ANIMAL PROTECTION LEAGUE OF NEW
JERSEY, THE BEAR EDUCATION AND
RESOURCE GROUP, THERESA
FRITZGES, and ANGELA METLER
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1603-10
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,
On Appeal from Respondents’
Adoption of the
Comprehensive Black Bear
Management Policy
Respondents; and
SAFARI CLUB INTERNATIONAL and
SAFARI CLUB INTERNATIONAL
FOUNDATION,
Intervenors
BRIEF OF APPELLANTS
Doris Lin, Esq.
Law Offices of Doris Lin, Esq.
26 Winchester Drive
Freehold, New Jersey 07728
Voice: (732) 616-8855
Fax: (732) 333-4392
[email protected]
TABLE OF CONTENTS
PRELIMINARY STATEMENT
1
STATEMENT OF FACTS
2
PROCEDURAL HISTORY
8
POINT I
9
Respondents acted arbitrarily and
capriciously in adopting the Comprehensive
Black Bear Management Policy.
A.
Respondents acted arbitrarily, capriciously
and in bad faith when they inflated bear
complaints by including complaints from new
sources and comparing that data to previous
years, and misling the public regarding the
reliability of their data.
12
B.
Respondents' own data shows that bear
hunting increases the bear population.
16
C.
Respondents acted unreasonably when they
failed to consider cultural carrying
capacity, failed to conduct cultural
carrying capacity studies, and fabricated
their cultural carrying capacity finding.
18
D.
Respondents acted arbitrarily and
capriciously when they ignored biological
carrying capacity.
21
E.
Respondents acted in bad faith when they
misrepresented predictions and information
regarding the sex ratio of bears killed in
the 2003 and 2005 black bear seasons in the
Comprehensive Black Bear Management Policy.
22
F.
Respondents acted arbitrarily and
capriciously when they claimed in the CBBMP
that pregnant females would be denned and
protected during the December hunts, despite
data and knowledge to the contrary.
28
i
G.
Respondents acted arbitrarily and
capriciously when they failed to consider
the effects of over-harvesting female bears.
31
H.
Respondents acted unreasonably, arbitrarily
and capriciously when they fabricated
harvest number predictions for the 2003
black bear hunt.
32
I.
Respondents acted arbitrarily and
capriciously when they claimed to consider
the public safety risk posed by black bears,
but failed to consider safety risks posed by
hunting.
35
J.
Respondents arbitrarily and capriciously
dismiss the effectiveness of nonlethal bear
management.
36
K.
Respondents intentionally delayed the
publication of the CBBMP in bad faith, in an
attempt to manipulate the litigation
schedule while implementing the bear hunt in
the absence of a valid CBBMP.
40
POINT II Respondents’ adoption of the Comprehensive
Black Bear Management Policy violated the
Administrative Procedure Act.
41
A.
Respondents failed to consider fully and
respond to many comments.
45
B.
Respondents provided disingenuous responses
to many comments.
48
C.
Respondents waited four months after
publicly announcing the adoption of the
CBBMP to publish the adoption in the NJ
Register, in a bad faith attempt to
manipulate the litigation.
53
D.
Respondents falsified support for the CBBMP
in their summary of and responses to public
comments.
54
ii
E.
Respondents failed to “present a summary of
the factual information on which its
proposal is based” and failed to “respond to
questions” at the May 11, 2010 public
hearing, as is required by the
Administrative Procedure Act.
CONCLUSION
55
55
iii
TABLE OF AUTHORITIES
Cases
American
Exxon
Employers' Ins. v. Commissioner of
Ins., 236 N.J. Super. 428, 434 (App.
Div. 1989)
Corp. v. Hunt, 190
(App.Div. 1983)
131,
44, 45, 46
Super.
10
44
7:26E-1.13,
186
26
In re Adoption of Rules Concerning Conduct of
Judges Etc., 244 N.J. Super. 683
(App.Div. 1990)
43
Glaser
In
re
N.J.
126
v.
Downes,
(App.Div.1973)
Adoption of N.J.A.C.
N.J. 81 (2006)
N.J.
Super.
35
Metromedia,
Inc.
v.
Director,
Div.
Taxation, 97 N.J. 313 (1984)
of
9, 42
NJ
Animal
Rights Alliance v. NJ Dept. of
Environmental Protection, 396 N.J.
Super. 358 (App. Div. 2007)
passim
NJ
Hospital Association v. Department of
Health, 227 N.J. Super. 557 (N.J.
Super. Ct. 1988)
42
P.F. and B.F., on behalf of their son B.F., v.
NJ
Division
of
Developmental
Disabilities, 139 N.J. 522 (1995)
9
U.S. Sportsmen’s Alliance Foundation et al. v.
New
Jersey
Department
of
Environmental Protection, et al.,
182 N.J. 461 (2005)
passim
Statutes and Administrative Code
N.J.S.A. 52:14B-4
passim
iv
N.J.S.A. 13:1D-1
3
N.J.S.A. 13:1B-2
3
N.J.S.A. 13:1B-5
4
N.J.S.A. 13:1B-23
4
N.J.S.A. 13:1B-27
4
N.J.S.A. 13:1B-24
4, 10
N.J.S.A. 13:1B-26
4
N.J.S.A. 13:1B-28
5
N.J.S.A. 13:1B-30
5, 11
N.J.A.C. 7:25-5
5, 11
Rules
R. 2:2-3(a)(2)
1, 4
v
PRELIMINARY STATEMENT
This Appeal is brought before the Court by Appellants
Animal Protection League of NJ, the Bear Education and Resource
Group, Theresa Fritzges, and Angela Metler pursuant to R. 2:23(a)(2), to review the decisions and actions of Respondents New
Jersey Department of Environmental Protection; Bob Martin,
Commissioner of the NJDEP; the Division of Fish and Wildlife;
David Chanda, Director of the Division of Fish and Wildlife; the
Division of Fish and Wildlife Fish & Game Council; and Jeannette
Vreeland, Chair Of The Fish & Game Council; in adopting the
Comprehensive Black Bear Management Policy. Safari Club
International and Safari Club International Foundation
intervened in this matter after the appeal was filed.
This Appeal involves the arbitrary, capricious, bad faith
and unlawful actions by Respondents in adopting the
Comprehensive Black Bear Management Policy (“CCBBMP”).
Specifically, Respondents:
•
Drafted and adopted the CBBMP in an arbitrary and
capricious manner when they published false statements,
misrepresented data from previous bear hunts, fabricated a
cultural carrying capacity finding, contradicted their own
data within the CBBMP, ignored their own data on the effect
of hunting on the bear population, and inflated bear
complaint statistics; and
1
•
Violated the Administrative Procedure Act at N.J.S.A.
52:14B-4 (“APA”) by failing to “consider fully” and respond
to public comments, failing to conduct the public hearing
in compliance with the APA and fabricating public support
for the CBBMP.
The adoption of the CBBMP was arbitrary, capricious and in
bad faith and violates the Administrative Procedure Act. As held
by the Supreme Court, “In the absence of approved comprehensive
policies, the Fish and Game Council could not promulgate
regulations authorizing a hunt.” U.S. Sportsmen’s Alliance
Foundation v. New Jersey Department of Environmental Protection,
182 N.J. 461 at 479 (2005). Accordingly, Respondents’ adoption
of the Comprehensive Black Bear Management Policy should be
vacated.
STATEMENT OF FACTS
Appellant, Animal Protection League of NJ (“APLNJ”), is a
New Jersey-based 501(c)(3) nonprofit organization dedicated to
animal rights.
Appellant, the Bear Education and Resource Group (“the BEAR
Group”), is a New Jersey-based 501(c)(3) nonprofit organization
that educates the public about black bears, while fostering a
peaceful coexistence between bears and humans.
2
Members of both APLNJ and the BEAR Group have an interest
in, and are specifically knowledgeable about the conservation
and protection of black bears in New Jersey. The members enjoy
viewing black bears, and use and enjoy New Jersey’s wildlife,
parks, and open lands, and commented on the CBBMP. (512a and
516a)
Appellant Theresa Fritzges (“Fritzges”) is an individual
residing at 61 Dennison Drive, East Windsor, NJ
08520.
Fritzges travels to northern NJ to observe and enjoy black
bears and has done so numerous times. Fritzges submitted a 2page written letter as a comment on the CBBMP during the public
comment period. (527a)
Angela Metler (“Metler”) is an individual residing at 8
Nutley Avenue in Highland Lakes, NJ.
Metler lives near black bears and enjoys observing black
bears on a regular basis. Metler submitted comments on the CBBMP
during the public comment period. (512a)
Respondent New Jersey Department of Environmental
Protection (“NJDEP”), is established as a principal department
in the Executive Branch of New Jersey State Government. N.J.S.A.
13:1D-1.
At all relevant times, Respondent Bob Martin, served as the
Commissioner of the NJDEP. N.J.S.A. 13:1B-2.
3
Respondent, New Jersey Division of Fish and Wildlife (the
“Division”) is a division of the NJDEP. N.J.S.A. 13:1B-5; 13:1B23.
At all relevant times, Respondent David Chanda, served as
Director of the Division of Fish and Wildlife. N.J.S.A. 13:1B27.
Respondent New Jersey Fish and Game Council (the “Council”)
exists within the NJDEP Division of Fish and Wildlife. N.J.S.A.
13:1B-24.
At all relevant times, Respondent Jeannette Vreeland was
the Chair of the Fish and Game Council. N.J.S.A. 13:1B-26.
Pursuant to R. 2:2-3(a)(2), Appellants APLNJ, the BEAR
Group, Metler and Fritzges appeal the final decision by
Respondents in adopting the Comprehensive Black Bear Management
Policy dated November 15, 2010 (hereinafter “CBBMP”) (601a).
By law, the Council shall “formulate comprehensive policies
for the protection and propagation of fish, birds, and game
animals” pursuant to N.J.S.A. 13:1B-28.
The Council is authorized to adopt regulations “[f]or the
purpose of providing an adequate and flexible system of
4
protection, propagation, increase, control and conservation of .
. . game animals, and fur-bearing animals in this State.”
N.J.S.A. 13:1B-30.
The Council may only adopt those regulations “after first
having determined the need for such action on the basis of
scientific investigation and research.” N.J.S.A. 13:1B-30.
The adoption of the CBBMP must comply with the
Administrative Procedure Act, N.J.S.A. §52:14B, NJ Animal Rights
Alliance v. NJ Dept. of Environmental Protection, 396 N.J.
Super. 358 (App. Div. 2007).
The Division of Fish and Game promulgated a Black Bear
Management Policy in July, 1997. (72a).
On September 5, 2000, the Council published its adoption of
amendments to N.J.A.C. 7:25-5 (the “Game Code”), which comprised
the 2000-2001 Game Code and included a black bear season. The
2000 black bear hunt was scheduled to begin on September 18,
2000. (379a).
The Council cancelled the 2000 black bear season six days
before it was scheduled to begin. (196a).
After the Division had estimated a black bear population of
3,278 in 2003, then-Commissioner Bradley Campbell convened an
5
independent panel to review the data and methodology of the
estimate. (199a).
The New Jersey Independent Bear Panel Report, dated March
6, 2003, concluded that the black bear population may be as low
as 1,350. (199a).
Then-Commissioner Campbell urged the Council to consider
the limitations of the population data when deciding whether a
bear hunt was warranted in 2003. (199a).
The Council’s adoption of the 2003-04 Game Code, including
responses to public comments, was published in the New Jersey
Register September 2, 2003. (205a). The 2003-04 Game Code
included a black bear season, from December 8 - 13, 2003, that
proceeded as planned.
Then-Commissioner Campbell repeated his criticisms of the
Council’s population estimates and opposed a bear hunt in 2004,
by letter dated March 5, 2004. (222a).
In 2004, the Council included a bear hunt in the published
adoption of the 2004-05 Game Code, including responses to public
comments. (380a).
Then-Commissioner Campbell opposed the 2004 black bear
season, which led to the decision in U.S. Sportsmen’s Alliance
v. NJ DEP, 182 N.J. 461 (2005), canceling the season.
6
In 2005, the Council published proposed amendments to the
2005-06 Game Code at 37 N.J.R. 1959(a) and accepted written
comments from the public until August 5, 2005. (399a).
The Council published its adoption of the 2005-06 Game Code
at 37 N.J.R. 3657. (225a).
The Council published a Notice of Opportunity for Public
Comment on the New Jersey Comprehensive Black Bear Management
Policy (“CBBMP”) on September 6, 2005. (248a)
The public comment period for the CBBMP ran from September
6, 2005 through October 6, 2005. During this time, Respondents
accepted public comments via a public hearing, the mail, and the
internet. (248a-250a).
At Respondents’ public hearing on September 21, 2005, Prof.
Edward Tavss presented his report, “Correlation of reduction in
nuisance black bear complaints with implementation of (a) a nonviolent program and (b) a hunt.” (252a)
Then-Commissioner Campbell approved the CBBMP on November
14, 2005.
(65a and 251a).
The 2005 black bear hunt took place December 5-10, 2010.
In 2007, the 2005 Comprehensive Black Bear Management
Policy and 2005 bear hunt were declared invalid in a unanimous
opinion of the NJ Appellate Division because of numerous
violations of the Administrative Procedure Act, §52:14B. NJ
7
Animal Rights Alliance v. NJ Dept. of Environmental Protection,
396 N.J. Super. 358 (App. Div. 2007).
PROCEDURAL HISTORY
On April 19, 2010, Respondents published a proposed
Comprehensive Black Bear Management Policy at 42 N.J.R. 753A.
Respondents held a public hearing on the CBBMP on May 11,
2010, and accepted written and online comments from the public,
including Appellants, until June 18, 2010.
At the public hearing, Respondents did not present a
summary of the factual information on which the proposed CBBMP
is based, and did not answer many questions.
Respondent Bob Martin announced his approval of the CBBMP
through a press release dated July 21, 2010. (531a)
Respondents began implementing the bear hunt as early as
August of 2010, despite the fact that the CBBMP had not yet been
adopted. (700a)
On October 4, 2010, Prof. Edward Tavss and representatives
of Appellants APLNJ and the BEAR Group met with Respondent Bob
Martin. At that meeting, Tavss presented Martin with his 2010
report, “An Investigation Into the Reported Surge of Serious
Bear Incidents in New Jersey from 2007 to 2009” (533a)
Respondents published the adoption of the CBBMP on November
15, 2010 at 42 N.J.R. 2754C. (601a)
8
On or around November 17, 2010, Appellants requested that
Respondents stay the 2010 black bear hunt pending this appeal
(1035a), and Respondents refused (533a).
On November 23, 2010, Appellants' motion for leave to file
an emergent motion on short notice was granted by The Hon.
Philip S. Carchman. (984a)
Appellants' motion for ad interim relief canceling the 2010
NJ black bear hunt was denied by the Appellate Division on
December 3, 2010 (986a) and by the Supreme Court on December 4,
2010. (987a)
On or around May 5, 2011, Respondents produced a Statement
of Items Comprising the Record (1003a)
POINT I
RESPONDENTS ACTED ARBITRARILY, CAPRICIOUSLY AND IN BAD FAITHIN
ADOPTING THE COMPREHENSIVE BLACK BEAR MANAGEMENT POLICY
In adopting the Comprehensive Black Bear Management Policy,
Respondents have engaged in a course of conduct that falls well
outside of the broad deference generally conferred by courts in
reviewing actions by state agencies. Courts “typically defer to
statutory interpretations by administrative agencies,” P.F. and
B.F., on behalf of their son B.F., v. NJ Division of
Developmental Disabilities, 139 N.J. 522 at 529 (1995), citing
Metromedia, Inc. v. Director, Div. of Taxation, 97 N.J. 313 at
327 (1984). In reviewing administrative decisions, “an
9
administrative regulation is presumed valid unless it alters a
statute, frustrates legislative policy, or is otherwise
arbitrary, capricious, or unreasonable.” In re Adoption of
N.J.A.C. 7:26E-1.13, 186 N.J. 81 at 81 (2006).
The motivations and actions of the Respondents can better
be understood in light of the disproportionately large number of
acknowledged hunters and hunt supporters among them. For
example, Respondent Fish and Game Council (the "Council") is
dominated by hunters and, by law, six of the eleven members must
be hunters. N.J.S.A. 13:1B-24. As Justice James Zazzali noted
during oral arguments in a 2004 lawsuit concerning the bear
hunt, if this is not a conflict of interest, it is at least "an
inherent tension." (1033a) As discussed below, the record
indicates that this “tension,” and the failure of the
Respondents to fully and fairly address this tension, has
resulted in a Policy that is based not on science and public
welfare, but rather on personal bias and scare tactics.
The Council admits this conflict in a July 31, 2008 letter
from Council Chair Jeannette Vreeland to then-DEP Commissioner
Mark Mauriello:
[E]ven if feasible and cost-effective, bear fertility
treatments in lieu of hunting would undermine the
Council's statutory obligations to offer recreational
activities to the public . . . the Council has
concluded that the CBBMP must reflect the fact that
10
bear hunting is not just a tool to control population
but also a recreational activity that should be made
available to New Jersey residents. (732a)
Because of the Council's bias in favor of recreational
hunting, their statements criticizing the feasibility of nonlethal bear management are, at least, suspect.1
The Council makes little attempt to disguise their bias in
favor of hunters and their disdain for the public, especially in
their discussion about an upcoming public hearing on the 2005-06
game code:
Councilman Knight stated that if large numbers attend
the meeting you are taking the wind out of their sails.
Do not spend $1,000 for these people to moan at the
council . . . Councilman Kertz stated that sportsmen
help to neutralize the anti-hunters at these meetings.
Sportsmen support us and they attend these meetings to
show these people that they cannot win . . .
Councilman Wolgast stated that the Division should try
to get nongame organizations to support the Division
at these meetings . . . Councilman Knight stated we
all need to attend because we have respect for the
sportsmen. They need to see what we are up against and
that we are working in their behalf. (508a)2
N.J.S.A. 13:1B-30 requires the Council to act "on the basis
of scientific investigation and research." In an apparent effort
1
It is worth noting that the Council is responsible for approving wildlife contraception studies in
New Jersey, which is a direct conflict of interest with their hunting bias and duty to provide
recreational hunting opportunities. N.J.A.C. §7:25-5.37 states, " No person shall administer or
otherwise employ the use of fertility control materials and/or methodologies including, but not
limited to, those which result in contraception, contragestation and/or sterilization to any species
of free ranging wildlife without first procuring a permit approved by the Council and issued by
the Division under this section."
2
At the time the CBBMP was adopted by the Council at their July 13, 2010 meeting,
Councilmen Wolgast and Kertz were still members of the Council.
11
to both provide recreational hunting and deflect public
opposition to a purely recreational hunt,3 the Council has
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.
In this matter, Respondents’ actions are not only arbitrary
and capricious but in bad faith. Respondents have made false
statements to support black bear hunting in New Jersey, in order
to garner public support for bear hunting, in violation of their
statutory mandate to act on the basis of scientific
investigation and research.
A. Respondents acted arbitrarily, capriciously and in bad
faith when they inflated bear complaints by including complaints
from new sources and comparing that data to previous years, and
misleading the public regarding the reliability of their data.
Respondents provide a graph of black bear complaints in
Figure 2 of the CBBMP (687a) and justify the hunt partially
based on an apparent increase in black bear complaints in 2008
and 2009. However, in a review of Respondents’ 2009 black bear
complaint records, Prof. Edward Tavss of Rutgers University
3
Bear hunting is unpopular. The majority of commenters on the CBBMP oppose bear hunting.
Of the 9,287 comments on the policy, 6,305 objected to some portion of the policy, usually
hunting. Only 2,803 supported the policy. (567a).
12
found that Respondents’ records4 did not match their graph, and
the number of complaints was inflated. (536a) After analyzing
Respondents’ records, Tavss found that the correct number of
complaints for 2009 was 1,170 (557a), not Respondents’ figure of
3,804. (654a)
In order for Respondents' bear complaint data to be
reliable and scientifically valid, all factors must be
consistent. Conditions cannot be changed in the middle of an
experiment. (545a) Respondent Fish and Game Council admitted in
August of 2009 that their bear complaint data for 2009 should
not be compared to previous years because of a change in
protocol:
"The bear tallies for the last year were distributed.
Last month, a programming change was noted which changed the way
information was reported which made it impossible to compare
previous year information." (724a) Despite their acknowledgment
that doing so would be "impossible," Respondents did compare
their bear tallies with previous years, (680a) which
demonstrates Respondents' bad faith.
A recent change in DFW protocol includes the inclusion of
police department complaints. Police departments fax individual
4
Examples of several bear complaint forms are included in the appendix (575a-580a and 564a565a). Respondents' bear complaint records analyzed by Prof. Tavss total over four thousand
pages. Because of the volume, the complete record is not included in the appendix, but can be
produced upon request of the court.
13
reports to the Division, as well as report their total number of
complaints to the Division. (575a and 576a) In Respondents’
chart in the CBBMP, the 2,001 police reports and 1,803 Division
reports are listed separately, then added together to achieve
the “total” of 3,804. (654a) Prof. Tavss found that in 2009, 32
police departments faxed their complaint records to the
Division, while only 17 police departments did so in 2007. This
increase in reporting makes it appear that bear complaints have
risen since 2007, when in fact, the Division was merely
increasing its sources of complaints.
Similarly, Respondents’ decision to include complaints from
their Emergency Response Communications Center (ERCC) in 2008
and 2009 also caused the appearance that complaints increased,
when in fact Respondents were merely increasing the number of
sources of complaints. Including complaints from a new source
and comparing them to previous years’ complaints is
scientifically invalid and dishonest. In his November 22, 2010
letter Commissioner Martin defends the Division of Fish &
Wildlife’s use of the ERCC to respond to bear complaints, but
this does not justify adding in this new source of bear
complaints to be compared to previous years. Nor does Martin
address concerns that the change in scientific methods mid-
14
stream affects the comparison of 2008 and 2009 data with that of
previous years.
Yet another problem was the miscategorization of complaints
as Category I, II or III, with a slant towards categorizing
complaints as more serious than they actually were. (551a-52a)
When corrected for these errors, bear complaints have
actually gone down, not up. Removing police department
complaints and miscategorizations, the correct number of
Category I and II bear complaints for 2009 is only 1,170.
Removing the ERCC complaints gives a total of 678 Category I and
II complaints in 2009, as opposed to 900 in 2007.
After learning that Prof. Tavss had found that the number
of complaints was inflated, Division Chief David Chanda defended
the numbers, stating, "Our information is peer reviewed at seven
universities." (566a) However, an OPRA request for those peerreview documents revealed that “Director Chanda was referring to
the various reviews of our population data in the past . . .
Policy documents are not peer reviewed.” (574a)
Chanda’s statement is yet another example of a bad faith
misrepresentation to the public. The Division Director attempted
to garner public support for the bear hunt by misleading the
public into thinking its data was reliable and had been peer-
15
reviewed by seven universities, when in fact, it had been peerreviewed only by Prof. Tavss, who found major flaws throughout.
Furthermore, the very use of phoned-in complaints as
scientific data has been questioned. Wildlife biologist DJ
Schubert points out that increasing complaint calls may be the
result of an increased awareness of the phone number for calling
in bear complaints, and not an actual increase in human/bear
conflicts. (750a) If complaints had actually increased, this
explanation would be very plausible, considering that "over
100,000 people have received bear education presentations and
over 3 million pieces of education material has been
distributed." (655a-56a) Also, former DEP Commissioner Mark
Mauriello stated, "I always questioned how we could verify to be
sure the calls were real." (Thompson article)
Miscounting complaints and comparing complaints from new
sources may have been honest mistakes, but Respondents’
misleading statements, defense of the mistakes and refusal to
correct their data and are arbitrary, capricious and in bad
faith.
B. Respondents’ own data shows that bear hunting increases
the bear population.
16
The CBBMP states that the black bear population estimate in
the research study area for 2009 is 3,438 bears. (668a) However,
Figure 7 of the 2005 Comprehensive Black Bear Management Policy
(39a) estimates that the bear population in the research area in
2009 would be 2,694 if there were no further hunts after 2003.
The Division’s own data shows there are now 744 more bears (a
28% increase) in the study area than there would have been if
there had been no hunt in 2005.
One of the goals of the CBBMP is to “reduce the bear
population,” (672a) but Respondents’ own data does not support
this goal. Respondents’ 1997 black bear plan offers a possible
explanation of why hunting may increase the bear population:
An influx of subadult males upon removal of adult
males may result in higher densities of subadults with
greater use of human foods (garbage, crops, etc.) by
the subadults. An unhunted black bear population was
manipulated by removing adult male bears for two
successive years in Canada. This resulted in a
substantial population increase for five to six years
due to ingress of subadult bears from a large (5600
km2) and unhunted reservoir area. As long as a
productive reservoir bear population persists in the
surrounding area, a high level of adult bear harvest
in agricultural areas may not alleviate and may even
aggravate depredation problems by the influx of
subadults. (177a) (citations omitted)
Appellants do not necessarily believe Respondents’ bear
population data and do not necessarily believe that hunting has
increased the NJ bear population. What is clear is that the
Division of Fish and Wildlife's own data shows that bear hunting
17
increases the bear population and their data does not support a
bear hunt, and Respondents acted arbitrarily and capriciously in
ignoring their own data.
It should be noted that given the Council's bias in favor
of hunting, an increased bear population would serve their
purpose of providing recreational hunting opportunities. The
Council can legally increase the bear population in order to
provide recreational trophy hunts, but cannot do so in bad
faith. The Council cannot claim that bear hunts stabilize or
reduce the bear population when their own data shows otherwise.
Contrary to DEP Commissioner Bob Martin's November 22, 2010
letter, the fact that Respondents' own data show that bear
hunting increases the bear population is not addressed in the
CBBMP or the November 15, 2010 adoption document. (533a)
C. Respondents acted unreasonably when they failed to
consider cultural carrying capacity, failed to conduct cultural
carrying capacity studies, and fabricated their cultural
carrying capacity finding.
Respondents base the goals of the Comprehensive Black Bear
Management Policy (CBBMP) on two factors: cultural carrying
capacity and biological carrying capacity. The CBBMP states,
“Council has established this black bear policy and management
18
goals should consider the cultural carrying capacity, which is
the number of bears that can co-exist compatibly with the local
human population in a given area in concert with the biological
carrying capacity of the land to support bears, just as it does
for all wildlife species under its jurisdiction.” (656a)
However, Respondents failed to consider both biological carrying
capacity (discussed below) and cultural carrying capacity when
calling for a reduction of the bear population.
Respondents wrote in response to public comments, “The
black bear population already exceeds the ‘cultural carrying
capacity,’ or the level that a significant number of farmers and
home owners will tolerate, in much of northwestern New Jersey.”
(651a) This finding is fabricated and unsupported by the record,
which contains no cultural carrying capacity findings or
studies.
In the record, Respondents wrote in 2004, “The 1997 Black
Bear Management Plan (McConnell et al. 1997) recognized that
cultural carrying capacity had been reached in northern New
Jersey,” (461a) but this finding is fabricated and the 1997 plan
contains no such finding.
In fact, the 1997 BBMP discusses a 1995 survey of residents
of Passaic and Sussex Counties that found that 89% of residents
surveyed did not want the bear population reduced, and:
19
“Almost all (95.7%) of the participants expressed that
they were willing to adopt conservation methods such
as careful storage of garbage, birdfeeders and grills
as a way to exist in close proximity to bears.”
(165a).
The 1995 study, conducted by an outside party, showed that
people have a great tolerance for black bears, and, although
Respondents have done no studies of their own, Respondents
believe that public tolerance for black bears increased from
1999 to 2004. (17a).
Respondents’ November 9, 2010 response to an Open Public
Records Act request for documents related to cultural carrying
capacity studies of black bears in NJ reveals their lack of such
studies. No documents satisfy the request. (573a)
In a state where the population is 8.7 million people5, even
Respondents’ inflated number of complaints, 3,804, is not
significant. If every complaint represented a separate NJ
resident objecting to the number of bears in NJ, it would be
.004% of NJ residents – fewer than one out of a thousand, or
less than a half of a hundredth of a percent. Taking into
account the fact that a single bear complaint does not mean that
the caller does not tolerate bears, but may have an issue only
with a single bear, Respondents cannot consider their complaint
records to be a cultural carrying capacity study. Respondents
5
http://quickfacts.census.gov/qfd/states/34000.html
20
also acknowledge that some complaints are from the same people
calling in multiple complaints, sometimes even on the same day,
(533a) so 3,804 complaints cannot even represent 3,804 separate
people.
Contrary to DEP Commissioner Bob Martin's November 22, 2010
letter, the lack of cultural carrying capacity studies and the
fabricated cultural carrying capacity finding is not addressed
in the CBBMP or the November 15, 2010 adoption document. (533a)
Respondents recognize that they must consider cultural
carrying capacity. To do so, they must conduct an objective,
unbiased cultural carrying capacity study. Conducting no studies
and then fabricating a cultural carrying capacity finding are
bad faith, unreasonable, arbitrary and capricious.
D. Respondents acted arbitrarily and capriciously when they
ignored biological carrying capacity.
Despite acknowledging that biological carrying capacity is
one of two factors to be considered in a black bear management
policy, Respondents chose to ignore the fact that black bears
have not reached or exceeded their biological carrying capacity
when calling for a reduction in the bear population. Respondents
define biological carrying capacity as “the maximum number of
animals an environment can support without damage to the
21
environment and while maintaining the animals in a healthy and
vigorous condition.” (648a)
However, in response to comments that black bears have not
reached their biological carrying capacity, Respondents state:
The Council and DEP recognize that no state agency
manages any wildlife species for biological carrying
capacity. Managing a species for biological carrying
capacity would be irresponsible to the species as well
as the environment in which they live.
. . . DFW's
management of wildlife based on cultural carrying
capacity has been upheld by the New Jersey judiciary.”
(648a)
Respondents do not dispute that black bears in NJ have not
reached biological carrying capacity. They chose to ignore
biological carrying capacity in calling for a black bear hunt,
but as explained above, Respondents have not based their
management decisions on cultural carrying capacity, either.
The CBBMP should be invalidated because claiming that
management goals are based on cultural carrying capacity and
biological carrying capacity and then ignoring both is bad
faith, arbitrary and capricious.
E. Respondents acted in bad faith when they misrepresented
predictions and information regarding the sex ratio of bears
killed in the 2003 and 2005 black bear seasons in the
Comprehensive Black Bear Management Policy.
22
Unexpectedly in the 2003 black bear season, many more
female bears were killed than male bears, and a
disproportionately high number of adult females and male cubs
were killed. Respondents later fabricated predictions of these
results and misrepresented the data, presumably to garner public
support for future bear hunts.
Of the 328 legally hunted bears in 2003, 64% or 209 were
female, while only 36% or 119 were male. (685a). At the time,
Respondents were clearly dumbfounded. A local newspaper
reported, “The state’s environmental chief was at a loss
Thursday to explain why nearly two-thirds of the black bears
killed in this week’s hunt have been female – a trend that goes
against the state’s bear management plan.” (427a). When asked to
explain why, after four days of hunting, nearly two-thirds of
the bears killed were female, then-Commissioner Bradley Campbell
stated, “I won’t have an answer until all the data is in. Right
now, I don’t have an answer.” (427a). Also regarding the high
number of females killed, then-Chair of the Fish and Game
Council, M. Scott Ellis, stated, “I don’t have an answer for
you.” (428a).
Similarly, in the 2005 hunt, 124 (42%) of the bears killed
were male and 174 (58%) were female.
23
However, Respondents now claim in the CBBMP, “As predicted,
the sex and age structure of the harvest matched that of bears
captured during research and control activities.” (684a).
However, the sex and age structure of the harvest do not match
that of bears captured during research and control activities;
Respondents made no such prediction; and Respondents’ actual
predictions about the 2003 bear hunt were quite different from
the one fabricated in the CBBMP.
Contrary to their statement in the CBBMP, Respondents never
predicted that the sex and age structure of the 2003 harvest
would match that of bears captured during research and control
activities. In Respondents’ 1997 Black Bear Management Plan,
they predicted, “Males generally predominate in the harvest of
lightly hunted populations.” (179a). Similarly, in 2000,
Respondents predicted that an early December black bear hunt
would target adult males. When Respondents adopted a black bear
hunt for September, 2000, they stated, “(This season) is not
designed as a ‘trophy’ hunt . . . A trophy bear hunt would
target only adult males by beginning the hunting in late
November or early December, a time when most females are already
denned for the winter.” (373a). When the 2003 hunt was proposed
for early December, public commenters criticized the black bear
season as being a trophy hunt, and Respondents predicted that
24
males and females would be killed in a 1:1 ratio, which they
believed was the ratio that existed in the population:
Based on data collected in the adjoining states of New
York and Pennsylvania, the sex ratio of harvested
bears will likely be about 1:1 males to females in the
December season. It is anticipated, based on the
experience of other states with a regulated hunting
season structure similar to New Jersey’s, that bears
will be harvested in the same proportion that exists
in the population. (217a).
Furthermore, during meetings of the Fish & Game Council in
2003, the Game Committee told the Council that pregnant females
would be denned during the 2003 hunt, and therefore more males
would be killed than females. (343a).
The same fabricated prediction appeared in the 2005 CBBMP,
(26a) and in the 2005 litigation that led to the decision in NJ
Animal Rights Alliance v. NJ Dept. of Environmental Protection,
396 N.J. Super. 358 (App. Div. 2007), appellants requested
documents that record the Division’s prediction that adult
females would dominate the 2003 bear harvest. Respondents were
unable to produce any such documents, and the record is still
void of any such documents.
Respondents even went so far as to support their fabricated
prediction with fabricated statistician verifications.
Respondents claimed in 2005, “Several independent statisticians
verified NJ Division of Fish and Wildlife biologist's
25
predictions that adult female bears would dominate the 2003 bear
harvest.” (242a)
In the NJ Animal Rights Alliance case, in
response to appellants’ document request for these
statisticians’ verifications, Respondents were again unable to
produce any such documents because both the predictions and the
statistician verifications were fabricated.
In fact, one report found that the male/female ratio of
cubs killed “makes little biological sense.” (319a). Other
scientists were also bewildered by the results. The New York
Times reported, “Lynn Rogers, a director of the North American
Bear Center in Ely, Minn., and a bear expert who has studied the
animals for 37 years, said he was puzzled by the high percentage
of females . . . ‘I don’t know what to make of the high
proportion of females killed in New Jersey.’ He said.” (586a).
Even if Respondents had predicted that the bears killed in
the December, 2003 hunt would reflect bears captured in
Respondents’ control and research activities, Respondents’ 2003
Black Bear Status Report indicates that the those bears were 48%
male and 52% female.6 (192a). These figures are quite different
from the 2003 hunt results that were 64% female and 36% male.
6
Bears identified in hair snares were 34M:48F, cable foot snares were 61M:61F, cubs of radio
collared females were 43M:47F and vehicle strikes were 23M:21F (192a), which gives a total of
161 males and 177 females, which is 48% male and 52% female.
26
Furthermore, the sex and age distribution of the 2003 black
bear season shows a bizarre irregularity. When age and sex are
considered together, a disproportional number of adult females
and male cubs were killed in the 2003 hunt. Of the 245 yearlings
and adults killed, 172 were female while only 73 were male. Of
83 cubs killed, 46 were male and only 37 were female. (51a).
When Respondents asked outside scientists to review the 2003
bear hunt data, one responded in his report, “This pattern was
unexpected and it makes little biological sense that male and
female cubs would have different harvest rates.” (319a) Instead
of being concerned about this anomaly, Respondents continued to
misrepresent this information in 2010. In their response to
public comments, Respondents state in their response to comment
#10, “The 2003 and 2005 bear seasons each produced a harvest
that was representative of the bear population at the time.”
(644a) However, as explained above, Respondents believed in
2003, before the 2003 bear hunt, that males and females existed
in the population in a 1:1 ratio.
Contrary to DEP Commissioner Bob Martin's November 22, 2010
letter (533a), the misrepresentations about the sex ratio of
bears killed is not addressed in the CBBMP or the November 15,
2010 adoption document.
27
Respondents’ blatant misrepresentation of the 2003 bear
hunt data and Respondents’ attempt to fabricate a prediction
after the fact, were an intentional bad faith attempt to deceive
the public into thinking the bear hunt is scientifically sound.
F. Respondents acted arbitrarily and capriciously when they
claimed in the CBBMP that pregnant females would be denned and
protected during the December hunts, despite data and knowledge
to the contrary.
Respondents state in the CBBMP: “The December season
reduces the possibility of over-harvest because most pregnant
females would be denned and not available for harvest.” (672a).
If the hunt protected pregnant females and bears were killed in
the sex ratio at which they exist in the wild, as discussed
above, that would mean that a statistically insignificant number
of female bears are pregnant each year and the survival of the
NJ bear population is in jeopardy. According to Respondents, 80%
of female bears are of breeding age, and 50% of breeding age
females will produce cubs in a given year. (437a). This means
that 40% (.80 X .50 = .40) of all female bears are pregnant in a
given year.
If males and females exist in a 1:1 ratio in the bear
population as claimed by Respondents in 2003, (217a), and 40% of
females were pregnant and denned and protected from the hunt, we
28
would expect to see that 62.5% of bears killed would be male and
only 37.5% would be female,7 instead of the near-opposite result
from the 2003 hunt.8
Respondents later claimed:
Of the total harvest of 328 bears, 209 were females or
63.7 percent. The sex and age structure of the harvest
matched that of bears captured during Division
research and bear control activities. The harvest of
females was proportional to their representation in
the population. (242a).
Even if the bear population were 63.7% female as
Respondents claimed above, if one is to believe that pregnant
females were protected from the hunt, one should have expected
that 48.4% of the bears killed would be male, and 51.6% would be
non-pregnant females.9
Similarly, using the 2005 hunt results, which was 42% male
and 58% female, if males and females exist in the population in
7
If males and females exist in a 1:1 ratio, and 40% of females are pregnant, that means that 20%
of all bears are pregnant. 50% of all bears would be males, and 30% of all bears would be nonpregnant females. Assuming pregnant females are protected from the hunt, 50 out of 80 of the
bears killed should be male, or 62.5%. 30 out of 80 of the bears killed should be non-pregnant
females, or 37.5%.
8
In the Catskills, when the bear season was structured to protect pregnant females, only 37.8%
of the bears killed in the hunt were female. (149a).
9
If 40% of females are pregnant, denned and protected from hunting, that would mean that
25.6% (.40 X 64 = 25.6) of the bear population would be pregnant females protected from
harvest. We would therefore have a bear population that is 36% male, 25.6% protected pregnant
females, and 38.4% (.6 X 64 = 38.4) non-pregnant females available for hunting. This means that
74.4% (36 + 38.4 = 74.4) of all bears would be available for hunting. Therefore, we should have
seen that 48.4% (36 ÷ 74.4 = 48.4%) of the bears killed were male, while 51.6% (38.4 ÷ 74.4 =
51.6%) were non-pregnant females.
29
a 42:58 ratio and 40% of the females are pregnant and protected
in the hunt, we would expect to see a harvest of 54.7% male and
45.3% female.10
To summarize, if pregnant females are protected, the bear
harvest should never reflect the sex ratio that exists in the
population:
If 40% of females are pregnant and
protected and the population is:
The expected harvest
would be:
1M:1F (2003 hunt prediction)
62.5% Male, 37.5% Female
42M:58F (2005 hunt data)
54.7% Male 45.3%
Female
36M:64F (2003 hunt data)
48.4% Male 51.6%
Female
Respondents are aware of this contradiction, yet failed to
revise the CBBMP. At the May 11, 2010 public hearing on the
proposed CBBMP, DFW biologist Patrick Carr conceded that
pregnant females are killed in the hunt. (871a-73a) Duane
Diefenbach, the same scientist who told Respondents that their
2003 bear hunt data "made little biological sense" (319a) wrote
in a 2006 report to DFW biologist Patrick Carr, "it is not
10
Using the 2005 data, if 40% of females are pregnant, denned and protected from hunting, that
would mean that 23.2% (.40 X 58 = 25.6) of the bear population would be pregnant females
protected from harvest. We would therefore have a bear population that is 42% male, 23.2%
protected pregnant females, and 34.8% (.6 X 58 = 34.8) non-pregnant females available for
hunting. This means that 76.8% (42 + 34.8 = 76.8) of all bears would be available for hunting.
Therefore, we should have seen that 54.7% (42 ÷ 76.8 = 54.7%) of the bears killed were male,
while 45.3% (34.8 ÷ 76.8 = 45.3%) were non-pregnant females.
30
possible to identify a covariate that can explain the
probability a female bear is in the den and not available for
harvest. Consequently, harvest rates for this segment of the
population cannot be expected to be modeled with precision."
Contrary to DEP Commissioner Bob Martin's November 22, 2010
letter, Respondents' failure to protect pregnant bears in a
December hunt is not addressed in the CBBMP or the November 15,
2010 adoption document. (533a)
Respondents acted arbitrarily and capriciously in
dismissing concerns about too many female bears being killed and
in claiming that a December bear hunt season protects pregnant
females, despite data and knowledge to the contrary.
G. Respondents acted arbitrarily and capriciously when they
failed to consider the effects of over-harvesting female bears.
Respondents’ insurance against over-harvest of the bear
population is based on the contention that pregnant females are
protected in a December hunt. “The December season reduces the
possibility of over-harvest because most pregnant females would
be denned and not available for harvest.” (672a). The dangers of
over-harvest cannot be ignored:
Black bear are very vulnerable to overharvest. The
species is long lived and slow to mature. Reproductive
capacity is low because of the low number of cubs
31
produced and the interval between births (two years).
Overharvest is difficult to detect in its early
period. Long periods of time (10-20 years) are needed
for
a
black
bear
population
to
recover
from
overharvest. (154a).
“To ensure that the population is not overexploited, the
majority of the females, must be protected.” (179a) Instead of
protecting the majority of females, Respondents are moving ahead
with bear hunts that kill females in the same proportion at
which they claim females exist in the population. By claiming
that the December season protects the population from overharvest, Respondents are lulling the public into a false sense
of security.
Respondents’ refusal to consider the 2003 and 2005 hunt
data, refusal to protect the bear population from over-harvest
of females, and disregard of their own scientific findings on
over-harvest are arbitrary, capricious and bad faith.
H. Respondents acted unreasonably, arbitrarily and
capriciously when they fabricated harvest number predictions for
the 2003 black bear hunt.
Like the prediction that the 2003 bear harvest would
reflect the sex and age structure of bears handled during
Respondents’ capture and research activities, the prediction in
the CBBMP that “Harvest would be between 272 and 408 bears”
(687a) was fabricated after the fact and is contradicted by the
32
record. In February, 2003, K. Burguess of the Division of Fish &
Wildlife predicted a harvest of 375-750 bears in 2003. (331a332a). In March of 2003, the Fish & Game Council predicted
between 500 and 750 bears would be killed. (335a).
Respondents never predicted that 272 to 408 bears would be
killed in the 2003 hunt.
When this “prediction” was presented to the Fish & Game
Council after the hunt, Council Member Jack Schrier questioned
where they came from and whether these predictions had ever been
made before the hunt. (338a and 345a-46a). No one from the
Division, the Game Committee or other members of the Council
ever gave Schrier an answer. (345a-46a).
Jack Schrier was not the only member of the Council to
question this “prediction.” At the July 20, 2004 meeting of the
Fish and Game Council, Councilwoman Jane Morton Galletto asked
about the goal for the previous year’s black bear season, and
instead of giving the prediction of 272-408 bears, NJ Bureau of
Wildlife Management Chief Larry Herrighty gave a much more vague
answer:
Councilwoman Galletto questioned why
goal for the bear hunt last year.
stated that our goal last year was to
population within indicated areas
(354a).
33
there wasn’t a
Chief Herrighty
reduce the bear
of the State.
Fabricating this prediction after the 2003 hunt may have
been done to draw attention away from the fact that the bear
population turned out to be about half of what the Division had
previously thought,11 (222a-23a) leading to fewer bears being
found and killed.
The issue of fabricated bear harvest predictions is not
addressed in the CBBMP or the November 15, 2010 adoption
document.
By fabricating predictions, Respondents were worse than
arbitrary and capricious. Respondents attempted to drum up
public support for future bear hunts by making it appear that
the hunt is scientifically sound and that Respondents were able
to predict all aspects of the hunt.
11
In 2004, Respondents pretended that their 2003 population estimates were correct.
Respondents stated in September of 2003, “The re-establishment of the bear hunting season is
made in response to the State’s growing black bear population, which is estimated at between
2,000 and 3,000 animals north of I-80 and west of I-287.” (216a). Based on the results of the
December, 2003 hunt, two different estimates placed the bear population at 1,490 bears and
“approximately 1,500 to 1,600 black bears.” (395a). Even though both of these post-hunt
estimates were significantly lower than Respondents’ two pre-hunt estimates of 3200 bears and
2,000 to 3,000 bears, Respondents pretended in 2004 that their pre-hunt estimate was accurate:
“Both of these estimates, using different analytical techniques, fall squarely within the range
which the Council used to reestablish the 2003 hunting season.” (395a). Then-Commissioner
Bradley Campbell recognized in March of 2004 that the bear population was found to be "more
than fifty percent smaller than assumed" before the 2003 hunt. (223a)
34
I. Respondents acted arbitrarily and capriciously when they
claimed to consider the public safety risk posed by black bears,
but failed to consider safety risks posed by hunting.
In 2004, then-Commissioner Bradley Campbell expressed his
concerns about the safety of bear hunting:
In addition to raising uncertainties about the
population data, I raised to the Council a series of
concerns about substantial and adverse impacts of
another
black
bear
hunt
on
the
Department’s
programmatic commitments, on the Department resources,
and on public safety. (1037a).
The CBBMP states that although “no person in NJ has been
killed by a black bear since 1852, human safety concerns must be
considered as part of black bear management decisions,” (657a)
and “Council supports that the policy errs on the side of human
safety.” (664a).
Respondents are trying to scare the public into supporting
a hunt by discussing human safety, while ignoring the safety
risks of hunting. Respondents ignore basic facts in the record:
“Over the last 10 years, New Jersey hunters averaged 11.5
hunting incidents with injury per year.” (647a). “In the last
twenty-six years, hunters in hunting incidents injured sixteen
non-hunters.” (395a). Also, from 1995 to 2005, five people were
killed in hunting accidents in the state. (493a).
35
Respondents ignore the fact that many more people are
killed and injured by hunters than by bears. Using Respondents’
figures, hunting has caused .45 deaths per year in New Jersey,
while bears have caused only .0063 deaths per year, making
hunting 71 times more deadly than bears in New Jersey.
Respondents’ own data show only nine bear attacks on humans from
2001-09, (680a), so with 11.5 injuries per year from hunting,
hunting is clearly more dangerous than black bears are.
Contrary to DEP Commissioner Bob Martin's November 22, 2010
letter, the fact that hunters causes more injuries and
fatalities than bears is not addressed in the CBBMP or the
November 15, 2010 adoption document. (533a)
Respondents’ conclusion that five people killed in ten
years, 11.5 injuries per year, and 16 non-hunters injured in
recent years is considered “safe;” (671a) but nine non-fatal
bear attacks in nine years with no fatalities in over 150 years
are a “threat to public safety,” (658a) is unreasonable,
arbitrary and capricious.
J. Respondents arbitrarily and capriciously dismiss the
effectiveness of nonlethal bear management.
Respondents criticize the effectiveness of aversive
conditioning, stating in the CBBMP:
36
Council
cites
particular
studies
where
aversive
conditioning reduced but did not eliminate the
occurrence of bears entering developed areas to forage
on human food and trash in Sequoia National Park
(Mazur 2010), Lake Tahoe Basin (Beckmann et al. 2004)
and southern Louisiana (Leigh and Chamberlain 2008).
Respondents have stated that nonlethal bear management
undermines their statutory obligation to provide recreational
bear hunts (732a), so it is no surprise that they are trying to
dismiss the effectiveness of nonlethal bear management.
Respondents may have a statutory duty to provide recreational
hunting opportunities, but must also comply with the statutory
duty to do so on the basis of scientific investigation and
research. They cannot act arbitrarily, capriciously or in bad
faith in doing so. Respondents have no duty to work only on
behalf of hunters or to show nonhunters that they "cannot win."
(508a) To dismiss aversive conditioning on the basis that it
reduces but does not eliminate bear conflicts is disingenuous
and demonstrates the Council's conflict of interest and bad
faith because the Council's favored tactic, hunting, does not
eliminate conflicts.
The Beckmann et al (783a), Leigh and Chamberlain (988a) and
Mazur (996a) studies do demonstrate the effectiveness of
aversive conditioning in diverse locales. Respondents have not
challenged the success of aversive conditioning in reducing bear
complaints in all three studies.
37
Similarly, in their response to public comments (642a-43a),
Respondents wrongly discredit Prof. Ed Tavss' 2005 study (252a)
which demonstrates that only nonlethal methods effectively
reduce bear complaints and that hunting is ineffective.
Regarding Tavss' findings in Pennsylvania, Respondents stated
that bear complaints in northeastern Pennsylvania went down
after bear hunting was increased in 2002. (642a-43a). The
statement is disingenuous because, as the Pennsylvania Game
Commission explains on its website, the increase in bear hunting
coincided with a bear feeding ban and increased public education
efforts, and “It may be several years before we can interpret a
relationship between increased harvest and nuisance activity.”
(571a-72a) The URL for the Pennsylvania Game Commission site and
a summary of its contents was provided in the BEAR Group’s
comments on the CBBMP. (516a) By omitting the nonlethal
component of the bear management plan in northeastern PA,
Respondents disingenuously tried to mislead the public into
believing that hunting was effective for reducing complaints and
that nonlethal methods were not used.
Also in response to comments on the 2005 Tavss report,
Respondents point to decreases in nuisance complaints in NJ
following the 2003 and 2005 hunts (642a). However, this response
is scientifically dishonest because it ignores the drops in bear
38
complaints from 1999 to 2000 to 2001 (37a),12 and from 2008 to
2009. Also, a graph of the corrected bear complaint data reveals
that bear complaints have steadily decreased since 1999 and
small increases and decreases are just natural year to year
fluctuations. (557a)
Considering the slight drops in nuisance complaints from
1999-2001, 2003-04, 2005-06, and 2008-09, one cannot conclude
that hunting reduces bear conflicts. Rather, there has been a
steady decline in nuisance complaints from 1999 to the present.13
Respondents' characterization of nonlethal management in
the CBBMP is disingenuous because hunting will not eliminate
conflicts and there will always be some human/bear conflicts as
long as humans and bears live near each other, but aversive
conditioning, garbage control and other nonlethal tactics will
minimize those conflicts.
K. Respondents intentionally delayed the publication of the
CBBMP in bad faith, in an attempt to manipulate the litigation
12
As indicated on the graph (37a), the DFW began adding police reports to the bear complaint
totals in 2001. To be scientifically consistent, it is important to compare data from the division
reports in 1999 to division reports in other years, without adding a new source of data.
13
As explained above, the apparent increase in bear complaints from the year 2000 to the year
2009 (677a) is the result of adding complaints from the ERCC and an increasing number of
police departments each year. To compare the number of complaints from 32 police departments
in 2009 to the number of complaints from 17 police departments in 2007 is scientifically invalid
and cannot indicate an actual increase in human/bear conflicts.
39
schedule while implementing the bear hunt in the absence of a
valid CBBMP.
Respondents announced the adoption of the CBBMP through a
press release in July of 2010 (531a) and began implementing the
CBBMP immediately, but delayed the NJ Register publication of
the adoption of the CBBMP until November of 2010 (601a) in a bad
faith attempt to delay litigation against the CBBMP.
Respondents waited until November 15, 2010 to publish the
CBBMP, in a deliberate attempt to delay litigation and force
Appellants to rush to court on the eve of the bear hunt and meet
the higher standards for emergent relief instead of publishing
the CBBMP in a timely manner, in good faith. After announcing
the adoption of the CBBMP on July 21, 2010, Respondents waited
four months to publish the CBBMP, all while distributing 6,398
bear hunt permits (1061a), conducting bear hunting seminars, and
setting up bear check stations. (700a and 704a) Bear check
station information was published in August of 2010, three
months before the CBBMP was adopted. Id. Respondents even
attempted to deny protest permits to Appellant Animal Protection
League of NJ on the basis that the group should have submitted
permit applications 90 days before the hunt (which would have
been 67 days before the adoption of the CBBMP) "to allow
Respondents enough time to coordinate with State and local law
40
enforcement officials about preparations for the black bear
hunt." (700a) Respondents clearly implemented the bear hunt long
before the CBBMP was legally adopted. This tactic allowed
Respondents to hold a bear hunt in December of 2010 before a
court could have time to invalidate the CBBMP on the merits, in
violation of the Supreme Court's holding: “In the absence of
approved comprehensive policies, the Fish and Game Council could
not promulgate regulations authorizing a hunt.” U.S. Sportsmen’s
Alliance Foundation, 182 N.J. at 479.
Respondents employed a similar tactic in 2005, waiting
until September to publish the proposed CBBMP (248a) and
publishing the adoption of the CBBMP on November 21, 2005
(251a), giving themselves time to hold one illegal bear hunt in
December of 2005 under the 2005 CBBMP before it was invalidated
on the merits. NJ Animal Rights Alliance v. NJ Dept. of
Environmental Protection, 396 N.J. Super. 358 (App. Div. 2007)
POINT II
RESPONDENTS’ ADOPTION OF THE COMPREHENSIVE BLACK BEAR MANAGEMENT
POLICY VIOLATED THE ADMINISTRATIVE PROCEDURE ACT
The 2010 bear hunt should be canceled because the adoption
of the CBBMP violated the Administrative Procedure Act N.J.S.A.
52:14B-4 (“APA”). In NJ Animal Rights Alliance v. NJ Dept. of
Environmental Protection, 396 N.J. Super. 358 (App. Div. 2007),
the NJ Appellate Division held that the adoption of the
41
Comprehensive Black Bear Management Policy must comply with the
APA: “Therefore, as already stated, we hold that the CBBMP had
to be, but was not, promulgated by rulemaking within the meaning
of the APA. Nor was it adopted in "substantial compliance" with
the APA.” NJ Animal Rights Alliance v. NJDEP, 396 N.J.Super at
370.
Under the APA, after publishing notice of a proposed rule,
an agency must “consider fully all written and oral submissions
respecting the proposed rule.” N.J.S.A. 52:14B-4(a)(3).
“Compliance with the Administrative Procedure Act and the
Metromedia standards is not only a matter of fairness, but a
means of informing regulators of possibly unanticipated
dimensions of a contemplated rule.” American Employers' Ins. v.
Commissioner of Ins., 236 N.J. Super. 428, 434 (App. Div. 1989),
citing Metromedia, Inc. v. Director, Div. of Taxation, 97 N.J.
313 (1984). The agency must:
Prepare for public distribution a report listing all
parties
offering
written
or
oral
submissions
concerning the rule, summarizing the content of the
submissions and providing the agency’s response to the
data,
views
and
arguments
contained
in
the
submissions. N.J.S.A. 52:14B-4(a)(4).
In NJ Hospital Association v. Department of Health, 227
N.J. Super. 557 (N.J. Super. Ct. 1988), the court found that
responses to public comments, along with other requirements of
the APA, are fundamental:
42
[T]here was no public statement of the purpose and
effect of the rule, the authority pursuant to which it
was adopted or its expected socio-economic impact as
required by N.J.S.A. 52:14B-4(a)(2). Nor did the
(Hospital
Rate
Setting
Commission)
address
the
comments or objectors to Option 2 and proponents of
other options or respond to the data, views and
arguments contained in those submissions. N.J.S.A.
52:14B-4(a)(4). These requirements are fundamental.
Without them there is no merit to the suggestion that
the due process underpinnings of the APA were met. Id.
at 568.
Furthermore, public comments should be “given a meaningful
role” in the process of rule adoption:
The notice requirements of N.J.S.A. 52:14B-4(a)(1)
should not be approached grudgingly. The goal should
be to afford effective notice, to the end that public
comment be encouraged and given a meaningful role in
the process of rule adoption. In re Adoption of Rules
Concerning Conduct of Judges Etc., 244 N.J. Super. 683
(App.Div. 1990).
If the CBBMP is invalidated for failure to adhere to the
APA, it cannot be allowed to stand, even on an interim basis,
and Respondents cannot be allowed to hold a bear hunt until a
new comprehensive black bear management policy is validly
adopted:
[T]he substantial public interest in requiring the
government to conduct a full-fledged process of notice
and comment, as prescribed by the APA, precludes us
from excusing the agencies' non-compliance, even on an
interim basis. Bear management is a topic that sparks
widespread disagreement and strong public sentiments.
The need to give the public sufficient notice of the
terms of a proposed bear management policy, and to
respond fully to comments received from citizen
objectors and advocates alike, is particularly salient
43
here. NJ Animal
N.J.Super at 372.
Rights
Alliance
v.
NJDEP,
396
To be valid, a rule must be adopted in “substantial
compliance” with the Administrative Procedure Act. N.J.S.A.
52:14B-4(d). In a case where comments from plaintiffs were
ignored, the Department of Treasury claimed that it had
nevertheless “become familiar” with plaintiffs’ position and
that the rule was adopted in “substantial compliance” with the
Administrative Procedure Act. However, the Court held:
The explanations offered by the State fail to justify
its
non-compliance
with
the
clearly
stated
requirements of the Administrative Procedure Act.
Although its disregard of the Act is not as complete
as that considered in Glaser v. Downes, 126 N.J.
Super. 10 (App.Div.1973), cert. denied 64 N.J. 573
(1974), the denial of due process of law resulting to
plaintiffs is no less. Substantial compliance with the
Administrative Procedure Act cannot be found where the
prescribed system of notice and written comments,
called "the mainstay of modern rulemaking procedure,"
Davis, Administrative Law of the Seventies, at 169
(1976), has been sidestepped. Exxon Corp. v. Hunt, 190
N.J. Super. 131 at 134, (App.Div. 1983), aff’d by
Exxon Corp. v. Hunt, 97 N.J. 526, (1984), aff’d in
part and rev’d in part by Exxon Corp. v. Hunt, 475
U.S. 355 (1986).
The legislature clearly intended for public comments and the
agency’s responses to be a serious and meaningful part of the
rulemaking process. The Fish and Game Council, however, does not
take this process seriously and does not take the public
comments seriously, as evidenced by their own meeting minutes
regarding the public hearing on the 2005-2006 Game Code:
44
Councilman Knight stated that if large numbers attend
the meeting you are taking the wind out of their sails.
Do not spend $1,000 for these people to moan at the
council . . . Councilman Kertz stated that sportsmen
help to neutralize the anti-hunters at these meetings.
Sportsmen support us and they attend these meetings to
show these people that they cannot win . . .
Councilman Wolgast stated that the Division should try
to get nongame organizations to support the Division
at these meetings . . . Councilman Knight stated we
all need to attend because we have respect for the
sportsmen. They need to see what we are up against and
that we are working in their behalf. (508a)14
In addition to this expression of disdain for any members
of the public who do not support their proposals, the Council
further shows that they failed to “consider fully” all the
comments on the CBBMP through their insufficient answers to the
public comments by ignoring many comments and providing
disingenuous responses to other comments.
A. Respondents failed to consider fully and respond to many
comments.
In Exxon, plaintiffs hand-delivered comments on a rule
proposal by the Department of Treasury to the agency within the
public comment period. The agency mistakenly determined that the
comments were late and failed to consider them. The agency
argued that the rule should not be invalidated because they were
already familiar with plaintiffs’ position and because they had
14
At the time the CBBMP was adopted by the Council at their July 13, 2010 meeting,
Councilmen Wolgast and Kertz were still members of the Council.
45
substantially complied with the APA. Nevertheless, the court
found that the agency’s failure to consider plaintiffs’ comments
violated the APA.
Exxon makes it clear that an agency’s failure to consider
even a small number of comments is a violation of the APA and
invalidates the rule.
Public comments from many different commenters were ignored
by Respondents, such as:
•
Concerns about the fact that hunting kills and injures more
people than bears do. (523a, 526a, 529a).
•
Concerns that hunters call in fabricated bear complaints,
leading up to a hunt. (517a)
•
Concerns about Respondents’ fabricated prediction about the
sex and age structure of the 2003 hunt. (689a)
•
Concerns that Respondents have conducted no cultural carrying
capacity studies. (689a)
•
Concerns about Respondents’ fabricated harvest predictions.
(690a)
•
Concerns about Respondents' self-contradictory statements
about the male/female ratio of bears, pregnant bears, and the
effect of the hunt on bears. (1046a, 1050a)
46
•
Concerns that DFW has proven itself to be an unreliable source
of information on black bears. (690a)
•
Concerns that Respondents have done nothing to improve N.J.S.A.
23:2A-14 (Black Bear Feeding Ban), despite their opinion in
2005 that the Black Bear Feeding Ban is inadequate and needs
revision. (513a-14a, 517a)
•
Concerns about overharvest of females and pregnant females.
(515a, 689a)
•
Comments on Respondents’ data showing that the 2005 black bear
hunt increased the bear population. (688a)
•
Concerns about bear sightings being used in the Divisions’
statistics. (527a-28a) Appellant Theresa Fritzges’ letter was
ignored to the point where Fritzges wasn’t even listed among
the commenters sending in letters. Instead, Fritzges was
listed among 1,213 commenters who mailed in postcards. (628a)
•
Concerns that the bear hunt will cost $600,000. (515a)
•
The likely cause of any increase in bear complaints is the
increased awareness of the bear DEP bear complaint phone
number. (750a)
•
The criticism that the East Stroudsburg University study on
aversive conditioning of black bears included too few bears,
and that the bears were already food conditioned. (751a)
47
•
Criticisms of Respondents' mischaracterizations of the
Beckmann, Mazur and Leigh and Chamberlain black bear aversive
conditioning studies. (750a)
•
Criticism of Respondents' comparison of bears to deer; bears
do not learn fear of humans from a hunt like deer do because
bears are solitary. (760a)
•
Concerns that Respondents and/or the CBBMP are biased in favor
of hunting. (1047a, 1048a, 1049a, 1050a, 1052a)
The above comments were completely ignored by Respondents, but
are legitimate concerns of the public. Because Respondents
ignored numerous legitimate public comments, the adoption of the
CBBMP violates the Administrative Procedure Act and the CBBMP
should be invalidated.
B. Respondents provided disingenuous responses to many
comments.
In addition to ignoring some public comments, Respondents
provided disingenuous responses to other comments:
1. Respondents published a disingenuous response to comments
about the 2005 Tavss report that shows that only nonlethal
methods effectively reduce bear complaints and that hunting is
ineffective. As explained above, Respondents mischaracterized
data from Pennsylvania and New Jersey in an attempt to ignore
48
the role of nonlethal management in Pennsylvania and make New
Jersey's recreational bear hunt appear to be necessary. Also,
Respondents object to aversive conditioning because it reduces
but doesn't eliminate human/bear conflicts, ignoring the fact
that hunting does not eliminate conflicts.
2. In response to comments supporting aversive conditioning,
Respondents wrote, "DFW research has determined that aversive
conditioning has limited short-term effectiveness, does not
eliminate nuisance behavior in bears and does nothing to
reduce or stabilize the bear population." (641a) This response
is disingenuous because, as discussed above, Respondents' own
data shows that hunting increases the bear population.
Respondents have an incentive to increase the bear population
because they want a high bear population to support
recreational hunting.
3. In response to comments about bears self-regulating,
Respondents claim that “Allowing the black bear population to
continue to increase to a level where the reproductive rate
may decline would be irresponsible and would increase nuisance
complaints and threaten public safety.” (651a) On the other
hand, Respondents claim, “No scientific literature was
presented in support of the commenters' position that black
bears self-regulate as a population control mechanism.” In
their answer, Respondents acknowledge that the black bear
49
population self-regulates as the population increases, but
then disingenuously try to argue that commenters provided no
scientific literature to support a point that Respondents
already believe to be true. Furthermore, Respondents’ own 1997
Black Bear Management Plan includes a section titled,
“Objective VIII. Allow Population to Expand/Self-Regulate,”
which explains how the black bear population self-regulates
and includes numerous citations to scientific literature.
(73a) Lastly, Respondents provide no support for their
contention that allowing the bear population to increase would
cause bear complaints to rise to an intolerable level or
threaten public safety.
4. Instead of responding to comments about hunting being more
dangerous than bears, (523a, 526a, 529a) Respondents
disingenuously summarized the comments as either “Commenters
opposed the CBBMP indicating that hunting posed a threat to
human safety” (647a) or “black bears are not a serious threat
or dangerous to humans.” (649a) Respondents admit that “New
Jersey hunters averaged 11.5 hunting incidents with injury per
year” (647a), and Respondents’ own records show that five
people died in hunting accidents in NJ between 1995 and 2005.
(493a) However, Respondents also recognize that “no person in
NJ has been killed by a black bear since 1852” (657a) To
50
refuse to address this disparity is disingenuous, and ignores
facts.
5. Respondents provided a disingenuous response to concerns about
the hunt being a trophy hunt. (644a) The bear hunt meets the
definition of a “trophy hunt” as provided by Respondents in
September 2000: "A trophy bear hunt would target only adult
males by beginning the hunting in late November or early
December, a time when most females are already denned for the
winter." (373a) Also, Council Member George Howard has stated
that the hunt is both a trophy hunt and a population reduction
hunt. (345a). Furthermore, regardless of the size or gender of
the bears killed, Respondents know that most were turned into
trophies: “[T]he majority of 2003 successful bear hunters
stated that they would have the bear head and/or hide
professionally prepared. Successful bear hunters in 2004 will
most likely continue these practices.” 36 N.J.R. 2326.
Yet
Respondents now claim, “The season was not designed to be a
‘trophy hunt.’” (644a)
6. In response to opposition to the black bear hunt, Respondents
write, “The Council and DEP have examined the management of
black bears in other states and notes that the 29 states with
viable bear populations use hunting as the means to control
their black bear populations. No alternative method is used.”
(634a) Although Respondents do not list the 29 states they
51
examined, Appellants are certain that at least some of them
utilize garbage control and/or feeding bans, which do curb
fertility. Respondents’ 1997 Black Bear Management Plan
explains that bears eating garbage and hand-outs from humans
are more fertile: “Growth, size and fertility are higher in
panhandlers due to their access to and consumption of high
energy human foods (garbage, corn fields, bird feeders,
apiaries)” (113a) As mentioned above, Pennsylvania employs a
bear feeding ban.
7. Similarly, in response to suggestions to better enforce the
feeding ban, Respondents disingenuously state, “The feeding
ban does nothing to control the black bear population.”
(640a). Respondents ignore their own finding in the 1997 plan
that fertility increases when bears have access to garbage and
high energy human foods. (113a)
8. Regarding concerns that Respondents have ignored photo
documentation of uncontained garbage and refused to enforce
the Black Bear Feeding Ban, (517a) Respondents wrote:
The BLE has received 155 complaints from citizens
reporting violations of the beer feeding ban since its
adoption in 2003. Individuals suspected of feeding
bears must first be given a written warning before a
summons can be issued for repeat offenses. Upon
investigation of these complaints, 32 written warnings
and nine summons were issued. DFW's experience is that
most people respond to the educational discussion with
the conservation officer and that only a small number
of
people
ignore
the
written
warning,
thus
52
conservation officers have only had to issue a minimal
number of summonses for repeat offenses. (640a)
This response ignores the fact that garbage containment is a
problem, and the enforcement of the Black Bear Feeding Ban has
been lax at best. In 2007 and 2008, two violations were
written each year, while only one was written in 2009. (517a)
9. In response to comments that Respondents were moving bears to
South Jersey, Respondents claim they have not done so. (vol.9
p.49) However, in 2005, Martin McHugh, then-Director of the
DFW told the Asbury Park Press that DFW moved one bear south
from Woodbridge to Upper Freehold and another from Middletown
to Freehold. McHugh stated, "In each relocation, we try to
figure out where the bear was headed and then find the nearest
and available open space for it."
(1056a) After some
controversy, Respondents now refuse to divulge information
about their bear relocation program. (1059a)
C. Respondents waited four months after publicly announcing
the adoption of the CBBMP to publish the adoption in the NJ
Register, in a bad faith attempt to manipulate the litigation.
As explained above, Respondents' publication of the
adoption of the CBBMP was done in bad faith, with a four-month
delay, in order to force Appellants to rush into court on the
eve of the bear hunt and meet the higher standards for emergent
relief instead of publishing the adoption in a timely manner, in
53
good faith. During those four months, Respondents carried on
implementing the bear hunt absent a valid comprehensive black
bear management policy, in violation of APA. U.S. Sportsmen’s
Alliance v. NJ DEP, 182 N.J. 461 (2005) (requiring a
comprehensive black bear management policy before holding a bear
hunt) and NJ Animal Rights Alliance v. NJ Dept. of Environmental
Protection, 396 N.J. Super. 358 (App. Div. 2007) (requiring the
comprehensive black bear management policy to be adopted
according to APA requirements).
Because of Respondents' bad faith delay in the publication
of the adoption of the CBBMP in the NJ Register and violation of
the APA, the CBBMP should be invalidated.
D. Respondents falsified support for the CBBMP in their
summary of responses to public comments.
Comments from commenter #754, John Donahue, Superintendent of
the Delaware Water Gap National Recreation Area (DWGNRA), were
misconstrued and included in a list of comments that “supported
the proposed CBBMP.” (631a) Donahue’s letter never once says
that the commenter supports the CBBMP. In fact, the letter
disagrees with the CBBMP’s density goal, disagrees with its
cultural carrying capacity finding within the DWGNRA, and asks
that the DWGNRA be considered a separate management zone. (524a)
54
Donahue's comments were also falsely listed as “indicated that
hunting was the best tool available to control the black bear
population.” (636a) Donahue’s letter says no such thing. (524a)
E. Respondents failed to “present a summary of the factual
information on which its proposal is based” and failed to
“respond to questions” at the May 11, 2010 public hearing, as is
required by the Administrative Procedure Act.
The Administrative Procedure Act requires:
At the beginning of each hearing, or series of
hearings, the agency, if it has made a proposal, shall
present a summary of the factual information on which
its proposal is based, and shall respond to questions
posed by any interested party. N.J.S.A. 52:14B-4(g).
At the May 11, 2010 public hearing on the Draft
Comprehensive Black Bear Management Policy, Respondents failed
to present a summary of the factual information on which its
proposal is based. While Division biologist Patrick Carr
answered some questions, Carr refused to answer many questions
at the public hearing, in violation of the Administrative
Procedure Act. (789a) For example, Carr stated "We will provide
a more detailed explanation to your questions" (871a) but never
provided the explanations either at the hearing or in the
adoption document published in the NJ Register.
CONCLUSION
Based on the foregoing, Appellants respectfully submit that
Respondents’ authorization of the Comprehensive Black Bear
55