On appeal from Department of Environmental Protection.
Before Judges Skillman, Parrillo, and Grall.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This appeal challenges the validity of a notice issued by the Commissioner of Environmental Protection on October 26, 2004, which directed the Division of Fish and Wildlife not to issue black bear hunting permits for the 2004 hunting season, and also"directed the Assistant Commissioner for Natural and Historic Resources to close all lands owned, managed, or controlled by the Department, whether through [the Division of Fish and Wildlife] or Division of Parks and Forestry, to the hunting of black bears[.]" In another appeal, filed three weeks before this one, we held that the Commissioner lacks statutory authority to direct employees of the Division of Fish and Wildlife not to issue permits for a hunt authorized by the Fish and Game Council and directed the Commissioner to complete the processing of all applications for bear hunting permits by December 2, 2004. U.S. Sportsmen's Alliance Found. v. N.J. Dep't of Envtl. Prot., ___ N.J. Super. ___ (App. Div.), certif. granted, ___ N.J. ___ (2004). Therefore, the only issue that needs to be addressed in this appeal is the validity of the part of the October 26th notice that closed all lands owned, managed or controlled by the Department of Environmental Protection (DEP) to bear hunting.
Appellants present two arguments in support of their challenge to this part of the October 26, 2004 notice. First, appellants contend that the Commissioner lacks statutory authority to close lands under his control to bear hunting. Second, appellants contend that even if the Commissioner has such authority, his exercise of that authority to close state lands for this year's bear hunt was arbitrary and capricious.
The Legislature has conferred general authority upon the Commissioner"to direct and coordinate the uses of all public lands under the jurisdiction of the [DEP]." N.J.S.A. 13:1B- 5(a). Lands under the DEP's jurisdiction include"all State forests, State parks, State recreation areas, State historic sites, and State natural areas, excepting those regulated by interstate compact[,]" which are managed by the Division of Parks and Forestry"under the direction and supervision of the commissioner[.]" N.J.S.A. 13:1B-15.101. Lands under the DEP's jurisdiction also include some lands managed by the Division of Fish and Wildlife. See N.J.A.C. 7:25-2.26.
The Commissioner has adopted extensive regulations that govern the use of State lands managed by the Division of Parks and Forestry, which are known as the State Park Service Code. N.J.A.C. 7:2-1.1 to -17.5. N.J.A.C. 7:2-2.2 provides:
The State Park Service [an agency within the Division of Parks and Forestry] shall designate or direct any and all recreational or other use on its lands and waters and within its facilities to such specific areas or locations within or upon said land, waters, and facilities as will be in the best interest of conservation, recreation, preservation and management of the natural and historic resources and the health, safety, and welfare of all persons concerned.
N.J.A.C. 7:2-2.3 provides:
The Director of the Division of Parks and Forestry or the Assistant Director of the Division for the State Park Service may limit or close to the public use, specific areas, lands, waters and facilities under its jurisdiction and control as part of a State Park whenever such action is deemed necessary for proper management and operation and/or in the best interest of health, safety and the general welfare of the public.
N.J.A.C. 7:2-2.18 deals specifically with the authorization of hunting on lands managed by the Division of Parks and Forestry.
N.J.A.C. 7:2-2.18(a) provides:
A person shall not hunt, fish and/or trap, except on specifically designated lands and waters of the State Park Service. All such use shall comply ...