On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-559-05.
The opinion of the court was delivered by: Yannotti, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, Espinosa and Kennedy.
The opinion of the court was delivered by YANNOTTI, J.A.D.
Plaintiff State of New Jersey, Department of Environmental Protection (DEP), filed a complaint in the Law Division against defendants Thomas Cullen (Cullen), T.C. Management, Inc. (TCM), Bennett Mohin (Mohin), Cherokee Camden L.L.C. and Cherokee Pennsuaken, L.L.C. (collectively, Cherokee), alleging that they violated the Endangered and Nongame Species Conservation Act (ENSCA), N.J.S.A. 23:2A-1 to -15. The DEP claimed that defendants violated ENSCA because Cullen and Mohin harassed bald eagles living on Petty's Island.
The DEP appeals from the trial court's order of November 19, 2008, denying its motion for an adverse inference due to spoliation of evidence. The DEP also appeals from an order entered by the trial court on January 14, 2010, granting summary judgment in favor of defendants, and denying the DEP's cross-motion for summary judgment. For the reasons that follow, we affirm in part, reverse in part and remand the matter to the trial court for further proceedings.
This dispute arises from the following facts. Petty's Island is located in the Delaware River, near Camden and consists of about 300 acres. Citgo Petroleum Corporation (Citgo) owns the island, which is connected to the New Jersey mainland by a vehicular bridge. A fuel oil tank farm is located on the island. Since at least 2003, the island has been the nesting site for a pair of bald eagles. Cherokee is a company that invests in the redevelopment of brownfield sites.*fn1 Cherokee intended to clean up the contaminants on Petty's Island and redevelop the property.
In January 2004, Cherokee contacted Cullen and Cullen attended a meeting with a Cherokee representative and others at a law firm to discuss whether the island could be redeveloped if the eagles were living there. Cullen apparently has had some experience with birds of prey. Another meeting took place at the law firm in February 2004. Cullen said that the meeting focused on the proposed development and the taking of soil samples.
After that meeting, a representative of the United States Fisheries and Wildlife Service (USFWS) told Cullen that there was no established federal protocol for monitoring bald eagles and Cullen should contact the DEP. Cullen claimed that he made several attempts to contact Lawrence Niles (Niles), chief of the DEP's Endangered and Nongame Species Program, but was not able to speak with him.
In March 2004, Cherokee entered into a contract with TCM, Cullen's company, to monitor the behavior of the eagles on Petty's Island. According to the contract, TCM would provide thirty-two hours of monitoring per week for about five months. The monitoring program was to include experienced personnel trained to identify the behavior of eagles. The agreement stated that "Monitoring Protocols have been set with consultation with [the DEP] Fish and Wildlife Service personnel."
The agreement also stated that monitoring of the eagles was to take place from fixed points of observation. Reports would be completed for each shift, and monitors were to record data every thirty minutes. All observed movements were to be recorded. The monitoring would coincide with the natural breeding behavior of the eagles and would note behavior of interest such as tolerance to disturbances, food preferences and roosting sites. TCM agreed to produce a summary report of its monitoring activities after they were completed.
Cullen hired Mohin to monitor the eagles. Mohin was nineteen-years old at the time. It appears that Mohin had previously accompanied Cullen on hunting trips using birds of prey. Mohin also had taken a course in falconry but never observed bald eagles. Before the start of the monitoring program, Cullen told Mohin that he should avoid disrupting the eagles.
According to Cullen's final report, the monitoring began on March 12, 2004. Cullen selected the observation points. Mohin observed the activities of the eagles using a range finder and a telescope. He recorded his observations in a log book and noted on a map the places where he saw the eagles. Mohin phoned Cullen and updated him on the movements he observed.
Mohin worked on the monitoring project seven days a week, about seven hours a day, for fifteen weeks, under Cullen's supervision. He made observations at dawn or dusk, when the eagles were most active. Cullen and Mohin claimed that the monitoring took place primarily from the New Jersey and Pennsylvania shorelines, but sometimes Cullen directed Mohin to go onto the island.
Mohin and/or Cullen went to the island twenty-one times, nineteen times by car and twice by a kayak. Mohin stated that he never left his car on the occasions he drove onto the island. Mohin also made observations fifteen times from a kayak without actually setting foot on the island. At one point, Mohin's kayak approached within fifty yards of one of the eagles, and the eagle flew away.
Mohin denied approaching the tree where the eagles' nest was located. He observed the eagles bringing food to the nest but did not see an eaglet. He claimed that typically there was truck activity on the island about every ten to twenty minutes. According to Cullen, workers from the oil tank farm came within several hundred yards of the eagles from time to time.
While the monitoring program was underway, Niles and his deputy, Kathleen Clark (Clark), placed a two-week old eaglet in the Petty's Island nest. Niles was concerned that nests north and south of Petty's Island were showing signs of environmental contamination. Niles and Clark wanted to see what would happen when a newly-hatched eaglet was placed in the nest. A DEP volunteer checked the site in late May of 2004 and noted that the eaglet was doing well.
On or about May 27, 2004, Cullen and Mohin brought a six by seven foot camouflaged tent to the island and erected it about 200 feet from the nest. Mohin said that they placed the tent on the island because the growth of the island's vegetation made it difficult for him to observe the nest from the shore. Cullen said that when he and Mohin selected the site for the tent, they remained on the island about fifteen minutes. A DEP volunteer checked the site on June 4, 2004, and found no sign of the eagles or the eaglet.
On June 10, 2004, the eaglet was found injured along a roadway on the island. Niles and Clark went to the island that day to retrieve it. The bird was lying between the road and the nesting tree. Niles maintained that the bird died shortly thereafter from poor nutrition, the effects of a puncture wound and a broken bone.
When Mohin returned to the island on June 16, 2004, he found the tent about ninety-four feet from the nest. The tent had apparently been moved in a storm. Mohin moved the tent back to its original location. This visit to the island lasted about fifteen minutes. According to Cullen, Mohin did not observe any activity in the nest that day and told him that something was wrong. On June 21, 2004, Mohin and Cullen went to the tent but did not observe any activity in the nest. Cullen had Mohin remove the tent the following day.
Cullen said that the monitoring of the eagles ended on June 26, 2004, after 480 hours of observation and 108 sightings. In his final report dated July 12, 2004, Cullen stated:
Due to the location of the nest site it is expected that the eagles on Petty's Island would have a high tolerance toward human related activities. During the course of monitoring the movements of the eagles in and around Petty's Island, T.C. Management staff had the opportunity to observe a variety of situations in which the eagles ignored human activities.
The activities noted included vehicular activity, boat traffic on the river and persons walking.
On March 3, 2005, the DEP filed a complaint against Cherokee, TCM and Cullen, alleging that they violated ENSCA as a result of the harassment of the eagles. The DEP later filed the first amended complaint with additional allegations, and a second amended complaint naming Mohin as a defendant. Before the second amended complaint was filed, defendants filed motions to ...