Opinion
A-69 September Term 2004, 57,117
December 2, 2004
ORDER
This matter having come before the Court on a grant of the State's petition for certification from a decision of the Appellate Division that ordered the Commissioner of the Department of Environmental Protection (DEP) to process applications for bear hunting permits notwithstanding the Commissioner's disapproval of the Fish and Game Council's (Council) determination that a 2004 bear hunt is an appropriate method of controlling the bear population,
And the Court having reviewed the record below and the briefs submitted by the parties and having heard oral argument in the appeal on an accelerated basis,
And it appearing that by statute, the DEP is charged with the responsibility to "formulate comprehensive policies for the conservation of the natural resources of the State, the promotion of environmental protection and the prevention of pollution of the environment of the State", N.J.S.A. 13:1D-9,
And it further appearing that Division of Fish and Wildlife (DFW), which is charged with the "protection and propagation of . . . game animals", N.J.S.A. 23:2-2, exercises its authority and responsibilities within the DEP, N.J.S.A. 23:2B-15,
And it further appearing that the Council is a body constituted within the DFW, N.J.S.A. 13:1B-24,
And the Council having been mandated, "subject to the approval of the commissioner, [to] formulate comprehensive policies for the protection and propagation of fish, birds and game animals . . .", N.J.S.A. 13:1B-28,
And the Council further having been authorized
[f]or 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, . . . to determine under what circumstances, when and in what localities, by what means and in what amounts and numbers such . . . game animals . . . 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. . . . The regulations so established shall be called the State Fish and Game Code.
[N.J.S.A. 13:1B-30.],
And it appearing that N.J.S.A. 13:1B-28 and 30 prescribe a shared responsibility between the Commissioner and the Council regarding such "comprehensive policies for the protection and propagation of game animals," including black bears,
And it further appearing that in enacting N.J.S.A. 13:1B-28, the Legislature contemplated that such comprehensive policies would enunciate the framework within which decisions regarding the protection and propagation of the black bear would be made, including the requirement of "scientific investigation and research" prescribed by N.J.S.A. 13:1B-30 and -32,
And it appearing that the Council has not adopted, and the Commissioner has not approved, comprehensive policies concerning the protection and propagation of the black bear,
And it further appearing that the Commissioner and Council now disagree regarding whether a black bear hunt should occur in 2004,
And there being no comprehensive policies in place against which a decision in respect of a bear hunt can be made,
It is ORDERED that the judgment of the Appellate Division is reversed; and it is further
ORDERED that the black bear hunt cannot take place until (1) the comprehensive policies required by N.J.S.A. 13:1B-28 are formulated by the Council and approved by the Commissioner, and (2) the Council adopts a State Fish and Game Code consonant with such comprehensive policies pursuant to N.J.S.A. 13:1B-30 and -32; and it is further
ORDERED that the opinion of the Court in this matter will be filed in due course.
WITNESS, the Honorable Deborah T. Poritz, Chief Justice, at Trenton, this 2nd day of December, 2004.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join in the Court's Order.