1925 10 ANIMAL PROTECTION LEAGUE OF NEW JERSEY THE BEAR EDUCATION AND RESOURCE GROUP THERESA FRITZGES ANGELA METLER v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION NJDEP BOB MARTIN NJDEP DIVISION OF FISH WILDLIFE DAVID CHANDA NJDEP FISH GAME COUNCIL JEANETTE VREELAND (2010)

A-1603-10T2 EMERGENT ORDER ON MOTION

DOCKET NO.

BEFORE

PART F

JUDGE(S):

PHILIP S. CARCHMAN

CARMEN MESSANO

MOTION FILED:

11/30/2010

BY:

ANIMAL PROTECTION LEAGUE OF NJ, THE BEAR GROUP,THERESA FRITZGES & ANGELA METLER

ANSWER(S) FILED:

12/02/2010

BY:

ATTORNEY GENERAL

SUBMITTED TO COURT:  December 02, 2010

ORDER

MOTION FOR STAY

DENIED AND OTHER

SUPPLEMENTAL:

SEE ATTACHED OPINION.

FOR THE COURT:

PHILIP S CARCHMAN, P.J.A.D

STATEWIDE

ORDER-REGULAR MOTION

PJ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

Submitted December 2, 2010-Decided

Appellants Animal Protection League of New Jersey, the Bear Education and Resource Group, Theresa Fritzges and Angela Metler move for an emergent stay of the 2010 black bear hunt scheduled to commence on December 6, 2010.   While they appeal the decisions of respondents New Jersey Department of Environmental Protection (DEP);  Bob Martin, Commissioner of DEP;  the Division of Fish and Wildlife (DFW);  David Chanda, Director of DFW;  and the DFW Fish and Game Council (the Council) in adopting the Comprehensive Black Bear Management Policy (CBBMP),¹ the narrow issue before us on this motion is whether appellants have satisfied the requirements of Crowe v. DeGioia, 90 N.J. 126, 132-34 (1982), so as to warrant the imposition of injunctive relief.   We conclude that they have not and deny the motion for a stay.

The issue of bear hunts in New Jersey is recurring and has been the subject of a number of decisions of both this court and the Supreme Court.   See, e.g., U.S. Sportsmen's Alliance Found. v. N.J. Dept. Envtl.   Prot., 182 N.J. 461 (2005);  N.J. Animal Rights Alliance v. N.J. Dept. Envtl.   Prot., 396 N.J.Super.   358 (App.Div.2007);  N.J. Animal Rights Alliance v. N.J. Dept. of Envtl.   Prot., No. A-1463-05T3, Motion No. 1577-05 (App.Div. December 2, 2005).²  See also Fund for Animals v. Mainella, 294 F.Supp.2d 46 (D.D.C.2003).   We deem it unnecessary to review the statutory construct that authorizes the DEP and the Council to promulgate the CBBMP as that issue was comprehensively explored by the Court in Sportsmen's Alliance.   Likewise, the historical background of prior bear hunts and the various challenges to these hunts have been the subject of extended discussion and exploration in these opinions.   We limit our discussion to the facts of this appeal.

According to respondents, since 2007, respondents have continued to study and manage the State's black bear population through implementation of an integrated black bear management strategy.

Earlier this year, consistent with the decisions in U.S. Sportsmen's Alliance and New Jersey Animal Rights Alliance, respondents developed the 2010 CBBMP, which formalizes the integrated approach to black bear management.   Specifically, the 2010 CBBMP, like the 2005 CBBMP, addresses a number of elements in addition to the hunt.   These include education;  control of human-derived food;  research and analysis of the State's black bear population;  analysis of the State's available black bear habitat;  cooperative research with other states, academic institutions and other entities engaged in research on black bear management;  control of bears that threaten human safety, agricultural crops and property;  nuisance bears;  lethal and non-lethal means of control;  habitat protection;  and bear population management.

With regard to the need for a black bear hunt, respondents determined that considering available specific data and governmental personnel resources, an integrated approach to black bear management should utilize available methods for the management of the State's black bear population.   Respondents concluded that the State's comprehensive approach to black bear management should include a regulated hunt.   The details of this hunt were set forth in the CBBMP.

Respondents made a series of findings and conclusions to support this decision.   We paraphrase those findings as set forth in respondents' submission and supported by the record.   First, despite the Department's extensive integrated bear management efforts, serious complaints of bear-human interaction had not abated as the bear population continued to expand.   At present, black bear complaints are at historically high levels.

Second, bear hunting seasons can alleviate damage and nuisance incidents caused by problem bears.   New Jersey's recent experience with black bear hunts support this, as the population reduction achieved by the 2003 and 2005 bear hunting seasons resulted in short-term reductions in bear-related complaints received by DFW and cooperating law enforcement agencies.

Third, the New Jersey black bear population is large enough to sustain a hunt without endangering the population as a whole.   Fourth, the 2003 and 2005 hunts demonstrated that bears could be harvested safely, and harvests could be accurately predicted.   Fifth, no other viable method exists to reduce, or slow the growth of, the black bear population.   Although fertility control and sterilization have been studied, these methods of population control have not been effective.

Sixth, hunting is a safe, legal and responsible use of wildlife resources, as well as a legitimate and effective means to control over-abundant game species in a cost-effective manner.   Black bear hunts are used to manage and control the black bear population in at least twenty-nine other states with resident black bear populations, including Pennsylvania and New York.

Based on these findings, the respondents adopted the 2010 CBBMP and concluded that a regulated black bear hunting season should be established similar to the 2003 and 2005 hunting seasons.   The CBBMP further advised that respondents should develop a long-term structure for bear hunting seasons to reduce and then stabilize the bear population at a level compatible with the availability and quality of habitat, and consistent with public safety and residential and agricultural concerns.

According to respondents, the CBBMP balanced the conflicting public perceptions of bears as both a nuisance and a valued game animal.   It was promulgated to maintain healthy populations of black bears, minimize conflicts between bears and humans, as well as reflect the disparate opinions of the many New Jersey residents weighing in on the issues.

The CBBMP recommended a hunt modeled after the hunts that occurred in 2003 and 2005 to assure the public that the long-term viability of the bear population is maintained.

On March 9, 2010, the Council voted to approve the proposed 2010 CBBMP.   The proposed CBBMP was then approved by the DEP Commissioner on March 17, 2010.   Following these approvals, the proposed CBBMP was published in the New Jersey Register on April 19, 2010.   See 42 N.J.R. 753(a).   Thereafter, there was a 60-day public comment period as well as a public hearing on May 11, 2010, at the New Jersey State Museum in Trenton.   The public comments period closed June 18, 2010.   During the public comment period, over 9,000 comments were submitted by mail and on-line.

On July 13, 2010, the 2010 CBBMP was approved by the Council.   The Commissioner approved the CBBMP on July 21, 2010.   Based on those approvals, the final adoption document for the 2010 CBBMP was published in the New Jersey Register on November 15, 2010.   See 42 N.J.R. 2754(c).

On November 17, 2010, appellants requested that respondents stay the bear hunt scheduled to begin on December 6, 2010.   On November 22, 2010, the Commissioner denied the request.   Appellants appealed respondent's decision to adopt the CBBMP and moved for a stay pending disposition of the appeal.

The thrust of appellants' argument on this application is that the adoption of the CBBMP was arbitrary, capricious and in bad faith.   Specifically, appellants assert that respondents:

Drafted and adopted the CBBMP in an arbitrary and capricious manner when they published false statements, misrepresented data from previous bear hunts, fabricated a cultural carrying capacity finding, contradicted their own data within the CBBMP, ignored their own data on the effect of hunting on the bear population, and inflated bear complaint statistics;  and

Violated the Administrative Procedure Act 3 at N.J.S.A. 52:14B-4 (“APA”) by failing to “consider fully” and respond to public comments, failing to conduct the public hearing in compliance with the APA and fabricating public support for the CBBMP.

The narrow issue before us is whether a stay is warranted.   As we have previously observed, our consideration of a stay is informed by the well-recognized standards established by the Court in Crowe.   Appellants must demonstrate, by clear and convincing evidence, a reasonable probability of success on the merits;  irreparable injury unless the stay is granted;  that the legal right underlying appellants' claim is settled;  and that the balancing of hardships favors the granting of relief.

In considering the issue of appellants' likelihood of success on the merits, we note that the standard of review of administrative actions is daunting.   We will not overturn administrative action “in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence.”  In re Carter, 191 N.J. 474, 482 (2007) (quoting Campbell v. Dep't. of Civil Serv., 39 N.J. 556, 562 (1963)).   We will affirm a decision of the DEP if it is supported by the evidence, even if we may question the wisdom of the decision or would have reached a different result.  Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001).

Furthermore, a strong presumption of reasonableness attaches to an agency decision.  In re Carroll, 339 N.J.Super. 429, 437 (App.Div.), certif. denied, 170 N.J. 85 (2001).   With respect to factual findings, the findings the Commissioner “are considered binding on appeal when supported by adequate, substantial and credible evidence.”  In re Taylor, 158 N.J. 644, 656 (1999) (quoting Rova Farms Resort Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

Particularly relevant here, the choice of accepting or rejecting the testimony of witnesses or the opinions of experts rests with the administrative agency, and where such choice is reasonably made, it is conclusive on appeal.  In re Application of Howard Sav. Bank, 143 N.J.Super. 1, 9 (App.Div.1976).   We will affirm if we find that the evidence and the inferences to be drawn therefrom support the DEP's action.  N.J. Racing Comm'n, supra, 169 N.J. at 587 (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)).

When we review an “agency's interpretation of statutes within its scope of authority ․, we afford the agency great deference.”  N.J. Soc'y for the Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 385 (2008) (citing In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004)).   The Supreme Court has noted that “[s]uch deference is appropriate because it recognizes that agencies have the specialized expertise necessary to enact regulations dealing with technical matters and are particularly well equipped to read ․ and to evaluate the factual and technical issues that ․ rulemaking would invite.”  In re Freshwater Prot. Act Rules, supra, 180 N.J. at 489 (internal quotation marks and citations omitted).   Ultimately, our role is not to “micromanage” an agency but to recognize that unless the agency's action is inconsistent with its legislative authority, we will act with restraint and not intervene.  In re Failure by the Dep't of Banking and Ins., 336 N.J.Super. 253, 262 (App.Div.2001).

With this standard in mind, we consider appellants' claims.   In asserting that respondents acted arbitrarily and capriciously in adopting the CBBMP, appellants claim respondents, among other things, utilized improper data, miscategorized complaints, ignored carrying data and misrepresented predictions of harvest numbers.   Appellants rely on their experts as well as their perceptions and interpretation of the relevant data.   They question and challenge the factual predicates of respondents' conclusions.   The record, however, demonstrates that respondents also conducted significant scientific investigation and research into the subject matter.   They, too, relied on experts including biologists, statisticians, wildlife personnel as well as a significant public commentary on the issues before them.

The underlying challenges to the Commissioner's findings resulting in the promulgation of the CBBMP are dubious, at best.   Certainly, there is substantial disagreement, but simply disagreeing, even if based on contrary expert opinions, is insufficient to overcome the presumption of reasonableness ascribed to the Commissioner's finding.

We need only cite the example of the alleged inflated incident report data to demonstrate the application of the principles of law that we apply.   Among other alleged flaws in the data, appellants claim that the data was inflated as respondents double- or triple-counted various incidents.   In the cited instance, a homeowner reported a sow and four cubs on the property.   That was reported as an incident.   Later the same homeowner reported a single bear rummaging through garbage.   That, too, was reported as a separate incident.   Appellants claim double-counting;  the Commissioner determined that these were two separate incidents.⁴  The Commissioner's methodology provides no basis for complaint.   It represents, in that instance, a rational and reasoned basis for the count.

The various other claims of arbitrariness were likewise explored and explained by the Commissioner both in the CBBMP as well as in his letter-opinion denying appellants application for the stay.

We are not persuaded that appellants have met the first Crowe standard.   As we have previously noted, disagreement with the findings of the Commissioner, both as to facts and policy, cannot form the basis of a viable challenge to his action.

In Mercer County Deer Alliance v. Department of Environmental Protection, 349 N.J.Super.   440 (App.Div.2002), we applied this standard to a challenge by animals-rights organizations to the Council's adoption of rules for deer hunting as part of a community based deer-management plan.   In rejecting the challenge, we found that “[i]t was clearly within the discretion of the Division and the Council to evaluate the available scientific literature and professional opinion and to determine which of various theories and approached to adopt.”  Id. at 449.

We also rejected appellants' argument that there was insufficient evidence in the record to support the Council's decision to adopt certain special deer hunting rules, noting that it “require[d] little comment.”  Id. at 449 (“We reject the contention that the State Plan was adopted without sufficient scientific research and investigation as required by N.J.S.A. 13:1B-30.   That simply is not so.”).   We also found that the rules were not improper merely because there was disagreement among the experts as to the means, methods and conclusions of the applicable science.  Mercer County, supra, 349 N.J.Super. at 449.   Instead, the critical inquiry was whether the Council's decision was based on scientific knowledge and investigation.   The court stated:

While there may be some scientific dispute to the utility of standards based on biological and cultural carrying capacities as well as dispute as to the specific content of the standards, the fact remains, as this record demonstrates, that there is a wealth of respectable professional and scientific literature supporting the determinations represented by the Plan.

[Ibid.]

We rejected the suggestions made by appellants' expert that there were more humane ways to control the deer population.   While these conflicts as to methodology are worthy of discussion and debate, as in Mercer County, we will not overturn a valid agency decision that is based on a reasoned view of the disparate evidence presented.   Appellants' argument on the merits is a disagreement with the Commissioner's findings.   That will not suffice to warrant a conclusion that there is a likelihood of success on the merits.

We likewise find that appellants have not demonstrated irreparable harm.   They have failed to establish that the bear hunt will impact the viability of the species, will have a negative biological effect on the overall black bear population or that the hunt and harvest will irreparably damage the species.   Fund for Animals, supra, 294 F.Supp.2d at 57-58;  see also Fund for Animals, Inc. v. Frizzell, 530 F.2d 982, 987 (D.C.Cir.1976) (requiring a showing that the harvest of waterfowl will irretrievably damage the species).

Appellants correctly note that “killing a bear cannot be reversed.”   In Animal Welfare Institute v.. Martin, 668 F.Supp.2d 254 (D.Me.2009), aff'd, 623 F.3d 19 (1st Cir.2010), the court noted that “the proper test for determining irreparable harm is effect on the species as a whole, not on individual members of the species, unless the take of an individual member has been demonstrated to affect the species as a whole.”  Id. at 264 (emphasis added).   There is no showing that the species of black bears in New Jersey will be jeopardized by the scheduled hunt.

We likewise find that appellants' underlying claim is not well-established as a matter of law.   Appellants' reliance on our earlier decision overturning the prior policies is misplaced.   The threshold question of the application of the APA to the adoption of the plan addressed by us in Animal Rights Alliance is significantly different from a challenge to compliance with the statute.   Appellant has failed to meet this prong of Crowe.

Although we are of the view that the balancing of equities favors the adoption of the 2010 CBBMP, we need not address that issue as appellants have failed to establish the first three prongs of Crowe.

Finally, we find no merit in appellants' claim that respondents violated the APA. Although we have determined that appellants have failed to meet their burden under Crowe, we briefly address the issue in the context of whether this claim has a likelihood of success on the merits.

The gravamen of appellants' argument is that respondents failed to respond to comments, and that many of the responses to those comments were disingenuous.   Further, appellants argue that many of the answers were based on “falsified support,” that no summary of the relevant factual information was produced, and that there was no response to questions at the May 11, 2010 public hearing.

Under the APA, prior to adopting or amending any rule, an administrative agency must give notice of its intended action, N.J.S.A. 52:14B-4(a)(1), and afford interested parties a “reasonable opportunity to submit data, views, or arguments, orally or in writing.”  N.J.S.A. 52:14B-4(a)(3).   In addition, “[t]he agency shall consider fully all written and oral submissions respecting the proposed rule[,]” and “[p]repare for public distribution a report listing all parties offering written or oral submissions concerning the rule, summarizing the content of the submissions and providing the agency's response to the data, views, and arguments contained in the submissions.”  N.J.S.A. 52:14B-4(a)(3)-(4).   A rule is not valid “unless adopted in substantial compliance” with these provisions.  N.J.S.A. 52:14B-4(d).

Over 9,000 comments were received.   Many of the comments were duplicative, yet a lengthy and comprehensive report was produced both identifying the commenters, summarizing the comments and providing detailed answers.   Much of the criticism forming the basis of appellants' argument focuses less on the whether there were responses as opposed to the nature of the responses.

The debate on the issues of this hunt was passionate and extensive, yet all parties had an opportunity to express their respective views as to the merits of the CBBMP and the hunt.   This is neither a new nor novel debate or dispute, but adherence to the APA insured that all the issues were before the public.   The APA was designed to meet that goal, and it was achieved here.   Our review of the record leads us to conclude that respondents substantially complied with the APA, and appellants do not have a reasonable likelihood of success on the merits of this claim.

We conclude that appellants are not entitled to emergent relief and the motion for a stay is denied.

FOOTNOTES

FN1. New Jersey State Federation of Sportsmen's Club, Inc. and Safari Club International moved to intervene in opposition to appellants' application.   Their motion to intervene is not yet ripe for disposition as appellants have not had an opportunity to respond.   We do not consider their filings on this application for a stay..  FN1. New Jersey State Federation of Sportsmen's Club, Inc. and Safari Club International moved to intervene in opposition to appellants' application.   Their motion to intervene is not yet ripe for disposition as appellants have not had an opportunity to respond.   We do not consider their filings on this application for a stay.

FN2. Although this opinion is unreported and not cited as precedent, R. 1:36-3, we cite it for the limited purpose of presenting relevant but general background and history.   See Pressler and Verniero, Current N.J. Court Rules, comment 2 on R. 1:36-3 (2011)..  FN2. Although this opinion is unreported and not cited as precedent, R. 1:36-3, we cite it for the limited purpose of presenting relevant but general background and history.   See Pressler and Verniero, Current N.J. Court Rules, comment 2 on R. 1:36-3 (2011).

FN3. N.J.S.A. 52:14B-1 to -25(APA)..  FN3. N.J.S.A. 52:14B-1 to -25(APA).

FN4. Apparently the incidents of double-counting were less that one percent..  FN4. Apparently the incidents of double-counting were less that one percent.