A Few Thoughts On The Latest Bear Hunt Lawsuit Decision

Court Rejects Blatant Political Intervention by Trump US FWS

The NJ Appellate Division on Friday Nov. 16, 2018 issued a decision in the latest round of litigation on the black bear hunt (read the opinion here: NEW JERSEY OUTDOOR ALLIANCE v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION)

I’ve written about that recently, basically arguing that Governor Murphy and DEP Commissioner McCabe are misleading the public by obfuscating and failing to use their regulatory powers that were upheld by the NJ Supreme Court, see: NJ Gov. Murphy Just Effectively Privatized The Black Bear Population

In Friday’s decision, the Appellate Court rejected the hunters’ attempt to bock closure of State lands and upheld DEP’s reliance on “proprietary” powers as landowner to block the bear hunt on state lands.

But the Court agreed in part with the hunters’ “arbitrary & capricious” claims and remanded the case to the Office of Administrative Law (OAL) for a hearing to establish a factual and scientific record.

A few quick thoughts on that.

1. Court rejects over-reach by Trump USFWS

In reading the opinion, I was surprised to learn that the Trump administration’s US Fish and Wildlife Service (USFWS) had intervened aggressively behind the scenes in behalf of the hunters. The hunters then used this intervention in their legal challenge.

In a threat to withhold federal funds – a rarely used and very hostile bureaucratic move – the USFWS directed the DFW to review federal grant documents in order to ensure that federal grant moneys for wildlife restoration were not being diverted. This is the first step in the process under federal regulations to withhold federal funds.

The USFWS sent a letter to the NJ DFW, a transparent end run around DEP Commissioner McCabe.

Worse, it appears that USFWS mistakenly believes that NJ DFW is exclusively in charge and the federal law “assigns such authority singularly” to NJ DFW (not the DEP).

Based on that US FWS directive, the hunters’ lawsuit argued that DEP Commissioner McCabe’s Order violated federal law:

AO 2018-34 usurps federal law under the Pittman-Robertson Wildlife Restoration Act (“P-R Act”), 16 U.S.C. § 669-669k, which assigns such authority singularly to the DEP’s Division of Fish and Wildlife (“DFW”) ….

In support of those claims, appellants point to correspondence between the DEP and the United States Fish and Wildlife Service (“USFWS”), in which the federal agency advised the DFW to review grant documents in order to ensure federal grant moneys for wildlife restoration were not being misapplied as the result of EO 34.

That is an astonishing political maneuver by US FWS to promote hunting and undermine the policy and power of a State Governor. For a so called “conservative” Trump administration to run roughshod over States is deeply hypocritical.

And it provides more evidence of the Trump administration’s reckless pro-hunting policy.

Thankfully, the Court rejected those political games.

2. Court repeatedly cites DEP’s regulatory power over DFW

As I previously wrote, the DEP has regulatory power that is superior to the NJ Division of Fish and Wildlife. Specifically, as recognized by the NJ Supreme Court, the DEP sets the overall bear hunt policy that DFW must follow. The Appellate Court restated this several times:

Subject to the approval of the Commissioner of the Department of Environmental Protection (“DEP”), the State Fish and Game Council (“Council”) is empowered to “formulate comprehensive policies for the protection and propagation of fish, birds, and game animals,” “for the propagation and distribution of food fish,” and “for the keeping up of the supply thereof in the waters to the State. (N.J.S.A. 13:1B-28.)

Gov. Murphy and DEP Commissioner McCabe need to read this – they continue to ignore their legal power to set final policy on the bear hunt.

3. DEP’s reliance on “proprietary” power – instead of regulatory power – establishes dangerous precedent

The DEP relied on the State’s and DEP “proprietary” powers as land owner, instead of their regulatory power delegated by the Legislature and their public trust obligations to manage wildlife.

The Court basically ruled that DEP could act as they pleased with respect to State lands and do so with no procedural safeguards or public input.

This is a dangerous and bad idea.

The management of public lands and wildlife is NOT “proprietary”. Public resources must be managed democratically and subject to transparent and participatory processes. The public’s opinions must be considered.

For example, can DEP now assert “proprietary powers” and decide to log state forests and do so without even holding a public hearing? 

Can DEP manage parks, e.g. expand private concessions, commercially develop, or even privatize State Parks, with no public input?

The Court seems to approve of that.

4. Court’s remand to OAL misconstrues science versus policy

The hunters argued that the DEP Order was “arbitrary and capricious”.

The Court partially agreed and remanded the case to the OAL:

That neutral quasi-judicial forum shall address the hotly-disputed and fact-dependent claims that the closure is arbitrary and capricious, conflicts with the scientific underpinnings of the CBBMP, and imperils public safety.

The Court misconstrues the relationship between science and public policy and ignores the legal fact that DEP is in charge of policy.

This is shocking, given that the Court cited the Comprehensive Black Bear Management Plan and its policy objectives, especially the concept of “cultural carrying capacity”

DFW’s active, integrated bear management strategy is effective and essential for maintaining bears at a density that provides for a sustainable population within suitable bear habitat, minimizes human-bear conflicts and reduces emigration of bears to unsuitable habitat in suburban and urban areas. The black bear population in New Jersey is beginning to stabilize at a level that DFW believes is consistent with the cultural carrying capacity for this species in the state. 

“Cultural carrying capacity” is not limited to a scientific basis, it is a public policy concept: (definition)

In habitats near humans, the biological carrying capacity can sometimes support more black bears than humans in the area are willing to tolerate. This number, which is often less than the biological carrying capacity, is called the cultural carrying capacity.

As the NJ Supreme Court has recognized, the Legislature has delegated power so that DEP is “the decider” on policy issues governing the bear hunt.

Public policy should be based, in part, on the best available science, but is a far broader field than science.

That means that DEP decisions don’t have to be exclusively and narrowly “fact dependent” – they can reflect public values and public policy objectives that transcend science.

That means that the “scientific underpinnings of the CBBMP” are not controlling – DEP may inject other wildlife conservation concepts  – including animal rights – and other public policy and ethical values.

Let’s hope DEP and the Attorney General can explain these concepts to the OAL judge that hears the case on remand.

(Keep in mind that at an OAL hearing, DEP will be forced to rely on fact & science “experts” from the DFW, the same wildlife biologists that supported the hunt, have sabotaged Gov. Murphy, and played political games with their patrons, the hunters.)