On appeal from the New Jersey Department of Environmental Protection, New Jersey Division of Fish and Wildlife, Fish and Game Council.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Collester and Sabatino.
The New Jersey Animal Rights Alliance and the Black Bear Education and Resource Group ("NJARA") appeal from the approval of the 2005 Comprehensive Black Bear Management Policy ("CBBMP") on November 14, 2005 by the then-Commissioner of the Department of Environmental Protection ("DEP"). The CBBMP was adopted in response to the Supreme Court's opinion in U.S. Sportsmen's Alliance Found. v. N.J.D.E.P., 182 N.J. 461 (2005), and NJARA unsuccessfully sought a stay of the 2005 bear hunt following adoption of the CBBMP. In November 2006, the New Jersey State Federation of Sportsmen's Clubs, Inc., U.S. Sportsmen's Alliance Foundation, Safari Club International, and Safari Club International Foundation ("the Sportsmen") filed a challenge to the new DEP Commissioner's failure to implement the process under the CBBMP to enable a 2006 bear hunt. Subsequently, on November 15, 2006, the Commissioner withdrew her approval of the CBBMP. The Sportsmen sought emergent relief before us to enjoin the Commissioner's withdrawal and reinstitute the hunt. We denied emergent relief as did the Supreme Court. In March 2007, on motion of the DEP, we remanded the pending appeals from the 2005 and 2006 final administrative decisions to the agency for further consideration, but retained jurisdiction and ordered briefing of all outstanding issues regarding 2005 and 2006 decisions as well as any action taken on the remand.
During the remand, both the Commissioner and the Fish and Wildlife Council ("Council") concluded that there should be no bear hunt in 2007, although no formal action was taken in that regard by rulemaking. NJARA now challenges the adoption of the 2005 CBBMP and the Sportsmen challenge the Commissioner's November 2006 withdrawal of approval of the 2005 and 2006 bear hunts. Both parties assert that the respective actions were arbitrary and capricious. NJARA also argues that the CBBMP was not properly adopted under the Administrative Procedure Act ("APA") and that the DEP violated the public trust doctrine.
The Sportsmen contend that the Commissioner acted outside of her statutorily delegated authority in withdrawing the CBBMP, and contend that as a rule was properly adopted under the APA, it could not be unilaterally vacated by the new Commissioner.
We invalidate the 2005 CBBMP because the APA was not honored, as was required, to validly promulgate the CBBMP. Therefore, all agency actions taken subsequent to the adoption of the CBBMP were invalid, since the initial 2005 CBBMP did not lawfully exist. The APA must be followed in promulgating the CBBMP.*fn1
On February 28, 2005, in U.S. Sportsmen's Alliance Foundation, the Supreme Court held that, as a mandatory requisite to a hunt, the Council had to adopt comprehensive policies regarding bear hunts that were to be made in consultation with the DEP Commissioner and approved by him or her. 182 N.J. at 478-79. The Council thereafter drafted the 2005 CBBMP, which promulgated a policy permitting bear hunts in 2005 through 2010. N.J.A.C. 7:25-5.6(a); N.J.A.C. 7:25-5.27(a); 37 N.J.R. 1959(a) (June 6, 2005); 37 N.J.R. 3657(a) (September 19, 2005). The then-Commissioner of DEP approved the CBBMP on November 14, 2005 by sending a letter to the then-Chair of the Council.
On its face, N.J.S.A. 13:1B-30 gives the Council sole authority to establish a Fish and Game Code to regulate hunting and fishing of "fresh water fish, game birds, game animals, and fur-bearing animals[.]" N.J.S.A. 13:1B-30. The statute requires the adoption of "regulations," and provides that "[t]he regulations so established shall be called the State Fish and Game Code." Ibid.
The Code is codified in subchapter five of N.J.A.C. 7:25. See historical note to N.J.A.C. 7:25-5. It now provides for a bear hunt to take place "concurrent[ly] with the six-day firearm deer season." N.J.A.C. 7:25-5.6(a). The current Game Code, for the years 2006-11, sets the 2007 hunt for December 3-8.
N.J.A.C. 7:25-5.27(a); N.J.A.C. 7:25-5.6(a). However, since August 2005 the Code also provides that the season for black bear is "closed" "until the Commissioner approves a comprehensive policy for the protection and promulgation of black bear." N.J.A.C. 7:25-5.6(a). See also 37 N.J.R. 1959(a); 37 N.J.R. 3681.
On September 6, 2005, the Division of Fish and Wildlife published a "Notice of Opportunity for Public Comment on the New Jersey Comprehensive Black Bear Management Policy" in the New Jersey Register. 37 N.J.R. 3458(a) (Sept. 6, 2005). The notice announced a short overview of the proposal and stated that the CBBMP was "subject to the approval of the Commissioner of the Department." Ibid. It also announced that the text of the CBBMP was "available on the Division of Fish and Wildlife's website" and gave the web address. Ibid. The notice then stated that a public hearing on the CBBMP would be held on September 21, 2005 and gave the time and location of the hearing. Ibid. A public comment period, extending until October 6, 2005, was also announced, and the notice gave a mailing address for comments and said they could also be submitted using the Division's website. 37 N.J.R. 3458(a) (Sept. 6, 2005). As stated above, the Commissioner approved the 2005 CBBMP by letter to the Chairman of the Council on November 14, 2005 after reviewing the policy, which the Commissioner stated was "revised after extensive public comments and a public hearing[.]" In the November 21, 2005 issue of the New Jersey Register, the Division of Fish and Wildlife ...