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Cozy Pine Hunting Preserve Inc. v. Fish and Game Division

Decided: March 12, 1965.

COZY PINE HUNTING PRESERVE, INC., A NEW JERSEY CORPORATION, PETITIONER,
v.
FISH AND GAME DIVISION OF THE DEPARTMENT OF CONSERVATION AND ECONOMIC DEVELOPMENT OF THE STATE OF NEW JERSEY, DEFENDANT



Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Sullivan, J.A.D.

Sullivan

This is an original petition for declaratory judgment under R.R. 4:88-10. Petitioner Cozy Pine Hunting Preserve, Inc., a New Jersey corporation (petitioner), is the owner and operator of a private hunting preserve in Salem County. Defendant is the Fish and Game Division of the Department of Conservation and Economic Development of the State of New Jersey (Division).

In essence, petitioner's grievance is that the Division is by law given jurisdiction only over game which roam the public woods and fields and has exceeded its power and authority in holding that petitioner's private hunting preserve and the

game stocked therein are subject to the control of the Division and the fish and game laws of this State.

Petitioner's hunting preserve is about 423 acres in size and is completely surrounded by a heavy-duty wire fence eight feet in height. The fence, which is some five miles in length, also has two strands of barbed wire at the bottom and nine strands of barbed wire at the top, plus an additional one-inch heavy duty poultry wire. Petitioner is the holder of license 35-CS, issued by the Division pursuant to N.J.S.A. 23:3-29(d), under which it may operate a commercial pheasant, wild turkey, quail or partridge-shooting preserve. It holds a propagating license 310P, issued by the Division under N.J.S.A. 23:3-29(a), for deer, pheasant and raccoon. Petitioner stocks the preserve with its own deer.

Petitioner concedes that game birds and fowl cannot be kept in or excluded from its preserve merely by the presence of a fence, and that the Division would have limited jurisdiction over its preserve insofar as game birds and fowl are concerned.

However, petitioner argues that since the fencing around its preserve effectively prevents stocked quadrupeds from escaping from the preserve, or native wild quadrupeds from getting into the preserve, the Division lacks jurisdiction over the preserve as to the stocking or hunting of such quadrupeds.

This litigation was generated when the Division made rulings that persons hunting on petitioner's preserve were required to obtain regular hunting licenses, and would not be permitted to hunt with rifles. The Division also refused to grant permission to import wild boar and release the same on petitioner's hunting preserve on the ground that such importation and release would present a hazard to agriculture and to the public.

Preliminarily, we conclude that the procedure employed to bring this matter on for hearing before us was improper. Petitioner has proceeded under R.R. 4:88-10 which provides for an original review by this court of the validity of any administrative rule promulgated by any state administrative

agency. The instant controversy is not over rules promulgated by the Division but rather with rulings made by it as to the applicability of the fish and game laws to petitioner's hunting preserve. The correct procedure should have been by appeal from the final decision or action of the state administrative agency pursuant to R.R. 4:88-8(a). As noted in Carls v. Civil Service Commission of N.J., 17 N.J. 215 (1955), proceedings under R.R. 4:88-8(a) are designed to deal with so-called quasi -judicial decisions or actions adjudicating the rights of particular individuals, whereas R.R. 4:88-10 was designed to deal with so-called quasi -legislative rules governing future conduct generally. ...


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