April 4, 2008
SOUTHERN JERSEY WATERMEN'S ASSOCIATION, J.W. COMMERCIAL FISH, INC., SAMUEL VEACH, WILLIAM TIRRI, H & H FISHERIES, INC., DELAWARE VALLEY FISH, INC., CAPE MAY BAIT, INC., JAMES M. PARKER, CHARLES GIVENS AND DAVID KIELMEIR, APPELLANTS,
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT.
AMERICAN LITTORAL SOCIETY, INC., DELAWARE RIVERKEEPER NETWORK AND MAYA VAN ROSSUM, INTERVENORS-RESPONDENTS.
On appeal from an adopted amendment to N.J.A.C. 7:25-18.16 by the New Jersey Department of Environmental Protection, Division of Fish and Wildlife.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 5, 2008
Before Judges Skillman, Winkelstein and LeWinn.
Appellants, commercial fishermen, challenge a New Jersey Department of Environmental Protection (NJDEP) regulation, N.J.A.C. 7:25-18.16, which established a temporary moratorium on horseshoe crab harvesting in the Delaware Bay that was in effect from May 2006 through December 2007. The regulation was enacted to increase the number of horseshoe crab eggs available to feed the migratory red knot shorebird population. On appeal, appellants claim that the regulation is facially invalid, arbitrary and capricious, and that the NJDEP lacked authority to enact it.
On March 25, 2008, Governor Jon Corzine signed legislation concerning horseshoe crabs and shorebirds, imposing a moratorium on the "taking in the State of horseshoe crabs or the eggs of horseshoe crabs" until "recovery targets for the population of the red knot shorebird . . . are met." P.L. 2008, c. 1. The enactment of this legislation, along with the expiration of the initial moratorium imposed by the NJDEP, renders moot plaintiffs' challenges to both the initial moratorium and the authority of the NJDEP to enact that moratorium. See In re 970 Realty Assocs., 234 N.J. Super. 348, 352 (App. Div. 1989) (questions that have become moot "'prior to judicial scrutiny generally have been held to be an improper subject for judicial review'") (quoting Anderson v. Sills, 143 N.J. Super. 432, 437 (Ch. Div. 1976)). As a result of the enactment of the new legislation, "we do not view this case as presenting any issue of great public importance compelling definitive resolution despite mootness." Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303 (1975). Given the new legislation, we do not perceive that the NJDEP's imposition of a similar moratorium is likely to recur.
Accordingly, we dismiss the appeal as moot.
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