On certification to the Superior Court, Appellate Division, whose opinion is reported at 247 N.J. Super. 111 (1991).
For reversal in part: affirmance in part -- Chief Justice Wilentz and Justices Clifford, Handler, O'Hern, Pollock, Garibaldi, and Stein. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.
This appeal primarily concerns two issues of federal law: (1) whether the interstate Compact of 1905 between New Jersey and Delaware prohibits New Jersey from unilaterally regulating the fishing of menhaden in the territorial waters of New Jersey in the Delaware Bay, and (2) whether, in any of the territorial waters of the state, the regulations at issue constitute an impermissible burden on interstate commerce.
For the purpose of providing a brief history of the menhaden fishing industry in New Jersey, we draw upon the briefs and appendices of the parties as well as other documentation filed by the Department of Environmental Protection and Energy (DEPE) in legislative hearings.*fn1
Since colonial times, the menhaden has engaged the attention of both courts and regulators along the Atlantic coast. In 1889, Massachusetts authorities arrested coastal fishermen who were fishing for menhaden with seine nets in Buzzards Bay. The menhaden fishermen argued that the waters of Buzzards Bay were the waters of the United States and therefore only the United States could regulate seining of menhaden. Massachusetts disagreed and found the fishermen guilty. On appeal, the United States Supreme Court agreed with the Commonwealth,
holding that if Congress "does not assert by affirmative legislation its right or will to assume the control of menhaden fisheries in such bays, the right to control such fisheries must remain with the State which contains such bays." Manchester v. Massachusetts, 139 U.S. 240, 266, 11 S. Ct. 559, 565, 35 L. Ed. 159, 167 (1891).
In 1906 and 1909, the Annual Reports of the New Jersey Fish and Game Commission contained complaints, unsubstantiated at that time, that menhaden boats operating too close to shore were interfering with blue fishing. See Regulates the Taking of Menhaden: Hearings on A. 3430 Before the Assembly Conservation and Natural Resources Comm., 204th Leg., 1st Sess. at app. 77 (1990) [hereinafter Hearings ].
In 1977, a New Jersey-based menhaden-fleet operator had to invoke the Supremacy Clause to gain access to Virginia's territorial waters. See Douglas v. Seacoast Prods., 431 U.S. 265, 97 S. Ct. 1740, 52 L. Ed. 2d 304 (1977).
Despite its commercial value, most New Jerseyans have undervalued the menhaden. To them it is "moss bunker" or "bunker," an inedible and sometimes unwelcome visitor to our rivers and estuaries. In New Jersey, a recreational fisherman expressed his changing perception of this fish:
As a boy on the beach, I had a strong disdain for the bunker fleet. To me they were responsible for poor fishing, for the destruction of bluefish, stripers and weaks and for depletion of the prey upon which the sportfish existed. I held this belief for many years until I began to hear arguments on the other side. These arguments from my opponents were supported by facts and figures while I was totally unable to come up with any proof to justify my stand. Believe me, I did research on the subject but found nothing. I was forced to concede that what I had believed all along was based largely on the psychological effect caused by seeing the bunker boats fishing close to shore and nothing more. [ Hearings, supra, at app. 34.]
This case tests the "facts and figures" adduced to justify the State's regulation of the menhaden fleets.
Plaintiff, Ampro Fisheries, Inc. (Ampro), is a commercial fishing company with its principal place of business in Virginia.
Ampro operates sixteen fishing vessels. All of those vessels are federally licensed to fish for menhaden, and nine are also licensed by the State of New Jersey for the taking of menhaden. Each of those vessels is from 155 to 187 feet in length. The company owns processing plants in Virginia, North Carolina, and on the Gulf of Mexico.
Menhaden or "moss bunkers" are a member of the herring family and are found along the Atlantic and Gulf Coasts of the United States. They spawn in the ocean in every month of the year in some part of their range. The young make their way into estuaries where they grow rapidly. In the fall, they move south and off-shore, and are seldom seen during the winter months.
The menhaden fishery forms the basis for the United States' largest commercial fishery in terms of pounds landed. In 1983, forty-six percent of the commercial-fishery catch in the United States consisted of menhaden and was valued at $36.9 million. Currently, the catch is not used for human food. Although Native American Indians used the menhaden to fertilize their corn and other crops, it is now too valuable for that use. A small quantity is used for bait, but most of the catch is reduced to fish meal, oil, and a liquid by-product. The meal and by-product are used as a protein supplement in livestock feed, while the oil is used in the manufacturing of various products, including paint, linoleum, cosmetics, and margarine.
By far the largest part of the harvest is taken by purse seines. In purse seining a large vessel of 70 to 200 feet generally carries two purse boats, each about thirty-six feet in length. The net employed is approximately 1,000 to 1,400 feet long. Aircraft that accompany the vessels spot menhaden schools. When a good-sized school is located, the purse boats are lowered into the water. One-half of the purse seine is loaded into each of the two boats and they proceed, side by side, laying out the net toward the school. As they near the school, they move apart and begin laying out the net. They lay the net
around the school from opposite sides until they meet. When the two ends are joined and the school is surrounded, the bottom of the net is closed or "pursed." At that point, the purse boats begin to haul in the nets. The large vessel then joins the purse boats, and the three vessels form a triangle with the net between them. After a large hose has been lowered into the net, the fish are pumped aboard the large vessel. During that process, marine-fisheries regulators can determine the extent to which the purse-seine operation harvests other fish.
Because of the menhaden's great importance, with the aid of state and federal fisheries scientists, the Atlantic States Marine Fisheries Commission, an organization created to improve the use of our Atlantic coast fisheries resources, has developed a plan to achieve the greatest continuing yield for each area by determining the age at which menhaden should be ...