The Appellate Division Just Gave DEP A Blank Check on Regulatory Power

The sole issue before this court is whether appellants have demonstrated, by clear and convincing evidence, entitlement to injunctive relief under the factors set forth in Crowe v. DeGioia, 90 N.J. 126, 132-34 (1982), and Garden State Equality v. Dow, 216 N.J. 314, 320 (2013). Because we conclude appellants failed to satisfy these factors, we deny appellants’ motion for a stay and dissolve the interim stay issued pursuant to Rule 2:9-8.

It is an absolutely terrible decision.

The Court completely ignored the legal issues and got diverted and bogged down in the science and policy issues of the hunt. This legal case was about the abuse of power by the executive branch, not the scientific merits or policy of a bear hunt.

(Note: I feared exactly this would happen (Nov. 19 post):

I hope the lawyers for the bear supporters do not get bogged down in the scientific arguments, unreliable data that supports DEP’s determination, and serious flaws in logic in DEP’s emergency declaration and Comprehensive Black Bear Management Plan.

I hope they can stay focused on the Constitutional due process issues and the statutory legal basis for declaration of an emergency, which requires DEP to document an “imminent peril”.)

The Court also focused far too heavily on the Fish and Game Council, and relied on the FGC public hearing to dismiss the due process violations.

The Court used the FGC sham public hearing to dismiss due process and APA procedural concerns:

But the FGC recommendations are legally meaningless without DEP regulations. There can be no hunt without DEP regulations. DEP can not rely on FGC to satisfy their legal obligations, nor can DEP delegate regulatory power to the FGC.

The DEP emergency regulations are the “final agency action” that was challenged in this case, not the FGC.

The DEP made the “imminent peril” finding. The DEP provided no notice or comment or public hearing. THAT IS THE LEGAL ISSUE!

Under a 2005 Supreme Court decision, DEP is the final decisionmaker and DEP regulations are superior to the FGC powers: see: U.S. SPORTSMEN’S ALLIANCE FOUNDATION; v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION,

the Fish and Game Council’s ability to authorize a bear hunt is subject to the statutory condition precedent of the Commissioner’s earlier approval of the very comprehensive policies governing the propagation of black bears.

Our conclusion regarding the Commissioner’s authority is ineluctable not only because of the approval language but because the entire statutory scheme was intended to create a unified approach to conservation and environmental protection under the authority of the Commissioner.  Although the Fish and Game Council may act without day-to-day veto by the Commissioner, its actions exist within a larger universe of comprehensive environmental policies.   If it does not act in accord with those policies, the Commissioner is empowered to intervene. […]

In the event that comprehensive policies are agreed on and a dispute arises between the Commissioner and the Fish and Game Council over whether a hunt or any other preservation or propagation methodology is justified, the [DEP’s] comprehensive policies will provide the standard for adjudicating the issue. ~~~ NJ Supreme Court

The Court in this case completely deferred to DEP’s judgements about the data and science, instead of focusing on the legal issue pregnant in the DEP’s “imminent peril” finding and the emergency rulemaking procedure.

While courts defer to agency expertise on science and factual issues within their expertise, Courts provide no deference at all to administrative agencies’ legal determinations. This was purely a DEP legal determination. The Court completely misconstrued that legal standard of review.

(Note: I feared exactly this would happen: (Dec. 3 post)

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.

The Court could find no precedent on emergency rulemaking and instead of analyzing the legal issues, the Court used the lack of precedent to dismiss the legal challenge:

Of course there is no “well settled law” and “clear and convincing evidence”– this is the first time DEP relied on emergency rules to kill bears (and the first legal challenge of a DEP or other State agency’s “imminent peril” determination that I am aware of). That establishes an impossible burden to meet for an injunction, when government acts in a novel fashion to violate constitutional rights and statutory mandates.

The Court also seemed to perceive the appellants as animal rights as long time legal obstructionists instead of legitimate legal appellants challenging abuse of government power.

I tried to convince Ray Cantor of the NJ Business and Industry Association to file an Amicus to make these legal issue distinct from the bear hunt policy questions, but he refused to back up the legal threat he made in the recent business community’s letter to Gov. Murphy opposing DEP emergency flood rules.

The business community will rue the day if this decision is allowed to stand and is not appealed and struck down by the NJ Supreme Court.

The business folks won’t always have a former Wall Street friend as Governor and a friendly former corporate lawyer as DEP Commissioner.

A future Commissioner might believe in regulatory power and use it to hold corporations accountable instead of to kill bears.

This will come back to bite them, for sure.

[End Note: I am not naive.

Of course I know that business groups would file lawsuits if DEP ever adopted an emergency rule that regulated them and imposed compliance costs.

Of course I know that NJ courts protect private property and corporate interests to a far greater degree than citizens rights, and would immediately impose an injunction blocking such DEP rules.

And of course I know that the DEP emergency rule would be struck down by the Courts on the subsequent appeal.

This whole fiasco just exposes the hypocrisy and fraud of the law, particularly regarding judicial review and due process concerns, which are enforced by the Courts when corporate interests and private property rights are involved and ignored when the public interest, public goods, or the commons are involved, or when the citizen tries to vindicate those rights.