US SPORTSMEN'S ALLIANCE v. NJDEP

• Decision Date: 16 November 2004
• Citation: 372 N.J. Super. 598,860 A.2d 463
• Court: New Jersey Superior Court
• Parties: U.S. SPORTSMEN'S ALLIANCE FOUNDATION; New Jersey State Federation of Sportsmen's Clubs; Gerald McCusker; Anthony Cali; and Edward O'Sullivan, Appellants, v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION; Bradley M. Campbell, in his capacity as NJDEP Commissioner; New Jersey Division of Fish & Wildlife; and Martin J. McHugh, in his capacity as Director of the Division, Respondents.

860 A.2d 463

372 N.J. Super. 598

U.S. SPORTSMEN'S ALLIANCE FOUNDATION; New Jersey State Federation of Sportsmen's Clubs; Gerald McCusker; Anthony Cali; and Edward O'Sullivan, Appellants, v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION; Bradley M. Campbell, in his capacity as NJDEP Commissioner; New Jersey Division of Fish & Wildlife; and Martin J. McHugh, in his capacity as Director of the Division, Respondents.

Superior Court of New Jersey, Appellate Division.

Argued November 9, 2004.

Decided November 16, 2004.

William P. Horn (Birch, Horton, Bittner and Cherot), of the District of Columbia bar, admitted pro hac vice, argued the cause for appellants (McGimpsey & Cafferty, Somerset, and Mr. Horn, attorneys; Arlene M. Turinchak and Thomas J. Cafferty, Somerset, on the brief).

Barbara Conklin, Deputy Attorney General, argued the cause for respondents (Peter C. Harvey, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Rachel Horowitz, Dean Jablonski and Ms. Conklin, Deputy Attorneys General, on the brief).

Before Judges SKILLMAN, PARRILLO and GRALL.

The opinion of the court was delivered by

SKILLMAN, P.J.A.D.

The issue presented by this appeal is whether the Commissioner of Environmental Protection has statutory authority to direct employees of the Division of Fish and Wildlife not to issue permits for a hunt authorized by the Fish and Game Council. We conclude that the Commissioner lacks authority to subvert the Council's authorization of a hunt by such a directive.

In 2003, the Fish and Game Council authorized the first bear hunt in New Jersey since 1970. The Council's decision to authorize this hunt was based on reports of bears colliding with motor vehicles, destroying beehives and agricultural crops, killing livestock and pets, entering homes and attacking humans and the Division's estimate that there are more than 3,000 bears in the State, primarily in the northwestern counties. The Division processed applications for permits to participate in the hunt and ultimately issued 5,450 permits for a bear hunt that coincided with the deer hunting season. This hunt, which was limited to the area north of Route 78 and west of Route 287, resulted in the killing of 328 bears.

After the 2003 hunt, the Division prepared a status report that analyzed the results of the hunt and other strategies for avoiding dangerous bear-human interactions, including the prevention of both intentional and unintentional bear feeding. This report estimated that there were 1,490 bears in a 580-square mile section of the bear's habitat in northwestern New Jersey. The report did not undertake to estimate the bear population in the remainder of that habitat. The report concluded:

The 1997 [Black Bear Management Plan] set a target density of 1 bear/2.5 sq. miles in order to minimize conflicts and to manage New Jersey bears consist[ent] with target densities of adjacent states with similar habitat. The results of this most recent population analysis and the results of the 2003 bear hunting season indicate that the current population can support a recreational hunting season.

In early 2004, the Council considered a proposal to authorize another bear hunt. On March 5, 2004, the Commissioner sent a letter to the Council expressing his opposition to this proposal. The Commissioner acknowledged that the Division's report "documents a `huntable' population — i.e. a population that can be hunted without endangering the viability or long-term population of bears in New Jersey." However, he stated that "[t]he data does not currently document the rapidly expanding population supposed at the time of the last game code adoption." The Commissioner also expressed the view that "administration of the hunt in the context of substantial public controversy severely limits the staff time and resources available for public education, bear feeding-ban enforcement, and development of immunocontraceptive alternatives." The Commissioner appeared before the Council on March 9, 2004, to expand upon his reasons for opposing another bear hunt.

Despite the Commissioner's opposition, the Council proposed adoption of a regulation establishing a Fish and Game Code for 2004-05 that includes a six-day bear hunting season from December 6-11, 2004, which again coincides with the deer hunting season. 36 N.J.R. 2325(a) (May 17, 2004). The Council conducted a public hearing concerning the proposed Code on June 8, 2004, and accepted written comments until July 16, 2004.

On August 25, 2004, the Council adopted the 2004-05 Fish and Game Code, which includes authorization for the bear hunt. The Code was published in the October 4, 2004 issue of the New Jersey Register and became effective that same date. 36 N.J.R. 4513(b) (Oct. 4, 2004). However, sometime after the Council adopted the Code, the Commissioner directed the Division of Fish and Wildlife not to issue applications for bear hunting permits or to process any applications that might be submitted.

On October 9, 2004, the Council extended the deadline for submitting applications for bear hunting permits from September 30 to October 30, 2004.

On October 15, 2004, appellants U.S. Sportsmen's Alliance Foundation, New Jersey State Federation of Sportsmen's Clubs, Gerald McCusker, Anthony Cali, and Edward O'Sullivan filed a notice of appeal challenging the Commissioner's directive to the Division of Fish and Wildlife not to issue applications for bear hunting permits or to process applications. The notice of appeal named the Department of Environmental Protection (DEP), the Commissioner, the Division and the Director of the Division as respondents. At the same time they filed this appeal, appellants also submitted a motion to the Commissioner for ad interim relief requiring issuance of permit applications and processing of applications.

When the Commissioner did not act upon their motion, appellants filed an emergent motion with this court for the same relief. On October 27, 2004, we issued a single judge order requiring the Commissioner, Division and Division Director to "maintain all `Black Bear Permit Application' forms for 2004 that have been filed and [to] accept and maintain all `Black Bear Permit Application' forms filed on or after October 27, 2004," pending a decision by a full panel of this court on appellants' motion for emergent relief.

That same day, the Commissioner issued an order denying appellants' motion for ad interim relief. The Commissioner also issued a document, dated October 26, 2004, which is entitled: "Notice of Prohibition On Issuance of Black Bear Hunt Permits And Closure of Public Lands to Black Bear Hunt During 2004 Game Code."¹ In his order and notice, the Commissioner cited the "reduction in black bear activity" in New Jersey, the cost of overseeing and administering a bear hunt and the Commissioner's desire to pursue other programs for management of the bear population, including public education, enforcement of the statutory ban on feeding bears, see N.J.S.A. 23:2A-14, and development of alternative bear population control methods such as contraception, as the reasons for his policy decision to prohibit DEP staff from issuing bear hunting permits.

On November 1, 2004, we entered an order accelerating the appeal.

The members of the Fish and Game Council are appointed by the Governor with the advice and consent of the Senate. N.J.S.A. 13:1B-24. Three members must be farmers recommended by the State Agricultural Convention; six must be sportsmen recommended by the New Jersey State Federation of Sportsmen's Clubs; one is the chairman of the advisory committee established under The Endangered and Nongame Species Conservation Act, see N.J.S.A. 23:2A-7e; and one must be "a person knowledgeable in land use management and soil conservation practices." N.J.S.A. 13:1B-24.

The Council's primary responsibility is to determine "when and where in the state hunting and fishing shall take place, and which fresh water fish, game birds, game animals, and fur bearing animals may be taken and in what numbers." Humane Soc'y of the U.S. v. N.J. State Fish & Game Council, 70 N.J. 565, 569, 362 A.2d 20, 22 (1976), appeal dismissed, 429 U.S. 1032, 97 S.Ct. 723, 50 L.Ed.2d 744 (1977). This responsibility was conferred upon the Council by article V of chapter 448 of the Laws of 1948, which is codified as N.J.S.A. 13:1B-29 to -41.

The Council's exercise of its powers under article V is not subject to the Commissioner's control. In fact, this article does not even refer to the Commissioner.² N.J.S.A. 13:1B-30 provides in pertinent part:

For the purpose of providing an adequate and flexible system of protection, propagation, increase, control and conservation of fresh water fish, game birds, game animals, and fur-bearing animals in this State, and for their use and development for public recreation and food supply, the council is hereby authorized and empowered to determine under what circumstances, when and in what localities, by what means and in what amounts and numbers such fresh water fish, game birds, game animals, and fur-bearing animals, or any of them, may be pursued, taken, killed, or had in possession so as to maintain an adequate and proper supply thereof, and may, after first having determined the need for such action on the basis of scientific investigation and research, adopt and from time to time amend and repeal such appropriate and reasonable regulations concerning the same, or any of them, ... as it deems necessary to preserve, properly utilize or maintain the best relative number of any species or variety thereof, at the times, in the manner and to the extent hereinafter provided. The regulations so established shall be called the State Fish and Game Code.

N.J.S.A. 13:1B-33 requires the Council to conduct a public hearing before adopting such regulations, and N.J.S.A. 13:1B-34 provides in pertinent part:

If after such hearing the council is

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