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Delaware Bay Waterman's Ass'n of New Jersey v. New Jersey Dept. of Environmental Protection

August 20, 1997

DELAWARE BAY WATERMAN'S ASSOCIATION OF NEW JERSEY, A NON-PROFIT CORPORATION; CHARLES F. BURKE, JR., JOHN KING, FRED LAYTON, JR., KENNETH W. BAILEY, ROBERT BATEMAN, JAMES J. NASH, JEFFREY W. NACE, ALEXANDER T. OGDEN, III, AND LANCE NAYLOR, APPELLANTS,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT.



On appeal from a final agency decision of the Department of Environmental Protection.

Approved for Publication August 22, 1997.

Before Judges Kleiner and Braithwaite.

PER CURIAM

On May 30, 1997, the Department of Environmental Protection (DEP) issued a sixty-day emergency amendment, pursuant to N.J.S.A. 52:14B-4(c), part of the Administrative Procedures Act (APA). The emergency amendment created a total ban on the taking of horseshoe crabs. Then on July 29, 1997, the DEP issued another emergency amendment, extending the ban on taking horseshoe crabs for another sixty days. The appellants in this matter are commercial fishermen, who catch horseshoe crabs as part of their trade. They challenge the July 29, 1997, emergency adoption, claiming that it violates the strict dictates of New Jersey's Administrative Procedures Act, N.J.S.A. 52:14B.

There are two questions that must be answered in order to resolve this appeal. First, we must decide whether the July 29, 1997, emergency adoption is a new emergency or the same emergency for the purpose of the APA. We must then decide whether the dictates of the APA have been violated by the enactment of the second emergency amendment. We find that the July 29, 1997, emergency amendment is the same as the May 30, 1997, emergency amendment for the purposes of the APA. As a result, the DEP has violated N.J.S.A. 52:14B-4(c).

The May 30, 1997, emergency adoption, indicated below by redline, amended N.J.A.C. 7:25-18.16, which states, in part:

(a) An individual shall not catch, take, or attempt to catch or take horseshoe crabs . . . from any beach or shoreline or from the marine waters of this State . . . . Any permit issued by the Commissioner of the Department of Environmental Protection which allows the harvest or taking of horseshoe crabs from any beach or shoreline or from the marine waters of this State is suspended for 60 days as of May 30, 1997 unless the effective period of this amendment is extended by the Legislature pursuant to N.J.S.A. 52:14B-4(c).

[Ibid. ]

The DEP issued a Statement of Imminent Peril in which the rationale for the emergency adoption was that the decrease in the number of horseshoe crabs resulted in a decrease in horseshoe crab eggs that are available on New Jersey beaches, which, in turn "could result in a collapse of several species of shorebirds," which feed on the eggs of horseshoe crabs. This, in turn, would lead to a decrease in shorebird tourism.

On July 29, 1997, near the end of the sixty day period, the DEP filed a second emergency amendment to N.J.A.C. 7:25-18.16. Additionally, the DEP instituted regular rule-making procedures to amend N.J.A.C. 7:25-18.16. *fn1 Included with the emergency amendment was another Statement of Imminent Peril, which stated, in part:

Since May 30, 1997, experts from the Division of Fish, Game and Wildlife amassed and analyzed data from every available source around the Delaware Bay. . . . Statistics for the 1997 catch in New Jersey report a total catch of just under 300,000 crabs. In May alone, 200,000 of those crabs were hand harvested prior to the implementation of the ban. The resumption of trawling and dredging will undoubtedly increase the total catch for 1997 and create an emergency which can not [sic] be addressed by the adoption of a rule in the normal course to limit the catch.

As indicated above, the potential extent of this harvest in combination with the harvest prior to the moratorium could be devastating to horseshoe crab populations. The only alternative is to adopt these measures through emergency proceedings. The Department therefore finds that it is essential to adopt the amendment using emergency procedures to protect the health and welfare of the citizens of New Jersey through the conservation of this species and the direct impact it has on New Jersey's commercial interests.

Appellants claim that the DEP circumvented the APA by issuing a second emergency amendment instead of getting approval from the Legislature to continue the first emergency amendment. Appellants filed an appeal with this court and sought, on an emergent basis, a stay pending that appeal. During oral argument on the motion for a stay, it became clear that in order to resolve this ephemeral issue, we had to accelerate the substantive appeal.

The substantive issues were before the court, and we provided both parties with the opportunity to supplement the record with any materials that they thought appropriate. Under Rule 2:8-3(b), this court "may summarily dispose of any appeal on its own motion at any time, and on such notice, if any, to the parties or as the court directs, provided that the merits have been briefed." Ibid. Without such an acceleration, in light of the ...


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