The Lesniak Institute for American Leadership v. New Jersey Fish & Game Council

• Court: New Jersey Superior Court Appellate Division
• Decided: August 21, 2025
• Docket: A-1687-23
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1687-23

THE LESNIAK INSTITUTE FOR AMERICAN LEADERSHIP and RAYMOND J. LESNIAK,

Plaintiffs-Appellants,

v. APPROVED FOR PUBLICATION NEW JERSEY FISH & August 21, 2025 GAME COUNCIL, NEW APPELLATE DIVISION JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF FISH AND WILDLIFE, GOVERNOR PHILIP D. MURPHY, GOVERNOR OF NEW JERSEY, and NEW JERSEY STATE FEDERATION OF SPORTSMEN'S CLUBS,

Defendants-Respondents. ____________________________

Argued February 4, 2025 – Decided August 21, 2025

Before Judges Firko, Bishop-Thompson, and Augostini.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1814-23. Raymond J. Lesniak argued the cause pro se and for appellant The Lesniak Institute for American Leadership.

Christopher J. Norman argued the cause for respondent New Jersey State Federation of Sportsmen's Clubs (The Platt Law Group, PC, attorneys; Christopher J. Norman and Stuart A. Platt, on the brief).

Alexandra Horn, Deputy Attorney General, argued the cause for respondents New Jersey Fish & Game Council, New Jersey Department of Environmental Protection, Division of Fish and Wildlife, and Governor Philip D. Murphy, Governor of New Jersey (Matthew J. Platkin, Attorney General, attorney; Sookie Bae-Park, Assistant Attorney General, of counsel; Alexandra Horn, on the brief).

The opinion of the court was delivered by

BISHOP-THOMPSON, J.A.D.

This appeal marks the latest development in the ongoing controversy

surrounding black bear hunting in New Jersey. This history is both extensive

and fraught with contention. Appellants Raymond J. Lesniak and the Lesniak

Institute for American Leadership appeal from the January 10, 2024 Law

Division order granting respondents' New Jersey Fish & Game Council

(Council), New Jersey Department of Environmental Protection (DEP),

Division of Fish and Wildlife (Division), Governor Philip D. Murphy (the

State respondents), and New Jersey State Federation of Sportsmen's Clubs

(N.J. Sportsmen) motions to dismiss their complaint for declaratory and

A-1687-23 2 injunctive relief with prejudice pursuant to Rule 4:6-2(e). The court concluded

that the constitutional authority and composition of the Council are defined

and limited by the powers granted to the Legislature under the New Jersey

Constitution. Appellants also appeal the denial of their cross-motion for

summary judgment.

For the reasons that follow, we affirm the order. In our de novo review

of the dismissal granted pursuant to Rule 4:6-2(e), we reject appellants'

argument that the Council's composition and authority violate the New Jersey

Constitution and the private non-delegation doctrine. We also reject

appellants' argument that well-established case law fails to address the

constitutionality of N.J.S.A. 13:1B-24 to -32, which specifies the composition

and regulatory authority of the Council.

I.

We begin with a brief overview of the Council's history and its relevance

to the order on appeal. The Council is a state regulatory agency within the

Division, which operates under the DEP. N.J.S.A. 13:1B-23 to -41; U.S.

Sportsmen's All. Found. v. N.J. Dep't of Env't Prot., 182 N.J. 461, 473 (2005).

The Council is composed of eleven members, "chosen with due regard to

[their] knowledge of and interest in the conservation of fish and game[,]" and

appointed by the Governor with the advice and consent of the Senate. N.J.S.A.

A-1687-23 3 13:1B-24; Humane Soc'y of U.S. v. N.J. State Fish & Game Council, 70 N.J.

565, 569 (1976).

The eleven-member Council is composed of three farmers recommended

by the agricultural convention, six sportsmen recommended by the N.J.

Sportsmen, the chairman of the Endangered and Nongame Species Advisory

Committee; and a "person knowledgeable in land use management and soil

conservation practices." N.J.S.A. 13:1B-24. The statute does not require N.J.

Sportsmen recommend its own members to the Council. Rather, the statute

requires only that six "sportsmen" possess the "knowledge of and interest in

the conservation of fish and game." Ibid. The Governor may remove a

member of the Council "for cause, upon notice[,] and opportunity to be heard."

N.J.S.A. 13:1B-26.

N.J. Sportsmen, a private organization of individual sportsmen, women,

and sportsmen's clubs in New Jersey, represents "more than 150,000 hunters,

trappers[,] and fishermen throughout the State and support local chapters at the

[C]ounty level."1 The organization's stated purpose, as set forth in its By-

Laws, is "[t]o promote the long-term conservation, protection and wise use of

1 See About NJSFSC, N.J. State Fed. of Sportsmen's Clubs, https://www.njsfsc.org/about (last visited Aug. 14, 2025).

A-1687-23 4 fish, wildlife, and other natural resources in New Jersey, nationally, and

worldwide."

II.

We derive the facts and procedural history from appellants' verified

complaint and the motion record. On September 6, 2023, the Council adopted

the 2022 Comprehensive Black Bear (Ursus americanus) Management Policy

(CBBMP) and related amendments to the State Fish and Game Code (Game

Code).2 See N.J.S.A. 13:1B-28; N.J.A.C. 7:25-5.6(a). The CBBMP is a

"comprehensive polic[y]," which must be promulgated as an administrative

rule. N.J. Animal Rts. All. v. N.J. Dep't of Env't Prot., 396 N.J. Super. 358,

364, 370 (App. Div. 2007). On September 8, 2023, the DEP Commissioner

approved the CBBMP in accordance with N.J.S.A. 13:1B-28. The

amendments to the Code and the CBBMP were published in the New Jersey

Register. See 55 N.J.R. 2056(a) (Oct. 2, 2023).

On September 21, 2023, appellants instituted this action by filing an

order to show cause and verified complaint for declaratory and injunctive

2 The adoption of the 2022 CBBMP and opposition to black bear hunting is challenged in an appeal filed by different appellants and has not yet been argued. N.J. Black Bears (Ursus Americanus), Animal Prot. League of N.J., Angela Metler, Doreen Frega, and Susan Russell v. Shawn Latourette, N.J. Dep't of Env't Prot., Dave Golden, N.J. Div. of Fish and Wildlife, Frank Virgilio, and N.J. Fish and Game Council, No. A-0672-23.

A-1687-23 5 relief. In its complaint, appellants sought (1) a declaration that the "statutes"

delegating regulatory authority to the Council violated Article III, Paragraph 1

and Article IV, Section 1, Paragraph 1 of the New Jersey Constitution; (2) to

enjoin the Council from taking further action and implementing the 2022

CBBMP and amendments to the Game Code; (3) to enjoin the State

respondents from implementing the 2022 CBBMP and amendments to the

Game Code; and (4) to enjoin the bear hunt. In an October 4, 2023 order, the

motion judge denied appellants' request for injunctive relief.

In November 2023, the State respondents moved to dismiss the verified

complaint for failure to state a claim upon which relief can be granted under

Rule 4:6-2(e). N.J. Sportsmen likewise filed a motion to dismiss appellants'

complaint. Appellants opposed the motion to dismiss and cross-moved for

summary judgment against all respondents. The State respondents opposed

appellants' cross-motion.

Following oral argument, in a January 10, 2024 order and

comprehensive written opinion, the judge granted both respondents' motions to

dismiss appellants' verified complaint. The judge also denied appellants'

cross-motion for summary judgment.

In dismissing appellants' verified complaint, the judge determined the

Council is "neither a private regulatory organization nor controlled by a

A-1687-23 6 private organization." Relying on Humane Society, the judge rejected

appellants' first argument challenging the constitutionality of the Council

under Article III, explaining that the "Legislature did not violate any principles

of separation of powers in granting the [N.J. Sportsmen] its role in selecting

the Council's membership."

In addressing appellants' asserted violation of Article IV, citing Humane

Society, the judge noted that the Legislature did not require that any members

be a member of a sportsmen's club. The judge explained that the Council's

authority is "circumscribed by statute and, in exercising its constrained

authority to enlarge or limit those statutory restrictions," it is further

"constrained by the formal rulemaking process."

Lastly, in regard to appellants' third argument concerning the delegation

of authority to the Council, the judge further reasoned that "[Appellants']

offer[ed] no support, nor can the [c]ourt find any, for the position that alleging

a legislative act is 'arbitrary and unreasonable' present[ed] a legally

recognizable cause of action at the trial court level." The judge went on to

state: "To the extent that the [verified] complaint seeks to allege, by reference

to rational basis review, an equal protection or due process claims related to

the recommendation criteria," Humane Society resolved those claims.

Therefore, applying the Rule 4:6-2(e) standard, the judge concluded appellants'

A-1687-23 7 "[verified] complaint fail[ed] to state a viable cause of action alleging the

regulatory authority vested in the Council by the Legislature violates the New

Jersey State Constitution." This appeal followed.

III.

On appeal, appellants renew the arguments previously raised in the trial

court regarding the constitutional authority and composition of the Council.

Appellants contend that (1) the delegation of the regulatory authority to the

Council controlled by a "private non-government[] interest group" is a

constitutional violation; (2) the delegation of regulatory authority to the

Council violates the private non-delegation doctrine; and (3) Humane Society,

the primary decision relied upon the motion judge, fails to address the

constitutionality of N.J.S.A. 13:1B-24 and does not address the validity of

N.J.S.A. 13:1B-27, -28, -30, -31, and -32(a) delegating regulatory authority to

the Council. We address, in reorganized sequence, the arguments raised by

appellants.

A. Respondents' Motion to Dismiss Under Rule 4:6-2(e).

We review orders granting a motion to dismiss for failure to state a

claim under Rule 4:6-2(e) de novo. Pace v. Hamilton Cove, 258 N.J. 82, 95-96

(2024). In doing so, we "examine 'the legal sufficiency of the facts alleged on

the face of the complaint,' giving the plaintiff the benefit of 'every reasonable

A-1687-23 8 inference of fact.'" Baskin v. P.C. Richard & Son, LLC, 246 N.J. 157, 171

(2021) (quoting Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman

& Stahl, P.C., 237 N.J. 91, 107 (2019)). "[W]e must search the complaint

thoroughly and with liberality to ascertain whether the fundament of a cause of

action may be gleaned even from an obscure statement of claim, opportunity

being given to amend if necessary." Robey v. SPARC Grp. LLC, 256 N.J.

541, 554 (2024) (quoting Baskin, 246 N.J. at 171) (internal quotation marks

omitted).

"Nevertheless, 'if the complaint states no claim that supports relief, and

discovery will not give rise to such a claim, the action should be dismissed.'"

Pace, 258 N.J. at 96 (quoting Dimitrakopoulos, 237 N.J. at 107). Thus, a

motion to dismiss is only granted in the "rarest of instances." Sickles v. Cabot

Corp., 379 N.J. Super 100, 106 (App. Div. 2005) (quoting Printing-Mart

Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 771-72 (1989)).

Applying these principles to this matter, we conclude that the verified

complaint on its face fails to state a viable constitutional claim. We first

address appellants' argument that while Humane Society determined the

constitutionality of the appointment of Council members under N.J.S.A.

13:1B-24, the Supreme Court did not consider the validity of N.J.S.A. 13:1B-

A-1687-23 9 27, -28, -30, -31, and -32(a) with respect to the delegation of regulatory

authority to the Council.

By narrowly construing Humane Society and disregarding subsequent

precedents, appellants misapprehend the controlling law. In Humane Society,

the Court upheld the constitutionality of the Council's member appointment.

70 N.J. at 574. In doing so, the Court recognized the Council's regulatory

power is "so confined." Id. at 575.

In a subsequent decision, the Court undertook a comprehensive review

of the Council's leadership and operations in U.S. Sportsmen's Alliance. 182

N.J at 470-73. The Court recognized the Council as part of the organizational

structure of the DEP, as established by the Legislature. Id. at 473; see

N.J.S.A. 13:1B-23 to -41.

The Court also recognized that, by specifying the structure and duties of

the Division, the Legislature granted the Council the authority to appoint the

director of the Division of Fish and Wildlife, subject to the approval of the

Governor. U.S. Sportsmen's All., 182 N.J at 471-73 (citing N.J.S.A. 13:1B-27,

-28, and -30). The Council is also authorized to "formulate comprehensive

policies for the protection and propagation of fish, birds, and game animals"

and is "subject to the approval of the [DEP] commissioner." N.J.S.A. 13:1B-

28. The Council's authority "to determine whether and where to allow hunting

A-1687-23 10 is 'circumscribed' by the [DEP] Commissioner's statutory authority to

determine whether to open State parks, forests[,] and recreation areas to

hunting." Safari Club Int'l v. N.J. Dep't of Env't Prot., 373 N.J. Super. 515,

520 (App. Div. 2004) (citing Humane Soc'y, 70 N.J. at 577; Humane Soc'y of

U.S. v. Guido, 173 N.J. Super. 223, 230-31 (App. Div. 1980)); see N.J.S.A.

13:1B-30. Finally, the Council's authority to enact regulations as part of the

Game Code is exercised following notice to the public, public hearings, and

the consideration of scientific investigation and research. N.J.S.A. 13:1B-31

to -33.

Having reviewed the motion record and applicable law, appellants'

argument lacks merit. Appellants fail to cite any law in support of their

contention that Humane Society and subsequent decisions failed to examine

the regulatory authority of the Council. Rather, appellants merely reiterate the

factual allegations set forth in the verified complaint. Thus, we conclude from

our de novo review of the record that Humane Society and subsequent

decisions have carefully examined both the validity of the governing law and

its application to the delegation of regulatory authority to the Council.

We next consider appellants' contention that the Legislature's delegation

of authority to the Council violates the separation of powers and allocation of

governmental authority under Article III. We likewise consider appellants'

A-1687-23 11 argument that delegation of legislative power is improperly vested in N.J.

Sportsmen as a private organization in violation of Article IV. Appellants

argue the Legislature abdicated its regulatory authority to a quasi -legislative

body controlled by N.J. Sportsmen with a pro hunting and trapping mission.

"The New Jersey Constitution vests lawmaking power in the

Legislature." Perth Amboy Bd. of Educ. v. Christie, 413 N.J. Super. 590, 600

(App. Div. 2010) (citing N.J. Const. art. IV, § 1, ¶ 1). We presume N.J.S.A.

13:1B-23 to -41 to be constitutional. See In re M.U.'s Application for a

Handgun Purchase Permit, 475 N.J. Super. 148, 190 (App. Div. 2023).

Appellants seeking a ruling that N.J.S.A. 13:1B-23 to -32 is

unconstitutional "must hurdle '[t]he strong presumption of constitutionality

that attaches' to [a statute]." State v. Buckner, 223 N.J. 1, 14 (2015) (quoting

Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 285 (1998)). "When a

statute is challenged on constitutional grounds, it will be upheld unless its

'repugnancy to the constitution is clear beyond a reasonable doubt.'"

Commc'ns Workers of Am., AFL-CIO v. N.J. Civ. Serv. Comm'n, 234 N.J.

483, 514 (2018) (quoting Buckner, 223 N.J. at 14). Appellants have failed to

carry that heavy burden.

Guided by these principles, the Legislature did not violate the separation

of powers in Article III or the delegation of authority to the Council as a state

A-1687-23 12 agency in Article IV. In Humane Society, the Court found that the governing

statute "passe[d] muster," a conclusion that remains unchanged. 70 N.J. at

577. In our review of the constitutionality of N.J.S.A. 13:1B-23 to -41, we

"apply 'every possible presumption' in favor of the validity of a challenged

statute, recognizing that it 'represents the considered action of a body

composed of popularly elected representatives.'" State v. Higginbotham, 257

N.J. 260, 280 (2024) (quoting State v. Trump Hotels & Casino Resorts, Inc.,

160 N.J. 505, 526 (1999)).

We, therefore, perceive no reason to deviate from the Court's reasoning

that "[t]he consignment of the specialized powers and duties flowing from this

legislative scheme to so-called special interest groups has a rational basis,

because these entities are most directly affected by the Council's regulations

and possess the requisite expertise for achievement of the statutory objective."

Humane Soc'y, 70 N.J. at 577.

Appellants argue that the delegation of regulatory authority to the

Council, which is subject only to limited oversight by the DEP and is

effectively controlled by a private group, violates the non-delegation doctrine.

Appellants contend that the non-delegation "doctrine flows from the separation

of powers, rather than the other way around" and "is completely

A-1687-23 13 distinguishable from the due process claims about the Council's composition

upon which the Humane Society decision was grounded." We disagree.

"The non[-]delegation doctrine provides that the Legislature may only

delegate its power to legislate under very limited circumstances." Kravitz v.

Murphy, 468 N.J. Super. 592, 623 (App. Div. 2021). "To be constitutionally

sustainable, a delegation must be narrowly limited, reasonable, and surrounded

with stringent safeguards to protect against the possibility of arbitrary or self -

serving action detrimental to third parties or the public good generally." Essex

Cnty. Corr. Officers PBA Loc. No. 382 v. Cnty. of Essex, 439 N.J. Super. 107,

126 (App. Div. 2014) (quoting Ridgefield Park Educ. Ass'n v. Ridgefield Park

Bd. of Educ., 78 N.J. 144, 163-64 (1978)).

Here, appellants seek to reframe their constitutional challenge in an

effort to distinguish this matter from Humane Society where due process

claims were raised and rejected by the Court. Contrary to appellants' assertion,

their argument that the Legislature's delegation of authority to the Council

violates the non-delegation doctrine is, in essence, a due process argument.

See Ridgefield Park, 78 N.J. at 163 ("Both state and federal doctrines of

substantive due process prohibit delegations of governmental policy -making

power to private groups where a serious potential for self-serving action is

created thereby.").

A-1687-23 14 The Court in Humane Society rejected the due process challenges to the

Council in considering N.J. Sportsmen's authority to recommend sportsmen for

the Governor's nomination to the Council because the Council's operations

"bear on the public interest." 70 N.J. at 579-80. Over forty years later, black

bear hunting remains at the forefront of public interest. Thus, we hold that the

doctrine established in Humane Society remains controlling, and the Council's

regulatory authority continues to be circumscribed by governing law.

In sum, appellants' arguments fail to account for the standard we apply

when evaluating motions to dismiss under Rule 4:6-2(e). Having considered

the pleadings under the liberal standard of review, we conclude appellants'

verified complaint asserting a constitution challenge to N.J.S.A. 13:1B-27 to -

32 fails to state a claim. See J.D. ex rel. Scipio-Derrick v. Davy, 415 N.J.

Super. 375, 397 (App. Div. 2010). Accordingly, we reject appellants'

argument that the motion judge improperly granted dismissal under Rule 4:6-

2(e).

B. Appellants' Cross-Motion for Summary Judgment.

In regard to the denial of appellants' cross-motion for summary

judgment, they argue the matter was "ripe" for granting summary judgment

because the questions of law presented rested upon undisputed material facts.

We review the denial of summary judgment de novo, "applying the same

A-1687-23 15 standard used by the trial court." Samolyk v. Berthe, 251 N.J. 73, 78 (2022).

That standard requires us to "determine whether 'the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to any material fact challenged

and that the moving party is entitled to a judgment or order as a matter of

law.'" Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R.

4:46-2(c)).

We view those facts in the light most favorable to respondents, the non -

moving parties. Crisitello v. St. Theresa Sch., 255 N.J. 200, 218 (2023).

"Summary judgment should be granted . . . 'against a party who fails to make a

showing sufficient to establish the existence of an element essential to that

party's case, and on which that party will bear the burden of proof at trial.'"

Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986)). We do not defer to the trial court's legal

analysis or statutory interpretation. RSI Bank v. Providence Mut. Fire Ins.

Co., 234 N.J. 459, 472 (2018); Perez v. Zagami, LLC, 218 N.J. 202, 209

(2014).

Applying the summary judgment standard, appellants' sole reliance on

the alleged unconstitutionality of the governing law establishing the Council is

simply not supported by the statute or case law. Giving all reasonable

A-1687-23 16 inferences to respondents as the non-moving party, appellants have not

proffered any evidence to rebut the constitutional and regulatory authority of

the Council as recognized in Humane Society and U.S. Sportsmen's Alliance.

We, therefore, conclude appellants have not established a genuine issue of

material fact to support their burden, as a matter of law, for summary

judgment. Accordingly, we affirm the orders.

Affirmed.

A-1687-23 17