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

April 07, 1998

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-RESPONDENTS,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT-APPELLANT.



Argued February 18, 1998

On certification to the Superior Court, Appellate Division, whose opinion is reported at 304 N.J. Super. 20 (1997).

The opinion of the court was delivered by: Per Curiam

This appeal concerns a ban on the harvesting of horseshoe crabs imposed by the New Jersey Department of Environmental Protection (DEP) on July 29, 1997. This ungainly creature is one of nature's marvels.

Ugliness is nature's great gift to the horseshoe crab. It looks like a cross between a lobster and a Sherman tank, with a steel helmet of a shell and enough barbs and spikes to deter most predators. Get past the armor and there's little to eat; fishermen long viewed the crabs as a nuisance, barely worth the few pennies they'd fetch at the fertilizer plant.

This singular unattractiveness, wrapped in a remarkably sturdy biological package, enabled the crab to survive for 300 million years. Ice ages and meteor explosions that wiped out dinosaurs rolled off its armor-plated back.

[Joby Warrick, Ugly Horseshoe Crab May Have a Future to Match on Delaware Bay, Washington Post, Aug. 4, 1997, at A3.]

Despite the crab's durability, humankind today poses a serious threat to the survival of the horseshoe crab.

Fishermen have discovered a market for the crabs as bait for a growing eel fishery, and suddenly one of [the] ocean's great survivors is floundering. In the Delaware Bay, home of the largest concentration of Atlantic horseshoe crabs, its numbers on some beaches are down 90 percent in five years.

The drop is coinciding with a new awareness of the creature's ecological value. In the bay, fewer horseshoe crabs means fewer horseshoe crab eggs, a dietary staple for migratory shore birds that flock to local beaches each spring . . . [endangering] the $30 million-a-year bird-watching industry that has grown up around it.

"You pull at one thread," observes [the] . . . refuge manager for Cape May National Park, "and everything starts to come undone."

Ironically, the crab is becoming imperiled just as scientists are fully realizing its potential for improving human health. The horseshoe crab's unique blue blood is the world's only source of a compound called limulus amoebocyte lysate, which is used widely to test for bacterial contaminants in drugs. The nearly pure form of a substance in the crab's shell--chitin--is being explored as a possible dressing for burns that promotes faster healing.

[Ibid.]

The DEP's action took the form of an emergency rule regulating the commercial harvesting of horseshoe crabs, N.J.A.C. 7:25-18.16. The effect of the July 29, 1997 rule was to create a sixty-day extension to a complete ban on the taking of horseshoe crabs imposed by a prior emergency rule adopted sixty days earlier, on May 30, 1997. The July emergency rule completely banned the taking of horseshoe crabs until May 1, 1998. In addition, the emergency rule eliminated a previously existing, year-long horseshoe crab harvest allowing, instead, horseshoe crabs to be taken by hand on two days per week in May and June to the extent of one hundred crabs per person, per day. Trawling for crabs was prohibited.

Plaintiff, Delaware Bay Waterman's Association (DBWA), represents individuals engaged in the harvesting and taking of horseshoe crabs for commercial gain. DBWA contended that the July 29, 1997 emergency rule was the functional equivalent of the May emergency rule and impermissibly extended the May emergency regulation for an additional sixty days. It contended that DEP adopted the emergency rule in violation of section 4(c) of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-4(c), which provides that an emergency rule or regulation may be effective for a period of not more than sixty days, unless each house of the Legislature passes a resolution Concurring in its extension for a ...


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