NJ Gov. Murphy Just Effectively Privatized The Black Bear Population

WHEREAS, the authority over the black bear hunt rests with the Council and several court decisions have made it clear that neither the Governor nor the Commissioner have the authority to unilaterally alter or cancel the black bear hunt;

WHEREAS, while neither the Governor nor the Commissioner can unilaterally prevent a black bear hunt, the Commissioner has clear authority to direct and coordinate the use of all public lands under DEP’s jurisdiction, including instituting a ban on hunting on said lands

While the Gov. and DEP may not have the authority to “alter or cancel” the bear hunt, the statements are highly misleading.

In contrast to the Gov.’s claims, the DEP Commissioner clearly has the authority to block the hunt via the Commissioner’s powers pursuant to  N.J.S.A. 13:1B-28 which provides: (my emphasis):

In addition to its powers and duties otherwise hereinafter provided, the Fish and Game Council shall, subject to the approval of the commissioner, formulate comprehensive policies for the protection and propagation of fish, birds, and game animals and for the propagation and distribution of food fish and for the keeping up of the supply thereof in the waters of the State.

That specific power has been upheld by the NJ Supreme Court, in the case cited by the Governor.

The Supreme Court’s 2005 ruling was a comprehensive exposition on and resounding support of upholding the DEP Commissioner’s powers over the Fish and Game Council with respect to the bear hunt – the exact opposite of Gov. Murphy’s claims.

As NJ.Com reported:

Murphy’s office, in a statement accompanying his announcement Monday, offered an explanation.

The statement noted that the N.J. Fish and Game Council is separate from the governor’s office, is composed primarily by “sportsmen and farmers,” and has the sole authority to authorize a bear hunt.

“Pursuant to a New Jersey Supreme Court decision in 2005 and other related court decisions, if the council recommends a bear hunt and properly adopts regulations implementing a hunt, the governor does not have the ability to unilaterally cancel it,” read the statement.

“In order for the hunt to be stopped, either the Legislature must act or the council must adopt new regulations that do not include provisions for the hunt.”

The Murphy statement is highly misleading and outright false.

The Gov. ignores the powers of his DEP Commissioner.

DEP Commissioner can block the bear hunt by refusing to approve [*or repealing or amending] the “comprehensive policies” for black bear management recommended by the Fish and Game Council, which must be reviewed and approved by DEP and promulgated via regulation as the Comprehensive Black Bear Management Plan. [*See update below]

And, as the NJ Supreme Court’s 2005 decision clearly found, the Fish and Game Council clearly does not have “sole authority” to authorize a bear hunt.

The Gov. is referring to a 2005 NJ Supreme Court decision in: U.S. SPORTSMEN’S ALLIANCE FOUNDATION; v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION.

In that case, the Supreme Court that ruled on the powers of the DEP Commissioner and the Fish and Game Council with respect to the bear hunt.

The decision went into great detail on the history of the formation of the DEP and the powers of the DEP Commissioner with respect to the Fish and Game Council.

The decision explicitly reversed a prior 2004 NJ Appellate Court decision that found that the DEP Commissioner lacked statutory authority to block the bear hunt.

Here is the procedural history the Supreme Court restated:

The complete facts and procedural history of this case are reported in U.S. Sportsmen’s Alliance Foundation v. New Jersey Department of Environmental Protection, 372 N.J.Super. 598, 860 A.2d 463 (App.Div.2004).   In a nutshell, in early 2004, the Fish and Game Council considered a proposal to hold a bear hunt similar to the hunt that had taken place in 2003.   The 2003 bear hunt was the first authorized in New Jersey since 1970.¹  The Commissioner publicly supported the 2003 hunt;  it was not until 2004 that he opposed a hunt outright due to fiscal concerns, the decrease in bear-human interactions, and the lack of data supporting the Division of Fish and Wildlife’s (Division) projections regarding the bear population. Notwithstanding that opposition, the Fish and Game Council adopted the 2004-2005 Fish and Game Code that authorized the bear hunt.   The Commissioner subsequently directed the Division not to issue or process applications for bear hunting permits.   The U.S. Sportsmen’s Alliance Foundation, New Jersey State Federation of Sportsmen’s Clubs, Gerald McCusker, Anthony Cali, and Edward O’Sullivan filed a notice of appeal challenging the Commissioner’s directive.

The Appellate Division held that the Commissioner lacks the statutory authority to enjoin the issuance of bear hunt permits or  to otherwise interfere with Fish and Game Code regulations governing the hunt.

The DEP, the Commissioner, the Division, and the Director of the Division (collectively the Commissioner) petitioned for certification, which we granted.  U.S. Sportsmen’s Alliance Found. v. N.J. Dept. of Envtl. Prot., 182 N.J. 151, 862 A.2d 59 (2004).