SOUTHERN JERSEY WATERMEN'S ASSOCIATION v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5454-05T25454-05T2

SOUTHERN JERSEY WATERMEN'S

ASSOCIATION, J.W. COMMERCIAL

FISH, INC., SAMUEL VEACH,

WILLIAM TIRRI, H & H FISHERIES,

INC., DELAWARE VALLEY FISH, INC.,

CAPE MAY BAIT, INC., JAMES M.

PARKER, CHARLES GIVENS and

DAVID KIELMEIR,

Appellants,

v.

NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Respondent.

AMERICAN LITTORAL SOCIETY, INC.,

DELAWARE RIVERKEEPER NETWORK and

MAYA VAN ROSSUM,

Intervenors-Respondents.

 

Argued February 5, 2008 - Decided

Before Judges Skillman, Winkelstein and LeWinn.

On appeal from an adopted amendment to N.J.A.C. 7:25-18.16 by the New Jersey Department of Environmental Protection, Division of Fish and Wildlife.

Stephen M. Ouellette (Ouellette & Smith) of the Massachusetts bar, admitted pro hac vice, argued the cause for appellants (Stevens & Lee and Mr. Ouellette, attorneys; Mr. Ouellette, of counsel and on the brief; Harry A. Horwitz, on the brief).

Howard Geduldig, Deputy Attorney General, argued the cause for respondent, New Jersey Department of Environmental Protection (Anne Milgram, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Mr. Geduldig, on the brief).

Ansell Zaro Grimm & Aaron, attorneys for intervenors-respondents (Gordon N. Litwin, of counsel; Andrew J. Provence, on the brief).

Richard Webster, and Jason C. Rylander, of the District of Columbia bar, admitted pro hac vice, attorneys for amici curiae, New Jersey Audubon Society, Defenders of Wildlife, Delaware Audubon Society, American Bird Conservancy and Sierra Club - Delaware and New Jersey Chapters (Julia LeMense Huff and Mr. Rylander, on the brief).

PER CURIAM

Appellants, commercial fishermen, challenge a New Jersey Department of Environmental Protection (NJDEP) regulation, N.J.A.C. 7:25-18.16, which established a temporary moratorium on horseshoe crab harvesting in the Delaware Bay that was in effect from May 2006 through December 2007. The regulation was enacted to increase the number of horseshoe crab eggs available to feed the migratory red knot shorebird population. On appeal, appellants claim that the regulation is facially invalid, arbitrary and capricious, and that the NJDEP lacked authority to enact it.

On March 25, 2008, Governor Jon Corzine signed legislation concerning horseshoe crabs and shorebirds, imposing a moratorium on the "taking in the State of horseshoe crabs or the eggs of horseshoe crabs" until "recovery targets for the population of the red knot shorebird . . . are met." P.L. 2008, c. 1. The enactment of this legislation, along with the expiration of the initial moratorium imposed by the NJDEP, renders moot plaintiffs' challenges to both the initial moratorium and the authority of the NJDEP to enact that moratorium. See In re 970 Realty Assocs., 234 N.J. Super. 348, 352 (App. Div. 1989) (questions that have become moot "'prior to judicial scrutiny generally have been held to be an improper subject for judicial review'") (quoting Anderson v. Sills, 143 N.J. Super. 432, 437 (Ch. Div. 1976)). As a result of the enactment of the new legislation, "we do not view this case as presenting any issue of great public importance compelling definitive resolution despite mootness." Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303 (1975). Given the new legislation, we do not perceive that the NJDEP's imposition of a similar moratorium is likely to recur.

 
Accordingly, we dismiss the appeal as moot.

(continued)

(continued)

3

A-5454-05T2

April 4, 2008