SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Environmental Protection (A-69-2004)
Argued November 29, 2004 -- Decided February 28, 2005
LONG, J., writing for a unanimous Court.
This appeal came to the Court as a result of a dispute between the Fish and Game Council and the Commissioner of the Department of Environmental Protection (DEP) regarding the propriety of a bear hunt. On December 2, 2004, this Court entered an order enjoining the bear hunt that the Fish and Game Council had scheduled to take place during the week of December 6, 2004. The 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, made resolution of the dispute impossible. The order further stated that a fuller exposition of the Court’s reasoning would follow in an opinion. This is that opinion.
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. The Commissioner publicly supported the 2003 hunt; it was not until 2004 that he opposed a hunt 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 2004-2004 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 and others 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. 372 N.J. Super. 598 (App. Div. 2004). The DEP, the Commissioner, and others petitioned for certification, which the Court granted.
HELD: The Fish and Game Council’s power to authorize a black bear hunt is subject to the statutory condition precedent of the Commissioner’s approval of comprehensive policies governing the propagation of black bears.
1. The case revolves around the statutes governing the operations of the Fish and Game Council. N.J.S.A. 13:1B-28 provides that the Council “shall, subject to the approval of the commissioner, formulate comprehensive policies” for the protection and propagation of fish, birds, and game animals. N.J.S.A. 13:1B-30 states that the Council, for the purpose of providing a system of protection, control and conservation of fish, birds, and game, is authorized to promulgate the State Fish and Game Code, determining by what means and in what amounts fish, birds, and game animals may be pursued, taken, and killed “after first having determined the need for such action on the basis of scientific investigation and research.” N.J.S.A. 13:1B-32, in turn, provides for the Council to adopt regulations establishing fishing and hunting seasons “after [it] has first determined the need for such action on the basis of scientific investigation and research.” (pp. 4-7)
2. Standing alone, N.J.S.A. 13:1B-30 and –32 afford substantial authority to the Fish and Game Council in respect of hunting. N.J.S.A. 13:1B-28, however, requires the Fish and Game Council to formulate comprehensive policies for the protection and propagation of fish, birds, and game animals “subject to the approval of the commissioner.” The statute is ambiguous at best, requiring the Court to turn to the legislative history for clarification. (pp. 7-9)
3. In the years prior to the adoption of the State Constitution of 1947, the State Reorganization Commission was charged with reducing the number of State agencies from over 100 to no more than 20 departments. Regarding the Division of Fish and Game specifically, the Reorganization Commission proposed that it be part of the Department of Conservation, and that the Commissioner of the Department exercise veto power over the actions of the various councils and divisions. The Laws of 1948, chapter 448, established the Department of Conservation and Economic Development, now the DEP. Although the legislation enacted the Reorganization Commission’s broad objectives into law, it declined to grant the Commissioner the explicit veto power contemplated by the Reorganization Commission over all actions of the councils. Nor did the legislation grant the Fish and Game Council total hegemony. It bears repeating that in its first explication of the Fish and Game Council’s responsibilities found at N.J.S.A. 13:1B-28, the statue requires that the Council formulate comprehensive policies for the protection and propagation of fish, birds and game animals “subject to the approval of the Commissioner.” The Commissioner’s approval of the Fish and Game Council’s comprehensive policies insures that those policies comport with department-wide goals for environmental protection. This conclusion is bolstered by a review of the legislation governing other divisions and councils within the DEP, as well. The statutory scheme evinces an intention to create a unified approach to conservation and environmental protection under the authority of the Commissioner. Although the Fish and Game Council may act without day-to-day veto by the Commissioner, its actions exist within a larger universe of comprehensive environmental policies. If the Council does not act in accord with those policies, the Commissioner is empowered to intervene. (pp. 9-18)
4. The Fish and Game Council argues that its decision to hold a bear hunt in 2004 fully accorded with “comprehensive policies” in effect. According to the Council, those policies are set forth in the New Jersey Black Bear Management Plan Summary 1997, a document developed by the Division. Separate and apart from the age of that document and the rather stark inaccuracies in its statistical data, it is at least debatable that it should have been enacted pursuant to the Administrative Procedure Act. But even if that procedural obstacle is overcome, the Bear Management Plan is simply not a statement of “comprehensive policies” within the meaning of N.J.S.A. 13:1B-28. Both contextual and commonsense considerations compel the conclusion that the statutory term “comprehensive policies” refers to a thorough statement of guidelines that set forth not only end-point objectives but also the means that should be used to attain those ends. Such policies should at least include the broad preservation goals of the Council, the tools at the Council’s disposal to accomplish those goals, and most importantly, the factors that should be considered when determining which tools will be utilized. Had the Fish and Game Council enacted policies that were approved by the Commissioner and that explained when it would pursue a bear hunt over other population control and conservation methods, and had the Fish and Game Council authorized the bear hunt in accordance with those policies, the Commissioner would have been powerless to refuse to issue or process applications for hunting permits. Here, there are no approved policies in effect. In the absence of approved comprehensive policies, the Fish and Game Council could not promulgate regulations authorizing the hunt. (pp. 18-22)
The judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE LONG’s opinion.
SUPREME COURT OF NEW JERSEY
A- 69 September Term 2004
U.S. SPORTSMEN'S ALLIANCE FOUNDATION; NEW JERSEY STATE FEDERATION OF SPORTSMEN'S CLUBS; GERALD McCUSKER; ANTHONY CALI; and EDWARD O'SULLIVAN,
Appellants-Respondents,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION; BRADLEY M. CAMPBELL, in his capacity as
NJDEP Commissioner; NEW JERSEY DIVISION OF FISH & WILDLIFE; and MARTIN J. McHUGH,
in his capacity as Director of the Division,
Respondents-Appellants.
Argued November 29, 2004 – Decided February 28, 2005
On certification to the Superior Court, Appellate Division, whose opinion is reported at
372 N.J. Super. 598 (App. Div. 2004).
Barbara L. Conklin, Deputy Attorney General, argued the cause for appellants (Peter C.
Harvey, Attorney General of New Jersey, attorney; Patrick DeAlmeida, Assistant Attorney General, of
counsel; Ms. Conklin, Rachel J. Horowitz and Dean Jablonski, Deputy Attorneys General, on
the brief).
Thomas J. Cafferty argued the cause for respondents (McGimpsey & Cafferty, attorneys; Arlene
M. Turinchak, on the brief).
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) regarding 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. 13:1B-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 (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.
See footnote 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 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 (2004).
The case revolves around the statutes governing the operations of the Fish and Game Council. N.J.S.A. 13:1B-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:
Consult with and advise the commissioner and director of the Division of Fish
and [Wildlife] with respect to the work of such division.
Study the activities of the Division of Fish and [Wildlife] and hold hearings
with respect thereto as it may deem necessary or desirable.
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. 13:1B-28 (emphasis added).]
N.J.S.A. 13:1B-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.
[N.J.S.A. 13:1B-30.]
N.J.S.A. 13:1B-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:
Establish, extend, shorten or abolish open seasons and closed seasons.
Establish, change or abolish bag limits and possession limits.
Establish and change territorial limits for the pursuit, taking, or killing of any
or all species or varieties.
Prescribe the manner and the means of pursuing, taking, or killing any species
or variety.
Establish, change or abolish restrictions based upon sex, maturity, or other physical distinction.
[
N.J.S.A. 13:1B-32.]
The Commissioner argues that the approval authority over comprehensive policies of the Fish
and Game Council vested in him by N.J.S.A. 13:1B-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. The Commissioner reads that approval language as
granting him veto power over actions of the Fish and Game Council that
are out of synchronicity with the DEP’s policies.
The Fish and Game Council responds that the plain language of the statute
reflects that the Council has hegemony over the Fish and Game Code and
over hunting (N.J.S.A. 13:1B-28 and –30), independent of the Commissioner’s general authority to
formulate agency policy. As such, it is the Fish and Game Council’s position
that the Commissioner is powerless to prevent it from deciding to hold a
bear hunt, enacting a Fish and Game Code by regulation, and issuing or
processing applications therefor. It is the interplay of N.J.S.A. 13:1B-28, -30, and -32
that is the focus of our inquiry.
A.
In interpreting a legislative enactment, the starting point is always the language of
the statute itself. If it is clear, “‘the sole function of the courts
is to enforce it according to its terms.’” Hubbard ex rel. Hubbard v.
Reed,
168 N.J. 387, 392 (2001)(quoting Sheeran v. Nationwide Mut. Ins. Co.,
80 N.J. 548, 556 (1979)(quoting Caminetti v. United States,
242 U.S. 470, 485,
37 S. Ct. 192, 194,
61 L. Ed. 442, 452 (1917))). However, “[w]hen a
statute is subject to more than one plausible reading, our role is ‘to
effectuate the legislative intent in light of the language used and the objects
sought to be achieved.’” Velazquez ex rel. Velazquez v. Jiminez,
172 N.J. 240,
256 (2002)(quoting State v. Hoffman,
149 N.J. 564, 578 (1997)(internal citations omitted)). In
the end, our interpretation will not “turn on literalisms” but “on the breadth
of the objectives of the legislation and the commonsense of the situation.” LeFage
v. Jani,
166 N.J. 412, 431 (2001)(quoting Jersey City Chapter of Prop. Owner’s
Protective Ass’n v. City Council,
55 N.J. 86, 100 (1969)).
As is often the case, the parties disagree over the clarity and meaning
of the enactment at issue. We begin with the language of N.J.S.A. 13:1B-28:
“[T]he 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 . . . .” That is the provision against which the words
of N.J.S.A. 13:1B-30 and –32 must be measured. The critical language of N.J.S.A.
13:1B-30 is as follows:
[T]he 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 . . . fur-bearing animals, . . . may be pursued, taken,
killed, or had in possession so as to maintain an adequate and proper
supply thereof, and may, . . . adopt and from time to time
amend and repeal such appropriate and reasonable regulations concerning the same, . .
. .
[N.J.S.A. 13:1B-30.]
N.J.S.A. 13:1B-32 repeats that authorization and states that the Fish and Game Council
may by regulation “establish, extend, shorten, or abolish open seasons and closed seasons”
and may “prescribe the manner and the means of pursuing, taking or killing
any species or variety.” N.J.S.A. 13:1B-32(a), (d). Both statutes require “scientific investigation and
research” to justify action. N.J.S.A. 13:1B-30, -32.
We are not persuaded that the cited enactments are clear. Standing alone, although
N.J.S.A. 13:1B-30 and –32 afford substantial authority to the Fish and Game Council
in respect of hunting, the outer limit of that authority is not evident.
One plausible reading is that the Fish and Game Council has the power
to decide whether a hunt should take place without regard to the Commissioner.
An equally plausible interpretation is that, fairly read, the statutes empower the Fish
and Game Council to authorize a hunt only in accordance with comprehensive policies
formulated by the Fish and Game Council and Commissioner. In a word, the
statute is ambiguous at best, and thus we turn to its legislative history
for clarification.
In the years prior to the adoption of the State Constitution of 1947, the New Jersey Commission on State Administrative Reorganization (Reorganization Commission) submitted a report proposing a reordering of state government, which, until that time, had operated through a continuously proliferating series of over 100 independent and uncoordinated state agencies and an additional fifty semi-independent boards and commissions. New Jersey Commission on State Administrative Reorganization, Report – Part I, at Letter 1-2 (Feb. 21, 1944). The jurisdiction and functioning of those entities often overlapped and were not subject to gubernatorial oversight. Id. at Letter 1. The charge of the Reorganization Commission was to suggest a more efficient model with no more than twenty departments in the executive branch. Ibid.
With respect to the Department of Conservation, the Reorganization Commission posited that the new department take over eleven existing agencies and consolidate them into five new entities: the Divisions of Fish and Game, Shell Fisheries, Natural Resources, Parks and Historic Sites, and Navigation. New Jersey Commission on State Administrative Reorganization, Report - Part IV, at Memorandum 1-2 (Jan. 29, 1945).
According to the Reorganization Commission, such reorganization would better coordinate “related activities and give unity to the State’s program for the preservation and use of its natural resources.” Id. at Memorandum 1. The Reorganization Commission envisioned that each division would be supervised by a non-salaried council, and that a Commissioner would serve as “the chief fiscal officer of the department,” “charged with the duty of coordinating the activities of the related agencies in the department.” Id. at Memorandum 2. The report states, “[a] well balanced and coordinated program affecting all conservation activities can best be planned and executed within the framework of a single department,” and continues, “[t]he Commissioner will be able to accomplish such integration effectively through his power to approve or disapprove the actions of the councils in the exercise of their various powers." Id. at Memorandum 3. Indeed, the Reorganization Commission went so far as to suggest that the new Commissioner “exercise veto power over the actions of the councils . . . .” Id. at Memorandum 2. Specifically addressing the Division of Fish and Game, the report states, “No action shall be taken by [the Fish and Game Council] except upon approval by the commissioner of conservation.” Id. at Act 8.
Inspired by that report, the framers of the New Jersey Constitution of 1947 included a mandate that “[a]ll executive and administrative offices, departments, and instrumentalities of the State government . . . shall be allocated by law among and within not more than twenty principal departments.” N.J. Const. art. V, §4, ¶ 1. The following paragraph positions all principal departments under the supervision of the Governor and places a single executive, appointed by the Governor with Senate approval, at the helm of each principal department. N.J. Const. art. V, §4, ¶ 2. Those two paragraphs of the Constitution form the basis for a “streamlined, modern, and accountable executive branch.” Robert F. Williams, The New Jersey State Constitution 90 (Rutgers Univ. Press 1997) (1990).
In his First Annual Message, Governor Alfred Driscoll referred to the “Constitutional mandate” commanding the reorganization of the executive branch of state government. Alfred E. Driscoll, First Annual Message to the Legislature (Jan. 13, 1948). The Governor proposed that that mandate be fulfilled by the establishment of fifteen principal departments, including Economic Development, the department that includes Conservation. Ibid.
The Laws of 1948, chapter 448, established the Department of Conservation and Economic Development, now the DEP. A Commissioner, appointed by the Governor with the advice and consent of the Senate, is the administrator and head of the DEP. N.J.S.A. 13:1B-2. The duties of the Commissioner are enumerated in N.J.S.A. 13:1B-3:
The commissioner, as head of the department, shall:
Administer the work of the department;
Appoint and remove officers and other personnel employed within the department, subject to
the provisions of Title 11 of the Revised Statutes, Civil Service, and other
applicable statutes, except as herein otherwise specifically provided;
Perform, exercise and discharge the functions, powers and duties of the department through
such divisions as may be established by this act or otherwise by law;
Organize the work of the department in such divisions, not inconsistent with the
provisions of this act and in such bureaus and other organizational units as
he may determine to be necessary for efficient and effective operation;
Adopt, issue and promulgate, in the name of the department, such rules and
regulations as may be authorized by law;
Formulate and adopt rules and regulations for the efficient conduct of the work
and general administration of the department, its officers and employees;
Institute or cause to be instituted such legal proceedings or processes as may
be necessary properly to enforce and give effect to any of his powers
or duties;
Make an annual report to the Governor and to the Legislature of the
department's operations, and render such other reports as the Governor shall from time
to time request or as may be required by law.
Co-ordinate the activities of the department, and the several divisions and other agencies
therein, in a manner designed to eliminate overlapping and duplicating functions;
Integrate within the department, so far as practicable, all staff services of the
department and of the several divisions and other agencies therein; and
Perform such other functions as may be prescribed in this act or by
any other law.
[
N.J.S.A. 13:1B-3.]
Within the reorganized DEP, the Legislature established the Division of Fish and Game,
currently called the Division of Fish and Wildlife. The structure and duties of
the Division are set forth in Articles IV and V,
N.J.S.A. 13:1B-23 to
–41, of the Department of Environmental Protection Act of 1970, N.J.S.A. 13:1B-2 to
–71. Charged with the responsibility for protecting, propagating, and maintaining an adequate supply
of fish, game, and birds, the Division is under the immediate supervision of
a director who, in turn, “shall administer the work of such division under
the direction and supervision of the commissioner.” N.J.S.A. 13:1B-27, -28, & -30.
The Division, in turn, houses a Fish and Game Council made up of
eleven members, appointed by the Governor with the advice and consent of the
Senate, who are experienced in agriculture, wildlife, species conservation, and land use and
have the “independent responsibility to adopt a Fish and Game Code for the
purpose of providing a system for the protection and conservation of fish and
game.” N.J.S.A. 13:1B-24; N.J. Dep’t of Envtl. Prot. Div. of Fish and Wildlife,
Fish and Wildlife Councils and Committees – Powers & Duties, at
http://www.state.nj.us/dep/fgw/councils.htm#fishandgame (last revised Jan.
20, 2005). Thus, the Legislature effectuated the goals of the Reorganization Commission by
consolidating all natural resources divisions under a single department, led by a Commissioner
whose obligation it is to coordinate a unitary approach to conservation and to
oversee the use of the agency’s financial resources.
Although the Legislature enacted those broad objectives into law, it declined to grant
the Commissioner the explicit veto power, contemplated by the Reorganization Commission, over all
the actions of the councils. As the Appellate Division recognized, the bill made
no mention of the Commissioner’s right to veto Council initiatives. U.S. Sportsmen’s Alliance,
supra, 372 N.J. Super. at 606. Accordingly, it is clear that despite the
Commissioner’s transcendent obligation to coordinate and oversee the DEP’s environmental protection and conservation
initiatives, the Legislature granted substantial independence to the Fish and Game Council and
withheld from the Commissioner overall supervisory power over the Fish and Game Council,
probably as the result of a political compromise.
However, although the Legislature did not give the Commissioner absolute veto power over
the Fish and Game Council’s day-to-day activities, neither did it grant the Fish
and Game Council total hegemony. It bears repeating that in its first explication
of the Fish and Game Council’s responsibilities, the statute states,
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.
[N.J.S.A. 13:1B-28(emphasis added).]
It is that approval language that is the nub of this case.
Indeed, that approval language is key to placing the work of the Fish
and Game Council, which concededly has substantial independence, in context. Although its expertise
over hunting issues is recognized in N.J.S.A. 13:1B-30, N.J.S.A. 13:1B-28 underscores that the
Fish and Game Council clearly does not function as a completely autonomous body,
unaccountable to the department head. Rather, the Commissioner must approve the Fish and
Game Council’s comprehensive policies. It is the Commissioner's approval that, in turn, insures
that those policies comport with department-wide goals for environmental protection.
Our conclusion is bolstered by our review of the legislation governing other divisions
and councils within the DEP. Every division discussed in
N.J.S.A. 13:1B is headed
by a director who operates under the direction and supervision of the Commissioner.
N.J.S.A. 13:1B-8 (addressing Director of Division of Coastal Resources); N.J.S.A. 13:1B-15.100, -15.102 (addressing
Director of Division of Parks and Forestry); N.J.S.A. 13:1B-19 (addressing Director of Division
of Veterans’ Services); N.J.S.A. 13:1B-27 (addressing Director of Division of Fish Wildlife); N.J.S.A.
13:1B-48 (addressing Director of Division of Water Resources). Like the Fish and Game
Council, the Division of Parks and Forestry and the Division of Shell Fisheries,
specifically the Shell Fisheries Council, are obligated to formulate comprehensive policies; the former
body must do so “as the Commissioner may direct,” N.J.S.A. 13:1B-15.105, and the
latter entity acts subject to the approval of the Commissioner. N.J.S.A. 50:1-18(b).
Within DEP divisions are agencies like the Fish and Game Council. Although not
identical due to amendments at various times, the leitmotif that runs through all
of the relevant enabling legislation is the interconnection between the councils and the
Commissioner and the recognition that while those entities possess authority in varying levels,
their independence is constrained by their uniform subjugation to DEP authority.
See footnote 2 Specifically in
the instance before us, the Fish and Game Council's ability to authorize a
bear hunt is subject to the statutory condition precedent of the Commissioner's earlier
approval of the very comprehensive policies governing the propagation of black bears.
Our conclusion regarding the Commissioner’s authority is ineluctable not only because of the
approval language but because the entire statutory scheme was intended to create a
unified approach to conservation and environmental protection under the authority of the Commissioner.
Although the Fish and Game Council may act without day-to-day veto by the
Commissioner, its actions exist within a larger universe of comprehensive environmental policies. If
it does not act in accord with those policies, the Commissioner is empowered
to intervene.
V.
The Fish and Game Council argues that its decision to hold a bear
hunt in 2004 fully accorded with “comprehensive policies” in effect. According to the
Fish and Game Council, those policies are set forth in the
New Jersey
Black Bear Management Plan Summary 1997, a document developed by the Division. They
are (1) to maintain a balance between black bear population and safety concerns
and (2) to provide recreational and aesthetic opportunities for New Jersey citizens in
the form of hunting, photography, and wildlife observation.
Separate and apart from the age of that document and the rather stark
inaccuracies in its statistical data, it is at least debatable that it should
have been enacted pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-4, as required
under Metromedia, Inc. v. Dir., Div. of Taxation,
97 N.J. 313 (1984).
See footnote 3 But
even if that procedural obstacle could be overcome, the Bear Management Plan is
simply not a statement of “comprehensive policies” within the meaning of
N.J.S.A. 13:1B-28.
By “comprehensive policies,” the statute clearly envisions more than vague statements of general
aspiration. Although a mission statement is an important part of a policy, the
articulation of goals alone does not sufficiently direct the Fish and Game Council’s
actions to ensure that they correspond to the objectives of the DEP as
a whole. On the contrary, the Fish and Game Council could enact essentially
any regulation and portray it as within the ambit of “balancing bear population
with safety” or “providing recreational and aesthetic opportunities for New Jersey citizens.” That
was not the intent of the statute that effectuated the unitary approach envisioned
by the constitutionally mandated reorganization.
Instead, both contextual and commonsense considerations compel the conclusion that the statutory term
“comprehensive policies” refers to a thorough statement of guidelines that set forth not
only end-point objectives but also the means that should be used to attain
those ends. Comprehensive policies provide a detailed outline of the mandated approach to
the topic at issue. In the case at hand, comprehensive policies should at
least include the broad preservation goals discussed above, the tools at the Fish
and Game Council’s disposal to accomplish those goals, and most importantly, the factors
that should be considered when determining which tools will be utilized.
The last category is the most complex and may include consideration, among other
things, of the absolute size of the bear population, the number of harmful
bear-human interactions and the fiscal and human resources available to carry out the
stated goals. Most importantly, the comprehensive policies are to be formulated after consultation
with the Commissioner and with his “approval” so that the singular and efficient
approach to conservation and environmental protection contemplated by the 1947 Constitution can be
effectuated.
Had the Fish and Game Council enacted policies that were approved by the
Commissioner and that explained when it would pursue a bear hunt over other
population control and conservation methods, and had the Fish and Game Council authorized
the bear hunt in accordance with those policies, the Commissioner would have been
powerless to refuse to issue or process applications for hunting permits. Indeed, once
the Fish and Game Council acts in accordance with the DEP’s overarching policies,
the details of a hunt fall solely within its powers.
N.J.S.A. 13:1B-30, -32.
In the event that comprehensive policies are agreed on and a dispute arises
between the Commissioner and the Fish and Game Council over whether a hunt
or any other preservation or propagation methodology is justified, the comprehensive policies will
provide the standard for adjudicating the issue.
Here, there are no approved policies in effect. All that is before us
is the Fish and Game Council’s claim that a hunt is justified by
the size and activities of the bear population and the Commissioner’s counter contention
that neither the statistics nor fiscal and human resources available warrant a hunt.
In the absence of approved comprehensive policies, the Fish and Game Council could
not promulgate regulations authorizing a hunt.
VI.
The judgment of the Appellate Division is reversed.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join in
JUSTICE LONG’s opinion.
SUPREME COURT OF NEW JERSEY
NO. A-69 SEPTEMBER TERM 2004
ON CERTIFICATION TO Appellate Division, Superior Court
U.S. SPORTSMEN’S ALLIANCE
FOUNDATION; NEW JERSEY STATE
FEDERATION OF SPORTSMEN’S
CLUBS; GERALD McCUSKER;
ANTHONY CALI; and EDWARD
O’SULLIVAN,
Appellants-Respondents,
v.
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION;
BRADLEY M. CAMPBELL, in his
capacity as NJDEP
Commissioner; NEW JERSEY
DIVISION OF FISH & WILDLIFE;
and MARTIN J. McHUGH, in his
capacity as Director of the
Division,
Respondents-Appellants.
DECIDED February 28, 2005
Chief Justice Poritz PRESIDING
OPINION BY Justice Long
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST
Footnote: 1
The Fish and Game Council had proposed a bear hunt in 2000,
but cancelled it on the request of then-Governor Christine Todd Whitman.
32 N.J.
Reg. 3592(a); New Jersey Fish and Game Council, New Jersey Fish and Game
Council Suspends Black Bear Hunting Season (Sep. 12, 2000), at
.
Footnote: 2
For example, the Tidelands Resource Council acts only with the approval of the
Commissioner.
N.J.S.A. 13:1B-10, -13. The National Areas Council requires the Commissioner’s approval to
acquire lands and enact rules and regulations. N.J.S.A. 13:1B-15.9, -15.10. The New Jersey
Natural Lands Trust cannot incur debt in the purchase of lands without the
“express approval” of the Commissioner. N.J.S.A. 13:1B-15.125. The Historic Sites Council is advisory
only; it can do no more than recommend programs and policies to the
Commissioner. N.J.S.A. 13:1B-15.110. The Water Supply Advisory Council similarly functions only to “advise”
the DEP. N.J.S.A. 13:1B-49.3. The Shell Fisheries Council may not, without the Commissioner’s
approval,
fix the term for leases, the rental amount, the maximum size of
ground to be leased, or the total acreage that may be leased to
any person. N.J.S.A. 50:1-27.
Furthermore, that hierarchy is not unique to the DEP, as evidenced by the
entities discussed in
N.J.S.A. 13:1B that are situated in other departments, e.g., the
Bureau of Recreation, under the Department of Community Affairs, acts subject to the
approval of the Commissioner of Community Affairs, N.J.S.A. 13:1B-15.1; the Veterans’ Services Council,
within the Department of Military and Veterans’ Affairs, formulates comprehensive policies subject to
the approval of the Commissioner, N.J.S.A. 13:1B-20, -21. Thus, it is clear that
the legislative commitment to unifying natural resource entities under one authority whose responsibility
it is to coordinate related efforts is as strong now as it was
in the reorganization period surrounding the passage of the Constitution of 1947.
Footnote: 3
The
Metromedia standards, although originally formulated to distinguish rulemaking from adjudication, provide
a test for when agency actions are subject to rulemaking procedures. Woodland Private
Study Group v. Dep’t of Envtl. Prot.,
109 N.J. 62, 67 (1987). Using
the following factors either singly or in combination, an agency action must be
rendered through rulemaking procedures when it
(1) is intended to have wide coverage encompassing a large segment of the
regulated or general public, rather than an individual or a narrow select group;
(2) is intended to be applied generally and uniformly to all similarly situated
persons; (3) is designed to operate only in future cases, that is, prospectively;
(4) prescribes a legal standard or directive that is not otherwise expressly provided
by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects
an administrative policy that (i) was not previously expressed in any official and
explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant
change from a clear, past agency position on the identical subject matter; and
(6) reflects a decision on administrative regulatory policy in the nature of the
interpretation of law or general policy.
[
Metromedia, supra, 97 N.J. at 331-32.]