By JEFF SISTRUNK
TRENTON -- The fate of this year's black bear hunt is now in the hands of a three-judge appeals panel.
An attorney for a pair of animal protection groups argued Tuesday before an appeals court in Trenton for the cancellation of this year's planned six-day black bear hunt, which is slated to begin Monday, on the grounds that the state Department of Environmental Protection's 2010 Comprehensive Black Bear Management Policy is flawed. The groups also want the policy declared invalid.
Meanwhile, attorneys for the DEP and a state sportsman's organization sought to discredit the groups' arguments.
A decision is expected before the first day of the hunt. An appeal to the state Supreme Court is possible.
"A bear hunt can't take place without a proper management policy, and a flawed policy can't be allowed to stand even on an interim basis," said Doris Lin, the animal protection groups' attorney, during her presentation to the appeals court.
The appellants, the Animal Protection League of New Jersey and the Bear Education Resource Group, failed to stop last year's hunt in court, but a judge allowed the lawsuit to continue. A total of 592 bears were taken during the 2010 hunt.
Chief among Lin's allegations was that the DEP presented misleading or inaccurate data to provide grounds for the hunt, which the agency includes in its bear management policy with the stated purpose of controlling and protecting New Jersey's bear population. Among other things, Lin said, the DEP gathered bear complaint reports from many more police departments in 2009 than in 2007, which greatly inflated the number of complaints. The number of bear complaints reported by the state rose in the years from 2007 to 2009, but Lin said that's because data was being collected from 32 police departments in 2009 but just 17 departments two years earlier.
"The department has acknowledged that it has drawn from more police departments than in the past," said Deputy Attorney General Dean Jablonski, who represented the DEP. "That is part of an effort to obtain the best data possible."
On rebuttal, Lin acknowledged Jablonski's remark but said that "what the council can't do is compare the new data to the old data."
The estimated bear population increased significantly in the years following the 2005 bear hunt, Lin said, which would indicate the hunt is an ineffective population control method.
"The department's data does show a dramatic increase in the bear population," Jablonski said. "That is the reason a regular hunt needs to be part of the Comprehensive Black Bear Management Policy."
Bears have been spotted in 19 of 21 counties this year. The DEP has recorded 2,667 reports of bear activity through October, a number that includes bear sightings, attacks on livestock, 46 home entries and 516 reports of bears picking through garbage.
Lin raised concerns that pregnant bears are not protected in the hunt and said the DEP has been inconsistent in its statements on the issue.
Jablonski said the number of pregnant females taken in past hunts has been minimal. However, he said, the safety of such bears is not guaranteed.
"The department has not represented that all pregnant bears will be protected," he said.
Lin also accused the DEP of violating the Administrative Procedure Act, the law that governs how administrative agencies formulate regulations, by disregarding many concerns brought by the public. About 9,000 public comments were submitted to the DEP prior to the agency's finalization of the 2010 bear management policy.
"The DEP provided disingenuous answers, responses to many public comments," Lin said. For example, she said, one commenter expressed concern that bear complaints may go up because of the DEP's educational efforts. That comment did not receive a response, Lin said.
Jablonski replied that "the disagreement of commenters with the policy does not make the agency's responses disingenuous," adding that agencies need not reply to each individual comment.
Judge Philip Carchman pointed out that the appellants' argument was that certain comments were not addressed at all.
"The agency responded to each substantive argument raised," Jablonski said.
Anna Seidman, attorney for the New Jersey State Federation of Sportman's Clubs Inc., an intervening party in the case, said the animal protection groups' accusations that the DEP's policy is scientifically flawed and that the department violated the Administrative Procedure Act are secondary to the groups' philosophical opposition to hunting.
"People who don't understand hunting -- like the bear groups -- can't comprehend that any activity involving the taking of wildlife can be an effective game species management tool," Seidman said. "They don't understand that hunters are interested in preserving wildlife populations."
Carchman implied that the appeals panel was unconcerned with any matters of philosophy.
"Can we take the hunting element out of it, and look at the appellants' arguments to determine whether the agency had sufficient grounds to implement the plan?" Carchman said in a rhetorical fashion.
"I think then you have to make an assessment as to whether the data supported the bear management policy," Seidman said.
The hunt is held concurrently with the firearm deer season. Bear hunting is allowed in the northwestern part of the state, north of Interstate 78 and west of Interstate 287.
Besides a hunt, the Comprehensive Black Bear Management Policy developed by the Division of Fish and Wildlife includes education, a bear feeding ban and aversive conditioning.
The New Jersey Sierra Club is also opposed to the hunt, with the main reason being if New Jersey put in place a strong Bear Management Plan instead of the proposed plan a hunt would not have to take place, said Jeff Tittel, Sierra Club director. Created: 11/29/2011 | Updated: 11/30/2011