U.S. Sportsmen's Alliance Foundation v. New Jersey Department of Environmental Protection

867 A.2d 1147, 182 N.J. 461, 2005 N.J. LEXIS 173
CourtSupreme Court of New Jersey
DecidedFebruary 28, 2005
StatusPublished
Cited by12 cases

This text of 867 A.2d 1147 (U.S. Sportsmen's Alliance Foundation v. New Jersey Department of Environmental Protection) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
U.S. Sportsmen's Alliance Foundation v. New Jersey Department of Environmental Protection, 867 A.2d 1147, 182 N.J. 461, 2005 N.J. LEXIS 173 (N.J. 2005).

Opinion

Justice LONG

delivered the opinion of the Court.

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) regard *466 ing 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:lB-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, 860 A.2d 463 (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. 1 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 *467 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, 862 A.2d 59 (2004).

II.

The ease revolves around the statutes governing the operations of the Fish and Game Council. N.J.S.A 13:lB-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 respect to its findings and conclusions.
[N.J.S.A 13:lB-28 (emphasis added).]

N.J.S.A. 13:lB-30 goes on to state:

For the purpose of providing an adequate and flexible system of protection, propagation, increase, control and conservation of fresh water fish, game birds, game animals, and fur-bearing animals in this State, and for their use and development for public recreation and food supply, the council is hereby authorized and empowered to determine under what circumstances, when and in what localities, by what means and in what amounts and numbers such fresh water fish, game birds, game animals, and fur-bearing animals, or any of them, may be pursued, taken, killed, or had in possession so as to maintain an adequate and proper supply thereof, and may, after first having determined the need for such action on the basis of scientific investigation and research, adopt and from time to time amend and repeal such appropriate and reasonable regulations concerning the same, or any of them, penalties for the violation of which are prescribed by certain of the sections of Title 23 of the Revised Statutes amended herein, as it deems necessary to preserve, properly utilize or maintain the best relative number of any species or variety thereof, at the times, in the manner and to the extent hereinafter provided. The regulations so established shall be called the State Fish and Game Code.
*468 [N.J.S.A. 13:1B-30J

N.J.S.A. 13:lB-32, in turn, provides:

Any regulation of the council or amendment thereto adopted pursuant to the provisions of this article which relates to game birds, game animals or fur-bearing animals, after the council has first determined the need for such action on the basis of scientific investigation and research, may apply to all or any part of the State, at the discretion of the council, and may do any or all of the following as to any or all species or varieties of game birds, game animals, and fur-bearing animals:
a. Establish, extend, shorten or abolish open seasons and closed seasons.
b. Establish, change or abolish bag limits and possession limits.
c. Establish and change territorial limits for the pursuit, taking, or killing of any or all species or varieties.
d. Prescribe the manner and the means of pursuing, taking, or killing any species or variety.
e. Establish, change or abolish restrictions based upon sex, maturity, or other physical distinction.
[N.J.S.A. 13:1B-32J

The Commissioner argues that the approval authority over comprehensive policies of the Fish and Game Council vested in him by N.J.S.A 13:lB-28 is the legislative vehicle that accords him, as the administrative head of the DEP, the power to assure that the Fish and Game Council’s actions concerning hunting and fishing are consistent with the DEP’s overall policies.

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Bluebook (online)
867 A.2d 1147, 182 N.J. 461, 2005 N.J. LEXIS 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-sportsmens-alliance-foundation-v-new-jersey-department-of-nj-2005.