On appeal from the Superior Court, Law Division, Monmouth County.
Approved for Publication February 7, 1996.
Before Judges Petrella, Skillman and P.g. Levy. The opinion of the court was delivered by P.g. Levy, J.A.D.
The opinion of the court was delivered by: Levy
The opinion of the court was delivered by
Defendant was charged by indictment with committing the fourth degree crime of "unlawful regulated activity in a freshwater wetlands or transition area by willfully or negligently engaging in a regulated activity within a freshwater wetlands or transition area without a freshwater wetlands permit or a transition area permit issued by the Department of Environmental Protection, contrary to the provisions of N.J.S.A. 13:9B-9a, N.J.S.A. 13:9B-17a and N.J.S.A. 13:9B-21f." He was convicted and sentenced to probation for two years, conditioned on his obtaining and maintaining full time employment, and fined $5,000 payable $100 per month during the period of probation.
Defendant claims to be a farmer raising chickens and livestock. Desiring to level part of his land to make it into pasture for grazing, he decided to copy his neighbor who had filled the property next door with wood chips. Accordingly, defendant arranged to have more than 100 tons of wood chips brought to his property. The chips were concentrated in an area slightly larger than one acre of the total four to six acres of his property.
When local authorities complained about the large amount of wood chips being dumped on defendant's property, a prosecutor's detective inspected the site along with defendant, the municipal zoning officer and representatives of the Department of Environmental Protection (DEP) and the county health department. The next day, defendant voluntarily gave a statement to the detective, explaining that he intended to mix the wood chips with lime and horse manure to produce pasture for cattle. Defendant indicated little knowledge of the technisms of freshwater wetlands, and he admitted he did not have "any permission from any local or state agency to fill the property."
A DEP investigator inspected the site at least four times and performed several tests in the area of the wood chips. He utilized a "three-parameter test" developed by the federal government, and observed hydrophytic vegetation, soil types indicative of both freshwater wetlands and a transition area and hydrology indicative of wetlands. Based on his observations and experience, he opined that the area covered with wood chips was wetlands and that placing wood chips there constituted a regulated activity requiring a permit from the DEP. The investigator indicated that wetlands are located on a certain "Federal" map showing the soil types on defendant's property, which were the same types of soil he found during his investigation. He also said that these soil types are indicated on the "Federal" map but not on any local maps.
Defendant presented a soil survey map he had obtained from the county agricultural department some years before he began to import the wood chips. The map had some indication of soil types and defendant identified the location of his property on that map. He admitted he did not have either a freshwater wetlands permit or a transition area waiver from the DEP. His defense was based on a challenge to the validity of the investigator's testing methods and a claim that he was exempt from regulation because he was engaged in normal farming activities which encompassed the use of wood chips to make pasture. The jury found him guilty.
On appeal, defendant contends:
1. The Grand Jury was not properly instructed as to the law before handing up the indictment.
2. The most important element of proof necessary for conviction was not presented to the ...