HUMANE SOC. OF U.S. v. N.J. STATE FISH AND GAME COUN

The opinion of the Court was delivered by CLIFFORD, J.

This case presents a challenge, on equal protection and due process grounds, to the constitutionality of N.J.S.A. 13:1B-24. That enactment sets forth the qualifications and recommendation procedures for appointment to the Fish and Game Council, an appointive eleven member body within the Division of Fish, Game and Shell Fisheries of the Department of Environmental Protection. The trial court (which heard the case on what it called "a limited stipulation of facts and legal argument"), in a formal opinion later clarified by a supplemental letter to counsel and subsequent order, held the statute unconstitutional, 129 N.J. Super. 239 (Ch.Div. 1974). While defendants' appeal was pending in the Appellate Division, this Court granted certification directly to the Chancery Division, 69 N.J. 398 (1975). We conclude the statute survives the constitutional attack made here and therefore we reverse.

The Fish and Game Council is invested with certain regulatory powers aimed at protecting and developing an adequate supply of fish and game for recreational and commercial purposes. These powers are expressed primarily by the Council's determinations as to when and where in the state hunting and fishing shall take place, and which fresh water fish, game birds, game animals, and fur bearing animals may be taken and in what numbers. The wildlife thus regulated are those animals which are the focus of the sports of hunting and fishing. In addition, the Council supervises a program of wildlife propagation, the expenses of which are supported by fees for hunting and fishing licenses paid for by sportsmen and commercial fishermen.

Plaintiffs are two non-profit organizations, the Humane Society, New Jersey Branch, and the Sierra Club, and two individuals who are taxpayers and citizens of New Jersey. They contend that the Fish and Game Council membership statute is constitutionally defective because it enumerates three classes of appointees to the Council — sportsmen, farmers, and commercial fishermen — and excludes from appointment any person who is not recommended to the Governor by either the State Agricultural Convention or the New Jersey State Federation of Sportsmen's Clubs (hereafter Sportsmen's Federation).

The statutory provisions for membership and appointment are as follows:

13:1B-24. Fish and Game Council; members; terms.

There shall be within the Division of Fish and Game, a Fish and Game Council which shall consist of eleven members, each of whom shall be chosen with due regard to his knowledge of and interest in the conservation of fish and game. Each member of the council shall be appointed by the Governor, with the advice and consent of the Senate. Three of such members shall be farmers, recommended to the Governor for appointment to the council by the agricultural convention held pursuant to the provisions of article two of chapter one of Title 4 of the Revised Statutes; six of such members shall be sportsmen, recommended to the Governor for appointment to the council by the New Jersey State Federation of Sportsmen's Clubs; and two of such members shall be commercial fishermen.

It is stipulated that the individual plaintiffs, the members of the Humane Society, New Jersey Branch, and the Sierra Club are all interested in and knowledgeable about the conservation of fish and game. As the statute indicates, although sponsorship by the Sportsmen's Federation and the State Agricultural Convention is essential to appointment to the Fish and Game Council, membership in those organizations is not. Plaintiffs enjoy the state's lands and wildlife for purposes other than hunting, fishing, and farming. For personal and policy reasons they cannot or will not become affiliated with or seek membership in the Sportsmen's Federation, nor do they at all suggest that they qualify, by occupation or otherwise, as farmers. Plaintiffs contend, moreover, that any such affiliation would not serve to give them an effective voice in making or becoming the subject of recommendations to the Governor. In fact, the State conceded at oral argument that as a practical matter all appointees to the Council have been members of either the Sportsmen's Federation or the Agricultural Convention.

The essence of plaintiffs' challenge is that they are practically barred from participating in the Fish and Game Council's decisions which affect plaintiffs' recreational and educational activities. They characterize their exclusion from the ranks of those eligible for appointment as a denial of equal protection. Additionally, they contend that the statutory delegation of the power of appointment to a private organization such as the Sportsmen's Federation violates due process. The trial court's opinion upheld plaintiffs' position and ruled that a person otherwise qualified may not statutorily be excluded from appointment to the Fish and Game Council on the grounds that he or she is not either a sportsman, a farmer, or a commercial fisherman. 129 N.J. Super. at 246. By the order following this formal opinion and supplemental letter, referred to above, the trial judge also declared unconstitutional those provisions of N.J.S.A. 13:1B-24 which channel appointments to the Council through the Sportsmen's Federation and the Agricultural Convention. Finally, he enjoined defendants from acting pursuant to the membership statute, with the result that the terms of five of the eleven Council members have expired and are being filled by holdover appointees.

It must be stressed here that plaintiffs have not alleged malefaction on the part of the Council members, past or present, nor has the inherent subject of their activities — namely, hunting and fishing in their recreational and commercial aspects — come under attack. Nor do plaintiffs condemn the qualifications the statute articulates for appointment to the Council, for they agree Council members should be chosen "with due regard to [their] knowledge of and interest in the conservation of fish and game." What rankles is the selection process, which operates so that the individual plaintiffs and the members of the organizational plaintiffs, all of whom possess the statutory qualifications for appointment, are excluded.

The trial court correctly applied to the Council membership statute the minimum scrutiny, rational basis test, which looks to whether a state of facts exists that can reasonably justify the legislative scheme. Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973). There the Supreme Court rejected an equal protection challenge directed against provisions in the California Water Code which established voter qualifications for electing the directors of water storage districts in the state. Only landowners were eligible to vote, and the votes were apportioned according to the assessed valuation of the land. The classification was found acceptable despite the fact that it impinged on the franchise, because landowners as a class bore the entire burden of the costs of the water district and California "could rationally conclude that they, to the exclusion of residents, should be charged with responsibility for [the district's] operation." 410 U.S. at 731, 93 S.Ct. 1231, 35 L.Ed.2d at 668.

Here, as in Sayler, a particularized unit of government is implicated and the persons who achieve office do not have plenary powers. The Fish and Game Council is a specialized body, with statutorily prescribed duties and statutory limits on its powers and activities. Its members serve by appointment, not by election. Access to the Council cannot be said to be entwined with the fundamental right to vote, which would call for this Court to use the stricter, close scrutiny standard of review and would rebut the presumption of validity the statute now enjoys. Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed. 2d 92 (1972); Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969).

The burden, then, is on plaintiffs to demonstrate that the impact upon them of the Fish and Game Council's decisions is so significant and substantial as to render a statutory scheme which effectively bars them from appointment to the Council patently arbitrary and unreasonable. Only upon such a showing can their non-membership in this specialized body assume the dimensions of a constitutional deprivation.

It is axiomatic that the Fourteenth Amendment does not forbid classifications per se.

Equal protection does not require that all persons be dealt with identically. If there is some reasonable basis for the recognition of separate classes, and the disparate treatment of the classes has a rational relation to the object sought to be achieved by the lawmakers, the constitution is not offended. [ N.J. Chapter, American Inst. of Planners v. N.J. State Bd. of Planners, 48 N.J. 581 , 601, appeal dismissed, 389 U.S. 8, 88 S.Ct. 70, 19 L.Ed.2d 8 (1967).]

The Legislature may prescribe such qualifications as reasonably relate to the demands of a specialized office. See Alongi v. Schatzman, 57 N.J. 564 , 577-78 (1971); cf. Wurtzel v. Falcey, 69 N.J. 401 (1976). Logic is not offended by the classes included in the challenged statute. We have already stressed the discrete character of the Fish and Game Council, charged as it is with certain responsibilities and powers pertinent to ensuring the statutory objective of an abundant supply of game for recreational and commercial hunting and fishing. Sportsmen, farmers, and commercial fishermen feel directly the impact of decision-making in this area and are likely to have the necessary expertise to make the required decisions competently.

The statute specifies that six of the eleven Council members must be sportsmen. Assuming this category consists of the hunters and fishermen of the state, it is difficult to conceive of a group with a keener interest in maintaining a plentiful supply of game, in developing regulations to insure safety in hunting, and in overseeing the operations of the state's hatching and game farm and its stocking activities. Farmers, who are represented by three Council members, own the major part of the hunting lands in the State. Thus, as property owners, they are directly affected by the Council's activities. They are also in an advantageous position to recognize the point at which overpopulation in a species of game animal has become a matter of concern. The Council's power to regulate animals which menace agricultural crops, see N.J.S.A. 23:4-63.3, further justifies representation by farmers. To the extent that sportsmen and farmers have special interests which may at times conflict, the presence of both groups on the Council is at once a rational legislative decision and a desirable one. For the reason it is appropriate that these Council members be recommended to the Governor by organizations consisting of their peers.

Two commercial fishermen are appointed to the Council directly by the Governor, and their method of selection cannot be said to offend the due process principles plaintiffs advance. Regarding this classification, however, plaintiffs point out that inasmuch as the Council has jurisdiction over fresh water fishing and there is little commercial fresh water fishing in New Jersey, commercial fishermen therefore have only a tenuous connection with the purposes of the statutory scheme. That appointment is specified from this group rather than from the general public, however, is not necessarily arbitrary and capricious: the Council issues licenses to fishermen who wish to fish commercially in those waters of the Atlantic Ocean that are within the state's jurisdiction, see N.J.S.A. 23:3-41 and N.J.S.A. 23:3-47. Additionally, it is logical to assume that commercial fishermen have, by virtue of their trade, an overall expertise that commends their membership on the Fish and Game Council. The fact that the Council's minimal control of salt-water fishing has no significant commercial impact obviates any suggestion that the two commercial fishermen who serve on it could use their office to promote directly their own or the industry's economic well-being over the public interest.

Having determined that there is a reasonable basis for the statutory inclusion of sportsmen, farmers, and commercial fishermen, and giving all due regard to plaintiffs' articulated concerns, we cannot find that plaintiffs' exclusion is of sufficient import to offend the Fourteenth Amendment. While neither side evinced any certainty at oral argument that the term "sportsman" does not include an environmentalist, nevertheless even if we assume that the classification contemplates only hunters and fishermen, the statutory scheme is not unduly stringent. The legislative arrangement suggests that the numbers of sportsmen for purposes of the appointment process should be substantial, inasmuch as eligibility for membership in the Sportsmen's Federation is provided to every duly organized sportsmen's club in the state with twenty-five or more members specifically for the purpose of permitting "the broadest possible representation of sportsmen in the making of recommendations for appointment of sportsmen to membership in the council * * *." N.J.S.A. 13:1B-25.

Plaintiffs have elected not to align themselves with the Sportsmen's Federation, a choice that assuredly is theirs to make. However, they have neither alleged nor proven that their interests are antithetical to the Federation or that, should they attempt to join, they would be rejected. It is perfectly reasonable, therefore, to view their continued absence from the Council as a product of plaintiffs' own alienation rather than as the result of a statutory exclusion.

More compelling, however, is the fact that the dominion of the Fish and Game Council is so confined. The wildlife it regulates, as indicated, are limited specifically to those species which are commonly the subjects of hunting and fishing, and even then the regulatory power is restricted. See, e.g., N.J.S.A. 23:4-49, defining game birds to include twenty-two species; N.J.S.A. 23:4-1, prohibiting hunting of most of these birds except in open season fixed by federal regulations. See also N.J.S.A. 23:4-18. The hunting season and, where applicable, the bag limits for certain birds and small game, N.J.S.A. 23:4-1, N.J.S.A. 23:4-2, and N.J.S.A. 23:3-32, certain fur-bearing animals, N.J.S.A. 23:4-39, deer, N.J.S.A. 23:4-43, foxes, N.J.S.A. 23:4-58.1, and certain fish, N.J.S.A. 23:5-1, are set forth by statute where no provision in these instances otherwise appears in the State Fish and Game Code. The Council is responsible for issuing the regulations which comprise the Code, N.J.S.A. 13:1B-30. While it enjoys, in the discharge of this function, a certain flexibility permitting enlargement or limitation of the statutory designations, nevertheless the Council at all times must condition such departures on the essential purpose its regulations are designed to serve — the maintenance of a plentiful supply of game and fish for recreational hunting and fishing. Notice and public hearings as well as scientific investigation and research must precede adoption of and any changes in Code regulations and amendments thereto, N.J.S.A. 13:1B-31 et seq. The statutory scheme expressly subjects "[a]ny regulation, or amendment thereto, or repealer thereof" to appropriate judicial review. N.J.S.A. 13:1B-35.

The Council does not have unfettered authority to decide that hunting or fishing will take place on private property, see N.J.S.A. 23:7-1, or on state-owned lands. As to the latter, co-existing with the Division of Fish, Game and Shell Fisheries in the Department of Environmental Protection is the Division of Parks, Forestry and Recreation, N.J.S.A. 13:1B-15.100 et seq., which has its own Council. This likewise is made up of eleven members, who recommend programs and policies concerning the acquisition, development, use and improvement of state parks, forests, and recreation areas. N.J.S.A. 13:1B-15.104. The competitive interests of the respective Councils are served by the legislative scheme, and it is fair to say that the interests of plaintiffs in enjoying the state's lands and wildlife for purposes other than hunting and fishing are represented in part by the Parks, Forestry and Recreation Council.

In summary, what authority the Fish and Game Council has been given by N.J.S.A. 13:1B-30, empowering that body to determine "under what circumstances, when and in what localities, by what means and in what amounts and numbers" fish and game may be taken, must be said to be circumscribed by other agencies, see n. 5 infra, and existing statutory norms. That authority is limited as well by the mandate that the Council direct its regulations toward providing "an adequate and flexible system of protection, propagation, increase, control and conservation" of fish and game birds and animals. The consignment of the specialized powers and duties flowing from this legislative scheme to so-called special interest groups has a rational basis, because these entities are most directly affected by the Council's regulations and possess the requisite expertise for achievement of the statutory objective.

Furthermore, the statute passes muster even were we to go beyond the traditional rational basis test and apply the means focused test, which this Court has used to determine constitutional challenges asserting interests more fundamental than the ones advanced by these plaintiffs. See Bor. of Collingswood v. Ringgold, 66 N.J. 350 (1975), appeal dismissed, ___ U.S. ___, 96 S.Ct. 2220, ___, 48 L.Ed.2d 826, 44 U.S.L.W. 3684 (1976); Gunther "The Supreme Court, 1971 Term — Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection," 86 Harv. L. Rev. 1, 22-24 (1972). The governmental interest in establishing regulations to ensure a plentiful supply of game animals for consumption and sport is suitably furthered by placing a degree of regulatory control in the hands of a Fish and Game Council composed of sportsmen, farmers, and commercial fishermen. Opening the Council's membership to persons with differing philosophies might reflect the art of public relations, but it is not a constitutional necessity.

Finally, plaintiffs contend that the role played by the Agricultural Convention and the Sportsmen's Federation in recommending nine of the eleven appointees amounts to an "inbred nominating process" offensive to due process because it produces a Council incompletely representative of the public interest. See Lanza v. Wagner, 11 N.Y.2d 317, 229, N.Y.S.2d 580, 183 N.E.2d 670 (Ct.App.), appeal dismissed and cert. den., 371 U.S. 74 and 901, 83 S.Ct. 177 and 205, 9 L.Ed.2d 163 and 164 (1962).

The delegation of nominating authority to private persons is not in derogation of the constitution where that document is silent as to the appointment of public officials. Driscoll v. Sakin, 121 N.J.L. 225 (Sup.Ct. 1938), aff'd. 122 N.J.L. 414 (E. A. 1939) Even delegation of legislative authority to private parties may withstand constitutional challenge if sufficient safeguards exist to prevent an arbitrary concentration of power in persons or groups motivated by self interest. "The test is whether the particular delegation is reasonable under the circumstances considering the purpose and aim of the statute." Male v. Renda Contracting, 64 N.J. 199 , 201, cert. den., 419 U.S. 839, 95 S.Ct. 69, 42 L.Ed.2d 66 (1974).

In Male, supra, a statute which fixed the wage rate for public works was geared to wages for particular crafts or trades fixed by collective bargaining agreements in the locality. We noted that the parties who negotiate these agreements were competing groups with opposing economic positions, so that the outcome of their negotiations reflected a balance of interests. While it was alleged in Male that the delegation created a danger of self-motivated action, no actual harm to the public good was shown. Id. Here it has not even been alleged. Our review of the limitations on the Fish and Game Council's authority, which limitations serve to promote other interests, convinces us that there does not reside in that body the potential for such aggrandizement of the Council members' interests as would be repugnant to due process.

Finally, we record our recognition of the fact that the Council's operations bear on the public interest. That being so, the present composition of the Council may be perceived as less than ideal. While the cure does not lie in opening up Council membership to other public interest groups in addition to farmers, sportsmen and commercial fishermen, we acknowledge that a better balance would be achieved by the presence of some public members. Legislative action towards that end would be salutary.

The judgment of the trial court is reversed. The injunction is dissolved, and appointments to fill the vacancies now held by holdover appointees may be made forthwith consistent with the existing legislative formula.