Bear Protectors File Legal Brief Seeking Injunction To Stop Trophy Bear Hunt Slaughter
Brief Exposes DEP Sham Declaration of “Imminent Peril” To Public Safety
DEP Bear Management Plan Based On Seriously Flawed Data, Projections And Science
Court Likely To Grant temporary Injunction To Stop Hunt
Black bear along High Point Trail
[Update – 12/6/22 – I just learned that the Court vacated the stay. Very bad news.]
[Update #2 – here’s my take on that decision:
After winning a court order temporarily stopping the Murphy administration’s bear hunt, a group of black bear protectors filed legal briefs last night to the Appellate Division seeking an injunction to stop the Murphy DEP proposed bear hunt, which was scheduled to begin on Monday.
The appellants are the Animal Protection League of NJ, Humane Society of the United States, Friends of Animals, Angela Metler, and Doreen Frega.
They are challenging the NJ Fish and Game Council, DEP, and Gov. Murphy’s emergency rulemaking that seeks to authorize a black bear hunt.
The attorney is Dante DiPirro, of Hopewell, NJ. I worked with Dante in the McGreevey DEP, where I was a policy advisor to and he served as legal Counsel to Commissioner Brad Campbell. Dante later served as Ex. Director of the Highlands Council.
The lawsuit seeks a preliminary injunction to stop the hunt until the legal case can be heard by the Courts.
The bear protectors make compelling arguments that there is no “imminent peril” to public safety; that the FGC and DEP manufactured a fake “imminent peril”; that they based that fake finding on seriously flawed bear population data, population projections, and bear reproductive and behavioral science; and that they failed to consider and implement non-lethal management methods.
In doing all that, the FGC and DEP violated Constitutionally guaranteed “due process” rights of the public to participate in government decisions, as well as the NJ statutory requirement to demonstrate an “imminent peril” to public safety to justify emergency rules.
I outlined these issues in two prior posts, see:
- NJ Courts Will Block Gov. Murphy And DEP’s Bear Hunt Scheme (Nov. 11, 2022)
At this stage of the legal process, the arguments before the Court are limited to whether the appellants have met their burden to justify a temporary injunction.
I am not a lawyer, but in reading the powerfully written brief, it seems very obvious that the appellants have met their burden and I therefore predict that the Court will grant the temporary injunction, likely on Tuesday. That injunction likely will include or be followed by a very aggressive schedule to file briefs and litigate the case.
The full legal and scientific merits are not yet under consideration, but the appellants legal brief outlines the nature of those issues that would come before the court should the injunction be issued and the case heard.
It is an incredibly powerful brief, particularly given the expedited process and severely limited time allowed to file what amounts to an emergency a brief that summarized a huge literature on administrative law and bear science.
If I could have added one thing, I would have put more meat on the bones of the judicial standard of review. The Council and DEP deserve no judicial deference. The judges can rely on that and be on solid legal ground, without having to fear being attacked as judicial activists and inappropriately over-ruling the science and policy makers.
So, I’d like to highlight a few devastating points made in the powerful brief.
I) Constitutional Due Process Violation
Under the US and NJ Constitutions, executive branch government agencies, because they are not legislators and elected officials, must provide people adequate public notice and opportunity for the public to participate in regulatory decisions that have the force and effect of law.
By invoking “emergency rules”, which become effective upon publication, the FGC and DEP did not do that:
The Council invoked emergency rulemaking less than three weeks before the intended start date of the hunt– giving no time for public comment or consideration of public feedback and no chance for Appellants to challenge the rule through ordinary motion practice — even though the agency has intended to re- authorize black bear hunting in the state for well over a year, and its own records showed it could have commenced ordinary rulemaking in January 2022 or earlier but did not.
The FGC and DEP violated due process protections and they did so intentionally and in bad faith to avoid public scrutiny and criticism.
II) Administrative Procedure Act Violation – No “Imminent Peril”
NJ’s Administrative Procedure Act mandates that the public be provided opportunity to participate in any rulemaking by government agencies.
There is a very limited and narrow exception for emergency rules, but the law places a heavy burden on government to prove that an “imminent peril” to public healthy, safety or welfare exists.
The FGC and DEP did not come close to meeting that legal burden – there is no emergency (no “imminent peril”) and the DEP clearly attempted to manufacture one:
This rushed process was undertaken in contravention of the notice and comment requirements of the New Jersey Administrative Procedure Act (“APA”), unlawfully invoking extraordinary emergency powers on the false premise that the public is currently in “imminent peril,” even though the Council has had ample time to propose such a measure through ordinary rulemaking procedures. […]
The APA allows emergency rulemaking without prior notice and comment only in the extraordinary case when “an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule upon fewer than 30 days’ notice.” N.J.S.A. 52:14B-4(c). The Council claimed such peril exists for seven reasons (Pa 109-10), none of which are supported by evidence supporting the existence of “imminent peril.” […]
The Council’s first two claims – (1) that the state’s black bear population will explode by about 33 percent within the next two years and (2) thereby threaten public safety – are both flawed. First, they are unsupported by scientific evidence. As Dr. Sean Murphy, an expert in black bear population dynamics, explains, the Council’s “highly improbable” population growth projection “ does not meet the criteria for sound, evidentiary science that is useful for science-based management of wildlife.” (Pa590 ¶¶ 16, 17). Moreover, as black bear expert Dr. Stephen Stringham notes, the number of black bears in a population is not what drives human-bear conflicts: food sources do. (Pa560a ¶10;Pa443). Even if the Council’s projection were plausible, a situation that may occur two years in the future does not “require” the “adoption of a [n emergency] rule upon fewer than 30 days’ notice.” N.J.S.A. 52:14B-4(c). If the Council genuinely believes such a population explosion will take place, it has ample time over the next two years to promulgate a rule addressing that situation in compliance with the APA.
The agency’s third claim, that nuisance reports of black bears have increased by 237% since last year, is also uncompelling. The number of overall reports does not provide any meaningful information about the danger posed by black bears to the public. These reports include non-threatening interactions with bears, and even sightings of deceased bears. In fact, the “overwhelming majority” of the incidents reported to the DEP “do not constitute a threat to public safety.” (Pa593 ¶ 24).
The Council’s fourth claim, that the state has “invest[ed] significantly in non-lethal management” practices that have not worked, is patently false. This apparently refers to the publication of several 15-second public service announcements in 2022 and the launch in August 2022 of a new website with “bear facts” and “safety tips.” (Pa13; Pa41). Non-lethal management of wildlife, though, requires actual involvement in the community—not simply publishing information online. Advocates, including Appellants, have urged the state for years to implement better practices, including adoption of a comprehensive non-lethal management plan; a ban on the feeding of bears; and distribution of bear-resistant trash cans. (Pa426 ¶ 4; Pa428-29 ¶ 11). The state has repeatedly refused to introduce such common-sense solutions. […]
The Council has known of the conditions it now calls on to support its finding of an “emergency”—an increase in the number human-bear incidents reported to the DEP—for at least eleven months. The increase in bear complaints is not an emergency and the Council recognizes that many factors contribute to complaints going up and down, including educational efforts and changes in public tolerance.
Courts rarely tolerate this kind of procedural abuse by regulatory agencies. Nor should they.
III) Seriously Flawed Data, Population Projection Methods, and Science
I had read summaries but had not read in detail the full DEP Comprehensive Black Bear Management Plan (CBBMP), so I was not aware of just had flawed that plan is.
The appellants rely on statements from two PhD bear experts to absolutely destroy DEP’s false premises and sham data, population estimates, population projections and other bear science.
The appellants make it clear at the outset what this hunt is really all about:
The agency’s own management plan reveals that the authorization of this hunt was never about wildlife management, nor is it about protecting the public. It is a recreational hunt authorized for the benefit of a small percentage of the state’s population who enjoy killing bears. The CBBMP, which Respondents adopted on an emergency basis, repeatedly refers to “recreation.”
BOOM!
The appellants expose a fatal flaw in DEP’s logic:
The CBBMP claims that hunting is “safe” (Pa58) but bears present a “risk,” when 631 people have been shot – 34 fatally – in hunting accidents in New Jersey in the past 50 years, while only one person has ever been killed by a bear during the state’s entire recorded history.
By ignoring the safety risks of hunting and claiming that bears present an imminent peril, Respondents are creating a true imminent peril from hunting accidents. It makes no sense to say that something that has killed 34 people in 50 years is “safe” while something that has killed one person in 350 years is a “life-threatening” imminent peril
BOOM!
The brief then goes on to expose and demolish the seriously flawed data, population estimates, and population projections DEP relied on:
As explained in the attached certifications of black bear experts Sean Murphy, PhD, (Pa584), and Stephen F. Stringham, PhD, (Pa558), the Council approved the emergency hunt despite having no reliable information about the actual size of the state’s bear population. (Pa587-90 ¶¶ 9-15; Pa560 ¶ 8). The state applies a modified version of the “Lincoln-Petersen estimator” to approximate the total bear population, but this methodology is prone to causing “severe over- estimation of bear population sizes” and is “so deeply flawed that the agency has no scientifically defensible approximation of how many black bears may actually reside in New Jersey.” (Pa587-90 ¶¶ 10-11, 15). As Dr. Murphy illustrates, the state’s methodology generates erroneous and “illogical” results, such as the estimated bear population increasing when hunters kill more bears. (Pa588-89 ¶¶ 12-13). The state’s methodology also assumes that tagged bears are randomly distributed throughout the hunted population. (Pa561 ¶ 11; Pa590 ¶ 14). But this fundamental assumption is untrue.
The state’s population estimates “are so deeply flawed” that the Council approved the emergency hunt despite having “no scientifically defensible approximation of how many black bears may actually reside in New Jersey.” (Pa590 ¶15). Proceeding with the hunt in the face of that uncertainty risks killing a sufficiently high percentage of the total bear population to cause “serious and long- lasting harm to the population.” (Pa591 ¶19). As the number of bears harvested rises relative to the actual population size—which is unknown to the Council— over-harvest sufficient to cause population decline is likely. (Pa560 ¶ 8). Because the state lacks the data and monitoring protocols to timely detect and respond to such a decline, it could continue undetected for years, further compounding the likelihood and magnitude of population-level harm. (Pa592-93 ¶ 23; Pa560 ¶¶ 8, 9). New Jersey’s bears will be especially vulnerable to overharvest this year: drought conditions have reduced the availability of acorns and other staple foods, likely leading to a low reproductive year. (Pa562-63 ¶ 12; Pa296; Pa591 ¶ 18).
Approving any bear hunt without accurate population data would be irresponsible and scientifically unsupportable. Here, the Council has gone even further and established a hunt that sets no absolute limit on the number of bears that may be killed during the season. The emergency rule does not specify a maximum number of bears that may be killed during the hunt. Rather, the only threshold that will trigger a closure of the hunt is if 30% of tagged bears are killed.
In practice, this will allow hunters to kill an unlimited number of bears – potentially, and even likely, exceeding 30% of the total population – so long as the number of tagged bears killed remains below the threshold. (Pa592 ¶ 20). Because hunting is more likely to occur where tagged bears are less common, untagged bears will be killed at a higher rate than tagged bears, meaning substantially more than 30% of the total population may be killed even if the threshold is not met. (Pa562 ¶ 11). Hunters may even intentionally exploit the rule by deliberately avoiding killing tagged bears in order to extend the season and allow more bears to be killed. (Pa591 ¶ 14; Pa430 ¶ 17).
Furthermore, there is no population number that will cause the hunt to be canceled under the emergency CBBMP. No matter how many bears there are in the state, the CBBMP will continue to authorize two bear seasons every year, which is further indication that the hunt is recreational and has nothing to do with imminent peril or the number of bears.
This dangerous combination of faulty population data and unlimited harvest generates an unacceptable risk that the hunt will cause population-level harm to the state’s bear population. The Council cannot mitigate this risk because it lacks “sufficient data to determine how many bears can be sustainably harvested from the population.” (Pa592 ¶ 22). The level of annual human-caused mortality – including hunting mortality – that a black bear population can sustain depends on the population growth rate. (Pa592 ¶ 21; Pa560 ¶ 8). Studies have found that black bear populations can only sustain a 4 to 10 percent rate of human-caused mortality; in specific areas this has been found to be as high as 18 percent or as low as 1 to 2 percent. (Pa592 ¶ 21). Here, the state lacks sufficient data to determine the population growth rate, and therefore the level of human-caused mortality the population can sustain. (Pa592 ¶ 22; Pa560 ¶¶ 8-9). The growth rate estimates described in the CBBMP, (Pa85), are unreliable because they are based an inadequate sample size from which to derive an accurate growth rate, (Pa592 ¶ 22), and the estimates they produce do not align with high-quality research conducted elsewhere, (Pa560 ¶ 9). Without this crucial data, the Council cannot ensure that the emergency hunt will not cause population-level harm. (Pa592 ¶ 22; Pa560 ¶¶ 8- 9). Research on other bear populations (including in Pennsylvania, where “black bears have the highest known rates of reproduction”) has found that mortality far below the level that will soon be inflicted by the hunt the would be unstainable, (sic) indicating that the hunt is “extremely risky” and New Jersey’s bears will suffer population-level harm if it is not enjoined.
We’ll keep you posted – I’m hopeful and predicting the the Courts will grant the preliminary injunction!