January 31, 2023

Appellate Judges Hear Arguments On New Jersey Bear Hunt

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Lisa Jackson, head of the New Jersey Environment Protection Agency, took upon herself the other day to cancel the scheduled bear hunt that had been approved last year by the New Jersey Supreme Court. Several hunting and sportsman’s groups have filed suit to overturn her decision stating that she doesn’t have the authority to do that.

Yesterday, three New Jersey Appellate Judges heard arguments from both sides. They hope a decision will be reached as early as on Monday, November 27. The hunt had been scheduled for December 4 – 9.

According to the New Jersey Herald, the three judges seemed interested in following proceedure when it comes to Jackson’s need to change policy.

In a rare evening session Tuesday night, three appellate judges seemed interested in the argument that if Commissioner Lisa Jackson has the power to change department policy by calling off the hunt, must she also need to follow the same steps which were taken to put the policy in place.

Attorneys representing the hunters told judges that Jackson’s decisions were arbitrary and not based on any science.

Attorneys representing several hunting groups filed the appeal on Monday and are also making the argument that Jackson’s decision last week was arbitrary and not based on science but was part of a political agenda.

After the first bear hunt since 1970 held in 2003, activists went to work to get the hunt called off for the next year. The courts agreed saying the fish and wildlife department needed a bear management plan that included everything discussed, including education, non-lethal controls and a hunt, stating that hunting was the best proven way to control burgeoning bear populations in the northwest part of the state.

A management plan was approved and recognized by the courts as viable. Then EPA Commissioner Bradley Campbell did not attempt to disapprove the plan nor stop the hunt. The 2005 bear hunt took place resulting in the harvest of just under 300 bears.

State Senator Robert Littell weighed in on how he saw things.

State Sen. Robert Littell, R-Sussex, said earlier Tuesday that the issue of whether there is to be a hunt had already gone through the courts and “Game Council has complied with all of the Supreme Court’s directives in developing a workable, science-based bear management plan” and added, “a well-managed hunt is the only effective technique of reducing the population of bears in northwestern New Jersey.”

It appears that whether this year’s or any other bear hunt may come down to whether the courts recognize the management plan as a working regulatory document or simply a guideline. Their decision may also rest on whether they deem Lisa Jackson has the authority to arbitrarily make these kinds of decisions or whether certain proceedures must be adhered to – i.e. public hearings, comment period, professional input, etc.

James H. Lister, one of two attorneys who argued for the hunt, put forth the argument that the state’s black bear management policy is contained in the Fish and Wildlife regulations and therefore can’t be changed without a series of public hearings, a comment period and some type of expert opinion or report.

Presiding Justice Edwin H. Stern picked up on the argument and Judges Donald G. Collester Jr., and Jack M. Sabatino also asked variations on the same theme as they questioned Deputy Attorney General Dean Jablonski. He admitted the state’s Administrative Procedures Act (ADA) has procedures on how policy and regulations can be put in place, but said he doesn’t believe the management plan rose to that level since it was not published in the New Jersey Register. He said what was published was “a notice of availability of the policy and decision” on the department’s Web site.

As to the arbitrary nature of Jackson’s decision, attorney Anna M. Seidman, appearing a co-counsel for the hunters said Jackson “circumvented her authority to meet her agenda” and said, “If she had looked at the science, there is no way she could make that same decision.”

Jablonski said the commissioner “did not substitute her black bear policy for one which was approved by the (Fish and Wildlife) Council. It (the letter) was her disapproval.”

In her rebuttal, Siedman said there was no documentation accompanying Jackson’s letter canceling the hunt, except for two tables showing the number of bear complaints.

“The absence of documentation undermines the reasoning of her decision,” she said.

Tom Remington