ANIMAL PROTECTION LEAGUE OF NEW JERSEY 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NOT FOR PUBLICATION WITHOUT THE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-0

ANIMAL PROTECTION LEAGUE OF NEW

JERSEY, ANGELA METLER, and WILLIAM

CRANE,

Plaintiffs-Appellants,

v.

NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION, AMY

CRADIC, in her position as

Assistant Commissioner of the

Department, NEW JERSEY DIVISION OF

FISH AND WILDLIFE, DAVID CHANDA,

in his capacity as Director of

the Division, LARRY HERRIGHTY,

in his capacity as Assistant

Director of the Division, NEW

JERSEY DIVISION OF PARKS AND

FORESTRY, NEW JERSEY STATE PARK

SERVICE, JOHN TRONTIS, in his

capacity as Assistant Director of

State Parks, and STEPHEN ELLIS, in

his capacity as Acting Regional

Superintendent of State Parks,

Defendants-Respondents.

____________________________________________________________

December 27, 2013

Argued December 17, 2013 Decided

Before Judges Fisher and Espinosa.

On appeal from the New Jersey Department of Environmental Protection.

Doris Lin argued the cause for appellants (Law Offices of Doris Lin, attorneys; Ms. Lin, on the brief).

Alison Reynolds, Deputy Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Reynolds, on the brief).

PER CURIAM

In this appeal, plaintiffs Animal Protection League of New Jersey, Angela Metler and William Crane argue that the Department of Environmental Protection (the Department), and other state departments and officials, infringed the rights guaranteed them by the First Amendment of the Constitution of the United States and Article I, Paragraph 6 of the New Jersey Constitution by denying their application for a permit to protest the black bear hunt scheduled to occur in seven northern counties in December 2011. Although a topic of frequent litigation, see, e.g., Animal Prot. League of N.J. v. N.J. Dep't of Envtl. Prot., 423 N.J. Super. 549 (App. Div. 2011), certif. denied, 210 N.J. 108 (2012); N.J. Animal Rights Alliance v. N.J. Dep't of Envtl. Prot., 296 N.J. Super. 358 (App. Div. 2007), this appeal does not require consideration of the administrative decision to authorize the bear hunt. Instead, we are asked to examine whether plaintiffs' constitutional rights were violated when, in advance of the 2011 hunt, they were initially denied a permit to protest at a hunters' check station in Franklin Township (the Franklin facility) in Sussex County. Because the issues raised are moot, we dismiss the appeal.

The record reveals that, in late November 2011, plaintiffs sought a permit to protest at the Franklin facility. On December 2, 2011, ostensibly for safety reasons, the Department denied the request, permitting protestors to congregate only at two check stations, the Wittingham Wildlife Management Area in Sussex County and the Pequest Trout Hatchery in Warren County.

The next day, Saturday, December 3, 2011, plaintiffs filed a notice of appeal along with an application, which was granted, for leave to file an expedited motion for relief. Moving and opposing paper were expeditiously filed and, on Monday, December 5, 2011, a three-judge panel of this court granted in part and denied in part the relief sought. Specifically, we permitted "a maximum of twenty-five (25) protesters" limited "to the grassy, triangular portion on the northern end of the [Franklin facility]" that was depicted on an aerial map. Our December 5 order specified the hours for protesting and also allotted the number and location of parking spaces for the protestors' vehicles. One judge concurred in the court's specification of the time and location of protesting and the allotment of parking spaces, but dissented insofar as the court's order limited the number of protestors to twenty-five, concluding "the area in question could safely accommodate a far greater" number.

Plaintiffs immediately moved in the Supreme Court for emergent relief. On December 8, 2011, during the course of considering the application, Justice Barry T. Albin conducted a settlement conference. Plaintiffs' counsel later acknowledged that the parties "negotiated a settlement [pursuant to] which [plaintiffs] would be allowed to have up to 75 protesters inside of a police barricade on the grassy triangle and ten parking spaces . . . and one designated photographer to enter the bear check station and photograph the processing of the first bear who is brought into the station[.]" The settlement was memorialized in the Department's amended special use permit, which plaintiffs' counsel also executed, signifying plaintiffs' "understand[ing] and accept[ance] [of] the terms of the agreement." On December 12, 2011, the Supreme Court entered an order that declared the issuance of the amended special use permit had rendered moot our December 3 order and required dismissal of plaintiffs' emergent Supreme Court motion.

On December 11, 2011, the day before the Supreme Court's dismissal order, plaintiffs again applied in this court for emergent relief. This time, plaintiffs sought enforcement of the special use permit's paragraph 5, which memorialized the parties' agreement that one individual would be permitted "access to the check station to observe/photograph the checking process of the first bear to arrive at the check station after 2 p.m." That same day, a single judge of this court denied the application, concluding that the special use permit contained a complete and integrated resolution of the parties' disputes. Our colleague also concluded that because plaintiffs failed to conduct their protest within the triangular area and instead picketed across the street from the Franklin facility, they had "fail[ed] to adhere" to the permit's conditions and their right to observe and photograph the arrival of the first bear was, thus, "preclude[d]."

Nothing further occurred with respect to this litigation until March 1, 2012, when plaintiffs moved for leave to file an amended notice of appeal out of time. Defendants opposed that motion and cross-moved for the appeal's dismissal. We granted plaintiffs' motion and denied defendants' cross-motion to dismiss the appeal. Plaintiffs filed their merits brief on December 3, 2012, almost a year after the special use permit would have expired. With further delays caused by defendants' well-taken motion to strike materials from plaintiffs' merits brief and appendix, plaintiffs' revised merits brief was not filed until April 2013.

Plaintiffs argue in this appeal that: (1) in denying a permit, defendants violated plaintiffs' First Amendment rights; (2) in denying a permit, defendants violated plaintiffs' similar state constitutional rights; (3) defendants violated the terms of the settlement agreement; and (4) a judgment declaring unconstitutional defendants' denial of plaintiffs' permit application is warranted.

Our summary of this appeal's procedural history demonstrates that, even were we to find merit in any of plaintiffs' arguments, the court's ability to provide meaningful relief has become impractical if not metaphysically impossible, thus warranting a dismissal of the appeal. See Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303 (1975); see also DeVesa v. Dorsey, 134 N.J. 420, 428 (1993) (concurring opinion). The bear hunt ended in December 2011, and the special use permit expired with the hunt's termination; any decision we might render will have no "practical effect" on the parties' positions with respect to the protesting of a bear hunt that ended two years ago. See Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010) (quoting N.Y.S. & W.R. Corp. v. State Dep't of Treas., Div. of Taxation, 6 N.J. Tax 575, 582 (Tax Ct. 1984), aff d, 204 N.J. Super. 630 (App. Div. 1985)). In short, were we to attempt to resolve the issues plaintiffs pose, we would be inappropriately "functioning in the abstract." N.J. Tpk. Auth. v. Parsons, 3 N.J. 235, 240 (1949).

The mootness of this appeal is starkly demonstrated by plaintiffs' first, second and fourth arguments, which assert a constitutional deprivation in the "denial" of a permit to protest at the Franklin facility. As we have explained, the permit was eventually granted, albeit with prior judicial intervention and in the form stipulated by the parties' settlement.

It is, of course, true that even moot issues may be decided if "of substantial importance, likely to reoccur but capable of evading review." Zirger v. Gen. Acc. Ins. Co., 144 N.J. 327, 330 (1996); In re Conroy, 98 N.J. 321, 342 (1985).1 But, although of general importance and arguably likely to reoccur,2 any future disputes are not likely to evade review. Indeed, our judicial system is well-equipped to provide emergent relief in these types of matters, as the record on appeal demonstrates. Not only did plaintiffs obtain this court's and the Supreme Court's immediate attention and consideration of the issues, but similar issues were also raised and rapidly decided by our appellate courts with regard to the protesting of the bear hunt which occurred the year before. We, thus, decline the invitation to craft a framework for similar disputes that may arise in the future. Such issues are best decided in the context of a real dispute.

1This approach applies even when the underlying dispute has been amicably settled by the parties, as here. See Nini v. Mercer County Cmty. College, 202 N.J. 98, 105 n.4 (2010).

2Certainly, plaintiffs' right to publicly express disagreement with government action is highly valued in our society. But the particulars of the dispute i.e., the number of protestors that may safely congregate in one place, the precise location of the protest, the amount of parking spaces and other similar details do not have importance standing alone and are not necessarily likely to present themselves in the same way in the future. Accordingly, a disposition of the merits of this appeal is not likely to provide any meaningful guidance for future similar disputes.