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Animal Protection League of New Jersey, the Bear Education and v. New Jersey Department of Environmental Protection

December 1, 2011

ANIMAL PROTECTION LEAGUE OF NEW JERSEY, THE BEAR EDUCATION AND RESOURCE GROUP, THERESA FRITZGES, AND ANGELA METLER, PETITIONERS-APPELLANTS,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION ("NJDEP"), BOB MARTIN, IN HIS CAPACITY AS COMMISSIONER OF THE NJDEP, DIVISION OF FISH & WILDLIFE, DAVID CHANDA, IN HIS CAPACITY AS DIRECTOR OF THE DIVISION, NJDEP, DIVISION OF FISH & WILDLIFE, FISH & GAME COUNCIL, AND JEANETTE VREELAND, IN HER CAPACITY AS CHAIR OF THE COUNCIL, RESPONDENTS-RESPONDENTS.
SAFARI CLUB INTERNATIONAL AND SAFARI CLUB INTERNATIONAL FOUNDATION, INTERVENORS-RESPONDENTS.



On appeal from the New Jersey Department of Environmental Protection.

The opinion of the court was delivered by: Carchman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 29, 2011

Before Judges Carchman, Fisher and Nugent.

The opinion of the court was delivered by CARCHMAN, P.J.A.D.

This appeal challenges the validity of the Comprehensive Black Bear Management Policy (CBBMP) adopted by respondent New Jersey Department of Environmental Protection (NJDEP, DEP or Department).*fn1 The issues raised in this appeal were previously addressed, in part, by appellants Animal Protection League of New Jersey, the Bear Education and Resource Group, Theresa Fritzges and Angela Metler on an unsuccessful, prior application to stay the 2010 bear hunt. See Animal Prot. League of N.J. v. N.J. Dep't of Envtl. Prot., No. A-1603-10, Motion No. M-1925-10 (App. Div. December 3, 2010). On this appeal, addressing the merits of the CBBMP, appellants raise myriad issues as to the validity of CBBMP; however, the nidus of their argument is that respondents acted arbitrarily and capriciously in adopting the CBBMP. While there may be disagreements as to available data and its interpretation, under our standard of review we defer to agency findings that are based on sufficient evidence in the record. We conclude that the agency findings here meet that standard. Most important, we conclude that appellants have failed to demonstrate that respondents acted arbitrarily or capriciously or in bad faith. We further conclude that appellants have failed to demonstrate any procedural deficiencies supporting invalidation of the CBBMP. Accordingly, we affirm.

I.

Respondent Council exists within the DFW, a division of the NJDEP. N.J.S.A. 13:1B-24. See also U.S. Sportsmen's Alliance Found. v. N.J. Dep't of Envtl. Prot., 182 N.J. 461, 473 (2005). The Council is responsible for "formulat[ing] comprehensive policies for the protection and propagation of fish, birds, and game animals . . . ." N.J.S.A. 13:1B-28. The Council is authorized to adopt appropriate and reasonable regulations regarding the circumstances under which game animals may be "pursued, taken, killed, or had in possession" for the purpose of "providing an adequate and flexible system of protection, propagation, increase, control and conservation" of such animals, "and for their use and development for public recreation and food supply . . . ." N.J.S.A. 13:1B-30. The Council may do so only "after first having determined the need for such action on the basis of scientific investigation and research . . . ." N.J.S.A. 13:1B-30.

In 2010, pursuant to the enabling legislation and statutory authorization, respondents developed the CBBMP. See 42 N.J.R. 753(a). The proposed CBBMP recommended, among other things, the reintroduction of a regulated black bear hunt, to take place annually in December. 42 N.J.R. 764-65. Other issues addressed by the proposed CBBMP include: education; control of human-derived food; research and analysis of the State's black bear population; analysis of the State's available black bear habitat; cooperative research with other states, academic institutions and other entities engaged in research on black bear management; lethal and non-lethal means of controlling bears to reduce the nuisances they create and their threat to human safety, agricultural crops and property; habitat protection; and bear population management. 42 N.J.R. 753(a).

In the CBBMP, the Council stated that it supported "active, integrated bear management and [the Division's] population goal of maintaining bears at a density that provides for a sustainable population within suitable bear habitat, minimizes human-bear conflicts and reduces emigration of bears to unsuitable habitat in suburban and urban areas." 42 N.J.R. 765. It recommended that the Division "continue its integrated strategy for black bear management," including the implementation of a regulated black bear hunting season. 42 N.J.R. 765. The details of this hunt were described in the CBBMP and included the adjustment of permit quotas and season length "as necessary to regulate hunting pressure," as well as the establishment of a bear permit fee. 42 N.J.R. 764-65. The CBBMP further advised that respondents "develop a long-term structure for bear hunting seasons to reduce and then stabilize the bear population at a level compatible with the availability and quality of habitat, which is consistent with public safety and residential and agricultural concerns." 42 N.J.R. 765.

The Council approved the proposed CBBMP on March 9, 2010, which DEP Commissioner Martin then approved on March 17, 2010. Animal Prot. League of N.J. v. N.J. Dep't of Envtl. Prot., No. A-1603-10, Motion No. M-1925-10 (App. Div. December 3, 2010) (slip op. at 6).*fn2 On April 19, 2010, respondents published the proposed CBBMP in the New Jersey Register. See 42 N.J.R. 753(a). On May 11, 2010, respondents held a public hearing on the proposed CBBMP. Respondents also accepted written and online comments from the public until June 18, 2010. Animal Prot. League, supra, No. A-1603-10, slip op. at 6-7. During the public comment period, over 9000 comments were submitted.

In July 2010, the Council and Commissioner Martin approved the CBBMP. Id. at 7. Respondents published the final adopted version of the CBBMP in the New Jersey Register on November 15, 2010. See 42 N.J.R. 2754(c).

On November 17, 2010, appellants requested that respondents stay the 2010 bear hunt pending this appeal. Respondents refused.

Appellants appealed respondents' adoption of the CBBMP and moved for a stay of the 2010 bear hunt, scheduled to commence on December 6, 2010. Animal Prot. League, supra, No. A-1603-10, slip op. at 7. On December 3, 2010, in an unpublished opinion, we denied the motion for stay. Id. at 18. The New Jersey Supreme Court thereafter denied a similar motion. We now address the merits of the appeal.

II.

Appellants argue that respondents acted arbitrarily and capriciously when they, "[i]n an apparent effort to both provide recreational hunting and deflect public opposition to a purely recreational hunt, . . . distorted, misstated, and made up data in support of a policy that represents to the general public, falsely, that the proposed black bear hunt is a matter of scientific necessity."*fn3 Appellants raise a number of specific acts by respondents to demonstrate that respondents acted arbitrarily and capriciously. Both respondents and intervenors argue that respondents did not act arbitrarily or capriciously and that this court should defer to respondents' expertise in bear management.

A.

We first address our standard of review. We will not overturn an administrative action "in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence." In re Carter, 191 N.J. 474, 482 (2007) (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). Our role in reviewing agency action is generally limited to determining:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Thurber v. City of Burlington, 191 N.J. 487, 501 (2007) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

Furthermore, "we grant administrative agency action a 'strong presumption of reasonableness.'" Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 16 (2006) (quoting Newark v. Natural Res. Council, 82 N.J. 530, 539 (1980)). An agency's findings of fact "are considered binding on appeal when supported by adequate, substantial and credible evidence." In re Taylor, 158 N.J. 644, 656 (1999) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

When we review an "agency's interpretation of statutes within its scope of authority and its adoption of rules implementing its enabling statutes, we afford the agency great deference." N.J. Soc'y for the Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 385 (2008) (citing In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 (2004)). As the Court noted, "[s]uch deference is appropriate because it recognizes that agencies have the specialized expertise necessary to enact regulations dealing with technical matters and are particularly well equipped to read . . . and to evaluate the factual and technical issues that . . . rulemaking would invite." In re Freshwater Wetlands Prot. Act Rules, supra, 180 N.J. at 489 (internal quotation marks and citations omitted). Ultimately, our role is not to "micromanage" an agency but to recognize that unless the agency's action is inconsistent with its legislative authority, we will act with restraint and not intervene. In re Failure by the Dep't of Banking and Ins., 336 N.J. Super. 253, 262 (App. Div. 2001). Particularly relevant here, "the choice of accepting or rejecting testimony from witnesses resides with the administrative agency, and so long as that choice is reasonably made it is accorded deference on appeal." In re Young, 202 N.J. 50, 70-71 (2010) (citations omitted).

As the Court has long acknowledged:

[i]f a subject is debatable, the agency determination must be upheld. Quite obviously, if we were to decide the underlying merits, we would thereby perform the administrative function itself. Upon that approach the court would become the legislative body. The judiciary can interfere with such a determination only when it is plainly demonstrated to be arbitrary. The most that here is revealed is that men can earnestly disagree. This being so, the Council alone bears the responsibility for decision. It is not for the judiciary to agree or disagree. [United Hunters Ass'n of N.J., Inc. v. Adams, 36 N.J. 288, 292 (1962) (citations omitted).]

We will affirm an agency decision if we find that the evidence and the inferences to be drawn therefrom support the decision, even if we would have reached a different result. Campbell v. N.J. Racing Comm, 169 N.J. 579, 587 (2001) (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)). See also In re the Certificate of Need of the Visiting Nurse Ass'n, 302 N.J. Super. 85, 95 (App. Div. 1997). ("When there is room for two courses of action, an administrative decision will ...


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