Last month Governor Murphy doubted that he has legal authority to cancel the bear hunt. Acting on his own or through his DEP Commissioner, he has the authority.
The Governor as the head of the Executive Branch has broad authority to set policy and take care that the laws be faithfully executed.[1] He also enjoys substantial authority and deference in the issuance and implementation of directives to his administration.[2]
For her part, the Commissioner has the authority to set policies that govern the department and its councils, including the Fish and Game Council.[3] As held by the Supreme Court, the statutory scheme is designed to consolidate all natural resources divisions under a single department, led by a Commissioner whose obligation it is to coordinate a unitary approach to conservation.[4] As such, the Commissioner sets departmental policies and then uses her approval authority to ensure that all policies of the department — including those of its councils — comport with those policies.[5]
The Supreme Court has already ruled in the context of the bear hunt that the Fish and Game Council can only call for a hunt if it has adopted a comprehensive bear management plan that justifies the hunt, and if the Council’s adoption of the plan was after “consultation with the Commissioner and with [her] approval.[6] There are two reasons.
First, the Council is only legally authorized to formulate a comprehensive policy — like a comprehensive bear management policy — with the Commissioner’s approval.[7] Accordingly, the Supreme Court has ruled that 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.“[8] Here, the Commissioner has not reviewed nor approved the comprehensive bear management policies of the prior administration. Therefore, the Council lacks legal authority to proceed with a bear hunt unless and until the Commissioner approves.
Second, the Council’s call for a hunt in the absence of the new Governor/Commissioner’s approval, violates the law and expressly empowers the Governor/Commissioner to intervene to stop the hunt. The Supreme Court has ruled that “the Fish and Game Council clearly does not function as a completely autonomous body, unaccountable to the department head. Rather, the Commissioner must approve the Fish and Game Council’s comprehensive policies. It is the Commissioner’s approval that, in turn, insures that those policies comport with department-wide goals for environmental protection.”[9] The Supreme Court further explained: “The entire statutory scheme was intended to create a unified approach to conservation and environmental protection under the authority of the Commissioner. Although the Fish and Game Council may act without day-to-day veto by the Commissioner, its actions exist within a larger universe of comprehensive environmental policies. If it does not act in accord with those policies, the Commissioner is empowered to intervene.“[10] Here, the new Governor and Commissioner have the clear authority to set policy on black bear management and if the Council adopts a policy that is inconsistent with the departmental policy, the Council’s policy is invalid and the Commissioner is empowered to intervene to stop the hunt.
In a non-binding comment in the U.S. Sportsmen’s Alliance case, the Supreme Court opined that if the Commissioner had approved the comprehensive management plan and the Council had acted on it to call for a hunt, the Commissioner would not have been able to intervene to stop it.[11] Those were not the facts in that case and they are not the facts here because this Commissioner has not approved the Council’s plan. Moreover, it would be improper to deny this new Governor/Commissioner the right to approve/disapprove a Council’s plan simply because the plan had been approved by the prior administration.
In conclusion, the Governor has the power to cancel the hunt and the courts are likely to accord him deference, especially where, as here, he is setting his own policies in the first year of his administration. The governorship is one of the most powerful in the nation. If the Governor wishes to deliver on his long-standing promise to cancel the bear hunt, he can exercise his authority.
End notes:
[1] “The Governor is vested with the executive power of the State. N.J. Const. (1947), N.J. Const. (1947), Art. V, § 1, par. 1. As the head of the Executive Branch of government he has the duty and power to supervise all employees in each principal department of that branch. Id., Art. Art. V, § 4, par. 2. Of necessity, this includes the inherent power to issue directives and orders by way of implementation in order to insure efficient and honest performance by those state employees within his jurisdiction. Such power stems from the Governor’s responsibility under the foregoing constitutional provisions as well as Art. V, § 1, par. 11, which requires that he ‘take care that the laws be faithfully executed.'” Kenny v. Byrne, 144 N.J. Super. 243 (App. Div., 1976)
[2] Shapiro v. Fauver, 193 N.J. Super. 237 (App. Div., 1984)
[3] New Jersey Constitution of 1947 mandates that “[a]ll executive and administrative offices, departments, and instrumentalities of the State government… shall be allocated by law among and within not more than twenty principal departments.” N.J. Const. art. V, 4, 1. The Constitution further places a single executive, appointed by the Governor with Senate approval, at the helm of each principal department. N.J. Const. art. V, 4, 2. An example is the Commissioner of the Department of Environmental Protection. As a matter of statute, the Commissioner is authorized to administer the work of the department and perform, exercise and discharge the functions, powers and duties of the department. N.J.S.A. 13:1B-3
[4] U.S. Sportsmen’s Alliance, 867 A.2d 1147, 1155, 182 N.J. 461 (2005).
[5] U.S. Sportsmen’s Alliance at 1155.
[6] US Sportsman’s Alliance at 1157
[7] N.J.S.A. 13:1B-28
[8] U.S. Sportsman’s Alliance at 1156
[9] U.S. Sportsmen’s Alliance at 1155.
[10] U.S. Sportsmen’s Alliance at 1156.
[11] U.S. Sportsmen’s Alliance at 1158.
Links:
Governor Murphy’s August 20, 2018 Executive Order No. 34 :
http://d31hzlhk6di2h5.cloudfront.net/20180820/82/2a/71/f5/25912cf54e1ea0981186c1fc/EO-34.pdf
Governor’s Office August 20, 2018 Press Release on Executive Order 34:
https://www.nj.gov/governor/news/news/562018/approved/20180820a.shtml