On appeal from the Director of the Division of Parks and Forestry.
Seidman, Michels and Devine. The opinion of the court was delivered by Michels, J.A.D.
Appellants Humane Society of the United States, New Jersey Branch, Inc. (Humane Society) and Deer, Ecology Environment and Resources, Inc. (DEER, Inc.) appeal from an action of respondents Alfred T. Guido, Director of the Division of Parks and Forestry, Department of Environmental Protection (Director) and the Division of Parks and Forestry (Division), allowing a one-day special controlled deer hunt to take place in parts of High Point Park. Appellants challenged the validity of the order authorizing the hunt, which took place on December 14, 1978.
The facts essential to a resolution of the issues raised on this appeal are not in dispute. High Point Park was created in 1923 when the State of New Jersey accepted a grant from Anthony B. Kuser and Susie Dryden Kuser of over 12,000 acres of land located in Sussex County, New Jersey. See N.J.S.A. 13:5-5 (L. 1923, c. 36, § 4) [1924 Suppl. §§ 165-201]). The deeds from the
Kuser family which conveyed the property to the State do not restrict the State's management of the property in any way except as follows:
The restrictions on the hunting of birds or the maintenance of certain state institutions set forth in the deeds conveying the property to the State were also embodied in the legislation establishing High Point Park. See N.J.S.A. 13:5-6 and N.J.S.A. 13:5-9 (L. 1923, c. 36, §§ 4 and 5 [1924 Suppl. §§ 165-201]).
Over the years the High Point Park Commissioners and the Division,*fn1 the agencies that have managed or presently manage High Point Park, have not permitted hunting except for the one-day special deer hunt which gave rise to this appeal. However, the State Fish and Game Code, adopted pursuant to N.J.S.A. 13:1B-29 et seq. , by the Fish and Game Council, Division of Fish, Game and Shellfisheries, Department of Environmental Protection, has for some time permitted the hunting of deer throughout Sussex County. In addition, the Fish and Game Code established December 14, 1978 as a special controlled hunt day wherein a limited number of permits would be issued for the anticipated harvest of a limited number of deer of either sex or of any age.
On October 31, 1978 Director Guido issued a press release announcing that the Division was considering a special controlled
deer hunt for High Point Park. The press release referred to research conducted by the Division of Fish, Game and Shellfisheries showing a need for the hunt and specifically requested written comments on the proposal. The Fish, Game and Shellfisheries' report noted that overpopulation of deer was damaging vegetation within the park to such an extent that the habitats for many other species of wildlife were being threatened. The study found that there was evidence of deer starvation and dog predation at the park which could be alleviated by reducing the deer population. Therefore, the study recommended an extended controlled hunt as the most feasible means of lessening the deer overpopulation problem. Specifically, the study recommended both the regular six-day firearm buck season and the December 14, 1978 one-day either sex season for specifically delineated areas or zones within the park.
Numerous comments were received from the public in response to the hunting proposal. Many of these comments, including the objections submitted by DEER, Inc., were reviewed by Robert Lund, principal wildlife biologist of the Division of Fish, Game and Shellfisheries, who had developed the original report for the park. The Director, after considering the comments and Lund's report, found that there would not be any irreparable or immediate damage to the park or to the deer herd as a result of a controlled hunt. On the contrary, he believed that "a controlled hunt may limit deer damage and enhance my ability to protect the Park." The Director thereupon determined to open portions of High Point Park to a one-day special controlled deer hunt on December 14, 1978. Thereafter, the Division approved the hunt. Consequently, on November 21, 1978, the Department of Environmental Protection issued the following press release:
A special controlled deer hunt at High Point Park has been approved by DEP's Division of Parks and Forestry for a one-day antlerless season on December 14.
The purpose of the hunt is to provide information for better management of the park's ecological conditions, said Alfred T. Guido, director of the Division of Parks and Forestry. A study by DEP's Division of Fish, Game and Shellfisheries shows that the park's deer herd has become overpopulated resulting in a threat to vegetation and habitats for other ...