On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. DFW-071973.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 17, 2012 -
Before Judges Parrillo, Grall and Alvarez.
Point Lobster Company pled guilty to forty violations of N.J.A.C. 7:25-14.13a, a regulation adopted by the Commissioner of the Department of Environmental Protection (Department) pursuant to its authority to regulate "the taking and management of the lobster of the genus and species Homarus americanus [(American lobster)] in the State." N.J.S.A. 23:5-9e. The regulation states the minimum length of American lobster permissible to possess, buy, sell, import or export in this State. N.J.A.C. 7:25-14.13a. The judge imposed a $1200 penalty, the aggregate of the minimum $30 fine per undersized lobster, N.J.S.A. 23:28-14a(2); N.J.A.C. 7:25-14.20g (administrative penalty). See N.J.A.C. 7:25-14.20k (providing that the Department is not required to "assess an administrative penalty before instituting prosecution" for violation of a regulation). The judge granted Point Lobster's request for a stay pending appeal.
Prior to entering the guilty plea, Point Lobster moved to suppress the
evidence as the product of an unconstitutional search and to dismiss
the charges on the ground that the regulation violates the Commerce
Clause or is void for vagueness under the Due Process Clause of the
United States Constitution. The trial judge denied those applications
and accepted Point Lobster's guilty plea conditioned on its right to
court's rulings on the motions to suppress and dismiss.*fn1
Point Lobster appealed from those determinations, and we
reject its challenges to those rulings.
On June 18, 2009, Captain Mark Chicketano of the New Jersey Division of Fish and Wildlife, Bureau of Law Enforcement, received a telephone call from a person whom he knew but did not identify. The caller told the captain he had seen a truck with Massachusetts license plates offloading lobsters that came from Canada, and he told the captain he was familiar with the truck and its delivery of American lobster to New Jersey from Massachusetts or Canada. Knowing that Canada's size limit for American lobster is less demanding than New Jersey's limit, the captain and a conservation officer went to Point Lobster's market at 4:00 p.m., a time when the store was still open to the public for the sale of lobster.
John Godwin, Sr., Point Lobster's owner, was not there, but his son, John Jr. was. In the store, the captain introduced himself and the conservation officer and told John Jr. what he had heard about the shipment. John Jr. acknowledged that Point Lobster had received a delivery of American lobster from Canada, and he told the captain he was not aware of any difference between Canada's and New Jersey's size limits. He also admitted that he had not measured the lobsters.
The captain told John Jr. that he and the conservation officer would "like to" inspect the lobsters that had been delivered, and John Jr. said "okay." Because the captain did not believe John Jr. had a right to object or that he needed a warrant, he did not consider telling John Jr. he could refuse to cooperate and did not contemplate getting a warrant.
John Jr. took the captain and the officer to a room behind the market and showed him the tanks in which the lobster crates containing the 12,000-pound shipment received that day were stored. There, the captain and his assistant commenced measuring the lobsters.
After measuring one hundred and twenty of the lobsters, the captain determined that eighty lobsters were shorter than the three-and-three-eighths inches required by N.J.A.C. 7:25-14.13a. Those lobsters were, however, long enough to meet the more lenient three-and-one-quarter inch limit set by Canada and by federal regulation applicable in the Gulf of Maine and along the coast of northern Massachusetts and New Hampshire. 50 C.F.R. §§ 697.18(a), 697.20(a). Pursuant to 50 C.F.R. § 697.6(l) if a requirement of Part 697 "differs from a fisheries management measure required by state law, any dealer issued a Federal dealer permit under [Part 697] must comply with the more restrictive requirement."
John Jr. observed the measuring and acknowledged that if the captain continued the project he would find more short lobsters among the many that were still in pens in Point Lobster's tanks. The captain offered to discontinue the search and cite Point Lobster for only forty of the eighty short lobsters he had found on the condition that Point Lobster agree to return the shipment. John Jr. accepted that proposal. Accordingly, the captain re-measured forty of the group to confirm that they were under the New Jersey limit, issued a summons and kept ten of the lobsters as evidence. Point Lobster later returned the remainder to the Massachusetts distributor that delivered them and received a refund for what was returned.
John Sr. testified to the following at the motion hearing. He has licenses to operate his business from the State and Federal government, and he believes that five east coast states permit the taking of American lobster so long as it is at least three-and-five-sixteenths inches long. He purchases American lobster by the pound as the catch comes "off the boat," and sells between ninety-five to ninety-eight percent of the stock at wholesale and the rest from Point Lobster's retail store. The 12,000-pound shipment from Canada that he ordered and received from the Massachusetts dealer on June 18 was larger than normal in anticipation of demand over the weekend of Father's Day.
The New Jersey Legislature has directed the Department to regulate the size of American lobster and manage that lobster in this State. N.J.S.A. 23:5-9e(1). Pursuant to N.J.S.A. 23:5-9e(2), the Department must regulate and manage in "accordance with State policy" set forth in N.J.S.A. 23:2B-2, a provision of the "Marine Fisheries Management and Commercial Fisheries Act" (the Act). N.J.S.A. 23:2B-1 to -22. N.J.S.A. 23:2B-2 memorializes the Legislature's determination that "fisheries resources of the State make a material contribution to our economy and food supply, as well as to the health, recreation, and well-being of our citizens," and its determination that "fisheries resources of the State are a living, renewable form of wealth capable of being maintained and greatly increased with proper management, but equally capable of destruction if neglected or unwisely exploited." N.J.S.A. 23:2B-2a(1)-(2).
The "State policy" set forth in N.J.S.A. 23:2B-2b includes: management, conservation and promotion of the "continued productivity" of fisheries resources, and maintenance and enhancement of commercial fishing. The Act defines the term fish with sufficient breadth to include lobster: "'Fish' means any marine or anadromous animal or plant, or part thereof, excepting mammals and birds[.]" N.J.S.A. 23:2B-3e.
In pertinent part, the Department's regulation adopted under the authority of N.J.S.A. 23:5-9 and the Act provides:
(a) A person shall not take from the marine waters of this State by any means, import, export, offload at any port, have in his or her possession, buy, sell or offer to buy or sell, any American lobster of the genus and species Homarus americanus, which when measured from the rear end of the eye socket along a line parallel to the center line of the body shell to the rear end of the body shell is less than the lengths listed below after the dates stipulated.
After Minimum Size (inches) August 19, 2002 3 1/4 July 1, 2002 3 5/16 July 1, 2003 3 11/32 July 1, 2004 3 3/8 [N.J.A.C. 7:25-14.13a (emphasis added).]
In addition to the authority to promulgate regulations restricting the size of lobster taken and managing the resource, the Act gives the Department authority to inspect the records of those involved in the business of wholesale and retail sale of fish. N.J.S.A. 23:2B-9 addresses inspection of the records of persons engaged in commercial sales as follows:
b. Every person engaged in the commercial buying, packing, storing, wholesaling, marketing, or processing of any fisheries resources within the State shall keep accurate records, books or accounts showing the species, quantity, and source of fisheries resources.
c. Every record, book, or account referred to in subsection b. shall be open for inspection by the department at reasonable hours.
d. The department may audit the records, books, or accounts of any person referred to in subsection b., and of anyone who takes fisheries resources and ships directly to market in order to determine the quantity of resources taken and ...