Animal Protection League of New Jersey v. New Jersey Fish and Game Council

NOT FOR PUBLICATION WITHOUT THE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);

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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.
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 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

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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

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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

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"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.

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 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).

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 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

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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,

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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

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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.

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 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.

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 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

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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;

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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).

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 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

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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.

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 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

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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

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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

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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)).

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 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

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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

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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

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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."
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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.

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Reversed.

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