                                 NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0525-18T4

NEW JERSEY OUTDOOR
ALLIANCE, SAFARI CLUB
INTERNATIONAL, and
SPORTSMEN'S ALLIANCE
FOUNDATION,

          Appellants,

v.

NEW JERSEY DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
and CATHERINE R. McCABE,
Commissioner of the New Jersey
Department of Environmental Protection,
in her official capacity,

     Respondents.
______________________________________

                   Argued telephonically November 7, 2018 – Decided November 16, 2018

                   Before Judges Sabatino, Haas and Mitterhoff.

                   On appeal from the New Jersey Department of
                   Environmental Protection.

                   James H. Lister (Birch Horton Bittner & Cherot) of the
                   Alaska and District of Columbia bars, admitted pro hac
            vice, argued the cause for appellants (Law Offices of
            John C. Lane, Van Dalen Brower, LLC, and James H.
            Lister, attorneys; Peter Caccamo-Bobchin and John M.
            Van Dalen, of counsel and on the joint brief; Anna M.
            Seidman, of the District of Columbia bar, admitted pro
            hac vice, Douglas S. Burdin, of the District of Columbia
            bar, admitted pro hac vice, and James H. Lister, on the
            joint brief).

            Jung W. Kim, Deputy Attorney General, argued the
            cause for respondents (Gurbir S. Grewal, Attorney
            General, attorney; Jason W. Rockwell, Assistant
            Attorney General, of counsel; Jung W. Kim, on the
            brief).

            Doris K. Lin argued the cause for amicus curiae Animal
            Protection League of New Jersey.

PER CURIAM

      This accelerated appeal represents the latest chapter of the recurring

controversy over the hunting of black bears in New Jersey.

      The present case involves the executive branch's closure of State lands 1 to

the bear hunt. Currently, bear hunts are conducted in accordance with the 2015

Comprehensive Black Bear Management Policy ("CBBMP"). The first phase of

the 2018 hunt was completed in early October and the second phase is scheduled

to begin very soon on December 3.


1
   For simplicity, we use the term "State lands" to refer more precisely to the
particular lands designated in the administrative order that has been challenged
in this appeal.
                                                                          A-0525-18T4
                                        2
        For the reasons that follow, we deny appellants' emergent request to

invalidate and enjoin the closure of State lands for the hunt's second phase. We

reject appellants' contention that the closure requires the adoption of regulatory

rules, because, as settled precedent has held, a closure such as this involves the

State's proprietary interests and not the State's role as a regulator. We also reject

appellants' claim that the closure must be halted in this private civil action

because of federal law.

        Nevertheless, we remand this matter pursuant to Rule 2:5-5(b) for the

development of a suitable plenary record and fact-finding in the Office of

Administrative Law ("OAL"). That neutral quasi-judicial forum shall address

the hotly-disputed and fact-dependent claims that the closure is arbitrary and

capricious, conflicts with the scientific underpinnings of the CBBMP, and

imperils public safety. In the meantime, we are unpersuaded appellants have

met their considerable burden of demonstrating they are entitled to injunctive

relief nullifying the State's restrictions on the imminent second phase of the 2018

hunt.

                                         I.

        The hunting of black bears has frequently been the subject of litigation in

our courts. Several units of State Government have a role in the development


                                                                             A-0525-18T4
                                         3
of plans for a seasonal bear hunt. When it occurs, the hunt typically is held in

the fall before the bears hibernate for the cold weather.

      Subject to the approval of the Commissioner of the Department of

Environmental Protection ("DEP"), the State Fish and Game Council 2

("Council") is empowered to "formulate comprehensive policies for the

protection and propagation of fish, birds, and game animals," "for the

propagation and distribution of food fish," and "for the keeping up of the supply

thereof in the waters to the State."     N.J.S.A. 13:1B-28.     Pursuant to that

delegated authority, the Council has periodically adopted a CBBMP, most

recently in 2015.3



2
  The Fish and Game Council is composed of eleven members, appointed by the
Governor with Senate advice and consent. N.J.S.A. 13:1B-24. The applicable
statute prescribes that three members of the Council must be farmers, six must
be sportsmen, one must be "knowledgeable in land use management and soil
conservation practices," and one member "shall be the chair[person] of the
committee established pursuant to section 7 of the 'Endangered and Nongame
Species Conservation Act [N.J.S.A. 23:2A-7(e)].'" Ibid.
3
  Part B of this court has a long-pending appeal by the Animal Protection League
of New Jersey ("the League") and others, challenging the validity of the 2015
CBBMP. See League of Humane Voters of N.J. v. N.J. Dep't of Envtl. Prot.,
No. A-4630-15 (App. Div. argued Nov. 9, 2018). That appeal was argued before
Part B, as had been previously scheduled, on November 9, 2018. We instructed
counsel to omit from their briefing in this accelerated appeal before Part A legal
arguments concerning the validity of the 2015 CBBMP, since they are presently
before Part B.
                                                                          A-0525-18T4
                                        4
      Over the past decades, the Supreme Court and this court have issued

several opinions addressing challenges to previous actions of the Commissioner

and Council regarding black bear hunting. Sometimes those challenges have

been mounted by animal rights groups and individuals opposed to bear hunting;

at other times the litigation, as here, has been brought by sporting groups and

persons who partake in or otherwise support such hunting. See, e.g., U.S.

Sportsmen's All. Found. v. N.J. Dept. of Envtl. Prot., 182 N.J. 461, 476 (2005)

(holding that the Council's "ability to authorize a bear hunt is subject to the

statutory condition precedent of the [DEP] Commissioner's earlier approval of

the very comprehensive policies governing the propagation of black bears");

Animal Prot. League of N.J. v. N.J. Dep't of Envtl. Prot., 423 N.J. Super. 549

(App. Div. 2011) (upholding the validity of the 2010 CBBMP); N.J. Animal

Rights All. v. N.J. Dep't of Envtl. Prot., 396 N.J. Super. 358 (App. Div. 2007)

(invalidating the 2005 CBBMP and affirming the Commissioner's subsequent

failure to implement a policy); Safari Club Int'l v. N.J. Dep't of Envtl. Prot., 373

N.J. Super. 515 (App. Div. 2004) (upholding the Commissioner's order to close

all lands "owned, managed or controlled" by DEP to black bear hunting).

      As the result of decisions by State Government and the impact of judicial

opinions, bear hunts recently have been conducted in some years and not in


                                                                            A-0525-18T4
                                         5
others. In 2003, the Council authorized the first bear hunt since 1970, in

response to reports of bears interacting with people and property.         U.S.

Sportsmen's All. Found. v. N.J. Dep't of Envtl. Prot., 372 N.J. Super. 598, 600

(App. Div. 2004). That 2003 hunt resulted in the harvest of 328 bears. Ibid.

No hunt was conducted in 2004. N.J.A.C. 7:25-5.6 App. The hunt was resumed

in 2005, yielding a harvest of 298. 42 N.J.R. 753(a) (Apr. 19, 2010). No hunts

took place in 2006, 2007, 2008, or 2009. N.J.A.C. 7:25-5.6 App. Hunts again

took place in 2010, 2011, 2012, 2013, 2014, 2015, 2016, and 2017, yielding

fluctuating harvests for those respective years of 592, 469, 287, 253, 273, 510,

636, and 409 bears.

      The current CBBMP was approved, after public notice and comment, by

then-Commissioner of the DEP, Bob Martin, and adopted as an Appendix to

N.J.A.C. 7:25-5.6 effective on November 16, 2015 (operative on November 21,

2015). 47 N.J.R. 2753(c) (Nov. 16, 2015). The 2015 CBBMP expires on June

12, 2021. Ibid. Among other things, the 2015 amendment to the regulation

prescribes the bear hunt season to consist of two six-day segments, one in

October and one in December. N.J.A.C. 7:25-5.6(a); 47 N.J.R. 929(a), 933 (May

18, 2015).   The second hunting segment was initiated to "allow for more

consistent harvests, with essentially all bears available for hunting and with


                                                                        A-0525-18T4
                                       6
fewer complications due to weather events." 47 N.J.R. at 930. The regulations

also address the timing of the closure of the hunt. If the rate of harvest reaches

thirty percent,4 the hunting season concludes.            N.J.A.C. 7:25-5.6(a).

Conversely, if the harvest rate at the end of the December segment is below

twenty percent, the hunt will be extended for an additional four consecutive

days. N.J.A.C. 7:25-5.6(b). As of 2015, hunters are allowed to purchase two

permits, but can only harvest one bear per bear management zone. N.J.A.C.

7:25-5.6(a)(1), (2); see 47 N.J.R. at 939. The boundaries of the hunting zones

were changed in 2015, and a new zone was created. N.J.A.C. 7:25-5.6(a)(3); 47

N.J.R. at 934-35. The number of permits for sale was increased from 10,000 to

11,000, and the lottery to determine who would receive a permit was eliminated.

N.J.A.C. 7:25-5.6(a)(1); 47 N.J.R. at 934.

      The present litigation arises out of actions taken in August 2018 by the

Executive Branch, first by the Governor and then by the DEP Commissioner,

both of whom were sworn into office earlier this year.


4
  The harvest rate is a calculation equaling "the number of harvested bears that
were tagged in the current calendar year within bear management zones
(["]BMZs["]) open to hunting divided by the number of bears that were tagged
in the current calendar year that are available for harvest (total number of bears
tagged in the current year within BMZs open to hunting minus known mortality
of such tagged bears and number of such tagged bears known to have left the
BMZs that are open to hunting)." N.J.A.C. 7:25-5.6(a).
                                                                          A-0525-18T4
                                        7
     On August 20, 2018, Governor Philip D. Murphy issued Executive Order

34 ("EO 34"). Executive Order No. 34 (Aug. 20, 2018), 50 N.J.R. 2039(a) (Oct.

1, 2018). The Executive Order declares:

                 WHEREAS, New Jersey is home to abundant and
           diverse wildlife, including many threatened and
           endangered species and species that are critical to the
           State’s varied ecosystems; and

                 WHEREAS, among those species is the
           American black bear (Ursus americanus), which is
           found primarily in the northern part of the State but has
           been sighted statewide; and

                 WHEREAS, the State of New Jersey, through the
           Department of Environmental Protection ("DEP") and
           its predecessors, has long authorized hunting and
           trapping of certain species in New Jersey for several
           purposes,    including    recreation  and    wildlife
           management; and

                 WHEREAS, there has been considerable debate
           over the last several decades as to whether New Jersey
           should authorize a black bear hunt; and

                 WHEREAS, in 2010, despite considerable public
           outcry against a hunt, the New Jersey Fish and Game
           Council (the "Council) published a Comprehensive
           Black Bear Management Plan ("CBBMP") which
           recommended the reintroduction of a black bear hunt to
           take place every year in December; and

                 WHEREAS, the Council also promulgated
           regulations through the New Jersey Game Code
           authorizing and setting forth the parameters of a black
           bear hunt to take place beginning in 2010; and

                                                                       A-0525-18T4
                                      8
      WHEREAS, a new CBBMP was finalized in
2015 that continued the recommendation to permit a
black bear hunt; and

      WHEREAS, as a result of the 2010 and 2015
CBBMPs and corresponding authorizations in the
Game Code, a black bear hunt has been held in New
Jersey for the past eight years; and

      WHEREAS, the Council has refused to
reconsider its authorization of a black bear hunt for
2018 despite a clear call to action by the Governor; and

      WHEREAS, in light of the significant opposition
to the black bear hunt and continuing debate about
techniques for management of the black bear
population, and in an effort to promote public safety on
public lands, it is appropriate to limit the use of State
lands for the black bear hunt; and

       WHEREAS, the intent of this Order is to exercise
the full extent of the legal authority of the Governor and
the Commissioner of Environmental Protection
("Commissioner") to limit the black bear hunt in order
to promote the public safety and welfare while
protecting important wildlife; and

      WHEREAS, the authority over the black bear
hunt rests with the Council and several court decisions
have made it clear that neither the Governor nor the
Commissioner have the authority to unilaterally alter or
cancel the black bear hunt; and

       WHEREAS, while neither the Governor nor the
Commissioner can unilaterally prevent a black bear
hunt, the Commissioner has clear authority to direct and
coordinate the use of all public lands under DEP’s


                                                             A-0525-18T4
                            9
           jurisdiction, including instituting a ban on hunting on
           said lands;

                 NOW, THEREFORE, I, PHILIP D. MURPHY,
           Governor of the State of New Jersey, by virtue of the
           authority vested in me by the Constitution and the
           Statutes of this State, do hereby ORDER and DIRECT:

                  1. The Commissioner shall take all necessary and
           appropriate actions within the Commissioner’s
           authority to protect black bears on lands controlled by
           the State of New Jersey, including deciding whether to
           close said lands to the hunting of black bears pursuant
           to the Commissioner’s authority at N.J.S.A. 13:1B-5 et
           seq., as clarified and confirmed in Safari Club
           International v. New Jersey Department of
           Environmental Protection, 373 N.J. Super. 515 (App.
           Div. 2004).

                 2. This Order shall take effect immediately.

           [50 N.J.R. at 2039(a).]

     Following the issuance of EO 34, Catherine R. McCabe, the present

Commissioner of the DEP, issued on August 30, 2018 Administrative Order

2018-24 ("AO 2018-24"). AO 2018-24 states:

                  WHEREAS, on August 20, 2018, Governor
           Murphy issued [EO 34] to exercise the full extent of the
           legal authority of the Governor and the Commissioner
           of the Department of Environmental Protection to limit
           the hunting of American black bear (Ursus americanus)
           within the State in order both to promote the public
           safety and welfare and protect an important wildlife
           species that provides an overall benefit to the citizens
           of this State; and

                                                                      A-0525-18T4
                                     10
      WHEREAS, EO 34 directs me, as Commissioner,
to take all necessary and appropriate actions within my
authority to protect black bears on lands controlled by
the State of New Jersey; and

       WHEREAS, N.J.S.A. 13:1B-5 authorizes me to
exercise the State's propriety authority to direct and
coordinate the uses of all public lands under the
jurisdiction of the Department, including all State
forests, parks, recreation areas, historic sites, natural
areas, and wildlife management areas; and

       WHEREAS, in Safari Club International v. New
Jersey Department of Environmental Protection, 373
N.J. Super. 515 (App. Div. 2004), the Appellate
Division affirmed the Department's authority to close
all or any portion of its lands to hunting and to allow
hunting of only certain species; and

      WHEREAS, the exclusion of Department lands
from black bear hunting will allow for the limited
protection of the black bear population in New Jersey
while the Department continues to focus its resources
on pursuing, developing, and increasing its alternative
control methods and evaluating its policies,
recommendations, and regulations related to black bear
management on its lands, and is in the best interest of
balancing conservation, recreation, preservation, and
management of these lands at this time.

       NOW THEREFORE, I, Catherine R. McCabe,
Commissioner, pursuant to the authority vested in me
under N.J.S.A. 13:1B-5, hereby ORDER and DIRECT
that all lands owned, managed or otherwise controlled
by the Department, including, but not limited to, all
State forests, parks, recreation areas, historic sites,
natural areas, and wildlife management areas, are
closed to the hunting of black bears.

                                                            A-0525-18T4
                          11
            This Order shall take effect immediately and shall
            continue in effect until revoked or amended in writing
            by me.

      No one pursued any legal action during the month of September 2018 to

challenge AO 2018-24. The first phase of the bear hunt went forward, as had

been scheduled and publicly announced, during the week of October 8, 2018,

with no bear hunting allowed on State lands. That October segment resulted in

the harvest of 140 bears.

      On October 4, 2018, appellants New Jersey Outdoor Alliance, Safari Club

International, and the Sportsmen's Alliance Foundation filed the present appeal,

challenging the validity of AO 2018-24.      Shortly after filing their appeal,

appellants sought a stay of the AO 2018-24 from the DEP.              The DEP

Commissioner denied the stay request on October 17, expressing her reasons i n

a detailed written decision. Appellants then sought, on October 18, to file an

emergent application accelerating this appeal, desirous of obtaining an

expedited judicial ruling on the validity of AO 2018-24 and the closure decision

before the second phase of the 2018 hunt, which will begin on December 3.

Despite the circumstance that the asserted emergency, to some extent, was self-

created by appellants' own failure to take legal action or seek emergent relief

sooner, we granted the application to accelerate the appeal, over the State's


                                                                        A-0525-18T4
                                      12
objection. We did so in light of the public interest involved, and the potential

benefits of providing judicial guidance before the December 3 hunt takes place.

We also permitted the League, on short notice, to participate as an amicus.

      This court issued an accelerated and compressed briefing schedule, and

promptly heard oral argument, enabling a decision to be issued before the

upcoming Thanksgiving holiday and court recess, and recognizing that one or

more dissatisfied parties would likely seek immediate review of our ruling by

the Supreme Court. 5 The parties have expressed a desire to receive a final

decision on the merits of this appeal in advance of the December 3 hunt. That

goal has been achieved by the issuance of this expedited opinion.

      On appeal, appellants present the following three arguments: (1) the

closure of State lands to the bear hunt is arbitrary and capricious because it is

impermissibly based on a political campaign promise, contrary to science, and

materially conflicts with and undermines the 2015 CBBMP; (2) AO 2018-24

comprises an administrative "rule" and must be reversed because the DEP did

not first conduct public comment as prescribed by the Administrative Procedure

Act ("APA"), N.J.S.A. 52:14B-4, and by Metromedia, Inc. v. Director, Division


5
  We express our appreciation to all counsel for their cooperative efforts and
courtesies in supplying this court with helpful briefs and appendices in
accordance with the expedited schedule and page limitations.
                                                                         A-0525-18T4
                                      13
of Taxation, 97 N.J. 313, 331-32 (1984); and (3) AO 2018-34 usurps federal law

under the Pittman-Robertson Wildlife Restoration Act ("P-R Act"), 16 U.S.C. §

669-669k, which assigns such authority singularly to the DEP's Division of Fish

and Wildlife ("DFW"), and arbitrarily and capriciously fails to consider the

impropriety of a partial diversion of federal grant funds used for state wildlife

restoration lands. We now address these three arguments, in rearranged order.

                                        A.

      We first consider appellants' claim that AO 2018-24 and its prohibition of

bear hunting on State lands violates federal law, specifically the P-R Act, 16

U.S.C. § 669-669k. We readily reject that argument because appellants have no

established right to bring a private cause of action against the State under this

federal law.

      Enacted in 1937, the P-R Act establishes a federal funding program for

state wildlife restoration projects. "[T]he intent of the P-R Act is to insure that

state fish and wildlife agencies spend state license fee revenues on the

administration of the state fish and wildlife agencies if the state participates in

P-R funding." Sportsmen's Wildlife Def. Fund v. U.S. Dep't of Interior, 40 F.

Supp. 2d 1192, 1199 (D. Colo. 1999). Accordingly, "no money apportioned" by

the program "to any State shall be expended therein until" the State has


                                                                           A-0525-18T4
                                       14
"assented" to the provisions of the P-R Act, and has "passed laws for the

conservation of wildlife which shall include a prohibition against the diversion

of license fees paid by hunters for any other purpose than the administration of

said State fish and game department." 16 U.S.C. § 669. In 1938, New Jersey

assented to the P-R Act through a statutory enactment, and authorized wildlife

restoration projects in compliance with the P-R Act. N.J.S.A. 23:12-1.

      Appellants contend the promulgation of AO 2018-24 violates the P-R Act

in two ways: by removing management and control away from the "designated"

state agency, which appellants contend is the DFW, and by diverting lands from

their intended purpose by disallowing recreational bear hunting on those lands.

In support of those claims, appellants point to correspondence between the DEP

and the United States Fish and Wildlife Service ("USFWS"), in which the

federal agency advised the DFW to review grant documents in order to ensure

federal grant moneys for wildlife restoration were not being misapplied as the

result of EO 34. The State denies any such misuse, and essentially maintains

that nothing in the P-R Act requires a bear hunt to proceed on the wildlife

management areas. The State also argues that the DFW is an administrative

agency housed within the DEP, and that it is entirely lawful for the DEP




                                                                         A-0525-18T4
                                      15
Commissioner to issue an administrative order affecting the functions of one of

the Department's internal units.

      Even before reaching the merits of these arguments, however, we must

consider a threshold procedural and jurisdictional issue: whether private parties

such as appellants may compel the enforcement of the P-R Act against a State

and its officials in state court litigation in which the United States Government

is not a party. Stated differently, is there a private right of action under the P-R

Act? Appellants fail to show such a right exists.

      "The question of the existence of a statutory cause of action is, of course,

one of statutory construction." Touche Ross & Co. v. Redington, 442 U.S. 560,

568 (1979) (citations omitted). In Cort v. Ash, 422 U.S. 66, 78 (1975), the

United States Supreme Court set forth the following factors to be considered

when determining the existence of a private cause of action to enforce a statute:

(1) whether the plaintiff is part of the class Congress intended to benefit when

enacting the statute; (2) whether there exists evidence of legislative intent to

create or deny such a remedy; (3) whether inferring a private cause of action is

consistent with the underlying purposes of the legislation; and (4) whether the

cause of action is one traditionally relegated to state law.




                                                                            A-0525-18T4
                                        16
      In Touche Ross, the Supreme Court partially overruled Cort, holding that

the four factors are not all of equal weight. 442 U.S. at 575. The Court clarified

that, when determining whether a statutory scheme creates a private right of

action, the central inquiry is "whether Congress intended to create, either

expressly or by implication, a private cause of action." Ibid. The Court has

since reinforced this holding – that the lodestar of the analysis is Congressional

intent – on several occasions.6

      The P-R Act contains no express provision creating a private cause of

action to enforce its terms. Hence, we only need to consider whether Congress

intended to create such a private cause of action under the P-R Act by

implication. No such intention may be fairly inferred from the statutory scheme.

If anything, the inherent structure of the statute and associated federal

regulations point strongly to the contrary.



6
   See, e.g., Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (statutory intent
is "determinative" as to the existence of a cause of action premised on a statute);
Suter v. Artist M., 503 U.S. 347, 364 (1992) ("The most important inquiry here
. . . is whether Congress intended to create the private remedy sought by the
plaintiffs."); Karahalios v. Nat'l Fed'n of Fed. Emp.'s, Local 1263, 489 U.S. 527,
532 (1989) (holding the "ultimate issue is whether Congress intended to create
a private cause of action" (quoting California v. Sierra Club, 451 U.S. 287, 293
(1981))); Thompson v. Thompson, 484 U.S. 174, 179 (1988) ("In determining
whether to infer a private cause of action from a federal statute, our focal point
is Congress' intent in enacting the statute.").
                                                                           A-0525-18T4
                                       17
      The P-R Act does not proscribe any conduct as unlawful. It does not

expressly create or recognize any rights for individuals or private organizations.

Rather, the regulations adopted under the P-R Act provide that a state is

ineligible to receive funds if it "[f]ails materially to comply with any law,

regulation, or term of a grant as it relates to acceptance and use of [P-R] funds[.]"

50 C.F.R. § 80.11(a) (2018). The regulations also provide the Director of the

USFWS with discretion to declare whether a state is in "diversion" of P-R Act

funds, which is defined as "any use of revenue from hunting and fishing licenses

for a purpose other than administration of the State fish and wildlife agency."

50 C.F.R. §§ 80.2; 80.21 (2018).

      If the Director of the USFWS withholds federal funding, a state has the

opportunity to "resolve" the diversion issue in order to continue receiving

federal funds. 50 C.F.R. § 80.21; Sportsmen's Wildlife Def. Fund v. Romer, 73

F. Supp. 2d 1262, 1264 (D. Colo. 1999) (noting the state's "right to cure" a

diversion). The regulations contain detailed procedures and standards for how

states can resolve such diversion issues. 50 C.F.R. §§ 80.22; 80.135 (2018). If

the USFWS finds a state agency allowed a use of its P-R-funded property that

interferes with the property's authorized purpose, the state agency has a

reasonable time, up to three years, after notification of diversion status to either


                                                                             A-0525-18T4
                                        18
restore the property or acquire replacement property. 50 C.F.R. § 80.135(f)

(2018).

      The fact that Congress omitted any private cause of action from the P-R

Act – but created a discretionary remedy for the federal government to withhold

monies for states in diversion – strongly militates against any inference that

Congress intended for private individuals or organizations to enforce the P-R

Act against state agencies in state court. See Sandoval, 532 U.S. at 290 ("The

express provision of one method of enforcing a substantive rule suggests that

Congress intended to preclude others."). Allowing such a private cause of action

to proceed in state court would interfere with the federal enforcement

mechanisms set forth in the P-R Act and its implementing regulations. That

heavily weighs against appellants' claim that Congress intended to create a

private cause of action. 7

      In Illinois State Rifle Association v. Illinois, 717 F. Supp. 634, 634-35

(N.D. Ill. 1989), the plaintiffs sued the State of Illinois in federal court, alleging


7
  See Piscitelli v. Classic Residence by Hyatt, 408 N.J. Super. 83, 104-5 (App.
Div. 2009) (finding no private right of action to enforce provision of
Immigration Reform and Control Act of 1986 because the statute vested the
United States Attorney General with enforcement authority and did not
expressly create private cause of action); Wisniewski v. Rodale, Inc., 510 F.3d
294, 305 (3d Cir. 2007) (observing that, "agency enforcement creates a strong
presumption against implied private rights of action that must be overcome").
                                                                              A-0525-18T4
                                        19
violations of the P-R Act. They challenged the alleged diversion of P-R funds

to the Division of Natural Heritage, the purchase of a Frank Lloyd Wright home,

and the funding of a ranch. Id. at 636. The district court recognized that the P-

R Act created no express cause of action, and thus analyzed whether the statute

did so impliedly. Id. at 637. The court reasoned that the P-R Act's sole statutory

sanction – withholding federal funds – "strongly suggests that a nonstatutory

remedy such as a private enforcement action does not exist." Id. at 638. The

court therefore concluded that the P-R Act did not create a private cause of

action. Ibid. The court's reasoning in Illinois State is sound.

      To be sure, a private individual or organization may challenge decisions

or inaction by the USFWS in federal court under the federal Administrative

Procedure Act, 5 U.S.C. § 702. See, e.g., Scarborough Citizens Protecting Res.

v. U.S. Fish & Wildlife Serv., 674 F.3d 97, 99 (1st Cir. 2012); Sierra Club v.

U.S. Fish & Wildlife Serv., 235 F. Supp. 2d 1109, 1136 (D. Or. 2002); Sierra

Club v. U.S. Fish & Wildlife Serv., 189 F. Supp. 2d 684, 691 (W.D. Mich. 2002);

Sportsmen's Wildlife Def. Fund v. Romer, 29 F. Supp. 2d 1199, 1211 (D. Colo.

1998). However, appellants' reliance upon these cases brought against the

USFWS is misplaced, because the decisions either expressly recognize that the

P-R Act creates no private right to enforce, or fail to question that notion.


                                                                          A-0525-18T4
                                       20
Compare Sierra Club, 189 F. Supp. 2d at 691, with Sportsmen's Wildlife Def.

Fund, 29 F. Supp. 2d at 1211.

      The P-R Act grants discretionary enforcement authority to the USFWS,

which issues decisions reviewable under the federal APA like any other federal

agency to which that statute applies. Thus, it makes sense for federal courts to

review the USFWS's compliance with the P-R Act when appropriate. The

federal precedents do not support the existence of a private cause of action for

an individual or private organization to seek enforcement of the P-R Act in state

court against a state agency.

      As an alternative argument, appellants rely upon 42 U.S.C. § 1983, which

provides a cause of action for the "deprivation of any rights, privileges, or

immunities secured by the Constitution" of the United States and federal

statutes. Wilder v. Va. Hospital Assoc., 496 U.S. 498, 508 (1990). At least one

federal district court has recognized that individuals may assert § 1983 claims

against state officials acting in their official capacities premised upon the state

officials alleged P-R Act violations. Sportsmen's Wildlife Def. Fund v. U.S.

Dep't of the Interior, 949 F. Supp. 1510, 1517-19 (D. Colo. 1996). Notably, the

United States Government was a party in that Colorado federal case.




                                                                           A-0525-18T4
                                       21
      Here, appellants do not assert any constitutional rights, and the present

litigation was not brought pursuant to § 1983. They instead seek to enforce the

technical and funding-related provisions of the P-R Act against the State in the

context of an administrative appeal, a litigation neither brought by or against the

United States Government. They have no such private right of action, express

or implied.

      Accordingly, we must deny relief to appellants under the P-R Act. The

funding questions remain a matter between the State and the USFWS, which has

not made a finding that the closure of State lands to bear hunting has, in fact,

diverted federal grant funds.

                                        B.

      We next consider appellants' contention that the administrative order's

closure of State lands for the ongoing bear hunt is procedurally invalid because

that order was issued without advance public notice and comment and formal

rulemaking under the APA, N.J.S.A. 52:14B-4. This argument fails because

settled precedent establishes that such a closure is a proprietary, rather than a

regulatory, action.

      The controlling precedent is Safari Club International v. New Jersey

Department of Environmental Protection, 373 N.J. Super. 515 (App. Div. 2004),


                                                                           A-0525-18T4
                                       22
an opinion cited and relied upon in EO 34, AO 2018-24, and Commissioner

McCabe's denial of appellants' application for an emergent stay. In Safari Club,

this court upheld the DEP Commissioner's notice closing all State lands under

the DEP's jurisdiction to bear hunting. Id. at 520-21. The appellants in that

case, sporting organizations who wanted access to State lands for bear hunting,

challenged the Commissioner's action.         Id. at 517.    They argued the

Commissioner "lacks the statutory authority to close [State] lands under his

control to bear hunting." Ibid. They further argued that the Commissioner's

action was arbitrary and capricious. Ibid. This court, in a scholarly opinion by

Judge Skillman, rejected these arguments and affirmed the Commissioner's

closure decision. Id. at 520-21.

      As Judge Skillman explained in Safari Club, the Legislature has delegated

"proprietary authority over" State lands to the Commissioner. Id. at 519. As

such, "while the [Fish and Game] Council has authority to determine whether

the territorial limits of a hunt will include State lands under the DEP's

jurisdiction, the Commissioner has ultimate authority to determine whether to

open those lands to hunting."      Ibid.   This "proprietary authority" is "the

proprietary authority of any private or public landowner to determine whether

to allow hunting on its land." Ibid. As Judge Skillman noted, that proprietary


                                                                        A-0525-18T4
                                      23
authority over State lands circumscribes the Council's regulatory functions with

respect to hunting rules and regulations. Id. at 520.

      In particular, N.J.S.A. 13:1B-5(a) declares "the [DEP] [C]ommissioner

shall have authority to direct and coordinate the uses of all public lands under

the jurisdiction of the department." Other statutory provisions recognize the

Commissioner's ability to control State lands. For example, N.J.S.A. 13:1B-

15.101(a) states that "[t]he [D]ivision [of Parks and Forestry] shall, under the

direction and supervision of the [C]ommissioner: (a) [d]evelop, improve,

protect, manage and administer all State forests, State parks, State recreation

areas, State historic sites, and State natural areas, excepting those regulated by

interstate compact." (emphasis added). In addition, multiple portions of the

DEP's regulations recognize the State's proprietary authority over State lands.

See, e.g., N.J.A.C. 7:2-2.2, -2.3, and -2.18. For instance, N.J.A.C. 7:2-2.18

prescribes that "[a] person shall not hunt, fish and/or trap, except on specifically

designated lands and waters of the State Park Service." Further, N.J.A.C. 7:25-

2.26 provides:

            Nothing contained in N.J.A.C. 7:25-2 shall preclude the
            Division from limiting, or closing from, public use any
            specific land and water areas under its control, effective
            immediately upon making the finding that prevailing
            conditions warrant such restriction to protect the users,
            or to protect and preserve the land and water areas, or

                                                                            A-0525-18T4
                                        24
             both, and continuing for so long as such conditions
             warrant.

             [(Emphasis added).]

      Safari Club makes clear that a Commissioner's authority to close State

lands to bear hunting is fundamentally a proprietary decision, and not a

regulatory action. The opinion does not state or suggest that a Commissioner

must engage in administrative rulemaking in making such a proprietary

determination.

      As an important caveat, Safari Club does caution that "[t]he

Commissioner's exercise of his [or her] authority to control the uses of State

parks, forests and recreation areas, like any other authority delegated to an

administrative official, may not be exercised arbitrarily or capriciously." 373

N.J. Super. at 521. Hence, "if it could be shown that bears pose a serious threat

to public safety and that hunting on [S]tate lands must be allowed to combat this

threat, the Commissioner's closure of [S]tate lands to bear hunting could be

found to be arbitrary and capricious." Ibid. Judge Skillman noted the appellants

in Safari Club "have not undertaken to demonstrate that there is any public safety

or other vital public interest that requires State lands to be open to bear hunting."

Ibid. (emphasis added). Based on the record, the panel unanimously concluded

that the appellants had not met their burden to show that the Commissioner's

                                                                             A-0525-18T4
                                        25
notice closing all lands owned, managed or controlled by the DEP to bear

hunting was either arbitrary or capricious.8 Ibid.

      The logic of Judge Skillman's analysis – classifying as proprietary in

nature a decision to close State lands to bear hunting – exempts the DEP from

conducting formal rulemaking procedures under the APA as a precondition of

the State exercising its rights over those lands as a property owner. Therefore,

AO 2018-24 is not an "administrative rule" that must be enacted through the

elaborate procedures for agencies to adopt regulations spelled out in the APA.

See N.J.S.A. 52:14B-2 (defining an "administrative rule").

      If we were to adopt appellants' contrary argument, the State conceivably

would need to pursue formal rulemaking, including public notice and comment,

whenever it chose to make periodic decisions to close portions of State lands for

repairs, renovations, maintenance, or public safety reasons. We recognize that,

in a general sense, the State in such circumstances is arguably "regulating" what

persons may do or not do on State lands, but that aspect must yield to the

dominant inherent proprietary nature of the Commissioner's actions.

Accordingly, the requirements of the APA and the multi-factor analysis under


8
  We address, infra, in Part II(C) of this opinion, the present appellants'
arguments that the current closure of State lands to bear hunting is arbitrary and
capricious.
                                                                          A-0525-18T4
                                       26
Metromedia, 97 N.J. at 331-32, used for generally determining when formal

rules are required for an agency's regulatory actions, have no bearing on this

case.9

         Nor would formal rulemaking be necessary if, hypothetically, the State

chose in the future to reopen some or all of State lands to bear hunting. The

State has the flexibility and prerogative to make that decision, so long as it is

not shown to be arbitrary or capricious. 10

         Appellants stress that in Humane Society of the United States, New Jersey

Branch, Inc. v. Guido, 173 N.J. Super. 223, 233 (App. Div. 1980), an opinion

this court issued twenty-four years before Safari Club, the panel instructed that,

in the future, public notice-and-comment procedures should be followed

(although without specifying that administrative rules were necessary) before


9
  Appellants' counsel have advised us that they have ascertained that the briefs
in the Safari Club appeal from 2004 did not contain any arguments about an
alleged need for APA rulemaking or the Metromedia standards. Although we
appreciate counsel's diligence, their research is inconsequential because of the
analytic force of the court's "proprietary authority" holding in Safari Club. The
State is acting as a landowner, not as a regulator, when it decides to open or
close State lands to certain hunting activities.
10
   Even if rulemaking were legally required, the Executive Branch would still
have residual powers to bypass the usual APA procedures upon a gubernatorial
declaration of emergency under the Civilian Defense and Disaster Control Act,
N.J.S.A. App. A:9-30 to -63, or via emergency rulemaking under N.J.S.A.
52:14B-4(c), neither of which was invoked here.
                                                                          A-0525-18T4
                                        27
the State takes action similar to that taken in Guido, namely implementing a one-

day deer hunt in a state park. The panel in Guido observed that the DFW

Director's action opening the park to hunters for one-day deer hunt "may not fit

precisely into the statutory definition of an 'administrative rule,'" because it was

not generally applicable or of continuing effect. Ibid. However, the court noted

the one-day hunt was a departure from longstanding policy or practice

prohibiting hunting in High Point Park, and "had the potential to change in a

substantial way, at least temporarily, the use and enjoyment of the park by the

general public." Id. at 233-34.

      We recognize why appellants have cited Guido, but find that opinion is

not dispositive under current law. This court's supervening opinion in Safari

Club adopted a proprietary authority principle that now controls the legal

analysis. To be sure, nothing prevents the Commissioner, as a matter of public

administration and public relations, from choosing to hold public hearings or to

invite public notice and written comment before closing or opening portions of

State lands to bear hunting. 11 But that option is not mandated by the now-


11
    We recall in this regard Judge Stern's observations in N.J. Animal Rights
Alliance, 396 N.J. Super. at 372-73 n.3, that "Bear management is a topic that
sparks widespread disagreement and strong public sentiments. The need to give
the public sufficient notice of the terms of a proposed bear management policy,


                                                                            A-0525-18T4
                                        28
controlling precedent of Safari Club classifying such decisions as proprietary

rather than regulatory.

         We therefore reject appellants' procedural argument that AO 2018-24

must be declared invalid for lack of rulemaking.

                                         C.

         We lastly turn to appellants' contention that AO 2018-24 is arbitrary and

capricious, and, therefore, the DEP Commissioner's decision, even if it is

deemed proprietary, must be nullified and consequently we should direct the

DEP to allow the December segment of the bear hunt to take place on State

lands.

         In approaching this issue, we reiterate the admonition of Safari Club,

namely that "[t]he Commissioner's exercise of his [or her] authority to control

the uses of State parks, forests and recreation uses, like any other authority

delegated to an administrative official, may not be exercised arbitrarily or

capriciously." Id. at 521. As we have already noted, Judge Skillman mentioned

examples in Safari Club of what might demonstrate such arbitrary and capricious



and to respond fully to comments received from citizen objectors and advocates
alike, is particularly salient here." Those perceptive comments, however, were
made in the context of a case involving the validity of a CBBMP as a regulatory
document, and not the distinguishable context of the State's proprietary closure
decision that is challenged in the present appeal.
                                                                          A-0525-18T4
                                        29
State action, such as proof "that bears pose a serious threat to public safety and

that hunting on [S]tate lands must be allowed to combat this threat," or that

"there is any public safety or other vital public interest that requires State lands

to be open to bear hunting." Ibid.

      Appellants claim they have demonstrated such a showing of a "vital public

interest" requiring the resumption of a seasonal bear hunt on State lands. They

assert the DEP lacks empirical or other evidential support for AO 2018-24, and

the closure conflicts with the underpinnings of the 2015 CBBMP. Appellants

further argue the closure was ordered solely for political reasons in order to

fulfill a campaign promise. The DEP and the amicus disagree. They argue in

opposition that AO 2018-24 is not arbitrary or capricious, but instead is a

reasonable exercise of the State's proprietary authority over State lands.

      As we evaluate these contentions, we must abide by general principles

governing the standards of appellate review of decisions by administrative

agencies. We recognize the "final determination of an administrative agency

. . . is entitled to substantial deference." In re Eastwick Coll. LPN–to RN Bridge

Program, 225 N.J. 533, 541 (2016). "A strong presumption of reasonableness

must be accorded [to an] agency's exercise of its statutorily delegated duties."

In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 380


                                                                             A-0525-18T4
                                        30
(App. Div. 1997). Generally, our courts will not overturn an administrative

action "unless there is a clear showing that it is arbitrary, capricious, or

unreasonable, or that it lacks fair support in the record." J.B. v. N.J. State Parole

Bd., 229 N.J. 21, 43 (2017) (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)).

"The burden of demonstrating that the agency's action was arbitrary, capricious

or unreasonable rests upon the [party] challenging the administrative action."

Lavezzi v. State, 219 N.J. 163, 171 (2014) (alteration in original) (quoting In re

J.S., 431 N.J. Super. 321, 329 (App. Div. 2013)).

      In their effort to prove that the closure order is arbitrary and capricious,

appellants particularly emphasize a January 4, 2018 status report from the DFW

addressing the implementation of the 2015 CBBMP. 12 In its final passage, the

status report concludes as follows:

                    DFW's active, integrated bear management
             strategy is effective and essential for maintaining bears
             at a density that provides for a sustainable population
             within suitable bear habitat, minimizes human-bear
             conflicts and reduces emigration of bears to unsuitable
             habitat in suburban and urban areas. The black bear
             population in New Jersey is beginning to stabilize at a
             level that DFW believes is consistent with the cultural

12
    At oral argument, the State's counsel indicated that she is unaware of the
genesis of the status report, and whether, for example, it was a report scheduled
for issuance under some policy or routine procedure. In any event, the status
report preceded the new administration taking office, and we presume it may
have been generated in part to be informative for the incoming Commissioner.
                                                                             A-0525-18T4
                                        31
               carrying capacity for this species in the state. No one
               management tool is responsible for the successes
               demonstrated by implementing the CBBMP. Continued
               management using all the tools provided in the CBBMP
               is critical to maximize public safety, minimize bear-
               related damages, and maintain a healthy black bear
               population. Without continuation of population
               management by regulated sport hunting, NJ’s black
               bear population will double in five years.

         Appellants argue that AO 2018-24 conflicts with the January 2018 status

report's findings about the continued need to include seasonal bear hunting as

one of the vital "tools" in managing the bear population in this State. They point

out that, over the past several years, about forty percent of the bears harvested

in the fall hunt were encountered on State lands. They argue that disallowing

the hunt on such a substantial portion of State lands materially undermines the

integrated plan set forth in the 2015 CBBMP, and that there is no evidence in

the record that would justify such a territorial limitation. Appellants also note

that the harvest from the first phase of this year's hunt in October 2018 declined

by 43% from the October 2017 first phase.

         In response, the State and amicus contend that the closure order represents

a reasonable exercise of the Commissioner's proprietary authority over State

lands.     They dispute that appellants have demonstrated that the current

population of black bears in New Jersey "pose[s] a serious threat to public safety


                                                                            A-0525-18T4
                                         32
and that hunting on [S]tate lands must be allowed to combat this threat[.]" Safari

Club, 373 N.J. Super. at 521. The State and amicus also dispute that, despite

the alleged inconvenience and loss of recreational opportunity to persons who

would like to hunt on State lands, appellants have not shown, and cannot prove,

that "public safety or other vital public interest[s] . . . require State lands to be

open to bear hunting." Ibid.

      Among other things, the State asserts the drop in the October 2018 harvest

as compared with the October 2017 figure may be accounted for by many

variables other than the closure order, such as weather and the number of bears

and hunters with permits. The record shows the harvest rate figures have tended

to be inherently volatile from year to year. The State further emphasizes that

hunters with licenses are not precluded by AO 2018-24 from hunting on the

large tracts of private lands and other properties not owned or controlled by the

State. In addition, the State points out that the December 2018 segment of the

hunt may be extended by several days if harvest goals are not met.

      We have duly considered appellants' arguments, and the competing

contentions of the State and the amicus.         Our review is impeded by the

circumstance that there is no well-developed factual record by which we can




                                                                             A-0525-18T4
                                        33
make an informed ultimate plenary determination as to whether the closure of

State lands to the hunt is arbitrary and capricious.

      The record supplied to us is not definitive in several respects. The parties

and amicus dispute a number of fact-laden matters. The fact that about 40% of

the bears in past harvests were apprehended on State lands does not necessarily

mean that figure will translate into a 40% drop-off of the final 2018 harvest,

given the mobility of bears, as well as the mobility of hunters, who may prefer

to hunt on State lands, but might still seek out bears on other properties. The

empirical impact of the closure on the black bear population is debatable and

unclear, as no past hunts took place with that major restriction. Further, to the

extent the closure order depends on the probative value of scientific findings

and expert opinion, we lack any credibility determinations or fact-finding by a

neutral tribunal.

      Rule 2:5-5(b) authorizes a method for developing a suitable record in such

circumstances. It provides:

            At any time during the pendency of an appeal from a
            state administrative agency, if it appears that evidence
            unadduced in the proceedings below may be material to
            the issues on appeal, the appellate court, on its own
            motion or on the motion of any party, may order, on
            such terms as it deems appropriate, that the record on
            appeal be supplemented by the taking of additional
            evidence and the making of findings of fact thereon by

                                                                          A-0525-18T4
                                       34
            the agency below or, in exceptional instances, by a
            judge of the Superior Court especially designated for
            that purpose.

            [R. 2:5-5(b).]

Through the mechanism of this Rule, our appellate courts "retain[] the

discretion, in an appropriate case . . . to refer [a contested agency action] to the

Law Division or to the agency for such additional fact-finding as it deems

necessary to a just outcome."      Infinity Broad. Corp. v. N.J. Meadowlands

Comm'n, 187 N.J. 212, 227 (2006).

      Notably, the Supreme Court invoked Rule 2:5-5(b) earlier this year in

American Civil Liberties Union of New Jersey v. Hendricks, 233 N.J. 181, 185

(2018), a case involving a challenge to a final decision of the State Secretary of

Higher Education ("Secretary"). In American Civil Liberties Union of New

Jersey, the Supreme Court concluded that "[a] remand is necessary to allow for

the development of a proper record, with fact-finding" as "[a]dversarial testing

of the evidence in support of the parties' presentations is required here." Ibid.

As the Court noted, "[i]t is imperative that [the] issues be more fully developed

below, through the crucible of an adversarial process . . . ." Ibid. Accordingly,

the Court remanded the case to the Secretary so that a "contested case

proceeding" could be conducted. Ibid.; see also In re Mountain Ridge State


                                                                            A-0525-18T4
                                        35
Bank, 244 N.J. Super. 115, 118-19 (App. Div. 1990) (remanding an appeal under

R. 2:5-5(b) to the Commissioner of Banking and directing that there be a hearing

in the OAL).

      In like manner, we choose to remand this matter to the Commissioner with

instructions that there be a contested case proceeding before the OAL, in order

to develop the record and address the hotly-disputed, fact-laden disputes over

whether AO 2018-24 has reasonable evidential support and is not arbitrary and

capricious. R. 2:5-5(b). At such a quasi-judicial hearing, an Administrative

Law Judge ("ALJ") can hear the testimony of competing fact and expert

witnesses, and make appropriate credibility assessments and findings of fact.

The pertinent data, and the scientific reliability of that data, including the most

recent data from the October and December phases of the 2018 hunt, could be

analyzed and dissected in that forum through the adversarial process. See In re

Accutane Litig., 234 N.J. 340, 382 (2018) (underscoring the importance in civil

matters of relying on scientific evidence that is shown to be reliable). 13 The


13
    We cite In re Accutane Litigation for illustrative purposes only, and do not
rule that the Supreme Court's holdings concerning the admissibility of scientific
evidence under N.J.R.E. 702 govern the admissibility in administrative
litigation, where the Rules of Evidence are relaxed. Rather, we mention In re
Accutane Litigation solely with regard to weighing the probative value of
scientific or expert opinions, such as, for example, affording greater weight to


                                                                           A-0525-18T4
                                       36
parties could also present empirical evidence as to whether the omission of State

lands from the hunt substantially undercuts the efficacy of the CBBMP.

      The case shall not be litigated in the OAL on summary decision, but rather

by the presentment of testimonial and documentary proof, "through the crucible

of an adversarial process," Am. Civil Liberties Union of N.J., 233 N.J. at 201.

The parties are free, of course, to stipulate to any uncontested facts.

      After an ALJ renders his or her written decision on remand, any aggrieved

party may file exceptions with the Commissioner.         We do not presume in

advance which party or parties maybe dissatisfied with the ALJ's findings. Upon

receipt of those findings, the Commissioner shall issue a final agency decision,

with the benefit of those findings.

      That said, the Commissioner is free at any time to revise, modify, or

rescind AO 2018-24, as she may find appropriate in the public interest and

consistent with the law and the State's proprietary authority over State lands ,

provided her decision is not arbitrary and capricious and has adequate support.

For instance, the data generated from the October 2018 and December 2018

hunts, as compared with past hunts, may provide an independent basis for the




peer-reviewed scientific literature over studies that are not peer-reviewed. See
234 N.J. at 398-99.
                                                                          A-0525-18T4
                                       37
Commissioner to decide to extend, modify, or rescind AO 2018-24. We do not

wish the pendency of OAL proceedings to hinder the Commissioner's flexibility

in responding to new data and additional information and experience.

      Following the Commissioner's final decision, a new appeal may be

pursued in this court. Again, we do not presume which party or parties will be

dissatisfied with the outcome. The key point is that the parties and the public

would all have more than the scant and rather inconclusive record that presently

exists.

      In remanding this case pursuant to Rule 2:5-5(b), we by no means suggest

that we do so as a matter of routine. Administrative appeals still will be suitable

for appellate review without an OAL proceeding. Nor should our remand be

construed to suggest the State must undertake the burden of defending its day -

to-day proprietary decisions in the OAL. We respect the constitutional

prerogatives of the Executive Branch, and do not intend to foist an undue burden

on the routine workings of government. 14 The present case is distinctive from


14
   As a side point, we note there is nothing nefarious or illegal about a new
administration taking authorized executive actions to attain policy objectives
that were the subject of a political campaign, so long as those decisions
otherwise comport with the law and are not arbitrary and capricious. Hence,
even if EO 34 and AO 2018-24 implement public policies concerning bear
hunting that are consistent with positions taken during a political campaign, that


                                                                           A-0525-18T4
                                       38
said routine contexts in the likely material impact that the closure of hundreds

of thousands of acres of State lands may have on the scientific and policy

underpinnings of the CBBMP.

      We now turn to the time-sensitive question of whether, as appellants

request, we should immediately nullify AO 2018-24 and order that State lands

must be available for the upcoming December phase of the hunt. This request

to nullify, or at least stay, the administrative order implicates the standards for

injunctive relief. Similar if not identical considerations pertain, whether we

view appellants' demands for relief under the standards for a preliminary

injunction under Crowe v. De Goia, 90 N.J. 126 (1982), or for a permanent

injunction.

      As to preliminary injunctive relief under Crowe, courts must consider

these well-known factors: (1) if an injunction is "necessary to prevent

irreparable harm"; (2) if "the legal right underlying [the appellants'] claim is

unsettled"; (3) if the appellants have made "a preliminary showing of a

reasonable probability of success on the merits"; (4) "the relative hardship to the

parties in granting or denying [injunctive] relief." Id. at 132-34.



provides no per se basis to set them aside. The voters in our democracy
ultimately decide if legally-permissible policy choices advocated by a candidate
should cause an electoral change.
                                                                           A-0525-18T4
                                       39
      In Rinaldo v. RLR Investment, LLC, 387 N.J. Super. 387, 397 (App. Div.

2006), we distinguished the analysis of a preliminary injunction under Crowe

from the analysis of a permanent injunction, stating:

            [T]he determination whether to grant a permanent
            injunction at the conclusion of the case does not involve
            a prediction as to the outcome of future proceedings.
            Instead, at that stage of the case, the court must make
            findings of fact based on the evidence presented at trial
            and then determine whether the applicant has
            established the liability of the other party, the need for
            injunctive relief, and the appropriateness of such relief
            on a balancing of equities.

            [(Emphasis added) (citations omitted).]

      Having duly considered these factors, we conclude that appellants have

not demonstrated that either preliminary or final injunctive relief is warranted,

pending the outcome of the administrative remand.

      The merit (or even the probability of success) of appellants' claim of

public necessity for a hunt to take place on State lands has yet to be established.

As the State and amicus rightly emphasize, bear hunters will still have access

under AO 2018-24 to other lands, and the hunt may be extended if the harvest

falls below the specified targets. The modest fee expended for a hunting license,

and the temporary loss of access to State lands for recreational bear hunting , do

not sufficiently comprise irreparable and imminent harm. Appellants' delay in


                                                                           A-0525-18T4
                                       40
not appealing AO 2018-24 until over a month after it was issued, and in not

seeking emergent relief until after the October phase of the hunt had already

occurred, weakens their claim that it is imperative to open the hunt to State

lands.

         Appellants also have not met their burden of demonstrating that the public

interest mandates the immediate nullification of AO 2018-24, or that the balance

of equities tips in their favor. We therefore deny their emergent application for

an injunction; subject of course to whatever the Supreme Court may instruct if

further appellate review is sought.

         Affirmed in part as to appellants' federal and rulemaking claims, and

remanded in part as to their claim of arbitrary and capricious decision-making.

We deny the requested stay of AO 2018-24. We do not retain jurisdiction.




                                                                           A-0525-18T4
                                         41
