12/3/04 - Court Cancels 2004 Black Bear Season

NJ Supreme Court ruling on 2004 Black Bear Season (pdf, 133kb)

I hereby provide notice that I have directed the Director of the Department's Division of Fish and Wildlife ("DFW" or "Fish and Wildlife") not to issue black bear hunting permits for the 2004 black bear hunting season pursuant to N.J.A.C. 7:25-5.6. In addition, I have directed the Assistant Commissioner for Natural and Historic Resources to close all lands owned, managed, or controlled by the Department, whether through DFW or Division of Parks and Forestry, to the hunting of black bears and to undertake appropriate posting and other public notice.

Background

Hunting is a critical wildlife management measure in the State of New Jersey and an important part of the State's recreational culture and traditions. The Legislature has given the Fish and Game Council ("Council") specific authority to determine the hunting seasons for game animals. However, the Commissioner has broad statutory responsibility to develop and implement "comprehensive polices for the conservation of the natural resources of the State, the promotion of environmental protection and the prevention of pollution of the environment of the State," N.J.S.A. 13:1D-9, and has explicit supervisory authority over the Division of Fish and Wildlife ("DFW"). N.J.S.A. 13:1B-27. The Commissioner exercises his or her authority and responsibilities through various divisions, including the Division of Fish and Wildlife, which is charged with the "protection and propagation of ... game animals." N.J.S.A. 23:2-2; 13:1B-27. As part of the Department's broad authority and responsibilities in these areas, the Commissioner is vested with the authority to approve or disapprove Council policies for the protection and propagation of fish and wildlife. See N.J.S.A. 13:1B-28.

Consistent with these statutory responsibilities, there are circumstances in which a limitation or prohibition on the issuance of hunting licenses by DFW may be justified. These circumstances include: 1) where the limitation or prohibition is necessary to avert potential adverse impacts to threatened or endangered species; 2) where the limitation or prohibition is necessary due to avoid impacts to programs that are administered by the Department; 3) where the limitation or prohibition is necessary due to inadequate staffing or resources; 4) where the limitation or prohibition is necessary to protect public safety; and 5) where the limitation or prohibition is necessary to conform license issuance to a policy for protection or propagation of wildlife approved by the Commissioner.

These criteria have been set forth in a rule proposal pending before the Office of Administrative Law that would address the Commissioner's authority, under certain circumstances, to limit, modify, or prohibit any licenses or permits issued for the taking of fish or wildlife. See N.J.A.C. 7:25-1.6 (proposed). This proposed rule, which has been accepted by the Office of Administrative Law for publication in the New Jersey Register on November 15, 2004, will be followed by the Department in the application of its administrative discretion while the public rulemaking process is pending. (In order to provide notice to all affected parties, and to be consistent with the procedures of the Department's recent rule proposal, the Department will publish notice of its action in the New Jersey Register, on the Department's Web site, and in newspapers of general circulation of the State.) The latter four of these criteria are implicated by the black bear hunt adopted as part of the 2004 Game Code ("Code" or "Game Code").

On August 25, 2004, the New Jersey Fish and Game Council (the "Council") adopted a Game Code that included an open season for black bear from December 6-11, 2004. See N.J.A.C. 7:25-5.6. The Game Code was published on October 4, 2004, with an effective date of October 9, 2004. See 36 N.J.R. 4513(b). Under N.J.A.C. 7:25-5.6, all black bear hunters must possess a current and valid firearm hunting license and a special "black bear hunting permit" issued by the Division of Fish and Wildlife. These provisions are substantially similar to those authorizing a bear hunt in the 2003 Game Code, which the Department duly implemented through the issuance of permits.

The Department supported the black bear hunt in the 2003 Game Code as part of a comprehensive set of measures to manage the black bear population and reduce the potential risk to communities from the population. That comprehensive strategy included several elements outside the statutory purview of the Fish and Game Council, including: education (e.g. public awareness campaigns on ways to store bear attractants -- like food and garbage -- and minimize unwanted bear-human interactions); enforcement of the bear feeding ban (N.J.S.A. 23:2A-1, which prohibits the intentional feeding of bears and requires the proper storage of bear attractants); and the research on and development of alternate population control methods (e.g. contraception).

As the Council considered inclusion of a black bear hunt in the 2004 Game Code, I identified for the Council a number of factors that militated against inclusion of the black bear hunt in the 2004 Game Code. Specifically, I noted that the data generated by the hunt suggest far lower population figures than was assumed when the Council adopted 2003 Game Code. The significantly lower population figures I presented to the Council are reinforced by a reduction in black bear activity. The total number of reported activities by black bears in New Jersey (everything from "bear sighting" to "bear getting into the garbage" to "home entry") are down over 40 percent this year. Similarly, the number of reported Category I activities (the most serious bear activities) are down over 40 percent this year.

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.

Findings and Directive Concerning the Issuance of Permits

The adverse impact of the hunt on the Department's programs and resources, and the consequent risk to public safety, support a prohibition on the issuance of permits for the black bear hunt set forth in the 2004 Game Code.

The issuance of bear hunt permits clearly would have adverse effects on the Department's programmatic commitments to those elements of the comprehensive bear management other than hunting. The Division expended considerable resources on the 2003 bear hunt. This included substantial staff time preparing for the hunt, administering and overseeing the hunt, responding to significant public inquiry and controversy, collecting and analyzing data and handling follow-up inquiries long after the hunt itself had concluded. The 2003 bear hunt cost the Division over $150,000.

In essence, the relevant DFW time, funding, staff and other resources had to be devoted exclusively to the conduct of the black bear hunt in 2003, and progress on education, enforcement, contraception, and other risk-reduction measures plainly suffered. For example, the Department's progress with birth control development and other non-lethal management measures was hindered in 2003 because DFW bear biologists and all relevant DFW personnel had to be committed to administering the black bear hunt. In the past two months, the Department has initiated a contraceptive pilot with a captive black bear population, but that effort will be hindered if the 2004 black bear hunt were to proceed as set forth in the Game Code. A prohibition on the issuance of black bear permits is thus clearly necessary to avoid potential adverse impacts on these and related efforts.

The record of the 2003 black bear hunt also documents that, in the current fiscal year, the Department lacks the resources to oversee and conduct the black bear hunt. As noted, the 2004 black bear accounted for over $150,000 in DFW costs, and it also added substantial additional costs from units of the Department other than DFW. For example, the Division of Parks and Forestry had to divert staff and resources to avert conflicts between hunters and protesters on public lands. DEP's Office of Communications diverted substantial resources from other priorities to ensure that overwhelming media interest did not interfere with the conduct and management of the hunt. The experience in administering the 2003 black bear hunt established that DFW's implementation of the Game Code becomes substantially more costly for the Department when it includes issuance of black bear hunt permits.

While the Department managed to reallocate sufficient resources in 2003 to address these needs, DFW's fiscal position offers the Department far less flexibility this year. Currently, DFW has a several million dollar operating shortfall. Accordingly, a prohibition on issuance of black bear permits is necessary because DFW currently lacks the resources to oversee and conduct the hunt in a manner consistent with public safety.

If DFW were to devote resources to the publication of black bear hunt applications, the conduct of supplemental hunter education programs, the issuance of up to 10,000 permits, and the oversight of black bear hunt as required by the Game Code, DFW would not have available the level of resources found to be necessary in the 2003 black bear hunt. To the extent that supervision and oversight of the hunt is reduced, risk to the public and to other users of public lands would increase commensurately. Moreover, DFW's conduct of the hunt with inadequate resources would compromise strict compliance with the limitations and requirements that the Council articulated in the 2004 Game Code. Accordingly, I conclude that the resources are inadequate to conduct the hunt in a manner that will protect public safety and the environment.

Finally, based on the experience and information obtained by the Department from the 2003 bear hunt, other information relating to the Department's mission, policies and programs, as well as the potential adverse impacts of a bear hunt this year on scientific research, natural resource management and protection programs, resources of the Department and public safety, I have not approved the Council's policy decision that a 2004 black bear hunt should be part of the black bear population management policy because its decision is contrary to the Department's comprehensive policy for the protection and management of the black bear population.

In light of these findings, I have directed the DFW Director not to process applications for black bear hunting permits and not to issue black bear hunting permits based on any such applications received. This directive has been limited to the black bear hunt set forth in the 2004 Game Code, and by its terms has no effect on other hunting activities specified in that Code.

Findings and Directive Concerning Public Lands

A significant portion of the geographic area in which the Council approved black bear hunting in the 2004 Game Code consists of public lands that are managed or controlled by the Department through DFW or the Division of Parks and Forestry. Notably, the Legislature accords the Fish and Game Council no role in the management of public lands. In 2003, the Department exercised its discretion to make those lands available for black bear hunting for those holding black bear and other hunting permits.

In light of the findings recited in support of the prohibition on issuance of black bear permits, I have directed the Assistant Commissioner for Natural and Historic Resources to close all public lands owned, managed or controlled by the Department through DFW or the Division of Parks and Forestry to black bear hunting. Separately, I shall formally request that the Newark Watershed Conservation and Development Corporation and the relevant units of the National Park Service establish a similar prohibition.

This directive has been limited to the use of public lands for the black bear hunt set forth in the 2004 Game Code, and by its terms has no effect on other hunting activities specified in that Code.