On appeal from the Final Agency Decision of the Department of Environmental Protection.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Parrillo and Gilroy
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.
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 ...