NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1019-22
ANIMAL PROTECTION LEAGUE OF NEW JERSEY, ANGELA METLER, and DOREEN FREGA, APPROVED FOR PUBLICATION November 6, 2023 Appellants, APPELLATE DIVISION
v.
NEW JERSEY FISH AND GAME COUNCIL, FRANK VIRGILIO, in his capacity as Chair of the New Jersey Fish and Game Council, NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, SHAWN M. LATOURETTE, in his capacity as Commissioner of the Department of Environmental Protection, and PHILIP D. MURPHY, in his capacity as Governor of the State of New Jersey,
Respondents. ________________________________
Argued October 3, 2023 – Decided November 6, 2023
Before Judges Sumners, Rose and Perez Friscia.
On appeal from the New Jersey Department of Environmental Protection.
Dante DiPirro and Doris Lin argued the cause for appellants (Law Office of Dante DiPirro, LLC, and Doris Lin, attorneys; Dante DiPirro and Doris Lin, on the briefs).
Cristin D. Mustillo, Deputy Attorney General, argued the cause for respondents (Matthew J. Platkin, Attorney General, attorney; Sookie Bae-Park, Assistant Attorney General, of counsel; Nicolas G. Seminoff, Deputy Attorney General, and Cristin D. Mustillo, on the brief).
The opinion of the court was delivered by
ROSE, J.A.D.
The history of our state's black bear hunt is as controversial as it is lengthy.
See, e.g., U.S. Sportsmen's All. Found. v. N.J. Dep't of Env't Prot., 182 N.J. 461
(2005). The sole issue presented on this appeal is the validity of the emergency
rule that precipitated the December 2022 hunt.
On November 15, 2022, the State authorized the adoption of a new
Comprehensive Black Bear (Ursus americanus) Management Policy (CBBMP)
and related amendments to the State Fish and Game Code (Game Code),
N.J.A.C. 7:25-5.1 to -5.39, pursuant to its emergency rulemaking authority
under the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15,
thereby permitting a two-week black bear hunt that was scheduled to commence
three weeks later on December 5, 2022. The emergency rule was approved by
respondents New Jersey Fish and Game Council (Council); Council Chairman
Frank Virgilio; New Jersey Department of Environmental Protection (DEP);
A-1019-22 2 DEP Commissioner Shawn M. LaTourette; and Governor Philip D. Murphy.
On November 30, 2022, we granted the emergent application of appellants
Animal Protection League of New Jersey (APLNJ), Humane Society of the
United States, Friends of Animals, 1 Angela Metler, and Doreen Frega to move
for a stay of the November 15, 2022 concurrent emergency rule and proposed
2022 CBBMP. We temporarily stayed the hunt while we considered appellants'
application. On December 5, 2022, we denied appellants' motion and lifted the
stay.2
The Supreme Court denied appellants' ensuing emergent application to
stay the hunt pending appeal. In a December 7, 2022 order, the Court explained:
In denying the emergent application for a stay, the Court at this time takes no position on, and does not approve of the use of, the emergency rulemaking process here. In past years, the . . . Council has adopted [CBBMPs] that authorized black bear hunts after public notice and comment, and those policies have led to legal challenges. Appellants' appeal can proceed in the Appellate Division, which will address the merits of appellants' arguments relating to the use of emergency
1 Pursuant to appellants' February 9, 2023 amended notice of appeal, the Humane Society of the United States and Friends of Animals withdrew their participation in this appeal. 2 While appellants' application was pending, respondents filed an emergent application to lift the stay. We denied the application and the Court thereafter denied respondents' application that sought emergent relief from our interim stay. A-1019-22 3 rulemaking in this matter. We request that this appeal be expedited.
On March 30, 2023, we granted, in part, appellants' motion to supplement
the record to include the complete transcript of the November 15, 2022
proceedings and various scientific and administrative materials. On that same
day, we denied respondents' motion for summary disposition. Citing the court's
authority to resolve appeals concerning "important matter[s] of public interest,"
Reilly v. AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 484 (2008), or matters
that are "likely to reoccur but capable of evading review," Zirger v. Gen.
Accident Ins. Co., 144 N.J. 327, 330 (1996), we rejected respondents' argument
that the present appeal was moot because the emergency rule expired on January
14, 2023. We also noted the Court's request that we expedite the appeal on the
merits.
We now address the merits of appellants' arguments. Appellants
challenge the validity of the emergency rulemaking on five bases, contending:
(1) respondents failed to comply with certain requirements set forth in section
52:14B-4(c) of the APA; (2) respondents failed to comply with the Court's
holding in Sportsmen's Alliance, mandating the DEP approve the CBBMP
before the Council can authorize a hunt; (3) the emergency rulemaking caused,
and threatened to continue to cause, significant harm; (4) the CBBMP enacted
A-1019-22 4 in conjunction with the rulemaking failed to satisfy the requirements set forth in
N.J.S.A. 13:1B-28 and Sportsmen's Alliance; and (5) the CBBMP is arbitrary
and capricious.
Respondents counter there existed substantial credible evidence in the
record to support the emergency rule "to control the burgeoning bear population
and to abate the alarming increase in dangerous human-bear interactions."
Maintaining the emergency rule comported with the APA, respondents urge us
to defer to their decisions.
Because we conclude the State violated the emergency rulemaking
requirements under section N.J.S.A. 52:14B-4(c) of the APA, both by failing to
demonstrate enactment of the rule was necessary on fewer than thirty days'
notice and the hunt was necessary to avert imminent peril, we reverse.
Accordingly, we decline to consider appellants' remaining contentions.
I.
Recent History of the Black Bear Hunt
To provide context to the issues raised on appeal, we commence our
review with a brief discussion of the Council's statutory authority and the recent
history of the state-sanctioned black bear hunts. Pursuant to N.J.S.A. 13:1B-30,
the Council is authorized, in pertinent part, "to determine under what
A-1019-22 5 circumstances . . . by what means and in what amounts and numbers . . . game
animals[] and fur-bearing animals . . . may be pursued, taken, killed, or had in
possession . . . to maintain an adequate and proper supply thereof." The statute
empowers the Council to adopt and amend the Game Code "to preserve, properly
utilize[,] or maintain the best relative number of any [such] species or variety
thereof." Ibid. The Game Code, in turn, permits the State to conduct an annual
bear hunt, provided – as a condition precedent – a CBBMP "has been approved
by the Council and [DEP] Commissioner and adopted pursuant to the [APA]."
N.J.A.C. 7:25-5.6; see also Sportsmen's All., 182 N.J. at 476.
In Sportsmen's Alliance, our Supreme Court held the "Council's ability to
authorize a bear hunt is subject to the statutory condition precedent of the
Commissioner's earlier approval of the very comprehensive policies governing
the propagation of black bears." 182 N.J. at 476; see also N.J.S.A. 13:1B-28
(limiting the Council's power to "formulate comprehensive polices for the
protection and propagation of . . . game animals"). The Court explained these
comprehensive policies should include "broad preservation goals . . . , the tools
at the . . . Council's disposal to accomplish those goals, and most importantly,
the factors that should be considered when determining which tools will be
utilized." Sportsmen's All., 182 N.J. at 478. Further, a CBBMP must be
A-1019-22 6 "adopted as a rule," in accordance with the requirements of the APA, and will
be deemed "invalid" if its adoption "fail[ed] to follow APA procedures." N.J.
Animal Rts. All. v. N.J. Dep't of Env't Prot., 396 N.J. Super. 358, 372 (App.
Div. 2007).
The Game Code provides specific terms for the hunt including the season
dates and methods of harvest. N.J.A.C. 7:25-5.6. Relevant here, N.J.A.C. 7:25-
5.6 provides two hunting segments: Segment A beginning on the second
Monday in October, and Segment B concurrent with the firearm deer season,
typically occurring in December.
Operating under the auspices of the DEP, the Council adopted a CBBMP
in 2015 (2015 CBBMP), with an expiration date of June 12, 2021. Thus, the
black bear hunt was authorized through the end of the second 2020 hunting
segment. Notwithstanding the existence of the 2015 CBBMP, the hunt was
suspended on state lands in August 2018 by Governor Murphy's Executive Order
No. 34 "to evaluate the feasibility of exclusively using non-lethal measures" and
"maintain the population in a manner that is protective of the public's safety ."
Under the 2015 CBBMP, the hunt continued on private lands during the
designated segments through 2020.
A-1019-22 7 In March 2021, three months prior to the 2015 CBBMP's expiration date,
the Council considered a new CBBMP (2021 CBBMP), which recommended a
black bear hunt through formal rulemaking under the APA. For reasons that are
unclear from the record, the proposed 2021 CBBMP was not adopted at that
time.
Later that year, however, during its regular meeting held on September
14, 2021, the Council voted to advance an emergency rule and concurrent
proposal to adopt the 2021 CBBMP, as updated, to address the state's black bear
population management. Chairman Virgilio noted "the [C]ouncil was not at
odds with the policy" espoused by "the Governor and Commissioner[']s Office."
The Council cited unspecified "data, the best available science, the lack of an
approved CBBMP and bear hunt" and an ongoing concern for public safety in
support of the emergency rule.
The record is unclear, but either Governor Murphy or Commissioner
LaTourette did not concur with the Council's finding of imminent peril . Because
the Council was unable to proceed with emergency rulemaking, the black bear
hunt did not occur in 2021. See N.J.S.A. 52:14B-4(c) (requiring both the agency
and the governor to concur in the finding of imminent peril).
A-1019-22 8 II.
The November 15, 2022 Emergency Rulemaking
With that recent history in view, we consider the emergency rulemaking
at issue. In a November 10, 2022 notice posted on its website, the Council stated
its intention to consider measures to reintroduce the black bear hunt during its
regular meeting, which was scheduled five days later on November 15.
Describing a growing black bear population despite the agency's non-lethal
efforts to manage the population following the 2018 suspension of the hunt on
state lands, the Council advised public safety required "immediate action." The
Council thus announced its intention to effectuate a hunt through emergency
rulemaking, including the adoption of the 2022 CBBMP and related Game Code
amendments. Copies of these proposals were neither contained in, nor attached
to, the notice. By adopting the 2022 CBBMP via emergency rulemaking, the
condition precedent for a hunt would be satisfied, enabling the Council to
schedule a hunt from December 5 to December 10, 2022, under the Game Code's
Segment B. See N.J.S.A. 7:25-5.6(a). The public was invited to offer comments
in person.
During the Council's November 15, 2022 meeting, Assistant DEP
Commissioner David Golden reported the closure of state lands to bear hunting
A-1019-22 9 under Governor Murphy's 2018 Executive Order No. 34 caused a reduction in
harvest rates and an increase in the bear population. Despite the utilization of
non-lethal methods, there existed a "high level" of human-bear interactions due
to the growing bear population. According to Golden, "the updated scientific
literature" indicated there were no reasonable fertility control techniques for
black bears and the Council's "population reconstruction model" projected the
state's black bear population would increase to approximately 4,000 by 2024.
Opining "the more bears you have, the more likely you're setting yourselves up
for a potentially dangerous bear-human interaction," Golden concluded "there
was a situation of imminent peril in New Jersey right now."
Golden acknowledged that other than "some minor editorial changes," the
proposed 2022 CBBMP was "the same" as the rejected 2021 CBBMP. Both
CBBMPs shared "all of the objectives, all of the figures, and really, most of the
content, but for some minor editorial changes." Those changes included the
revision of the date of the 2021 CBBMP to reflect the current year.
Citing "[t]he need for a new CBBMP that include[d] lethal management
as part of the range of measures available to the Council," the emergency
rulemaking proposal listed statistics regarding black bear encounters with other
animals and humans, and damage caused to property. To support the proposal,
A-1019-22 10 the Council cited, among other reasons: damage reports that reflected a 237%
increase in bear damage and nuisance reports from January 2022 to October
2022; the death of a young man in 2014 "during an aggressive interaction with
a bear on public open space"; the failure of the DEP's non-lethal management
techniques during the two prior years; the detrimental impact on agriculture; and
the need for "a regulated hunt in December 2022 to offset population increases
expected in the spring of 2023," when the bears ceased hibernating.
The emergency rulemaking proposal included amendments to the Game
Code, N.J.A.C. 7:25-5.6. Those amendments set forth restrictions on harvesting
small cubs weighing less than seventy-five pounds and harvesting adult bears
accompanying such cubs. The amendments also prohibited the taking of black
bears within 300 feet of a baited area.
The proposed 2022 CBBMP provided an extensive summary of the status
and history of black bears in New Jersey, noting 3,158 black bears inhabited the
state in 2020 and the hunt has been a viable tool for managing the black bear
population since 1980. The 2022 CBBMP thus recommended a hunt to manage
the black bear population on public lands.
Golden summarized the recommendations for emergency rulemaking,
including the proposed 2022 CBBMP and its recommendation for a hunt, and
A-1019-22 11 the amendments to the Game Code, with promulgation as both an emergency
rule and concurrent rulemaking proposal.3 Following discussion among the
Council members, at least thirty-eight members of the public provided
comments. Those members included appellants Metler and Frega on behalf of
APLNJ. At the conclusion of the meeting, the Council voted to approve the
2022 CBBMP and the amendments to the Game Code, each as emergency rules
and concurrent rulemaking proposals.
Absent from the transcript of the November 15 meeting is any indication
the Council considered or approved an explicit statement of imminent peril.
Instead, after the vote, Golden indicated the Council's staff "will work on" the
proposal, and the "required signatures" would be obtained "as quickly as
possible." Notably, however, the transcript of the September 14, 2021 meeting
reflects the Council adopted a statement of imminent peril during that meeting.
3 The concurrent rulemaking proposal was subject to the non-emergency notice and comment requirements of the APA, N.J.S.A. 52:14B-4(a). Pursuant to N.J.A.C. 1:30-6.5(d), an agency may prepare a "concurrent notice of proposal" to continue the provisions of an emergency rule beyond the statutory sixty-day period of emergency, subject to the formal rulemaking requirements set forth in the APA. On September 7, 2023, the 2022 CBBMP and amendments to the Game Code rule were adopted pursuant to formal rulemaking by the Council and published in the New Jersey Register on October 2, 2023. 55 N.J.R. 2056(a) (Oct. 2, 2023). That rulemaking is not at issue on this appeal.
A-1019-22 12 Later that same day, Chairman Virgilio signed a "Statement of Imminent
Peril to the Public Health, Safety, and Welfare Mandating Adoption of
Amendments to the Game Code and Adoption of the Comprehensive Black Bear
Management Policy." The Statement recited the growth in the black bear
population and the resulting increased number of damage and nuisance reports,
as described in Golden's presentation. The Statement outlined the non-lethal
management methods Golden described and concluded the state's black bear
population continued to grow despite those efforts.
According to the Statement, a regulated hunting season would reduce the
number of bears in the state, concomitantly reducing the likelihood of life-
threatening human-bear interactions. Thus, the immediate action to implement
a December hunt was the only reasonable way to limit the population growth
before the next cycle of propagation in early 2023. The Statement concluded an
imminent peril existed to the safety, health, and welfare of the citizens of this
state, justifying the adoption of the 2022 CBBMP and amendments to the Game
Code as emergency regulations pursuant to N.J.S.A. 52:14B-4(c). Later the
same day, Commissioner LaTourette executed an administrative order
confirming the hunt could occur on state lands.
A-1019-22 13 Governor Murphy, in turn, issued a "Certification of Imminent Peril,"
concurring with the Council's finding of imminent peril and authorizing the
emergency adoption of the rule. Also on November 15, Governor Murphy
issued Executive Order No. 310, rescinding Executive Order No. 34, thus
permitting the hunt on state lands.
Thereafter, the emergency rule and concurrent proposal were filed with
the Office of Administrative Law. They were published in the New Jersey
Register on December 5, 2022. 54 N.J.R. 2205(a) (Dec. 5, 2022).
III.
The APA's Formal and Emergency Rulemaking Requirements
Against that procedural posture, we turn to the APA's formal and
emergency rulemaking requirements. Administrative agencies possess wide
latitude in selecting the appropriate procedures to effectuate their regulatory
duties and statutory goals. See Metromedia, Inc. v. Dir., Div. of
Tax'n, 97 N.J. 313, 333 (1984). However, this flexibility does not permit an
agency to ignore the APA's requirements for proposing and issuing regulations.
See St. Barnabas Med. Ctr. v. N.J. Hosp. Rate Setting Comm'n, 250 N.J. Super.
132, 142 (App. Div. 1991); see also Metromedia, 97 N.J. at 334 (recognizing an
agency's discretion in selecting a suitable procedure to achieve its regulatory
A-1019-22 14 arm is not unlimited). A rule not adopted in "substantial compliance" with the
requirements of the APA is invalid. N.J.S.A. 52:14B-4(d).
Public participation in agency rulemaking is the APA's "primary goal."
See Bd. of Educ. of City of Plainfield v. Cooperman, 209 N.J. Super. 174, 202
(App. Div. 1986). Formal rulemaking allows the agency to "further the policy
goals of legislation by developing coherent and rational codes of conduct 'so
those concerned may know in advance all the rules of the game, so to speak, and
may act with reasonable assurance.'" Gen. Assembly of N.J. v. Byrne, 90 N.J.
376, 385-86 (1982) (quoting Boller Beverages, Inc. v. Davis, 38 N.J. 138, 152
(1962)). "The purpose of the APA rulemaking procedures is 'to give those
affected by the proposed rule an opportunity to participate in the process, both
to ensure fairness and also to inform regulators of consequences which they may
not have anticipated.'" In re Provision of Basic Generation Serv., 205 N.J. 339,
349 (2011) (quoting In re Adoption of 2003 Low Income Hous. Tax Credit
Qualified Allocation Plan, 369 N.J. Super. 2, 43 (App. Div. 2004)).
Under the APA's procedures for formal rulemaking, an agency must meet
certain requirements before it may adopt, amend, or repeal a rule. See Shapiro
v. Albanese, 194 N.J. Super. 418, 431 (App. Div. 1984). Those requirements
include: affording the public at least thirty days' notice of the proposed change;
A-1019-22 15 publicly distributing a summary of the proposed rule; giving interested parties
at least thirty days to submit written and oral comments; reviewing the public
comments; conducting a public hearing on the proposed rule under certain
circumstances; providing fifteen days' notice prior to the hearing; and preparing
a summary of comments received for public distribution. N.J.S.A. 52:14B-4(a).
By contrast, emergency rulemaking is subject to more stringent
requirements as set forth in N.J.S.A. 52:14B-4(c):
If an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule upon fewer than 30 days' notice and states in writing its reasons for that finding, and the Governor concurs in writing that an imminent peril exists, the agency may proceed to adopt the rule without prior notice or hearing, or upon any abbreviated notice and hearing that it finds practicable. The agency shall publish, on its Internet website, a summary of any rule adopted pursuant to this subsection, and the statement of reasons for the agency's finding that an imminent peril exists. Any rule adopted pursuant to this subsection shall be effective for a period of not more than 60 days, unless each house of the Legislature passes a resolution concurring in its extension for a period of not more than 60 additional days. The rule shall not be effective for more than 120 days unless repromulgated in accordance with normal rule-making procedures.
See also N.J.A.C. 1:30-6.5 (codifying the specific procedures for emergency
rulemaking).
A-1019-22 16 Our standard of review of an agency's rulemaking under the APA is well
settled. "Courts afford an agency 'great deference' in reviewing its
'interpretation of statutes within its scope of authority and its adoption of rules
implementing' the laws for which it is responsible." N.J. Ass'n of Sch. Adm'rs
v. Schundler, 211 N.J. 535, 549 (2012) (quoting N.J. Soc'y for Prevention of
Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 385 (2008)). This
deference "stems from the recognition that agencies have the specialized
expertise necessary to enact regulations dealing with technical matters and are
'particularly well equipped to read and understand the massive documents and
to evaluate the factual and technical issues that . . . rulemaking would invite.'"
N.J. State League of Muns. v. Dep't of Cmty. Affs., 158 N.J. 211, 222 (1999)
(quoting Bergen Pines Cnty. Hosp. v. N.J. Dep't of Hum. Servs., 96 N.J. 456,
474 (1984)); see also In re Election L. Enf't Comm'n Advisory Op. No. 01-2008,
201 N.J. 254, 262 (2010). Thus, an agency's regulations are presumed "valid
and reasonable." N.J. Soc'y for Prevention of Cruelty to Animals, 196 N.J. at
385.
We may not, however, abdicate our "function to assure that agency
rulemaking conforms with basic tenets of due process, and provides standards
to guide both the regulator and the regulated." Id. at 386 (quoting Lower Main
A-1019-22 17 St. Assocs. v. N.J. Hous. & Mortg. Fin. Agency, 114 N.J. 226, 236 (1989)). In
assessing a regulation's validity, we therefore must consider whether the
administrative agency complied with the APA's provisions "and due process
requirements." In re Provision of Basic Generation Serv., 205 N.J. at 347. We
are "in no way bound by an agency's interpretation of a statute or its
determination of a strictly legal issue," in particular "when 'that interpretation is
inaccurate or contrary to legislative objectives.'" Russo v. Bd. of Trs., Police &
Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (quoting Mayflower Sec. Co. v.
Bureau of Sec., 64 N.J. 85, 93 (1973)). We therefore "apply de novo review to
an agency's interpretation of a statute or case law." Ibid. (quoting Toll Bros. v.
Twp. of Windsor, 173 N.J. 502, 549 (2002)).
"In reviewing administrative adjudications, an appellate court must
undertake a 'careful and principled consideration of the agency record and
findings.'" In re Adoption of Amends. to N.E., Upper Raritan, Sussex Cnty.,
435 N.J. Super. 571, 584 (App. Div. 2014) (quoting Riverside Gen. Hosp. v.
N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985)). If our "review of
the record leads us to conclude that the agency's finding is clearly erroneous, the
decision is not entitled to judicial deference and must be set aside." Ibid.
A-1019-22 18 On appeal, the judicial role in reviewing all administrative action is
generally limited to three inquiries:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Allstars Auto. Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157 (2018) (quoting In re Stallworth, 208 N.J. 182, 194 (2011)).]
The party challenging an administrative regulation has the burden of proving the
regulation is either invalid because the agency failed to substantially comply
with the APA or is otherwise "arbitrary, capricious, or unreasonable." See N.J.
State League of Muns., 158 N.J. at 222. See also Bergen Pines Cnty. Hosp., 96
N.J. at 477 ("The burden is on the plaintiff to overcome the[] presumptions" of
"validity and reasonableness").
IV.
Failure to Comply with the APA, N.J.S.A. 52:14B-4(c)
In the first point of their merits brief, appellants argue the emergency
rulemaking was invalid because the Council had ongoing knowledge of the
increased bear population well before respondents' decision to promulgate
A-1019-22 19 emergency rulemaking for the 2022 hunt. Appellants assert the Council
generally recognized a need for a hunt in March 2021, when it considered but
failed to adopt the 2021 CBBMP and – at the very latest – the Council's
numerical data showed a statistical increase in human-bear interactions
beginning in January 2022. Under either time frame, appellants assert there was
no need to adopt emergency rulemaking on fewer than thirty days' notice,
without the formal notice and comment period set forth in N.J.S.A. 52:14B-4(a).
Appellants emphasize the emergency rulemaking in the present matter must be
invalidated because the APA's emergency rulemaking procedures do not permit
an agency to delay action "to manufacture an emergency." Relatedly, although
without citation to caselaw, appellants claim the emergency rulemaking was
invalid because there was no imminent peril to the public health, safety, or
welfare as required under N.J.S.A. 52:14B-4(c).
Respondents counter that appellants' foreseeability-of-the-harm argument
is misplaced. Citing our decision in Matter of Assignment of Producers to
Travelers Group, 261 N.J. Super. 292, 303 (App. Div. 1993), respondents argue
because the circumstances here supported their finding of imminent peril, the
emergency rule cannot be invalidated "just because [they] could have approved
it sooner." Thus, they contend appellants' reliance on non-binding precedent
A-1019-22 20 from other jurisdictions on this issue is non-persuasive. Respondents also assert
their action was consistent with "a careful and incremental" attempt to address
the increasing population with non-lethal methods, which "was not static, but
worsened as 2022 progressed." Arguing "the Council's finding of imminent
peril and the Governor's concurrence were amply supported by scientific data
and other substantial credible evidence in the record," respondents urge us to
defer to their decision.
New Jersey courts have addressed emergency rulemaking under the APA.
See, e.g., Del. Bay Waterman's Ass'n of N.J. v. N.J. Dep't of Env't Prot., 153
N.J. 345 (1998); County of Hudson v. State, Dep't of L. & Pub. Safety, 328 N.J.
Super. 308 (App. Div. 2000). However, the parties have not cited, nor has our
research revealed, any New Jersey authority that has squarely considered
whether an agency improperly delayed action before promulgating emergency
rulemaking under the APA. Nor are we convinced that this court's decision in
Travelers supports respondents' argument.
The genesis of the emergency rulemaking in Travelers was the expiration
of the Market Transition Facility (MTF), an "interim mechanism" created by the
Fair Automobile Insurance Reform Act of 1990, N.J.S.A. 17:33B-1 to -64
(FAIRA) to enable poor risk consumers to purchase car insurance. 261 N.J. at
A-1019-22 21 296-97. To further its "take all comers" scheme, FAIRA mandated replacement
of the MTF, prior to its 1992 expiration, by "a producer assignment program"
established by the Commissioner of Insurance (COI). Id. at 298-99. Although
published for notice and comment by the COI in 1991, the proposed rules were
not adopted, which was "at least partly attributable to the ongoing evolution" o f
the program. Id. at 299 (emphasis added). Thereafter, the COI enacted a
September 1992 emergency rule implementing the program, accompanied by a
statement of imminent peril. Id. at 300.
The insurers challenged the emergency rulemaking, asserting it was
necessitated by the COI's delay in failing to address the expiring MTF. Id. at
302. Judge Pressler, writing for this court, rejected the argument. Id. at 303.
The court was satisfied that before the emergency rule was enacted, the COI
"had been making extensive efforts to promulgate a plan that would be fair and
reasonable in terms of all the competing interests involved." Id. at 303.
Concluding "the insurers t[ook] too narrow a view of the scope of a remediable
emergency," the court held "it is not a necessary component of an 'emergency'
that it be sudden or unforeseen." Ibid. (quoting Worthington v. Fauver, 88 N.J.
183, 195 (1982)).
A-1019-22 22 Unlike the COI's "extensive efforts" to address the issue before resorting
to emergency rulemaking, which we found acceptable in Travelers, the agencies
in the present matter were well aware of the increasing bear problem since at
least as early as March 2021, when they proposed the 2021 CBBMP.
Notwithstanding respondents' argument that the bear problem "worsened as
2022 progressed," the record demonstrates respondents proposed the 2022
CBBMP without any substantive changes from the 2021 CBBMP. Because both
CBBMPs reflected the same objectives, figures, and recommendations for a hunt
– other than "some minor editorial changes" – the substantial similarities
between the two CBBMPs undercut respondents' position that their delay in
proposing emergency rulemaking was attributable to their "incremental steps"
approach to address the bear issue.
Given the absence of New Jersey authority addressing agency delay under
the APA's emergency rulemaking provision, appellants urge us to consider
federal caselaw interpreting emergency rulemaking requirements under the
Federal Administrative Procedure Act (Federal APA), 5 U.S.C. §§ 551 to 559.
Under the Federal APA, "[t]he required publication or service of a substantive
rule shall be made not less than 30 days before its effective date, except . . . as
otherwise provided by the agency for good cause found and published with the
A-1019-22 23 rule." 5 U.S.C. § 553(d)(3). A federal "[a]gency must overcome a high bar if it
seeks to invoke the good cause exception to bypass the notice and comment
requirement." United States v. Valverde, 628 F.3d 1159, 1164 (9th Cir. 2010).
Significantly, the Federal APA's good cause requirement "cannot arise as
a result of the agency's own delay." Nat. Res. Def. Council v. Nat'l Highway
Traffic Safety Admin., 894 F.3d 95, 114 (2d. Cir. 2018). Otherwise, "an agency
unwilling to provide notice or an opportunity to comment could simply wait
until the eve of a statutory, judicial, or administrative deadline, then raise up the
'good cause' banner and promulgate rules without following [Federal] APA
procedures." Id. at 114-15 (quoting Council of S. Mtns. v. Donovan, 653 F.2d
573, 581 (D.C. Cir. 1981)); see also Regeneron Pharms., Inc. v. U.S. Dep't of
Health & Hum. Servs., 510 F. Supp. 3d. 29, 47, 50-51 (S.D.N.Y. 2020) (issuing
an injunction that barred the implementation of an emergency rule where the
agency had been "aware of [the] problem for years and [had nonetheless] failed
to act"); Wash. All. of Tech. Workers v. U.S. Dep't of Homeland Sec., 202 F.
Supp. 3d 20, 27 (D.D.C. 2016) (invalidating emergency rulemaking where the
agency had "long planned" to take the action).
Although we are not bound by the federal authority cited, we are
persuaded the reasoning underscoring these decisions applies when an agency
A-1019-22 24 unreasonably delays emergency rulemaking. The federal "good cause" standard
for emergency rulemaking, explicitly stated in 5 U.S.C. § 553(d)(3), is not unlike
the imminent peril requirement under N.J.S.A. 52:14B-4(c). Not surprisingly,
federal courts have recognized an "imminent threat to public safety" provides a
sufficient basis for emergency action under the Act. Valverde, 628 F.3d 1159,
1165.
New Jersey courts have allowed emergency rulemaking based on
imminent peril in certain circumstances. See Del. Bay, 153 N.J. at 347 (finding
mootness but nonetheless sanctioning an earlier finding of imminent peril to
address a shortage of horseshoe crab eggs, which threatened a species of
shorebirds); see also County of Hudson, 328 N.J. Super. at 316 (approving a
finding of imminent peril in jail overcrowding which would cause "operational
instability, and have a negative effect upon the safety and security of staff, the
juveniles, and the public").
Even were we to assume a legitimate peril existed from increased human-
bear interactions during 2022, the Council's failure to timely act belies any
assertion of imminence, particularly because there was sufficient time for formal
rulemaking after the nearly identical 2021 CBBMP was not adopted by
emergency rulemaking. Again, the 2022 CBBMP was substantively unchanged
A-1019-22 25 from the rejected 2021 CBBMP. Neither CBBMP included new tools to
accomplish the Council's goal of bear population management nor factors for
consideration to achieve that goal.
Moreover, respondents' contentions are undercut by the Council's
statistics. According to the Bureau of Wildlife Management's monthly reports
from January 2022 to October 2022, the bear population increased substantially
from corresponding months during 2021. As one notable example, according to
the March 2022 monthly report: "As of March 21, 2022, the total number of
calls received increased 204.2 percent from the same time period in 2021.
Category I incidents increased 800.0 percent, Category II calls increased 640.0
percent and Category III calls had a 50.0 percent increase from 2021."4
Based on our review of the record, there was no peril that was not known
prior to the November 15, 2022 emergency rulemaking. We therefore conclude
the Council's finding of imminent peril was clearly erroneous. Relatedly, there
was no need to enact the 2022 CBBMP on fewer than thirty days' notice. At the
4 According to an excerpt of the 2005 CBBMP provided in appellants' appendix: "Category I black bears are those exhibiting behavior that is an immediate threat to human safety or which cause agricultural damage to farmland"; "Category II black bears are nuisance bears which are not a threat to life and property"; and "Category III bears are animals that are exhibiting normal behavior and are not creating a threat to the safety of the public or a nuisance." A-1019-22 26 latest, the Council had confirming information of a marked increase in the black
bear population in early 2022 but did not consider a revised bear management
plan until November 2022. Moreover, the 2022 CBBMP relied on the same data
as the 2021 CBBMP. The lack of immediate response thus undermines the
Council's assertion of imminence.
****
In conclusion, we recognize the 2022 black bear hunt, authorized under
the invalid emergency rulemaking, has come and gone – and the resulting
"harvesting" of black bears during that hunting season cannot be undone. We
understand the 2022 CBBMP and amendments to the Game Code rule were
recently adopted pursuant to formal rulemaking. Nonetheless, the judicial
history of the black bear hunt in this state is a clear indication that the issues
decided on appeal concern matters of public interest. See Reilly, 194 N.J. at
484. Indeed, the very essence of appellants' argument is that the emergency
rulemaking deprived the public the opportunity of meaningful notice and
comment and the opportunity to present expert testimony in response to Golden's
presentation. See Cooperman, 209 N.J. Super. at 202. We therefore cannot
defer to respondents' emergency rulemaking here, regardless of the rule's
expiration. See In re Provision of Basic Generation Serv., 205 N.J. at 347.
A-1019-22 27 Reversed.
A-1019-22 28