US SPORTSMEN'S ALLIANCE v. NJ DEP.

• Decision Date: 28 February 2005
• Citation: 867 A.2d 1147,182 N.J. 461
• Parties: U.S. SPORTSMEN'S ALLIANCE FOUNDATION; New Jersey State Federation of Sportsmen's Clubs; Gerald McCusker; Anthony Cali; and Edward O'Sullivan, Appellants-Respondents, 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-Appellants.
• Court: New Jersey Supreme Court

867 A.2d 1147

182 N.J. 461

U.S. SPORTSMEN'S ALLIANCE FOUNDATION; New Jersey State Federation of Sportsmen's Clubs; Gerald McCusker; Anthony Cali; and Edward O'Sullivan, Appellants-Respondents, 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-Appellants.

Supreme Court of New Jersey.

Argued November 29, 2004.

Decided February 28, 2005.

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

Thomas J. Cafferty, Somerset, argued the cause for respondents (McGimpsey & Cafferty, attorneys; Arlene M. Turinchak, on the brief).

Justice LONG delivered the opinion of the Court.

On December 2, 2004, by order, we enjoined the bear hunt that the Fish and Game Council had scheduled to take place during the week of December 6, 2004. The case came to us as a result of a dispute between the Fish and Game Council and the Commissioner of the Department of Environmental Protection (DEP) regarding the propriety of the hunt. Our order provided, among other things, that the failure of the Fish and Game Council to have developed comprehensive policies for the protection and propagation of the bear population, with the approval of the Commissioner, as required by N.J.S.A. 13:1B-28, made resolution of the dispute impossible. In ruling, we promised a fuller exposition of our reasoning in an opinion to follow. This is that opinion.

I.

The complete facts and procedural history of this case are reported in U.S. Sportsmen's Alliance Foundation v. New Jersey Department of Environmental Protection, 372 N.J.Super. 598, 860 A.2d 463 (App.Div.2004). In a nutshell, in early 2004, the Fish and Game Council considered a proposal to hold a bear hunt similar to the hunt that had taken place in 2003. The 2003 bear hunt was the first authorized in New Jersey since 1970.¹ The Commissioner publicly supported the 2003 hunt; it was not until 2004 that he opposed a hunt outright due to fiscal concerns, the decrease in bear-human interactions, and the lack of data supporting the Division of Fish and Wildlife's (Division) projections regarding the bear population. Notwithstanding that opposition, the Fish and Game Council adopted the 2004-2005 Fish and Game Code that authorized the bear hunt. The Commissioner subsequently directed the Division not to issue or process applications for bear hunting permits. The 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.

The Appellate Division held that the Commissioner lacks the statutory authority to enjoin the issuance of bear hunt permits or to otherwise interfere with Fish and Game Code regulations governing the hunt.

The DEP, the Commissioner, the Division, and the Director of the Division (collectively the Commissioner) petitioned for certification, which we granted. U.S. Sportsmen's Alliance Found. v. N.J. Dept. of Envtl. Prot., 182 N.J. 151, 862 A.2d 59 (2004).

II.

The case revolves around the statutes governing the operations of the Fish and Game Council. N.J.S.A. 13:1B-28 provides:

In addition to its powers and duties otherwise hereinafter provided, the Fish and Game Council shall, subject to the approval of the commissioner, formulate comprehensive policies for the protection and propagation of fish, birds, and game animals and for the propagation and distribution of food fish and for the keeping up of the supply thereof in the waters of the State.

The council shall also:

a. Consult with and advise the commissioner and director of the Division of Fish and [Wildlife] with respect to the work of such division.

b. Study the activities of the Division of Fish and [Wildlife] and hold hearings with respect thereto as it may deem necessary or desirable c. Report to the Governor and the Legislature annually, and at such other times as it may deem in the public interest, with respect to its findings and conclusions.

[N.J.S.A. 13:1B-28 (emphasis added).]

N.J.S.A. 13:1B-30 goes on to state:

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, penalties for the violation of which are prescribed by certain of the sections of Title 23 of the Revised Statutes amended herein, 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-30.]

N.J.S.A. 13:1B-32, in turn, provides:

Any regulation of the council or amendment thereto adopted pursuant to the provisions of this article which relates to game birds, game animals or fur-bearing animals, after the council has first determined the need for such action on the basis of scientific investigation and research, may apply to all or any part of the State, at the discretion of the council, and may do any or all of the following as to any or all species or varieties of game birds, game animals, and fur-bearing animals:

a. Establish, extend, shorten or abolish open seasons and closed seasons.

b. Establish, change or abolish bag limits and possession limits.

c. Establish and change territorial limits for the pursuit, taking, or killing of any or all species or varieties.

d. Prescribe the manner and the means of pursuing, taking, or killing any species or variety.

e. Establish, change or abolish restrictions based upon sex, maturity, or other physical distinction.

[N.J.S.A. 13:1B-32.]

The Commissioner argues that the approval authority over comprehensive policies of the Fish and Game Council vested in him by N.J.S.A. 13:1B-28 is the legislative vehicle that accords him, as the administrative head of the DEP, the power to assure that the Fish and Game Council's actions concerning hunting and fishing are consistent with the DEP's overall policies. The Commissioner reads that approval language as granting him veto power over actions of the Fish and Game Council that are out of synchronicity with the DEP's policies.

The Fish and Game Council responds that the plain language of the statute reflects that the Council has hegemony over the Fish and Game Code and over hunting (N.J.S.A. 13:1B-28 and 30), independent of the Commissioner's general authority to formulate agency policy. As such, it is the Fish and Game Council's position that the Commissioner is powerless to prevent it from deciding to hold a bear hunt, enacting a Fish and Game Code by regulation, and issuing or processing applications therefor. It is the interplay of N.J.S.A. 13:1B-28, -30, and -32 that is the focus of our inquiry.

A.

In interpreting a legislative enactment, the starting point is always the language of the statute itself. If it is clear," `the sole function of the courts is to enforce it according to its terms.'" Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 392, 774 A.2d 495 (2001)(quoting Sheeran v. Nationwide Mut. Ins. Co., 80 N.J. 548, 556, 404 A.2d 625 (1979)(quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442, 452 (1917))). However, "[w]hen a statute is subject to more than one plausible reading, our role is `to effectuate the legislative intent in light of the language used and the objects sought to be achieved.'" Velazquez ex rel. Velazquez v. Jiminez, 172 N.J. 240, 256, 798 A.2d 51 (2002)(quoting State v. Hoffman, 149 N.J. 564, 578, 695 A.2d 236 (1997)(internal citations omitted)). In the end, our interpretation will not "turn on literalisms" but "on the breadth of the objectives of the legislation and the commonsense of the situation." LaFage v. Jani, 166 N.J. 412, 431, 766 A.2d 1066 (2001)(quoting Jersey City Chapter of Prop. Owner's Protective Ass'n. v. City Council, 55 N.J. 86, 100, 259 A.2d 698 (1969)).

As is often the case, the parties disagree over the clarity and meaning of the enactment at issue. We begin with the language of N.J.S.A. 13:1B-28: "[T]he Fish and Game Council shall, subject to the approval of the commissioner, formulate comprehensive policies for the protection and propagation of fish, birds, and game animals...." That is the provision against which the words of N.J.S.A. 13:1B-30 and 32 must be measured. The critical language of N.J.S.A. 13:1B-30 is as follows:

[T]he 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 ... fur-bearing animals, ... may be pursued, taken, killed, or had in possession so as to maintain an adequate and proper supply thereof, and may, ... adopt and from time to time amend and repeal such appropriate and reasonable regulations concerning the same,....

[N.J.S.A. 13:1B-30.]

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