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New Jersey Society for the Prevention of Cruelty to Animals v. New Jersey Dep't of Agriculture

July 30, 2008

NEW JERSEY SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS; FARM SANCTUARY; HUMANE SOCIETY OF THE UNITED STATES; AMERICAN SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS; ANIMAL WELFARE INSTITUTE; ANIMAL WELFARE ADVOCACY; SAVE OUR RESOURCES TODAY; WHOLE EARTH CENTER; CENTER FOR FOOD SAFETY; ORGANIC CONSUMERS ASSOCIATION; GLORIA BINKOWSKI, V.M.D.; GENESIS FARM; CONVENTRY FARM; MERRICK FARM; KELLER FARM; ARLEEN PAUL; HELGA TRACRETIER AND CRAIG DIBENEDICTUS, APPELLANTS-APPELLANTS,
v.
NEW JERSEY DEPARTMENT OF AGRICULTURE; CHARLES M. KUPERUS, SECRETARY, NEW JERSEY DEPARTMENT OF AGRICULTURE AND NEW JERSEY STATE BOARD OF AGRICULTURE, RESPONDENTS-RESPONDENTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

This appeal presents the Court with a broad challenge to regulations promulgated by the New Jersey Department of Agriculture ("the Department") setting standards governing the raising, keeping, and marketing of domestic livestock.

In 1996, the Legislature enacted a new section of the existing statute regulating animal cruelty. Although that statute, since at least 1898, had essentially left animal welfare and the protection of animals to the New Jersey Society for the Prevention of Cruelty to Animals ("NJSPCA") and its related county organizations, the Legislature decreed that the Department would be vested with certain authority relating to the care and welfare of domestic livestock, commonly referred to as farm animals, and directed that it establish "humane" standards. The statute required the Department to consult with the Rutgers-affiliated New Jersey Agricultural Experiment Station in developing and promulgating the regulations and established a presumption that compliance with those regulations would satisfy the other statutory standards defining animal cruelty. Although vesting the Department with this rulemaking function, the Legislature left the pre-existing enforcement mechanisms, which have long relied on the NJSPCA, largely undisturbed.

The Court is now called upon to consider whether the Department, in promulgating the regulations relating to the care of domestic livestock: (1) failed in general to comply with the mandate of the Legislature that it create standards that are "humane," either objectively or as tested against the definition that the Department itself adopted; (2) created an impermissibly broad and vague category of permitted practices by referring to "routine husbandry practices" as generally acceptable; (3) failed to create an adequate regulatory scheme by utilizing undefined or ill-defined terms that cannot serve as objectively enforceable standards; and (4) embraced a variety of specific practices that are either objectively inhumane or supported by inadequate scientific evidence as to their usefulness, or that fail to meet any accepted definition of the term humane.

The Court is required, in part, to evaluate the very methodology utilized by the Department in its creation of the challenged regulations. The dispute has nothing to do with anyone's love for animals, or with the way in which any of us treats our pets; rather, it requires a balancing of the interests of people and organizations who would zealously safeguard the well-being of all animals, including those born and bred for eventual slaughter, with the equally significant interests of those who make their living in animal husbandry and who contribute, through their effort, to our food supply.

Petitioners are a variety of entities, including the NJSPCA, and individuals which describe themselves collectively as "a wide coalition of animal protection organizations, consumers, farmers, and concerned citizens." Petitioners, many of whom had participated in the public notice and comment process that led to the adoption of the regulations, raised this challenge to the final agency action adopting the regulations through an appeal in the Appellate Division.

As part of that appeal, petitioners asserted that the regulations violated the directive of the Legislature as set forth in the statute itself. First, petitioners argued that several subsections of the regulations include a broadly-worded exemption for any practice that meets the definition of a "routine husbandry practice" and that the definition as adopted is both impermissibly vague and not grounded on any evidence in the record. Second, petitioners asserted that some of the subsections included vague or undefined terms and failed to create enforceable standards. Third, petitioners asserted that the regulations authorized a variety of specific practices that do not met the Department's definition of "humane" and are not in fact humane.

In defending the regulations before the Appellate Division, the Department argued that they were consistent with both the intent and the spirit of the statute and supported by ample scientific evidence. The Department defended its election of "routine husbandry practices" as an appropriate criterion for its safe harbor exemption, explained how the regulations established objectively enforceable standards, and argued that none of the specific practices that petitioners challenged is in fact inhumane.

The Appellate Division, in an unpublished opinion, rejected each of petitioners' challenges and sustained all of the challenged regulations. Relying in large part on the presumption of reasonableness afforded to acts of administrative agencies and the deferential standard of review that courts employ when reviewing matters involving an agency's scientific or technical expertise, the Appellate Division found no basis on which to invalidate any part of these regulations.

The Supreme Court granted petitioners' petition for certification. In addition, the Court granted leave to several entities and individuals to participate as amicus curiae.

HELD: The facial challenge to the regulations in their entirety is rejected. The Department of Agriculture, however, failed, in part, to carry out its mandate. The specific challenges to the reliance on "routine husbandry practices" as defined in the regulations, and to the reliance on "knowledgeable individual and in such a way as to minimize pain" are sustained. The specific challenges to the practices, with the exception of the practice of tail docking, are otherwise rejected.

1. The general parameters of the Court's review are not controversial. Appellate courts ordinarily accord deference to final agency actions, reversing those actions if they are "arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An appellate court generally will not reverse an agency action, including its action in promulgating regulations, unless: (1) the regulations at issue "violate[] the enabling act's express or implied legislative policies;" or (2) "there is [not] substantial evidence in the record to support the findings on which the agency based its action; or (3) "in applying the legislative policies to the facts the agency clearly erred by reaching a conclusion that could not reasonably have been made upon a showing of the relevant factors." In re Rulemaking, N.J.A.C. 10:82-1.2 & 10:85-4.1, 117 N.J. 311, 325 (1989). (Pp. 24-26)

2. In its lengthy consideration of the questions about animal cruelty in the context of domestic livestock, the Department compiled a record that is both extensive and broad in scope. On its face, the record demonstrates that the Department took seriously its charge to consider all aspects of the questions about the welfare of domestic livestock. Nevertheless, merely compiling a thick record, only amassing evidence and simply responding to specific objections, will not suffice to sustain the agency's actions if the regulations themselves fall short either in general or in particular. (Pp. 26-33)

3. The Court's review of the record compels it to reject petitioners' broad attack on the regulations. Because these regulations are the expression of the agency's determinations in an area within its technical expertise, in order to invalidate them in their entirety, the Court would need to discern an inherent flaw in the very process by which they were drafted and adopted or in the record that supports them. The extensive record and careful response of the Department to the overwhelming number of comments does not permit the Court to so conclude. Even though there may be particular practices that the regulations specifically embrace and that might fall short of the established standard, the Court cannot say that this is true as to each and every aspect of the regulations, or as to all of the practices that they permit. Regardless of one's personal view of the overall regulatory scheme or of domestic livestock in general, the regulations as a whole are consistent with the meaning of the term "humane." (Pp. 33-40)

4. Petitioners assert that the definition of "routine husbandry practices" -- "techniques commonly taught by veterinary schools, land grant colleges, and agricultural extension agents" -- is so broad and all-encompassing that it amounts to an improper delegation of the agency's authority, contrary to its legislative mandate. Notwithstanding the Department's assertion that the definition accurately reflects its intent, and notwithstanding its insistence that its review was careful prior to its decision to effectively place into the hands of this wide-ranging and ill-defined group of presumed experts the power to determine what is humane, there is no evidence in the record that the Department undertook any review, organized or passing, of what these institutions actually teach. Nor is there any evidence that the Department considered whether the techniques taught in these institutions, whatever those techniques might be, rest in any way on a concern about what practices are humane or have any focus other than expedience or maximization of productivity. The Court's analysis of petitioners' objections to the several subsections of the regulations that create a safe harbor by reliance on "routine husbandry practices" compels it to conclude that these objections have merit. By adopting a definition of exceptional breadth, by failing to create an adequate record in support of this decision, and by implicitly permitting techniques that cannot meet the statutory mandate to base its regulations on a determination about what is humane, the Department has adopted regulations that are arbitrary and capricious. The Court therefore strikes as invalid the definition of "routine husbandry practices." (Pp. 41-49)

5. Petitioners also challenged individually a number of practices that are specifically permitted by the regulations, asserting that they are demonstrably inhumane and that the Department's authorization thereof is unsupported by sound science. First, as to the tail docking of cattle, although the Court recognizes the considerable expertise that the Department brought to bear in reaching its decision, it is difficult to find in this record any support for this particular practice, and none that meets the requisite standard of our review. Second, the record reflects that the castration, albeit without required anesthesia, of cattle, horses, and swine, the de-beaking of poultry, and the toe-trimming of turkeys, also without required anesthesia, confer a benefit on the animals in light of their living conditions. The agency's determinations, in general, that these procedures should be permitted is neither arbitrary nor capricious. However, the limitation that the agency asserts is the lynchpin of ensuring that these procedures are performed in a humane manner -- that each such practice is permitted only if it is "performed in a sanitary manner by a knowledgeable individual and in such a way as to minimize pain" -- cannot pass muster. The regulations do not define the terms "sanitary manner," "knowledgeable individual," or "minimize pain," nor is there any objective criteria against which to determine whether any particular individual performing the procedure measures up to these standards. Third, the agency's decision to permit crating and tethering techniques, although controversial, falls well within its area of expertise. Because those aspects of the regulations are supported by sufficient credible evidence in the record, and because they are neither arbitrary nor capricious, the Court finds no basis on which to interfere with them. Fourth, in light of the strict limits on permitted euthanasia methods, although there is evidence in the record that the transporting of sick and downed cattle to slaughter may cause the downed animal to "suffer greatly," the Court cannot conclude that the Department's decision to permit farmers the option of choosing transport for slaughter in those situations is arbitrary or capricious. (Pp. 50-72)

6. Consideration of the issues in this appeal and a review of the record lead the Court to conclude that certain aspects of the regulations cannot be sustained. The Court does not intend, however, to suggest that the defects in the regulations are pervasive or that all of the many practices that the Department specifically considered and permitted cannot be performed in a humane manner. The Court's decision should not be understood to be a ban on the continuation of any specific practice, but merely a recognition that some of the standards that purport to define them so as to ensure that they are actually performed in a manner that meets the statute's command that all such practices be humane have fallen short. (Pp. 72-74)

The judgment of the Appellate Division is AFFIRMED in part and REVERSED in part and the matter is REMANDED to the Department of Agriculture for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE HOENS' opinion.

The opinion of the court was delivered by: Justice Hoens

Argued March 10, 2008

In 1996, with little discernable fanfare, the Legislature enacted a new section of the existing statute regulating animal cruelty. Although that statute, since at least 1898, had essentially left animal welfare and the protection of animals to the New Jersey Society for the Prevention of Cruelty to Animals ("NJSPCA") and its related county organizations, the Legislature decreed that the Department of Agriculture ("the Department") would be vested with certain authority relating to the care and welfare of domestic livestock, commonly referred to as farm animals.

In doing so, the Legislature directed the Department to create and promulgate regulations that would set standards governing the raising, keeping, and marketing of domestic livestock, but it specified that the guiding principle to be utilized in establishing those standards was to be whether the treatment of these animals was "humane." The statute required the Department to consult with the New Jersey Agricultural Experiment Station*fn1 in developing and promulgating the regulations and established a presumption that compliance with those regulations would satisfy the other statutory standards defining animal cruelty. Although vesting the Department with this rulemaking function, the Legislature left the pre-existing enforcement mechanisms, which have long relied on the NJSPCA, largely undisturbed.

This matter presents us with a broad challenge to the regulations promulgated by the Department pursuant to this legislative directive. More particularly, we are called upon to consider whether the Department, in promulgating the regulations relating to the care of domestic livestock: (1) failed in general to comply with the mandate of the Legislature that it create standards that are "humane," either objectively or as tested against the definition that the Department itself adopted; (2) created an impermissibly broad and vague category of permitted practices by referring to "routine husbandry practices" as generally acceptable; (3) failed to create an adequate regulatory scheme by utilizing undefined or ill-defined terms that cannot serve as objectively enforceable standards; and (4) embraced a variety of specific practices that are either objectively inhumane or supported by inadequate scientific evidence as to their usefulness, or that fail to meet any accepted definition of the term humane.

In part, the issues before this Court require us to evaluate the very methodology utilized by the Department in its creation of the challenged regulations; in part, the issues before us raise questions and debates arising from deeply held notions concerning the welfare of animals generally. Nonetheless, the dispute before this Court has nothing to do with anyone's love for animals, or with the way in which any of us treats our pets; rather, it requires a balancing of the interests of people and organizations who would zealously safeguard the well-being of all animals, including those born and bred for eventual slaughter, with the equally significant interests of those who make their living in animal husbandry and who contribute, through their effort, to our food supply.

In the end, our focus is not upon, nor would it be appropriate for us to address, whether we deem any of the specifically challenged practices to be, objectively, humane. To engage in that debate would suggest that we have some better understanding of the complex scientific and technical issues than we possibly could have, or that we are in some sense better able to evaluate the extensive record compiled by the Department than is that body itself. To engage in that discussion would also suggest that in a realm in which the Legislature has expressed its intention that an administrative agency bring its expertise to bear upon the issues, this Court is better equipped to do so. More to the point, it would suggest that we, rather than the Legislature or the Department, know which farming and livestock practices are objectively humane and which are not.

To accept such a challenge would be to overstep our role in our constitutional system, for it would be little more than our effort to substitute our view for that of the bodies authorized to act. It is, simply put, an invitation that we decline to accept. Rather, we confine our analysis, as we must, to a consideration about whether the agency in question did or did not carry out the function assigned to it by the Legislature, as tested in accordance with our ordinary standard of review of final agency actions and with due deference to the considerable expertise of that agency.

Notwithstanding all of the foregoing, our review of the record compels us to conclude that in its wholesale embrace of the regulations adopted by the Department, the Appellate Division erred. Because we find in those regulations both unworkable standards and an unacceptable delegation of authority to an ill-defined category of presumed experts, we conclude that the Department failed, in part, to carry out its mandate. We therefore conclude that some, but not all, of the regulations are invalid and we reverse only those aspects of the Appellate Division's judgment that concluded otherwise.

I.

The statute that created the underpinnings for the challenged regulations was first introduced for consideration by the Legislature on March 3, 1994. Designated as Senate Bill 713, it proposed the creation of an entirely new statutory section, and was entitled "AN ACT concerning domestic livestock and animal cruelty and welfare laws, amending R.S. 4:22-16, supplementing chapter 22 of Title 4 of the Revised Statutes and making an appropriation." The bill was designed to construct the framework for the adoption of standards to govern the care of domestic livestock as a part of the existing laws prohibiting cruelty to animals. The statement attached to the bill specified that "[i]t is the intent of this bill that it should be construed to allow the New Jersey Society for the Prevention of Cruelty to Animals . . . in cooperation with the Department of Agriculture, to continue in the SPCA's statutory capacity to enforce the State's animal cruelty laws." Sponsor's Statement, Statement to Senate Bill No. 713 (Mar. 3, 1994).

On March 21, 1994, the Assembly Economic and Community Development, Agriculture and Tourism Committee issued a statement to Senate Bill Number 713 using identical language to describe the "intent" of the bill. Thereafter, on June 2, 1994, the Senate Senior Citizens, Veterans Affairs and Agricultural Committee issued a statement "favorably report[ing] [on] Senate Bill No. 713 with committee amendments."*fn2 Among other things, the statement specified that "[i]t is the intent of this bill that it should be construed to allow the New Jersey Society for the Prevention of Cruelty to Animals . . . in cooperation with the Department of Agriculture, to continue in the SPCA's statutory capacity to enforce the State's animal cruelty laws." Senate Senior Citizens, Veterans Affairs and Agricultural Committee, Statement to Senate Bill No. 713 (June 2, 1994). The bill was passed by the Senate later in June 1994 and by the Assembly, without further amendment, on December 18, 1995.

Acting pursuant to Article V, section I, paragraph 15 of the New Jersey Constitution, on January 5, 1996, Governor Whitman exercised her power to exercise an "item veto" to the $50,000 appropriation from the General Fund which was included in the bill. See Karcher v. Kean, 97 N.J. 483 (1984) (defining appropriation for purposes of conditional veto power). In doing so, however, the Governor "recognize[d] the merit of this bill and its goal of setting standards for humane treatment of domestic livestock . . . ." The same day, the Legislature enacted the bill, absent the appropriation. See L. 1995, c. 311.

As enacted, the bill had two sections, the first of which was codified as N.J.S.A. 4:22-16.1. That section provides, in relevant part, as follows:

a. The State Board of Agriculture and the Department of Agriculture, in consultation with the New Jersey Agricultural Experiment Station and within six months of the date of enactment of this act, shall develop and adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.): (1) standards for the humane raising, keeping, care, treatment, marketing, and sale of domestic livestock; and (2) rules and regulations governing the enforcement of those standards.

b. Notwithstanding any provision in this title to the contrary:

(1) there shall exist a presumption that the raising, keeping, care, treatment, marketing, and sale of domestic livestock in accordance with the standards developed and adopted therefor pursuant to subsection a. of this section shall not constitute a violation of any provision of this title involving alleged cruelty to, or inhumane care or treatment of, domestic livestock . . . . [N.J.S.A. 4:22-16.1.]

The bill also amended N.J.S.A. 4:22-16, which more generally defines the manner in which the animal cruelty statutes are to be construed. The bill added a new section that created an exception to the animal cruelty statutes for any activity or practice performed in accordance with the regulations that the Department was directed to promulgate. See N.J.S.A. 4:22-16(e). In addition, the bill extended the exemption granted in N.J.S.A. 4:22-16(a) for "[p]roperly conducted scientific experiments" performed under the authority of certain entities, by adding an exemption for such activities as were authorized by the United States Department of Agriculture.

A.

Notwithstanding the six month time frame within which the Department was directed to act, regulations designed to implement this statutory mandate were not drafted and published as proposed regulations for public comment until 2003. See 35 N.J.R. 1873-88 (May 5, 2003). In response to the proposed regulations, the Department received over 6,500 written comments, and heard testimony from numerous witnesses who appeared at a public hearing on the proposals. See 36 N.J.R. 2586(a) (June 7, 2004). After considering the comments and the testimony, the Department amended certain of the proposed regulations and formally adopted the regulations, to be codified at N.J.A.C. 2:8-1.1 to -8.7, on June 7, 2004. See 36 N.J.R. 2637-715 (June 7, 2004). In doing so, the Department stated that it intended to "establish the minimum level of care that can be considered to be humane." 36 N.J.R. 2637 (June 7, 2004). Moreover, the Department noted that the regulations were developed after extensive "consultations with the New Jersey Agricultural Experiment Station, as well as with other academicians, the New Jersey Society for the Prevention of Cruelty to Animals, veterinarians, Department staff, extension agents, producers, and allied industries." Ibid. As explained by the Department:

[t]he rules were also developed with consideration of the Department's overarching mission as reflected in Governor James McGreevey's statement to Charles M. Kuperus, Secretary of Agriculture: "My charge to Charlie is clear--preserve our farms, fight for our farmers, and ensure that our agricultural industry is profitable and strong, innovative and poised for a bright future." [Ibid.]

As the Department understood its legislative mandate, and as it expressed that understanding as part of its adoption of these regulations in 2004, "[t]he rule proposal was designed to meet the complementary objectives of developing standards to protect animals from inhumane treatment and . . . fostering industry sustainability and growth." Ibid. As adopted, the regulations are substantially similar to those that were originally proposed, but the notice and comment period had alerted the Department to a number of aspects of the regulations that were in need of amendment. Although a few of those amendments were included in the regulations as adopted, see, e.g., 36 N.J.R. 2703 (June 7, 2004) (altering definition of induced molting in poultry); 36 N.J.R. 2704 (June 7, 2004) (altering definition of body condition scoring and providing scholarly reference in support), others were simultaneously issued as proposed amendments to the then newly adopted regulations, see 36 N.J.R. 2586(a) (June 7, 2004).

Relevant to the issues raised in this appeal, those proposed amendments sought to change the definition of "routine husbandry practices," 36 N.J.R. 2588 (June 7, 2004), in order to respond to comments about the meaning and intent of the original language.*fn3 After a further period of notice and comment, the Department explained that many of the comments it had received did not in fact respond to the amendments, but instead continued to debate the merits of the previously promulgated regulations. See 37 N.J.R. 2465(b) (July 5, 2005). Following its consideration and its further response to the comments that were relevant to the new proposals, the Department, on June 1, 2005, formally adopted the amendments to the earlier version of the regulations. See 37 N.J.R. 2465-74 (July 5, 2005) (adopting revisions to N.J.A.C. 2:8-1.2, -2.2, -2.6. -5.5, -7.2, -7.6, -8.1, and -8.6).

Finally, on April 3, 2006, the Department, responding to continued criticism of one part of the previously promulgated regulations, proposed a further amendment that would alter the definitions and the regulations relating to a specific practice used in the management of poultry. See 38 N.J.R. 1491(a) (Dec. 4, 2006). In particular, the newly proposed regulations were designed to limit induced molting procedures and to ban full feed-removal forced molting*fn4 techniques. 38 N.J.R. 1492 (Dec. 4, 2006). There were two individuals who offered generally negative input during the notice and comment period, and the Department responded to those comments in adopting the amendments on October 26, 2006. See 38 N.J.R. 4991(a) (Dec. 4, 2006) (adopting amendments to N.J.A.C. 2:8-1.2, -4.2 and -4.4).

B.

Petitioners*fn5 are a variety of entities, including the NJSCPA, and individuals which describe themselves collectively as "a wide coalition of animal protection organizations, consumers, farmers, and concerned citizens." Petitioners, many of whom had participated in the notice and comment process that led to the adoption of the regulations, raised this challenge to the final agency action adopting the regulations through an appeal in the Appellate Division,*fn6 see R. 2:2-3(a)(2).

As part of the appeal, petitioners asserted that the regulations violated the directive of the Legislature as set forth in the statute itself. More particularly, petitioners contended that in adopting the statute, the Legislature expressed an intention to elevate the treatment of farm animals so as to permit only those practices, procedures, and techniques that meet the definition of "humane." As such, petitioners argued that the regulations fell short of that mandate in several particulars.*fn7 First, petitioners argued that several subsections of the regulations include a broadly-worded exemption for any practice that meets the definition of a "routine husbandry practice" and that the definition as adopted is both impermissibly vague and not grounded on any evidence in the record. Second, petitioners asserted that some of the subsections included vague or undefined terms and failed to create enforceable standards. Third, petitioners asserted that the regulations authorized a variety of specific practices that do not meet the Department's definition of "humane" and are not in fact humane.

In defending the regulations before the Appellate Division, the Department argued that they were consistent with both the intent and the spirit of the statute and supported by ample scientific evidence. In part, the Department argued that its statutory mandate required it to meet two public policy objectives, namely, preventing cruelty to animals and promoting the continuation of sustainable agriculture in New Jersey. The Department defended its election of "routine husbandry practices" as an appropriate criterion for its safe harbor exemption, explained how the regulations established objectively enforceable standards, and argued that none of the specific practices that petitioners challenged is in fact inhumane.

C.

The Appellate Division, in an unpublished opinion, rejected each of petitioners' challenges and sustained all of the challenged regulations. Relying in large part on the presumption of reasonableness afforded to acts of administrative agencies and the deferential standard of review that courts employ when reviewing matters involving an agency's scientific or technical expertise, the Appellate Division found no basis on which to invalidate any part of these regulations.

The Appellate Division first rejected petitioners' argument that in creating the exemption for "routine husbandry practices," the Department had defined that phrase in a way that impermissibly delegated to others the creation of standards governing the humane treatment of farm animals. In considering this challenge, the Appellate Division found support in the statute's express direction to the Department to consult with the Agricultural Experiment Station, see N.J.S.A. 4:22-16.1(a), reasoning that this also permitted the Department to consider and rely upon other agricultural educational resources. In addition, the court, although agreeing with petitioners that an agency must create detailed standards based on factors it has found are relevant and persuasive, concluded that the Department met that standard by narrowing the "routine husbandry practices" definition so that it included only those practices that are commonly taught in the relevant educational institutions.

The Appellate Division also addressed petitioners' argument that certain of the regulations failed to create enforceable standards by relying on vague or undefined terms. It rejected petitioners' argument that the requirement relating to the "minimization of pain," as the basis for permitting certain practices, could not be sustained because it did not create a meaningful standard. Instead, the Appellate Division reasoned that the regulation derives its content from the further requirement that the permitted techniques must be performed by trained people. Moreover, because the court was persuaded that the challenged practices can be humane even without the elimination of all pain, it concluded that the regulations were sufficiently supported by the record and were not unreasonable or arbitrary.

Finally, the Appellate Division separately considered and addressed each of the specific practices, permitted by the regulations, which were challenged by petitioners. As to each, after reviewing the record, the court concluded that the Department had collected voluminous information from a wide variety of sources and had examined the conflicting information about each practice before making a decision. Because each decision about a particular practice required the exercise of the Department's judgment, and because each was adequately supported by sufficient scientific and veterinary literature, the court concluded that deference to the agency was appropriate. In short, the Appellate Division reasoned that, based on ...


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