency” In Bear Safety Or Management
The DEP – Not The Fish And Game Council – Is In Charge Of The Bear Hunt
DEP To Issue Emergency Rule To Evade Public Comment, In Bad Faith Violation of Law
Trenton State House protest, 12/3/10
[Update 12/6/22 – I was wrong, see:
[Update – End Notes – Correction – below]
Yesterday, NJ Gov. Murphy reversed his prior “commitment” to end the bear hunt and announced that he authorized a bear hunt for December (you can read the initial media coverage here and here and here).
The Governor’s decision is bad public policy, grossly anti-democratic, underhanded, and it is to be implemented in violation of NJ law.
It is also a transparently cynical and bad faith attempt to evade public criticism that would result from compliance with laws that require public participation in DEP regulatory decisions. DEP waited until the last minute, avoided public awareness and opposition on what they knew was a major long-standing public controversy, and then unilaterally decided to impose the rule under a manufactured pretext emergency.
I suspect that the Gov. did this to curry support of the hunters and avoid any major political controversy (Headline: “Young girl killed by black bear – Family blames Gov. Murphy for ending the bear hunt“) that might undermine his prospects in running for President. He’s Governing by campaign ad issues (think of a Willie Horton for bear attack ad).
In the announcement, Gov. Murphy and DEP Commissioner LaTourette sought to deflect responsibility for approval of the controversial hunt by suggesting that the Fish and Game Council will make the decision about the hunt on Tuesday.
That is false. The power of DEP over the Fish and Game Council is clear and settled law. NJ courts have clearly found that the DEP makes the decisions on whether to conduct a bear hunt, not the Fish and Game Council, see:
After falsely trying to point the finger at the Fish and Game Council, the Gov.’s press release reveals, at the very end, that DEP will implement the decision via emergency rules:
Should the Fish and Game Council approve the filing, Commissioner LaTourette will sign the Comprehensive Black Bear Management Plan to evidence the DEP’s concurrence with authorization of the hunt under the emergency proposal.
Hunt opponents will surely seek some form of an injunction challenging the hunt, specifically the emergency rulemaking procedure.
NJ courts will impose one and then strike down the DEP’s emergency rules as a violation of the NJ Administrative Procedure Act and constitutional due process guarantees. NJ law provides:
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)
I previously explained why emergency rulemaking would have been illegal for DEP to rely on to impose Climate PACT regulations, see:
The NJ business community also sharply criticized illegal DEP emergency rules in a letter to Gov. Murphy
DEP reliance on emergency rulemaking also contradicts Gov. Murphy’s Executive Order #63, regarding Regulatory Principles and Procedures: (emphasis mine):
WHEREAS, open government, meaning a government that consults with residents, affected individuals and entities, and community organizations that represent and espouse a broad range of expertise and perspectives, is better able to craft policies and support regulations that foster the goals of predictability, clarity, and a high quality of life for the State’s residents…..[…]
Governmental decisions should be based on the best available data, including scientific data if applicable. Where scientific evidence is an important element in developing or evaluating a rule, State entities should seek out and make productive use of scientific expertise available to them. […]
To carry out the goals set forth in Section 2, State entities should adhere to the following principles before issuing a rule proposal, to the extent permitted by law and to the extent applicable and practicable:
a. State entities should engage with affected communities, and provide opportunities for various groups to work in partnership with the State in crafting solutions.
b. The options State entities should consider may include, but are not limited to:
- Gathering information through meetings and/or other discussions with affected communities in advance of formulating a proposed rule; and/or
- Publishing and broadly disseminating a notice of pre-proposal, and seeking comments.
The DEP’s use of emergency rules to implement the longstanding highly controversial bear hunt is a gross violation of every facet of the Gov.’s own Executive Order #63.
The DEP acted by stealth and blindsided the public and hunt opponents. There was no scientific input by hunt opponents. There was no engagement with the community. There was no opportunity to work in partnership with the DEP in crafting solutions. There were no meetings and discussions and no information gathered. There were no drafts of pre-proposals circulated for input.
[Update: 11/12/22 – Correction – The above is technically correct with respect to this specific emergency rule to authorize the hunt. There was no consultation on it, specifically. But it is misleading. So I need to set the story straight. This is actually worse than no consultations. I just learned that back in April of 2021, there were meetings and some consultation and sharing of science and data. But apparently the animal rights folks were blindsided by the reversal on the hunt. According to an alert I just received:
APLJ counseled the Governor’s staff numerous times, in meetings and in writing, that it must initiate a trash mitigation program before banning the baited hunt.
We were hopeful, and we were bamboozled. We invited the country’s leading bear program authority to a subsequent meeting set up by the Governor’s staff with DEP Commissioner Sean LaTourette, who gave the expert all of, maybe, a minute. It was embarrassing.
We then provided the commissioner with a comprehensive non-lethal black bear management plan with emphasis on trash management and other programs that work elsewhere.
From that point on, for many months, the DEP stonewalled enquiries regarding the progress of the plan, which never materialized. During much of this time, the Governor’s office and DEP secretly committed staff, time and resources to the “emergency” hunt, rationale, and rule.
We’d been trying to arrange for a meeting between a Western city’s urban wildlife director and the Governor’s staff. We finally got the meeting a few weeks ago. Unbeknownst to us, Murphy’s office was wrapping up the “emergency” hunt package. It is now apparent that the only reason for the sudden interest was to use the information, pick our brains, so that they could include yet another “pilot” trash program run by the hostile Division of Fish and Wildlife as a sop to bear enthusiasts and for political cover. Trash programs do not require “pilots” – they work. The hunters’ agency has run several “pilot” programs, none of which go anywhere. At no time during the meeting, did the Governor’s staff tell us that they were experiencing problems with bears, let alone that a hunt was imminent. ~~~ end update]
This DEP makes a sham of Gov. Murphy’s Executive Order #63 which they are legally bound to comply with.
Additionally, the legal issues involved in DEP emergency rulemaking recently gained media attention after DEP Commissioner LaTourette promised to issue emergency flood rules last summer, and then recently reversed that decision. DEP was sharply criticized and publicly humiliated for that unforced error.
Given that high profile controversy, the Governor, the Attorney General’s Office and DEP obviously rigorously researched the law on emergency ruelmaking and are fully aware of the constraints imposed by the NJ APA and the Courts.
So, in light of that legal research, it is absolutely stunning that they chose to go forward under emergency rules to implement the bear hunt in such clear violation of law. A cynic might even suspect that they are intentionally sabotaging the hunt by making such an obvious procedural error (e.g. they can blame the courts and the animal rights activists for any downstream bad news).
And it is absurd that while the Governor – for over 5 years – has failed to use his emergency powers to declare a climate emergency (a scientifically real emergency and for the Governor, a legally legitimate exercise of his emergency powers), and he blocked DEP from using emergency rulemaking procedures to issue flood hazard regulations, but he now supports DEP’s use of emergency rules to kill bears.
The Murphy Administration is just as bad – or worse – than the Christie Administration in failing to protect the natural environment – which is exactly what you might expect from a Governor that is a former Wall Street Goldman Sachs executive and his former corporate lawyer as head of DEP.
[End Note 1: There is also an interesting potential legal challenge involving the administrative law doctrine of “reliance”. The concept of “reliance” is explicitly included in DEP land use regulations. I wrote about that recently here:
Interestingly, Ray Cantor of NJBIA subsequently tipped his hand and planted the seed of a “reliance” legal attack in his recent comments on DEP’s plan to forego emergency flood rules: (NJ Spotlight)
“It is unfair, these projects were started, and financed, in reliance of being outside the flood zone,” Cantor said. “They did everything right, now they may need to start over. Many will go bankrupt.”
Basically, that “reliance” doctrine says that if investors rely in good faith on government regulations in place at the time that there make a “reasonable investment backed decision”, then the government can’t do a regulatory u-turn and wipe out those investments.
That doctrine recently received public attention and judicial consideration during many legal challenges of Trump EPA reversals of Obama EPA regulations.
So, the challenge would be framed like this, an iteration of “Do Trees Have Standing”:
Do black bears and their defenders have the same legally recognized and protected interests to rely on government regulations as investors and their reasonable investment backed expectation decisions?
[End Note 2: On DEP’s emergency rulemaking powers. I’ve long been a champion of strong DEP regulatory power, but not in this case.
(see this primer on emergency rulemaking from Florida for background. Here are the NJ Office of Administrative Law requirements. Here is one NJ case I found – here’s a relevant Fordham Law Review article –
Here’s a Stanford Law Review on the federal APA “good cause” exception, but NJ has a far narrower “imminent peril” standard that puts a much higher burden on DEP. Noted this:
The court’s probing review found the agency’s claim of imminence to be of its own creation, which violated the principle that “[g]ood cause cannot arise as a result of the agency’s own delay.”135
DEP’s own delay is behind the asserted “need” to authorize the bear hunt via emergency rules.
The NJ legislature has Constitutional veto power of agency rules as “inconsistent with legislative intent”, so this recent paper by NCSL may be useful:
In a true “emergency” and “imminent peril” – lets say a flood or a snowstorm or a drought – it would be totally legitimate for DEP to engage an emergency rulemaking on necessary (non-discretionary) and consensus responses, i.e. to provide flexibility in storage and disposal of plowed snow; or to relax solid waste management requirements for disposal of flood debris; or to impose water conservation measures, respectively.
But the bear hunt is nothing at all like that. It is not emergent. It was foreseeable. It is not “imminent”.
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 (there is no consensus) and to impose basic and discretionary long term management requirements (there previously was a 7 year long bear management plan). 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.
I hope the legal challenge can focus on DEP’s emergency rulemaking – I think that’s where the best legal attack is targeted. But in listening to Sen. Lesniak on NJN, it sounded like he was focused on data and science and the DEP’s justification for the hunt. It is very, very, difficult to defeat DEP on their turf – courts defer to agency expertise and there is a legally high bar “the arbitrary and capricious test” that DEP almost always wins.
But courts provide no deference at all on legal issues – and whether there is an “emergency” that would support an emergency rulemaking given the facts of this situation is purely a legal issue. The issue emerged over many months and the DEP’s management approach is not a necessary response to anything “imminent”.
