On appeal from the Superior Court of New Jersey, Law Division, Cape May County, 36-9- 99.
Before Judges Newman, Braithwaite and Wells.
The opinion of the court was delivered by: Braithwaite, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Following a trial de novo in the Law Division, defendant appeals from his conviction for using property "under the control" of the Division of Fish, Game and Wildlife (the "Division") contrary to regulations established by the Division, N.J.S.A. 23:7- 9(d) and N.J.A.C. 7:25-2.5(a)2. Defendant was acquitted of violating the Lower Township anti-nudity ordinance, Section 3-2.6. The State cross-appeals from defendant's acquittal.
On appeal defendant contends:
THE STATE DID NOT ESTABLISH JURISDICTION TO ENFORCE ITS LAW ON THE FEDERALLY OWNED PORTION OF HIGBEE BEACH.
WHATEVER THE STATE'S ABILITY TO REGULATE THE UPLAND PORTION OF HIGBEE BEACH, IT COULD NOT ENFORCE ITS REGULATIONS ON FEDERALLY OWNED RIPARIAN LAND.
CLOSURE OF THE RIPARIAN AREA, ALLEGEDLY FOR WILDLIFE PRESERVATION, WAS BOTH PROCEDURALLY DEFECTIVE AND WITHOUT FACTUAL BASIS, AND THEREFORE INVALID.
On its cross-appeal, the State argues:
THE LAW DIVISION ERRED IN REVERSING MR. VOGT'S CONVICTION ON STATE SOVEREIGNTY GROUNDS BECAUSE THE DOCTRINE DOES NOT APPLY WHEN THE FEDERAL GOVERNMENT OWNS THE LAND IN QUESTION AND HAS PERMITTED LOWER TOWNSHIP TO ENFORCE ITS ANTI-NUDITY ORDINANCE THERE.
We reject the contentions raised in the appeal and now affirm. We dismiss the State's cross-appeal on double jeopardy grounds.
The incident leading to defendant's charges occurred on Higbee Beach in Lower Township ("Township"). The beach area lies south of and adjacent to the Cape May canal in the Township. The beachfront consists of both riparian land and upland. Inland from the beachfront is the Higbee Wildlife Management Area, a wildlife preserve.
A portion of the area is owned by the federal government. In 1979, the federal government, through the Department of the Army, granted a twenty-five-year license to the Division "to use and occupy 196 acres of land and water areas, more or less . . . for the purpose of conserving, maintaining and managing wildlife resources." The license was subject, however to the Division's insuring the public's access to the water areas for recreational purposes, but "no use of any area shall be permitted which is inconsistent with the State laws for the protection of fish and game."
Pursuant to the license, the Division adopted regulations governing this area (as well as other designated State Wildlife Management Areas). N.J.A.C. 7:25-2.1 to -2.26. The regulations allow the closure of an area upon proper notice, N.J.A.C. 7:25- 2.26, and they forbid any person from entering a restricted area. N.J.A.C. 7:25-2.5(a)(2). Defendant was convicted of violating N.J.A.C. 7:25-2.5(a)(2).
In early 1999, the Division began implementing a long-term management plan for Higbee Beach. Part of that plan was an attempt to induce certain birds, piping plovers and least terns, to return to the area. The birds had left the area after 1986 because of erosion and "environmental intrusion." Accordingly, on July 3, 1999, the Division closed a portion of the licensed area to the public. The Division posted signs stating that the roped off area was restricted.
At defendant's municipal court trial, the parties stipulated that, on July 4, 1999, defendant had received a written warning from the police chief about breaching the Township's anti-nudity ordinance. On July 17, 1999, Sergeant Louis Russo of the Lower Township Police Department was patrolling Higbee Beach when he saw defendant, naked, being interviewed by a television reporter. When Russo informed defendant that he was going to have to issue him a ticket, defendant asked "did we see that he was nude." Russo said yes, and defendant then put on his swim trunks. Russo issued defendant a ticket charging him with a violation of the Township anti-nudity ordinance. At the entrance to the ...