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U.S. Sportsmen's Alliance Foundation v. New Jersey Dep't of Environmental Protection

February 28, 2005

U.S. SPORTSMEN'S ALLIANCE FOUNDATION; NEW JERSEY STATE FEDERATION OF SPORTSMEN'S CLUBS; GERALD MCCUSKER; ANTHONY CALI; AND EDWARD O'SULLIVAN, APPELLANTS-RESPONDENTS,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION; BRADLEY M. CAMPBELL, IN HIS CAPACITY AS NJDEP COMMISSIONER; NEW JERSEY DIVISION OF FISH & WILDLIFE; AND MARTIN J. MCHUGH, IN HIS CAPACITY AS DIRECTOR OF THE DIVISION, RESPONDENTS-APPELLANTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 372 N.J. Super. 598 (App. Div. 2004).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

This appeal came to the Court as a result of a dispute between the Fish and Game Council and the Commissioner of the Department of Environmental Protection (DEP) regarding the propriety of a bear hunt. On December 2, 2004, this Court entered an order enjoining the bear hunt that the Fish and Game Council had scheduled to take place during the week of December 6, 2004. The order provided, among other things, that the failure of the Fish and Game Council to have developed comprehensive policies for the protection and propagation of the bear population, with the approval of the Commissioner, made resolution of the dispute impossible. The order further stated that a fuller exposition of the Court's reasoning would follow in an opinion. This is that opinion.

In early 2004, the Fish and Game Council considered a proposal to hold a bear hunt similar to the hunt that had taken place in 2003. The 2003 bear hunt was the first authorized in New Jersey since 1970. The Commissioner publicly supported the 2003 hunt; it was not until 2004 that he opposed a hunt due to fiscal concerns, the decrease in bear-human interactions, and the lack of data supporting the Division of Fish and Wildlife's (Division) projections regarding the bear population. Notwithstanding that opposition, the Fish and Game Council adopted the 2004-2004 Fish and Game Code that authorized the bear hunt. The Commissioner subsequently directed the Division not to issue or process applications for bear hunting permits. The U.S. Sportsmen's Alliance Foundation and others filed a notice of appeal challenging the Commissioner's directive.

The Appellate Division held that the Commissioner lacks the statutory authority to enjoin the issuance of bear hunt permits. 372 N.J. Super. 598 (App. Div. 2004). The DEP, the Commissioner, and others petitioned for certification, which the Court granted.

HELD

The Fish and Game Council's power to authorize a black bear hunt is subject to the statutory condition precedent of the Commissioner's approval of comprehensive policies governing the propagation of black bears.

1. The case revolves around the statutes governing the operations of the Fish and Game Council. N.J.S.A. 13:1B-28 provides that the Council "shall, subject to the approval of the commissioner, formulate comprehensive policies" for the protection and propagation of fish, birds, and game animals. N.J.S.A. 13:1B-30 states that the Council, for the purpose of providing a system of protection, control and conservation of fish, birds, and game, is authorized to promulgate the State Fish and Game Code, determining by what means and in what amounts fish, birds, and game animals may be pursued, taken, and killed "after first having determined the need for such action on the basis of scientific investigation and research." N.J.S.A. 13:1B-32, in turn, provides for the Council to adopt regulations establishing fishing and hunting seasons "after [it] has first determined the need for such action on the basis of scientific investigation and research." (pp. 4-7)

2. Standing alone, N.J.S.A. 13:1B-30 and -32 afford substantial authority to the Fish and Game Council in respect of hunting. N.J.S.A. 13:1B-28, however, requires the Fish and Game Council to formulate comprehensive policies for the protection and propagation of fish, birds, and game animals "subject to the approval of the commissioner." The statute is ambiguous at best, requiring the Court to turn to the legislative history for clarification. (pp. 7-9)

3. In the years prior to the adoption of the State Constitution of 1947, the State Reorganization Commission was charged with reducing the number of State agencies from over 100 to no more than 20 departments. Regarding the Division of Fish and Game specifically, the Reorganization Commission proposed that it be part of the Department of Conservation, and that the Commissioner of the Department exercise veto power over the actions of the various councils and divisions. The Laws of 1948, chapter 448, established the Department of Conservation and Economic Development, now the DEP. Although the legislation enacted the Reorganization Commission's broad objectives into law, it declined to grant the Commissioner the explicit veto power contemplated by the Reorganization Commission over all actions of the councils. Nor did the legislation grant the Fish and Game Council total hegemony. It bears repeating that in its first explication of the Fish and Game Council's responsibilities found at N.J.S.A. 13:1B-28, the statue requires that the Council formulate comprehensive policies for the protection and propagation of fish, birds and game animals "subject to the approval of the Commissioner." The Commissioner's approval of the Fish and Game Council's comprehensive policies insures that those policies comport with department-wide goals for environmental protection. This conclusion is bolstered by a review of the legislation governing other divisions and councils within the DEP, as well. The statutory scheme evinces an intention to create a unified approach to conservation and environmental protection under the authority of the Commissioner. Although the Fish and Game Council may act without day-to-day veto by the Commissioner, its actions exist within a larger universe of comprehensive environmental policies. If the Council does not act in accord with those policies, the Commissioner is empowered to intervene. (pp. 9-18)

4. The Fish and Game Council argues that its decision to hold a bear hunt in 2004 fully accorded with "comprehensive policies" in effect. According to the Council, those policies are set forth in the New Jersey Black Bear Management Plan Summary 1997, a document developed by the Division. Separate and apart from the age of that document and the rather stark inaccuracies in its statistical data, it is at least debatable that it should have been enacted pursuant to the Administrative Procedure Act. But even if that procedural obstacle is overcome, the Bear Management Plan is simply not a statement of "comprehensive policies" within the meaning of N.J.S.A. 13:1B-28.

Both contextual and commonsense considerations compel the conclusion that the statutory term "comprehensive policies" refers to a thorough statement of guidelines that set forth not only end-point objectives but also the means that should be used to attain those ends. Such policies should at least include the broad preservation goals of the Council, the tools at the Council's disposal to accomplish those goals, and most importantly, the factors that should be considered when determining which tools will be utilized. Had the Fish and Game Council enacted policies that were approved by the Commissioner and that explained when it would pursue a bear hunt over other population control and conservation methods, and had the Fish and Game Council authorized the bear hunt in accordance with those policies, the Commissioner would have been powerless to refuse to issue or process applications for hunting permits. Here, there are no approved policies in effect. In the absence of approved comprehensive policies, the Fish and Game Council could not promulgate regulations authorizing the hunt. (pp. 18-22)

The judgment of the Appellate Division is REVERSED.

CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE LONG's opinion.

The opinion of the court was delivered by: Justice Long

Argued November 29, 2004

On December 2, 2004, by order, we enjoined the bear hunt that the Fish and Game Council had scheduled to take place during the week of December 6, 2004. The case came to us as a result of a dispute between the Fish and Game Council and the Commissioner of the Department of Environmental Protection (DEP) regarding the propriety of the hunt. Our order provided, among other things, that the failure of the Fish and Game Council to have developed comprehensive policies for the protection and propagation of the bear population, with the approval of the Commissioner, as required by N.J.S.A. 13:1B-28, made resolution of the dispute impossible. In ruling, we promised a fuller exposition of our reasoning in an opinion to follow. This is that opinion.

I.

The complete facts and procedural history of this case are reported in U.S. Sportsmen's Alliance Foundation v. New Jersey Department of Environmental Protection, 372 N.J. Super. 598 (App. Div. 2004). In a nutshell, in early 2004, the Fish and Game Council considered a proposal to hold a bear hunt similar to the hunt that had taken place in 2003. The 2003 bear hunt was the first authorized in New Jersey since 1970.*fn1 The Commissioner publicly supported the 2003 hunt; it was not until 2004 that he opposed a hunt outright due to fiscal concerns, the decrease in bear-human interactions, and the lack of data supporting the Division of Fish and Wildlife's (Division) projections regarding the bear population. Notwithstanding that opposition, the Fish and Game Council adopted the 2004-2005 Fish and Game Code that authorized the bear hunt. The Commissioner subsequently directed the Division not to issue or process applications for bear hunting permits. The U.S. Sportsmen's Alliance Foundation, New Jersey State Federation of Sportsmen's Clubs, Gerald McCusker, Anthony Cali, and Edward O'Sullivan filed a notice of appeal challenging the Commissioner's directive.

The Appellate Division held that the Commissioner lacks the statutory authority to enjoin the issuance of bear hunt permits or to otherwise interfere with Fish and Game Code regulations governing the hunt.

The DEP, the Commissioner, the Division, and the Director of the Division (collectively the Commissioner) petitioned for certification, which we granted. U.S. Sportsmen's Alliance Found. v. N.J. Dept. of Envtl. Prot., 182 N.J. 151 (2004).

II.

The case revolves around the statutes governing the operations of the Fish and Game Council. N.J.S.A. 13:1B-28 provides:

In addition to its powers and duties otherwise hereinafter provided, the Fish and Game Council shall, subject to the approval of the commissioner, formulate comprehensive policies for the protection and propagation of fish, birds, and game animals and for the propagation and distribution of food fish and for the keeping up of the supply thereof in the waters of the State.

The council shall also:

a. Consult with and advise the commissioner and director of the Division of Fish and [Wildlife] with respect to the work of such division.

b. Study the activities of the Division of Fish and [Wildlife] and hold hearings with respect thereto as it may deem necessary or desirable.

c. Report to the Governor and the Legislature annually, and at such other times as it may deem in the public interest, with ...


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