Opinion
No. A-1463-05T3, Motion No. 1577-05
Argued December 2, 2005
Decided December 2, 2005
On appeal from the Final Agency Decision of the Department of Environmental Protection.
Before Judges Cuff, Parrillo and Gilroy
Kevin E. Barber argued the cause for appellants (Niedeske Barber, attorneys; Mr. Barber, Christopher W. Hager, Matthew J. Vance and Eliyahu S. Scheiman, on the brief).
Dean Jablonski, Deputy Attorneys General, argued the cause for respondents (Peter C. Harvey, Attorney General of New Jersey; Michael J. Haas, Assistant Attorney General, of counsel; Mr. Jablonski and Ellen Balint, on the brief).
Anna M. Seidman argued the cause for respondents/intervenors, Safari Club International, Safari Club International Foundation (Peter C. Bobchin, Douglas S. Burdin and Ms. Seidman, on the brief).
Thomas J. Cafferty argued the cause for respondents/intervenors, U.S. Sportsmen's Alliance Foundation, John Regalo and Anthony Cali (Scarinci and Hollenbeck, attorneys; Mr. Cafferty, on the brief).
This matter is before us on emergent application of appellants, pursuant to Rule 2:9-7, to stay the formal approval by the Commissioner of the Department of Environmental Protection (DEP) of the 2005 Comprehensive Black Bear Management Policy (BBMP) that includes a black bear hunt scheduled to take place from December 5 through 11, 2005. We entertain this application for injunctive relief on an accelerated basis given the exigencies of time and the nature of the public interest involved.
Some background is in order. By statute, the DEP is charged with the responsibility to "formulate comprehensive policies for the conservation of the natural resources of the State, the promotion of environmental protection and the prevention of pollution of the environment of the State." N.J.S.A. 13:1D-9. The Division of Fish and Wildlife (DFW), which is charged with the "protection and propagation of . . . game animals",N.J.S.A. 23:2-2, exercises its authority and responsibilities within the DEP. N.J.S.A. 23:2B-15.
The Fish Game Council (Council) is a body constituted within the DFW. N.J.S.A. 13:1B-24. The Council has been mandated, "subject to the approval of the commissioner, [to] formulate comprehensive policies for the protection and propagation of . . . game animals . . .", including black bears. N.J.S.A. 13:1B-28. The Council has been further authorized, in its promulgation of the Fish and Game Code, "to determine under what circumstances, when and in what localities, by what means and in what amounts and numbers such . . . game animals . . . may be pursued, taken, killed, or had in possession so as to maintain an adequate and proper supply thereof . . ." on the basis of scientific investigation and research. N.J.S.A. 13:1B-30. To this end, the Council's mandate is to, among other things, "provid[e] an adequate . . . system of . . . control . . . of . . . fur-bearing animals in this State, and for their use and development for public recreation and food supply. . . ." Ibid.
The comprehensive policies which the Council is charged with developing, subject to the approval of the Commissioner,N.J.S.A. 13:1B-28, should at least include "the broad preservation goals discussed above, the tools at the Fish and Game Council's disposal to accomplish those goals, and most importantly, the factors that should be considered when determining which tools will be utilized." U.S. Sportsmen's Alliance Found. v. N.J. Dep't of Env'l Prot., 182 N.J. 461 , 477-78 (2005). The relevant factors may include consideration of "the absolute size of the bear population, the number of harmful bear-human interactions and the fiscal and human resources available to carry out the stated goals." Id. at 478. If the
Council enact[s] policies that [are] approved by the Commissioner and that explain when it would pursue a bear hunt over other population control and conservation methods, and . . . the . . . Council authorize[s] the bear hunt in accordance with those policies, the Commissioner would [be] powerless to refuse to issue or process applications for hunting permits.
[Ibid.]
The Council published its proposed Game Code on June 6, 2005,see 37 N.J.R. 1959(a), providing that there would be an open season for black bear hunting only upon the Commissioner's approval of the BBMP. A public hearing on the Game Code was held on June 21, 2005. The Game Code was adopted on August 12, 2005.
The Council prepared the BBMP on March 23, 2005. See 37 N.J.R. 1959(a). The DEP published notice requesting comment on the policy on September 6, 2005. See N.J.R. 3091, 3458(a). A public hearing was held on September 21, 2005; and the Commissioner finally approved the 2005 BBMP on November 14, 2005.
In approving the BBMP, the Commissioner explained:
In reviewing this policy, my paramount concerns have been public safety and sound wildlife management. As the black bear population has expanded, incidents involving risks to public safety and property, which subsided after the 2003 hunt, have increased significantly. Moreover, excess population in areas of suitable black bear habitat has led to increasing black bear migration to areas of the state where little suitable habitat exists and where risks to populous communities are consequently greater.
As revised, this policy responds to a number of concerns that I have raised and that were presented in public comments and at the public hearing on the draft policy. First, the 2005 Policy adopts a much more moderate population reduction goal than the initial draft, recognizing that New Jersey can sustain far higher populations of black bears than had been assumed when the Council adopted the targets presented in the 1997 Black Bear Management Plan. These targets would have required far greater population reductions than can be achieved, and far greater population reductions than are needed for public safety. Second, the 2005 Policy includes objective criteria for suspending a black bear hunt otherwise authorized by the Game Code, a safeguard that will ensure that New Jersey maintains a robust and successful population of black bears even if the population proves to be smaller than current estimates. Third, the 2005 Policy more clearly commits the Council to maintaining and expanding the use of nonlethal control measures.
I am satisfied that the 2005 Policy, revised after extensive public comments and a public hearing, meets the mandate and requirements established by the Supreme Court in its most recent opinion on black bear management. In light of this approval, I would expect the black bear hunt authorized by the 2005 New Jersey Game Code to proceed as adopted.
The 2005 BBMP sets a population management goal of stabilizing the black bear population at the 2002 level (1317) over the next five years; discusses various population control methods available to reach this goal; and recognizes that other population control techniques are either not viable or unproven at this time. This goal is premised on an extensive administrative record including professional studies, statistical modeling and public comment. Based on these findings, the 2005 BBMP concludes that a controlled hunt is the most effective population management tool available to achieve the BBMP's target population.
It is against this background that we consider appellants' emergent application for a stay. It is well-settled that in seeking injunctive relief, enjoining the black bear hunt feature of the 2005 BBMP, appellants must make a preliminary showing of (1) reasonable probability of ultimate success on the merits; (2) irreparable injury unless relief is granted; (3) that the legal right underlying appellants' claim is settled; and (4) that the balance of hardships favors the granting of the relief, see Crowe v. DeGioia, 90 N.J. 126 , 132-34 (1982), by clear and convincing evidence, see Subscriber Commc'n, Inc. v. Day, 299 N.J. Super. 634 , 639 (App.Div. 1997). As to prongs one and two, although at oral argument appellants conceded that a hunt is a viable control technique, they contend that the State has failed to demonstrate, by scientifically reliable data, (1) that the black bear species is "overpopulated", and (2) that the threat of an over harvest will not endanger the species.
We are satisfied that appellants have not made the requisite showing of irreparable harm because they have not demonstrated that the black bear hunt will threaten the long-term viability of the species or have a negative biological effect upon the overall black bear population, or that the expected harvest of black bears will irretrievably damage the species. Fund for Animals, Inc. v. Frizzell, 530 F.2d 982, 987 (D.C. Cir. 1975); Fund for Animals, Inc. v. Lujan, Jr., 794 F. Supp. 1015 (D. Mont. 1991), aff'd, 962 F.2d 1391 (9th Cir. 1992). Significantly, the BBMP enables the DFW to monitor the harvest and to prevent an over harvest, and to call off the bear season with 24 hours notice if biologists determine the harvest is excessive based on tagged bear returns in the harvest.
We are further satisfied that appellants have failed to demonstrate a reasonable probability of ultimate success on the merits of their claim that the Commissioner's approval of the 2005 BBMP was arbitrary, capricious, or unreasonable. In this regard, appellants have failed to demonstrate that the agency's action violated express or implied legislative policies because the agency action, on its face, was patently and expressly within the legislative grant of authority, consistent with its statutory prerogative to issue special hunting permits for the purpose of bear population control, and conformed to the dictates of the Supreme Court's decision in U.S. Sportsmen's Alliance by explaining the need to control the State's black bear population, establishing a target population, discussing the various tools available to the Council, and recommending how each of these tools should be utilized, on the basis of scientific research and data.
The BBMP addressed the size of the black bear population, and noted the inherent limitations involved in trying to quantify a population. The Council "recognize[d] that the ability to measure wildlife populations is subject to the scientific tools available and the population status is most often measured through the use of population indices and estimates, as opposed to absolute counts." (BBMP 2005, 3).
The BBMP also provided numerical data, seemingly derived through scientific methods. Recent research by the DFW revealed "that in some areas in northwestern New Jersey, black bear densities are as high as 2-3 bears/square mile." This figure is five to seven times greater than the target density. In reaching its assessment, the Council utilized a 2004 ranking of bear habitats and examined the bear density in each zone. The projected black bear population in 2005 is 1606, with numbers expected to increase to 2694 by 2009 if no further hunting seasons are approved.
The BBMP discusses the potential success of other options. For example, it discussed whether relocation is viable. (BBMP 2005, 20). Southern New Jersey, namely the Pinelands National Reserve, contains over 1.1 million acres of attractive bear habitat. However, the BBMP explains that relocation is cost prohibitive. Ibid. The cost to capture a bear for research purposes totals over one thousand dollars, and the cost of capturing a nuisance bear is over two thousand dollars. Ibid. Additionally, although there is no citation, the BBMP states that "no state has successfully used relocation as a means of population control." (BBMP 2005, 21).
Other methods of population control were also addressed, and the BBMP noted that there is no FDA approved chemical fertility control, even on an experimental level, for wild bear populations. (BBMP 2005, 22). Physical sterilization, on the other hand, is even more costly than relocation. Ibid. All forms of sterilization, however, are not ideal because the bear has a high annual survival rate, which means that an average bear will still live twenty years, making the impact on the existing population minimal. Ibid. Moreover, sterilization does little to alleviate the problems that arise when the existing bears interact negatively with humans. Ibid. In reaching these conclusions, the Council relies on tests that were run on game species and deer spanning 1997 to 2002. Ibid.
According to a 2004 study, immunocontraception using GnRH also has had limited success in animals with large deposits of fatty tissue, as the vaccine becomes trapped in the fat and is not released into the bloodstream. Few studies have been conducted in this area because it is difficult to capture an adequate population to test. Moreover, the studies that do exist primarily use deer as a test subject. The Council recognizes potential in this area, and it is currently completing research with a captive population, aiming for field tests in three years. (BBMP 2005, 22).
The next viable option for bear population control is hunting, which according to the 2005 Pennsylvania Bear Management Plan conducted by the PA Game Commission, as well as a 2000 study by the California Department of Fish and Game, is attractive. The BBMP states that "[b]lack bear populations can withstand regulated hunting on an annual basis. . . ." (BBMP 2005, 23). In fact, "[n]o other method of black bear population control has been identified and implemented in states with resident bear populations." Ibid. The implementation of a hunt, however, does not foreclose the use of safeguards, and in-season closure mechanisms, as well as bag limits, are vital to ensure that the harvest falls below the yield capabilities. Ibid.
Indeed, there is nothing in the statutory scheme that "interdicts carefully circumscribed and conditioned killing as a method of control. . . ." Mercer County Deer Alliance v. Dep't of Envt'l Prot., 349 N.J. Super. 440 , 449-50 (App.Div. 2002). Moreover, "[i]t is 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 approaches to adopt." Id. at 449. The fact that "there may be some scientific dispute as to the utility of standards based on biological and cultural carrying capacities as well as dispute as to the specific content of the standards,"ibid., does not render the BBMP arbitrary, unreasonable or capricious, nor the professional information and opinions relied upon by the agency any less scientific. The fact remains that "once the . . . Council acts in accordance with the DEP's overarching policies, the details of a hunt fall solely within its powers." U.S. Sportsmen's Alliance, supra, 182 N.J. at 478 . See also N.J.S.A. 13:1B-30, -32.
Having failed to satisfy their burden of demonstrating either irreparable injury or a reasonable probability of success on the merits of their claim, appellants are not entitled to the emergent relief they now seek. Accordingly, appellants' motion for a stay of the 2005 black bear hunt is denied.