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United Hunters Association of New Jersey Inc. v. Bontempo

Decided: December 17, 1958.

UNITED HUNTERS ASSOCIATION OF NEW JERSEY, INC.; GLASSBORO ROD AND GUN CLUB, INC.; ELMER DEER CLUB, INC.; BURLINGTON COUNTY FARMERS AND SPORTSMEN, INC.; SQUARE CIRCLE SPORTSMEN OF CAMDEN COUNTY, INC., ALL BEING NON-PROFIT CORPORATIONS, HAROLD REISS; HERMAN PRIESTLY; JOSEPH ALAMPI, AND JAMES M. CHARLESWORTH, SUING AS INDIVIDUALS, PLAINTIFFS,
v.
SALVATORE A. BONTEMPO, COMMISSIONER OF THE DEPARTMENT OF CONSERVATION AND ECONOMIC DEVELOPMENT OF THE STATE OF NEW JERSEY; DEPARTMENT OF CONSERVATION AND ECONOMIC DEVELOPMENT; DIVISION OF FISH AND GAME, FISH AND GAME COUNCIL, DEFENDANTS



Goldmann, Freund and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

[53 NJSuper Page 182] Petitioners seek a review of the validity of a regulation adopted on October 14, 1958 by the Fish and Game Council of the Division of Fish and Game, Department of Conservation and Economic Development, hereinafter referred to as "Council," providing for a one-day deer-of-either-sex season throughout the State of New Jersey on December 20, 1958. R.R. 4:88-10. The petition for

declaratory judgment was filed November 18. Defendants expeditiously supplied the required agency record and filed their answer. The hearing of the appeal was given emergency scheduling in view of the imminence of the special hunting season.

I.

The regulation represents the latest attempt to deal with the recurring problem of deer management which has concerned the Council since 1949. Aware of the variant interests of different segments of our population -- among them the sportsmen, farmers, landowners and conservationists -- the Council has tried a number of deer management programs: fencing lands to protect farmers; establishment of feeding stations to sustain deer herds and divert them from farm crops; use of repellents; special seasons; limited area hunting; and special hunting permits. These programs have had varying degrees of success.

The various steps leading to the adoption of the regulation in question may be traced through the minutes of the Deer Committee of the Council and of the Council itself, as well as a group of exhibits which make up part of the appendix. The highlights of this record provide the background of the appeal.

On February 11, 1958 the Council adopted a motion favoring a one-day hunting season for deer of either sex for the whole State, except for the counties of Salem, Camden, Gloucester, Ocean, Cumberland, Atlantic, Burlington and Monmouth, this day to be the last day of the regular season. Deer of either sex could be hunted in Cape May for the entire season. The proposal was recommended for inclusion in the 1958 Hunting Code to be considered in August. On April 8, 1958 the proposal was amended to include Cape May among the counties where there was to be a one-day season on deer of either sex.

At its July 8 meeting the Council unanimously approved the recommendation made by its Deer Committee -- based in turn

on the recommendation of the experts in the Division of Fish and Game -- that there be an open season on deer of either sex to be held on December 20, 1958 in the area north and west of Route No. 1, from the Trenton bridge to the George Washington Bridge, as well as in Cape May County. The proposed regulation, as well as the public hearing thereon scheduled for August 12, 1958, were duly publicized.

The meeting was well attended by landowners, farmers, sportsmen and representatives of civic groups, who expressed varying opinions as to the advisability of the regulation. Those from South Jersey favored it, as contrasted with the strong sentiment voiced by North Jersey sportsmen and landowners that restricting the season to their section of the State would result in increased hunting pressure, with attendant danger to life and property, as well as the possible closing of lands to all hunting if the regulation were adopted. The New Jersey Farm Bureau, representing the farmer interest, urged the Council to adopt a special "antlerless" deer season for the entire State. Fish and Game Superintendent MacNamara reported that general field observations indicated that the herd in North and Central Jersey was about the same or slightly larger than in 1957, while preliminary checks indicated some decline in the pine areas of South Jersey.

Following the public hearing the Council, by a vote of 7-3, adopted a regulation providing for a state-wide deer-of-either-sex season on December 20. Resident sportsmen and farmer organizations of the previously unaffected areas immediately registered their disapproval. The Commissioner of Conservation and Economic Development thereupon called a special meeting of the Fish and Game Council for September 5. At that meeting representatives of South Jersey sportsmen's groups stated that there was no need or desire for an open season to be held in the area south and east of Route No. 1, excluding Cape May County; nor was there ...


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