Murphy DEP Stealthed Bear Hunt Secrecy Rule

Proposal would help hunters locate, track and kill bears

Proposal would keep DEP bear management practices secret

We will be seeking legislative oversight and veto, because it could not possibly be the legislature’s intent to authorize DEP to keep important bear management policies and practices secret, while helping hunters track and kill bears.

Apparently I’m not the only one who missed DEP’s December 17, 2018 controversial bear hunt secrecy proposal – which was published during the holidays and New Year. My friends at Sierra Club and the Animal Protection League of NJ missed it too. I suspect very few people were aware of this.

Given the intense public and media controversy about the bear hunt, I’m baffled as to how that happened and was allowed to happen by DEP.

I strongly suspect bad faith on the part of DEP and that this proposal was intentionally stealthed to avoid public awareness. Here’s why:

I’ve been working on DEP regulations for over 30 years, both as a DEP policy analyst and rule drafter and as a public interest advocate in the environmental community.

I am intimately familiar with the nuts and bolts of how DEP internally  develops regulatory proposals, including how they are vetted by DEP managers, reviewed and approved by the Attorney General’s Office and sometimes the Governor’s Office (for major or controversial rules), and how they are conveyed to the Office of Administrative Law for publication in the NJ Register.

Over the years, to their credit, DEP has developed additional mechanisms to expand public awareness and invite public participation in rule making, beyond the minimum legal requirements of publication in the NJ Register.

These mechanisms include: 1) informal “Stakeholder” consultations prior to formal rule proposal; 2) press releases; 3) electronic  list serve distribution of rule proposals; and 4) publication on the DEP web page.

I try to follow DEP rule making very closely.

I am on DEP’s rule electronic list serve and I regularly check the DEP “current proposal” webpage.

Most recently, I accessed that DEP webpage to review the DEP’s December 3, 2018 stormwater rule and the December 17, 2018 RGGI rules. I also received an electronic heads up from DEP on both those proposals.

With respect to the Murphy DEP, I’ve :

• monitored and harshly criticized their regulatory inaction with respect to proposing rules
• filed several OPRA requests that have been denied and been harshly critical of their OPRA practices
• criticized DEP’s  bear management policies

The current controversial proposal is a trifecta: it hits all three of these issues I’ve been following closely and writing about.

I’ve also criticized DEP’s pre-proposal “Stakeholder” consultation process – which apparently didn’t happened on this bear hunt rule.

I’ve even monitored and criticized the Murphy DEP’s press release and website posting practices.

So, with that issue focus, how did I possibly miss all this?

How did I miss the DEP electronic list serve notice?

How did I not see the proposal on the DEP webpage?

Well, I don’t think I missed them.

I strongly suspect that DEP failed to provide electronic list serve notice and published the proposal on the webpage recently, after the public comment period had closed on the proposal.

If so, that would be incredible bad faith on the part of DEP.

And DEP did not issue a press release about this controversial proposal either to give the public a heads up about what amounts to a radical new secrecy policy.

That is further evidence of a conscious effort to stealth this controversial secrecy proposal.

We will get to the bottom of this – and find out whether I (and many others) just failed badly and missed this, or whether DEP intentionally stealthed it.

We will be seeking legislative oversight and veto, because it could not possibly be the legislature’s intent for DEP to keep important bear management policies and practices secret, while helping hunters track and kill bears.

Note to the legal eagles out there: the proposal is also vulnerable to lawsuit on at least 2 grounds:

1) as arbitrary and capricious because it lacks any factual basis; and

2) as not authorized by, inconsistent with, and thus a violation of OPRA.