On Monday December 6, 2010, New Jersey’s first black bear hunt in five years opened. It lasted for six days, coinciding with the annual deer hunt. An attempt to enjoin the hunt filed by Animal Protection League of New Jersey, the Bear Education and Resource Group and two individuals was rejected on Friday by the New Jersey Appellate Division in a per curiam decision that found that the appellants failed to meet the legal requisites for a stay. An emergent application to the New Jersey Supreme Court on Saturday also was unsuccessful.
The New Jersey Department of Environmental Protection (“NJDEP”) estimates that the black bear population in northern New Jersey is around 3,400. The hunt was expected to reduce the population by 250-700 animals. On the first day of the hunt, 264 bears were taken, the largest one-day tally in the hunt’s history. By the end of the hunt, 589 bears had been harvested.
NJDEP determined that a controlled hunt was a necessary component of its Comprehensive Black Bear Management Policy, which was developed to manage the bear population and reduce bear-human conflict. According to the Division of Fish and Wildlife, between January 1 and July 20, 2010, bears have been responsible for one attack on a person, three unprovoked attacks on dogs, 26 livestock kills, 23 attempted home entries, 27 successful home entries, 3 vehicle entries, 74 vehicle strikes, 13 aggressive behavior incidents, 526 nuisance incidents and 301 garbage raids, as well as 548 sightings. In addition to a controlled hunt, the Policy incorporates education, the continuation of ongoing research and population monitoring, appropriate non-lethal control measures, and investigation of all viable population control methods.
In upholding NJDEP’s decision to allow the hunt, the Appellate Division used the familiar language of deference to an expert agency, stating, “We will affirm the decision of the DEP if it is supported by the evidence, even if we may question the wisdom of the decision or would have reached a different result.” The Court also noted that a strong presumption of reasonableness attaches to agency action, reflecting the recognition that agencies have “the specialized expertise necessary to enact regulations dealing with technical matters ...”
Under this legal standard, those opposing the hunt faced an uphill battle. Thus, even though the opponents presented expert evidence claiming flaws in NJDEP’s data, and in the agency’s interpretation of its data, the court could point to NJDEP’s own experts, and its own “significant scientific investigation and research” on the issue. With experts and evidence on both sides, the law gives the agency an advantage, and, in the words of the court, “simply disagreeing, even if based on contrary expert opinions, is insufficient to overcome the presumption of reasonableness ascribed to the Commissioner’s finding.”
The hill was made even steeper by the requirements for a stay, such as a showing of irreparable harm. The Appellate Division acknowledged that the killing of a bear is irreversible, but cited case law requiring a showing of irreparable harm to the species, rather than individual animals -- a showing that the opponents were unable to make.
Despite its often-emotional overtones, then, the debate over the need for, and the appropriateness of, bear hunting in New Jersey resembles that over any number of environmental issues. Once the agency has made a reasoned determination, the courts are unlikely to second-guess its decision. Opponents may need to carry their argument to the Legislature.
Susanne Peticolas is a Director in the Gibbons Real Property & Environmental Department.