For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- Justice Haneman.
Defendants challenge the judgment of the Appellate Division setting aside a regulation providing for a "hunter's choice day" throughout the State. Because of the time factor, we directed argument upon the merits pending action upon the petition for certification, to the end that if the petition should be granted, a final disposition would be expedited.
The petition is hereby granted.
We are constrained to hold the Appellate Division departed from settled principles relating to judicial review of quasi -legislative actions of an administrative agency.
Following extensive hearings the Fish and Game Council voted 7 to 2 for a one-day deer season in which it would be
legal to kill deer of either sex, without regard to age, subject to specified bag limits. The Council acted pursuant to N.J.S.A. 13:1B-30 which reads:
"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."
A similar regulation adopted in 1958 was set aside in United Hunters Association of New Jersey v. Bontempo, 53 N.J. Super. 181 (App. Div. 1958). There it was held the "need" for such action was not based on "scientific investigation and research." In the present case, the Appellate Division found the requirement for investigation and research of that quality was met but held the regulation was unsupportable with respect to the southern part of the State.
The Council is charged by statute with the maintenance of "an adequate and proper supply" of deer, and is empowered to make such regulations "as it deems necessary to preserve, properly utilize or maintain the best relative number." The utilization contemplated in express terms is "for public recreation and food supply." A "proper" supply calls for an appraisal in which regard is had for the continuance of the herd, the maintenance of its health and vigor, the opportunity for recreation and food supply, the property damage
caused by deer, and also the hazard to the motorist, a hazard which the rising number of car-kills in the southern and northern portions of the State serves to emphasize.
The Council concluded (1) the herd was at or near its ecological saturation point and (2), in any event, a healthier herd, no less in total number, would be achieved throughout the State by an all-deer ...