On appeal from the New Jersey Department of Environmental protection.
Pressler, Deighan and Baime. The opinion of the court was delivered by Pressler, P.J.A.D.
This appeal challenges the July 1989 action of the Division of Fish, Game and Wildlife, Department of Environmental Protection, in amending N.J.A.C. 7:25-22.1 and -22.2 and adopting 7:25-22.3 and -22.4, the regulations governing Atlantic menhaden fishing in New Jersey's territorial waters. More particularly, Ampro Fisheries, Inc., a foreign corporation whose principal place of business is in Virginia, attacks the validity of those provisions of the regulations which prohibit purse seine fishing for menhaden for purposes other than for bait in the Delaware, Raritan and Sandy Hook Bays and within 1.2 nautical miles of shore. N.J.A.C. 7:25-22.2(a)(2). The regulations bar purse seine fishing of menhaden for bait within .6 nautical miles of shore and permit limited incursion for bait fishing into the bays. N.J.A.C. 7:25-23.3.
Ampro, whose purse seine menhaden fishing operation is affected by the 1.2 mile limit and bay preclusion, contends that the regulations, insofar as they affect the waters of Delaware Bay, are invalid because they contravene the Compact of 1905 by which New Jersey and Delaware agreed to joint regulation of fishing in that body of water. See N.J.S.A. 52:28-34, et seq.; Del.Code Ann. tit. 23; 34 U.S. Stat. 858 (1907). Ampro also argues that the restrictions violate the interstate commerce, privileges and immunities, and supremacy clauses of the United States Constitution and that they are ultra vires and constitute an invalid use of the police power.
We agree with Ampro that the 1905 Compact precludes the power of this state unilaterally to regulate fishing in Delaware Bay. The regulations must consequently be modified in that
respect. We reject, however, as without merit, its remaining challenges to the regulations.
Our consideration of the regulations requires a brief contextual reference. Atlantic menhaden are a plentiful Atlantic Ocean fish which migrate in schools from North Carolina to Maine. Although they are neither a sport nor a food fish, they are pursued by commercial fishing operators for two primary purposes: bait and reduction. The reduction process produces fish oil and fish meal, which have significant commercial applications. Typically, vessels engaged in obtaining menhaden for reduction purposes are 165 to 220 feet long, weigh approximately 190 tons, and use purse seines which are 1200 feet long by 90 feet deep. They rely on spotter aircraft to locate schools, which are frequently but not exclusively, within 1.2 nautical miles of shore. Historically, New Jersey has issued about 16 menhaden reduction licenses annually. See N.J.S.A. 23:3-51 and -52. There has been no New Jersey-based company taking menhaden for reduction since the early 1980's. Menhaden fishing for bait is undertaken by much smaller vessels, typically less than 90 feet, which use much smaller nets.
According to the record, there is a long history of social and spacial tensions in the near-coastal Atlantic waters between recreational sport fishing boats and commercial menhaden vessels, which have led to the adoption by most Atlantic coastal states of some sort of commercial-fishing restrictions. New Jersey's first regulation of menhaden fishing was responsive to a serious conflict between 16 menhaden vessels and a group of recreational boaters in 1983. The regulation adopted the following year, N.J.A.C. 7:25-22.1 and -22.2, made no distinction between reduction and bait fishing, barring all purse seine menhaden fishing within .6 nautical miles of shore and on weekends and holidays. Consideration of the regulatory issue continued, however, and in 1987 the New Jersey Marine Fisheries Council which advises DEP, see N.J.S.A. 23:2B-1, et seq., particularly 23:2B-4, appointed a menhaden subcommittee. It
was this subcommittee which conceived of the scheme of separately regulating the bait and reduction operations.
Following considerable debate and discussion involving representatives of all affected groups, public and private, the present regulations were proposed, a public hearing held, and the regulations adopted. DEP's comments accompanying both its proposal and adoption, 21 N.J.R. 107 (1989) and 21 N.J.R. 2035 (1989), respectively, indicate that while the regulations would have a negative impact on the menhaden reduction industry, the same quantity of fish could be caught with additional fishing time. On the other hand, the DEP was of the view that the regulations would have the positive effect of removing "largescale vessels operating large nets from an already crowded near-shore fishing area" and reducing "spacial conflicts with coastal navigation." 21 N.J.R. 107. DEP also concluded that the regulations, in their totality, including their clean-up provisions, would benefit coastal communities, would provide additional protection for the menhaden stock, especially juvenile menhaden, and would enable predatory fish and birds to feed more easily within the protected zone. Finally DEP anticipated economic benefit for other industries, including commercial crabbers and lobstermen and suppliers of recreational fishing equipment and bait.
Leaving aside for the moment the Delaware Bay problem, we are satisfied that the regulations are otherwise valid and that Ampro has failed in its heavy burden of overcoming the presumptive validity and reasonableness which attends administrative regulation. See e.g., Bergen Pines Hosp. v. Department of Human Serv., 96 N.J. 456, 477, 476 A.2d 784 (1984). Clearly, the regulations are well within the scope of the enabling statutes and consistent with its legislative purpose and policy. See N.J.S.A. 23:2B-1 and particularly N.J.S.A. 23:2B-2 and -6. The ultra vires argument is ...