Cozy Pine Hunting Preserve, Inc. v. Fish & Game Division of Department of Conservation & Economic Development
Court: New Jersey Superior Court Appellate Division; March 12, 1965; New Jersey; State Appellate Court
The court, led by Judge Sullivan, addresses a petition for declaratory judgment filed by Cozy Pine Hunting Preserve, Inc., a New Jersey corporation operating a private hunting preserve in Salem County. The petitioner contends that the Fish and Game Division of the Department of Conservation and Economic Development has exceeded its authority by asserting jurisdiction over the preserve and the game within it, arguing that the Division's power extends only to game in public areas.
The hunting preserve spans 423 acres, enclosed by a robust eight-foot fence designed to prevent both the escape of stocked quadrupeds and the entry of native wildlife. The petitioner holds licenses for operating a commercial shooting preserve and for propagating certain game, and acknowledges that while it cannot exclude game birds and fowl from its preserve, the fencing effectively limits the Division's jurisdiction over quadrupeds.
The dispute arose when the Division mandated that hunters on the preserve obtain regular hunting licenses and prohibited the use of rifles. Furthermore, the Division denied permission to import and release wild boar, citing potential risks to agriculture and public safety.
The court finds that the process used for this case was incorrect, as it was brought under R. R. 4:88-10, which deals with administrative rules, rather than through an appeal of agency decisions as required by R. R. 4:88-8(a). However, due to the lack of objection from the Division and the case being ready for determination, the court opts to treat it as an appeal.
Ultimately, the court affirms the Division's rulings, confirming that the requirement for a hunting license is mandated by N. J. S. A. 23:3-1, which prohibits hunting without a proper license.
The language of the statute is clear and unambiguous, with specific exceptions only for active duty armed service members and occupants of a farm hunting on that farm. There are no exceptions for private hunting preserves, and the petitioner failed to justify such an exception within the statutory framework. The case cited by the petitioner, State v. Biggs, is not relevant as it involved fishing regulations, which differ from hunting laws. The propagation of game statute allows for game propagation in enclosed preserves with the appropriate license, which the petitioner possesses. However, while N.J.S.A. 23:3-31 permits killing game in enclosed preserves, it does not negate the requirement for a hunting license. The petitioner claims that the prohibition against hunting with rifles applies only to wild animals, but this distinction is deemed unrealistic in the context of game laws. Furthermore, the general prohibition against using rifles for hunting, specified in N.J.S.A. 23:4-13, remains in effect, particularly regarding deer hunting as outlined in N.J.S.A. 23:4-44, which explicitly prohibits rifle use for deer hunting. The petitioner argues that this prohibition is irrelevant to private preserves due to language in N.J.S.A. 23:4-43, but this argument is rejected. Historical context from the original Act for the protection of deer reinforces that hunting wild deer and possession regulations were strict, with specific exemptions for licensed game preserves.
The proviso at the end of section 2 applies only to section 1, which establishes a hunting season for deer, and section 2, which makes possessing deer out of season prima facie unlawful. Under N.J.S.A. 23:3-31, deer raised in a fully enclosed game preserve can be killed anytime. The statutory revision in 1937, known as the 'Act for the protection of deer,' is now found in N.J.S.A. 23:4-42 to 48, with the applicable proviso in N.J.S.A. 23:4-43 stating that the article does not apply to certain conditions. The risks associated with rifle hunting are acknowledged to be present in both public and private areas, leading to the conclusion that the bans on hunting with a rifle, particularly for deer, extend to private preserves.
Regarding the Division's authority to prevent the petitioner from stocking its preserve with wild boar, N.J.S.A. 23:4-63.3 empowers the Division to regulate the release of mammals that may endanger crops or public welfare. Although the petitioner contends that the Division's jurisdiction is limited to public lands or unfenced private properties, the Division's determination that wild boar can pose risks to agriculture and public safety is not disputed. The petitioner argues that the fencing of the preserve negates these risks, but the ruling asserts that no fence is entirely escape-proof, especially concerning wild boar. Additionally, the presence of wild boar could endanger individuals on the preserve. Hence, the statutory provision applies to enclosed preserves, supporting the Division's decision to prohibit the release of these animals. The petitioner did not contest the Division's authority to act beyond established regulations. The ruling is affirmed.
