In 2007, the NJ Appellate Division unanimously declared that New Jersey's 2005 black bear hunt and 2005 black bear management policy were illegal. In that lawsuit, I represented plaintiffs NJ Animal Rights Alliance (n.k.a. Animal Protection League of NJ) and the Bear Education and Resource Group successfully against Safari Club International, U.S. Sportsmen's Foundation, the NJ Department of Environmental Protection, the NJ Division of Fish & Wildlife, the NJ Fish & Game Council and others.
Although the court based its decision on the state's violations of the Administrative Procedure Act, there were also numerous scientific flaws in the policy.
The court listed the state's ten violations of the Administrative Procedure Act (APA). The state:
- Failed to publicly distribute of a statement setting forth a summary of the proposed rule;
- Failed to publicly distribute a clear and concise explanation of the purpose and effect of the rule;
- Failed to state the specific legal authority under which its adoption is authorized;
- Failed to publicly distribute a regulatory flexibility analysis, or the statement of finding that a regulatory flexibility analysis is not required;
- Failed to prepare and distribute a report listing all parties who submitted public comments and the agency’s response to the comments;
- Failed to publicly distribute a jobs impact statement;
- Failed to publicly distribute an agriculture industry impact statement;
- Failed to give a presentation of the policy at the public hearing;
- Failed to respond to questions from the public at the public hearing; and
- Failed to publish the entire policy in the NJ Register with the Notice of Opportunity for Public Comment.
Not only was the 2005 Comprehensive Black Bear Policy (CBBMP) declared illegal, but the 2005 bear hunt based on that policy as well. The court stated, "We invalidate the 2005 CBBMP because the APA was not honored, as was required, to validly promulgate the CBBMP. Therefore, all agency actions taken subsequent to the adoption of the CBBMP were invalid, since the initial 2005 CBBMP did not lawfully exist."
The court based their decision on the clear and easy APA argument, as they should have, to conserve judicial resources, and did not rule on the scientific arguments. However, the invalidation of the CBBMP could have been based on the many scientific flaws in the policy. For example, the state:
- Misrepresentated data on sex ratio of bears killed in 2003;
- Misrepresented data on pregnant females being protected during the hunt;
- Ignored a warning that data from the previous bear hunt "made little biological sense," from Duane Diefenbach, a scientist from Penn State;
- Ignored the safety risks of hunting;
- Failed to conduct a cultural carrying capacity study; and
- Fabricated a cultural carrying capacity finding.
How did this Happen?
State wildlife management agencies are biased in favor of hunting. In fact, promoting hunting is frequently a part of their mission statements, and New Jersey is no exception: "The mission of the New Jersey Division of Fish and Wildlife is to protect and manage the State's fish and wildlife to maximize their long-term biological, recreational and economic values for all New Jerseyans. (emphasis added)" The word "recreational" includes trophy hunting.
In NJ, they are so biased in favor of hunting, the Fish and Game Council speaks about it openly at their meetings. Are they working for the wildlife, for the public, or for the hunters? The minutes of their May 5, 2005 meeting, when they discussed renting a room for $1,000 for a public hearing on the game code, reveal how they feel about the non-hunting majority and who they are really working for:
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 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.
The 2005 NJ black bear hunt is just one example of misconduct by a state wildlife management agency. As long as hunters are in charge of wildlife, we will see wildlife management agencies coming up with excuses for sport hunting to try to make it seem palatable to the non-hunting majority.