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Mercer County Deer Alliance v. New Jersey Dept. of Environmental Protection

April 01, 2002

MERCER COUNTY DEER ALLIANCE, NEW JERSEY ANIMAL RIGHTS ALLIANCE, ANIMAL PROTECTION INSTITUTE, URSA CURAC, DEBRA FAIELLO, MARILYN JOHNSON, AND LINDA NIEDWESKE, APPELLANTS,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF FISH, GAME AND WILDLIFE, AND NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF FISH, GAME AND WILDLIFE, FISH AND GAME COUNCIL, RESPONDENTS.
MILLBURN-SHORT HILLS HUMANE ALTERNATIVES (MSH-HALT), PAT PORTER AND LARAINE BARACH, APPELLANTS,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF FISH, GAME & WILDLIFE AND NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF FISH, GAME & WILDLIFE, FISH & GAME COUNCIL, RESPONDENTS.



Before Judges Pressler, Ciancia and Parrillo.

The opinion of the court was delivered by: Pressler, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 12, 2002

On appeal from the New Jersey Department of Environmental Protection, Division of Fish, Game and Wildlife, Fish and Game Council.

These appeals arise out of the deer control mechanisms promulgated by the Legislature and, pursuant to asserted legislative authority, by the Division of Fish, Game and Wildlife in the Department of Environmental Protection (Division) and by the Fish and Game Council, an arm of the Division. In the appeal filed under Docket Number A-4134-98T2, a variety of challenges to the program and its implementation have been brought by a group of animal-rights organizations, including Mercer County Deer Alliance, New Jersey Animal Rights Alliance, Animal Protection Institute as well as several individuals (collectively Mercer County appellants). These challenges are based in part on the regulatory process in place prior to June 30, 2000, the effective date of N.J.S.A. 23:4-42.3 to -42.8 (the Act), enacted by L. 2000, c. 46, which comprehensively addresses deer management. The Mercer County appellants also challenge the constitutionality of the Act. In the appeal filed under Docket Number A-1618-00T2, Millburn-Short Hills Humane Alternatives, another animal rights group, and several of its members (collectively Millburn appellants) challenge the constitutionality, both facially and as applied, of the Act. We calendared the two appeals back to back, and we now consolidate them for purposes of this opinion.

Our review of the record in each of the appeals satisfies us that the issues raised in respect of the regulatory program and its implementation prior to the 2000 adoption of the Act have been essentially rendered moot by the Act. We are also satisfied that there is no constitutional infirmity, either facial or as applied, inherent in the Act or regulation. We therefore dismiss the appeal under Docket Number A-4134-98T2, the Mercer County appeal, to the extent it raises pre-2000 issues, and we reject the claims of unconstitutionality raised in both appeals.

A brief historical context is necessary. The Division of Fish, Game and Wildlife is constituted by N.J.S.A. 13:1B-23 as an agency within the Department of Environmental Protection and Energy (DEPE).*fn1 The eleven-member Fish and Game Council, representing designated interests and appointed by the Governor with the advice and consent of the Senate, was established by N.J.S.A. 13:1B-24 as an arm of the Division. The Council's general statutory mission is, subject to the Commissioner's approval, to "formulate comprehensive policies for the protection and propagation of fish, birds, and game animals...." N.J.S.A. 13:1B-28. In performing this mission, it is directed to consult with and advise the Director of the Division, to study the activities of the Division, to hold such hearings as it deems advisable, and to report at least annually to the Governor and Legislature. More specifically, the Council is charged by N.J.S.A. 13:1B-30 with developing and promulgating a State-wide Fish and Game Code. The purpose of the Code is to provide "an adequate and flexible system of protection, propagation, increase, control and conservation of fresh water fish, game birds, game animals, and fur-bearing animals," including regulations for pursuing, taking and killing. The Code is, moreover, required to be based on "scientific investigation and research." Ibid.

Prior to 1994, the Division and the Council had become deeply concerned about the white-tailed deer population in the State, having reason to believe that the extent of overpopulation was not only threatening the viability of the deer herds but was also causing significant problems in terms of crop and garden damage and vehicular accidents. On January 20, 1994, the Division promulgated a detailed policy statement entitled Community-Based Plan For The Management of Suburban Deer Population - Policy and Program (the State CBDMP or State Plan). Relying at least in part on sixteen referenced studies, the program was predicated on the theory of deer population capacity, taking into account two capacity criteria, namely, biological carrying capacity, defined as the maximum number of deer that a given area can support in good health over an extended period, and cultural carrying capacity, defined as that number of deer that can coexist compatibly with the local human population in a given area and measured by the extent of crop and garden degradation and vehicular accidents caused by deer. The purpose of the State Plan, addressed to the control of urban, suburban and other "unhuntable" deer populations, was stated as

... to provide a cooperative approach to controlling deer populations which have exceeded or have the potential to exceed either the cultural or biological carrying capacity of suburban environments and to re-establish where possible traditional or controlled hunting programs as one of several potential means of achieving control as quickly and efficiently as possible.

The goals of the State Plan included:

1. To develop and maintain a healthy and productive deer resource at or below the biological carrying capacity of the habitat.

2. To maintain local deer populations at densities which are compatible with human activities and uses of the land — the cultural carrying capacity.

3. To maximize and preserve the recreational, economic, social/cultural, scientific and esthetic values of the deer resource.

The scheme of the State Plan was, essentially, to place the burden of initiating action on a federal or local authority or entity, termed a cooperator, that was experiencing deer overpopulation problems. The cooperator was required to request, in writing, assistance from the Division. The Division was then authorized to make an initial determination that assistance was warranted, and if so, to then make an independent evaluation of the necessity of a local deer control management program. If the necessity for control was verified, the Division and the cooperator would enter into a memorandum of understanding (MOU) and cooperate in the formulation of an appropriate management plan, the local CBDMP (community plan), to be approved by the Division. If the community plan included killing or capturing deer, a special Division permit would be required. From the time of execution of the MOU until final implementation ...


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