Animal Protection League of New Jersey v. New Jersey Dep’t of Environmental Protection, A-1603-10T2; Appellate Division; opinion by Carchman, P.J.A.D.; decided and approved for publication December 1, 2011. Before Judges Carchman, Fisher and Nugent. On appeal from the New Jersey Department of Environmental Protection. DDS No. 01-2-4434 [37 pp.]
This appeal challenges the validity of the Comprehensive Black Bear Management Policy (CBBMP) adopted by the New Jersey Department of Environmental Protection. Appellants raise a myriad of issues but the nidus of their argument is that respondents acted arbitrarily and capriciously in adopting the CBBMP.
The CBBMP, which recommended, among other things, the reintroduction of a regulated black bear hunt to maintain bears at a sustainable population within suitable bear habitat, minimize human-bear conflicts and reduce emigration of bears to unsuitable habitat, was approved by the Fish and Game Council within the DEP in March 2010. The DEP commissioner approved it shortly thereafter. Respondents published the proposed CBBMP in the New Jersey Register , held a public hearing, and accepted written and online comments from the public. The final adopted version was published in November 2010.
Appellants appeal the adoption of the CBBMP, raising a number of specific acts by respondents to show that respondents acted arbitrarily and capriciously.
Held: Appellants have failed to show that respondents acted arbitrarily or capriciously or in bad faith and fail to show any procedural deficiencies supporting invalidation of the CBBMP.
Citing the great deference given to an agency’s interpretation of statutes within its scope of authority and its adoption of rules implementing its enabling statutes, the panel notes that the council is authorized to adopt appropriate and reasonable regulations regarding the circumstances under which game and fur-bearing animals may be pursued or killed in order to protect, control and conserve such animals, but that it may do so only after determining the need for such action, based on scientific investigation and research.
Appellants claim, inter alia, that respondents used improper data, ignored relevant data, miscategorized complaints and misrepresented findings and predictions. However, the panel says the record shows that respondents conducted significant scientific investigation and research and relied on experts, significant public commentary, and their own expertise in concluding that a hunt was a necessary component of an integrated approach to managing black bears. They made a series of findings and conclusions to support this decision, including that black bear complaints are at historically high levels, hunting seasons can alleviate damage and nuisance incidents caused by problem bears, and the black bear population is large enough to sustain a hunt without endangering the population as a whole.
The panel says that while appellants disagree with respondents’ findings, simple disagreement, even if based on contradictory expert opinions, is insufficient to overcome the presumption of reasonableness ascribed to respondents’ findings. It concludes the CBBMP contains significant substantive professional and scientific support for its conclusions.
The panel then addresses each of appellants’ challenges.
As to appellants’ claim that respondents inflated their bear complaint data and categorized bear complaints as more serious than they actually were, the panel says respondents’ findings regarding the size of the New Jersey black bear population and the number of bear complaints, both in absolute terms and relative to previous years, do not appear arbitrary or capricious.
The panel next rejects appellants’ claim that respondents ignored their own data by claiming that a bear hunt serves the CBBMP’s goal. It finds that respondents’ 2010 CBBMP findings that bear hunting reduces bear complaints are well-supported by scientific data.
Also rejected is appellants’ claim that respondents failed to consider and fabricated data regarding cultural carrying capacity, i.e., the number of bears that can co-exist compatibly with the local human population in a given area. The panel holds that respondents’ findings regarding cultural carrying capacity and biological carrying capacity, based on expert opinion and their expertise, appear reasonable.
The panel next rejects appellants’ assertions that respondents acted arbitrarily and capriciously with regard to predicting, collecting, reporting and reacting to information regarding the potential for over-harvesting the bears, particularly pregnant females. The panel says respondents’ findings represent a considered view on one side of an honest disagreement regarding the import of the data about black bears in New Jersey. Such a disagreement provides an insufficient basis to overturn the decisions of an administrative agency. Appellants have failed to establish that respondents’ predictions were, in fact, fabricated.
Next the panel says respondents did not fail to consider the safety risks posed by hunting when they created the CBBMP, and they did not act arbitrarily or capriciously in enacting the hunt notwithstanding the potential safety risks. Nor did they dismiss nonlethal bear management methods.
The panel also rejects appellants’ claim that respondents acted arbitrarily and capriciously and in bad faith in delaying publication of the adopted CBBMP, finding no evidence to support the allegation of bad faith.
Finally, the panel rejects appellants’ claim that respondents violated the Administrative Procedures Act (APA), N.J.S.A. 52:14B-1 to -15, by failing to respond to comments, responding disingenuously to comments, falsely characterizing comments, intentionally delaying adoption of the CBBMP to disadvantage appellants, and engaging in misconduct that denied appellants a full opportunity to voice their views during the public hearing on the CBBMP.
It says no dismissive rejection of appellants’ comments occurred here. Respondents’ responses were characterized by a thorough and careful analysis of each comment submitted and responses more than satisfied its statutory obligation to publish a summary of all comments received as well as its responses to such comments.
Nor did respondents violate the APA in publishing the CBBMP. They cannot be faulted for devoting the time and energy necessary to respond to the numerous comments received in response to the proposed CBBMP. Most important, any delay in 2010 has no bearing on appellants’ ability to challenge the CBBMP in 2011.
As to appellants’ claim that respondents failed to present a summary as well as to respond to questions at the public hearing, the panel says there was substantial compliance. Participants in the public hearing had access to the proposed CBBMP and the data and information that formed the basis of the proposal and respondents provided either contemporaneous oral responses or written responses to the majority of questions raised during the hearing. An agency’s failure to respond to all questions during a hearing is not fatal to its promulgation of the resulting regulation. Most important, hearing participants had an opportunity to be heard, the council considered their concerns, and respondents substantially complied with the APA.
— By Judith Nallin
For appellants — Doris Lin. For respondents: New Jersey Department of Environmental Protection — Dean Jablonski, Deputy Attorney General (Paula T. Dow, Attorney General; Nancy Kaplen, Assistant Attorney General, of counsel; Jablonski, Jacqueline M. Quick and Caroline P. Keefe, Deputy Attorneys General, on the brief); Safari Club International and Safari Club International Foundation — Anna M. Seidman, of the D.C. bar, admitted pro hac vice (John C. Lane; Seidman and Douglas S. Burdin, of the D.C. bar, admitted pro hac vice, and Peter Caccamo-Bobchin on the brief).