New Jersey Sports and Exposition Authority v. McCrane

Docket Nos. L 26438-70; L 29368-70; L 30458-70; L 34540-70 (N.J. Super. Ct. November 15, 1971)

New Jersey statute authorizing New Jersey Sports and Exposition Authority to use state-owned tidelands in the Hackensack Meadowlands as the site for a sports complex does not violate the public trust in these lands and is not inconsistent with the provisions of New Jersey law which dedicate state-owned tidelands to the support of public education. The conveyance of the tidelands will promote a purpose — construction of a large sports complex — which the legislature has determined will be beneficial to the public, and adequate compensation for the lands is implicitly required by the statute. The statute is not inconsistent with any environmental rights of plaintiffs protected by the Ninth and Fourteenth Amendments of the United States Constitution. The statute provides for administrative consideration of the environmental impact of the proposed sports complex and requires a balanced development of the meadowlands. Judicial evaluation of compliance with these requirements must await the Authority's actions which will affect the environment.

Counsel for Plaintiff
George F. Kugler, Jr. Attorney General
Joseph M. Clayton, Jr. Deputy Attorney General
Statehouse Annex
Trenton, New Jersey 08625

Counsel for Henry Cheval
Alfred A. Porro, Jr.
10 Stuyvesant Avenue
Lyndhurst, New Jersey 07071

Counsel for Intervenors
Robert N. Wilentz
Wilentz, Goldman & Spitzer
252 Madison
Perth Amboy, New Jersey 08861

Counsel for Defendant
T. Girard Wharton
50 West Main
Sommerville, New Jersey 08876

[2 ELR 20051]

Pashman, A.J.S.C.

OPINION^*

I THE ACT

On January 12, 1971, in his annual address to the Legislature, Gov. Cahill noted the potential of a sports complex in the meadowlands to be occupied by one or more major league sports teams.

On April 19, 1971, the Sports Complex bill was introduced and overwhelmingly passed in the Senate by a 28-2 vote and in the Assembly by a 53-6 vote.

On May 10, 1971, Gov. Cahill signed L. 1971, c. 137, the New Jersey Sports and Expositions Authority Law now cited as N.J.S.A. 5:10-1 et seq. The Act creates the Authority as "an instrumentality of the State exercising public and essential governmental functions."

The Legislature specifically found "the general welfare, health and prosperity of the people of the State [will] be promoted by the holding of athletic contests, horse racing and other spectator sporting events and of trade shows and other expositions . . . that in order to induce professional athletic teams . . . to locate these franchises in the State, it is necessary to provide stadiums and related facilities for the use of such teams, in addition to the facilities for horse racing and other spectator events; that such stadiums and other facilities would also accommodate other events and serve other uses which would provide needed recreation, forums and expositions for the public." The Legislature further found that "additional facilities [were] needed . . . to accommodate trade shows and other expositions in order to promote industry and development . . . and provide a forum for public events." The Legislature declared that the location of the complex in the meadowlands "would stimulate the needed development" of the area. N.J.S.A. 5:10-2.

The Authority is empowered "to establish, construct, operate, maintain, improve and otherwise effectuate a project to be located in the Hackensack meadowlands upon a site not to exceed 750 acres consisting of one or more stadiums, coliseums, arenas, pavilions, stands, field houses, playing fields, recreation centers, courts, gymnasiums, club houses, a race track for the holding of horse race meetings, and other buildings, structures, facilities, properties and appurtenances incidental and necessary to a complex suitable for the holding of athletic contests or other sporting events, or trade shows, exhibitions, spectacles, public meetings or other expositions, and such project may include driveways, roads, approaches, parking areas, parks, recreation areas, food vending facilities, restaurants, transportation structures, systems and facilities, and equipment, furnishings, and all other structures and appurtenant facilities related to, necessary for, or complementary to the purposes of the project or any facility thereof." Id. § 6(a).

To carry out this statutory mandate the Authority is given the power of eminent domain Id. § 9 and is authorized to issue bonds and notes which are expressly not debts of the State. Id. § 10. The Authority may relocate public highways and utilities after consultation with the Meadowlands Commission and the Department of Transportation. In locating and constructing the sports and exposition facilities, the Authority is exempt from State and local zoning, planning and building codes. Id. § 5(x).

The Authority is a public body corporate and politic established in the Department of Community Affairs. Id. § 4(a). Its membership consists of the State Treasurer, the Attorney General and a member of the Hackensack Meadowlands Development Commission to be appointed by the Governor, all three being members ex officio, while four other members are to be appointed by the Governor with the advice and consent of the Senate. Id. § 4(6). From the latter group the Governor is to appoint a Chairman, while the entire membership is to choose a Vice-Chairman as well as a Secretary and Treasurer (the latter two need not be members). Id. § 4(d).

The Legislature has the power to dissolve the Authority [2 ELR 20052] use made or asserted by Whitney in or over these tidelands would constitute an infringement either upon the jus privatum of Marks or upon the jus publicum of the people. It is also within the province of the trier of fact to determine whether any particular use to which Marks wishes to devote his tidelands constitutes an unlawful infringement upon the jus publicum therein. It is a political question, within the wisdom and power of the Legislature, acting within the scope of its duties as trustee, to determine whether public trust uses should be modified or extinguished (see City of Long Beach v. Mansell, supra, 3 Cal.3d at p. 482, fn. 17), and to take the necessary steps to free them from such burden. In the absence of state or federal action the court may not bar members of the public from lawfully asserting or exercising public trust rights on this privately owned tidelands.

There is absolutely no merit in Marks' contention that as the owner of the jus privatum under this patent he may fill and develop his property, whether for navigational purposes or not; nor in his contention that his past and present plan for development of these tidelands as a marina have caused the extinguishment of the public easement. Reclamation with or without prior authorization from the state does not ipso facto terminate the public trust nor render the issue moot. (Newcomb v. City of Newport Beach, (1936) 7 Cal.2d 393, 402; Atwood v. Hammond (1935) 4 Cal.2d 31, 40-41.)

A proper judgment for a patentee of tidelands was determined by this court in People v. California Fish Co., supra, 166 Cal. at pp. 598-599, to be that he owns "the soil, subject to the easement of the public for the public uses of navigation and commerce, and to the right of the state, as administrator and controller of these public uses and the public trust thereof, to enter upon and possess the same for the preservation and advancement of the public uses and to make such changes and improvements as may be deemed advisable for those purposes."

Second: Does Whitney have "standing" to request the court to recognize and declare the public trust easement on Marks' tidelands?

Yes. The relief sought by Marks resulted in taking away from Whitney rights to which he is entitled as a member of the general public. It is immaterial that Marks asserted he was not seeking to enjoin the public. The decree as rendered does enjoin a member of the public.

Members of the public have been permitted to bring an action to enforce a public right to use a beach access route (Dietz v. King (1970) 3 Cal. 3d 29); to bring an action to quiet title to private and public easements in a public beach (Morse v. E.A. Robey and Co., Inc. (1963) 214 Cal.App.2d 464); and to bring an action to restrain improper filling of a bay and secure a general declaration of the rights of the people to the waterways and wildlife areas of the bay (Alameda Conservation Association v. State of Cal. (1971) 437 F.2d 1087, 1095-1098). Members of the public have been allowed to defend a quiet title action by asserting the right to use a public right of way through private property (The Diamond Match Co. v. Savercool (1933) 218 Cal. 665). They have been allowed to assert the public trust easement for hunting, fishing and navigation in privately owned tidelands as a defense in an action to enjoin such use (Forestier v. Johnson, supra, 164 Cal. 24), and to navigate on shallow navigable waters in small boats (Bohn v. Albertson (1951) 107 Cal.App.2d 738).

Whitney had standing to raise this issue. The court could have raised this issue on its own. "It is now well settled that the court may finally determine as between the parties in a quiet title action all of the conflicting claims regarding any estate or interest in the property." (Hendershott v. Shipman (1951) 37 Cal.2d 190, 194.) Where the interest concerned is one that, as here, constitutes a public burden upon land to which title is quieted, and affects the defendant as a member of the public, that servitude should be explicitly declared.

Third: Does Whitney have rights as a littoral owner which are improperly enjoined by the judgment appealed from?

Yes. In its memorandum opinion the trial court expressed its views as to the private rights between these parties. It stated that it would find and adjudge that the littoral owner does not own a private right of access or fishery across all of the tidelands adjoining his property; that, however, he may own a reasonable right of access; that here it would be found that he had exercised such right and his right of access is therefore confined to the wharf area; and that as between Marks and Whitney this has ripened into an easement in that specific area only. The judgment quieted an easement by prescription in Whitney as against Marks "for access and ingress and egress to and from the deep waters of Tomales Bay for pedestrians, fisheries, navigation and other purposes. Such right shall be subject to the right of MARKS to use, to fill and to develop . . . (including those within the above defined area seven feet in width), so long as such rights of access . . . shall be preserved over and across said area seven feet in width and MARKS may use and convey the same for use, for all purposes which do not defeat or substantially interfere with use by WHITNEY of such area for the above stated purposes."

A littoral owner has a right in the foreshore adjacent to his property separate and distinct from that of the general public (Gould on Waters, 3d ed., § 149). This is a property right and is valuable, and although it must be enjoyed in due subject to the rights of the public, it cannot be arbitrarily or capriciously destroyed. (Yates v. Milwaukee (1870) 77 U.S. 497, 504.) A littoral owner can enjoin as a nuisance interference by a private person with this right. (S.F. Sav. Union v. R.G.R. Petroleum Co. (1904) 144 Cal. 134, 135-139.) A littoral owner has been held to have the right to build a pier out to the line of navigability; a right to accretion;⁷ a right to navigation (the latter right being held in common with the general public) (see 65 C.J.S. Navigable Waters, §§ 61-69; 56 Am. Jur. Waters, § 233); and a right of access from every part of his frontage across the foreshore (see Coulson & Forbes on Waters (6th ed. 1952) pp. 69-70). This right of access extends to ordinary low tide both when the tide is in and when the tide is out. (S.F. Sav. Union v. R.G.R. Petroleum Co., supra, 144 Cal. 134.)

This littoral right is of course burdened with a servitude in favor of the state in the exercise of its trust powers over navigable waters (Colberg, Inc. v. State, supra, 67 Cal.2d 408, 420; City of Newport Beach v. Fager (1940) 39 Cal. ApP.2d 23). The state has not exercised its power in this instance. The effect of this judgment is to limit Whitney's right to bathe, sunbathe, fish, etc. to the pier area of the tidelands, to restrict his lateral use of the pier for boating, etc., and to debar him from the use of any part of his 344 foot frontage along these tidelands except for the seven-foot wide pier area.

The quieting of a prescriptive easement in Whitney without a determination in the decree as to the effect thereof on the public rights in these tidelands, creates further confusion both as to the nature of Whitney's rights as littoral owner, apart from prescription, and as to the rights of the public.

While the authority given Marks "to use, to fill and to develop" the fidelands, except as limited by the wharf easement, was not intended by the trial court to place any limitation upon the state or federal government, in the absence of a declaration of the rights of the public or of the state as trustee it is subject to misinterpretation, i.e., as giving a blanket and otherwise unqualified authorization to Marks to fill and develop.

Fourth: Does the failure of the court to include the words "along the line of ordinary low water" in the metes and bounds description of the seaward boundary of the tidelands indicate that such line is fixed in location?

No. However, Whitney has no standing to complain of this omission. As a littoral owner, as a member of the public entitled to exercise certain rights, and as the owner of a whart easement, he can assert rights in and over the tidelands but only to the line of ordinary low water. The seaward boundary of the tidelands is not a common boundary as to him. The judgment in question omits the description of the natural monument "along the line of ordinary low water" but otherwise describes the courses and distances in almost identical⁸ language with the descriptions contained in the original patent and in the official surveys.

The courses and distances as given constitute a meander line which, for surveying convenience, depicts the line of ordinary low water. Where a meander line is used, the actual location of the line of ordinary low water and not the calls is controlling. (de Watson v. San Pedro, etc. R.R. Co. (1915) 169 Cal. 520, 521; People v. [2 ELR 20053] provided "no debts or obligations [are] outstanding or that provision has been made for the payment or retirement of such debts . . . Upon any such dissolution of the Authority all . . . assets thereof shall be vested in the State." § 4(h).

The final provision in the Act appropriates $1,500,000 from the General State Fund for the purpose of carrying out its functions and duties pursuant to the Act.Said appropriation is to be repaid "to the General State Fund out of the proceeds of the first bonds issued by the Authority or other available funds." Id. § 27.

At the organizational meeting of the Authority the membership requested that the State Treasurer transfer to the Authority $100,000 from an appropriation of $1,500,000 for the purpose of defraying preliminary expenses. The Treasurer refused expressing doubts as to the constitutionality of the enabling statute. In May 1971, the Authority instituted suit for a declaratory judgment as to the validity of the Act. Special Counsel to represent the Treasurer was appointed by the New Jersey Supreme Court pursuant to N.J.S.A. 2A:1-10. This sequence of facts presents a justiciable controversy ripe for judicial determination.

Subsequently, additional parties were permitted to intervene and three additional suits have been filed challenging the constitutionality of the Act. All such suits presently pending have been consolidated by the court on its own motion pursuant to R. 4:38-1. Whenever reference is made to defendants or challengers, it is intended to include all parties opposed to the Authority and claiming unconstitutionality of the Act.

The opinion of this court encompasses the disposition of the following cases:^** [Case names omitted]

The Township of Hackensack and its Board of Education were permitted to intervene in the first captioned suit. The National Audubon Society was permitted to join as a party-plaintiff in the second mentioned suit by the addition of a Sixth Count.

* * *

VI THE PUBLIC TRUST

(A) Tidelands

Section 6 of the Act authorizes the Authority to "effectuate a project to be located in the Hackensack meadowlands upon a site not to exceed 750 acres . . . ." The Authority has stipulated that the projected site will include substantial acreage designated by the State to be tideland. Cheval and the Audubon Society contend that this property is vested in the public trust and cannot be conveyed, leased or utilized in any way by the State, for any purpose not related to the public trust. Specifically, Cheval and Audubon make a two-pronged attack. First, they urge that the prposed racetrack usage is in violation of the public trust. Secondly, they argue that section 17 of the Act permits the granting, leasing or conveying of "meadowlands, riparian lands or lands under water and similar lands" without compensation.

The New Jersey Const., Art VIII, § IV, par. 1 concerns itself with the perpetual fund for the support of free public schools.¹ By statute, N.J.S.A. 18A:56-5 provides:

"All lands belonging to this state now or formerly lying under water are dedicated to the support of public schools. All moneys hereafter received from the sales of such lands shall be paid to the board of trustees, and shall constitute a part of the permanent school fund of the state."

N.J.S.A. 18A:56-6 provides similarly for income arising from leases of such lands.

In Henderson v. Atlantic City, 64 N.J. Eq. 583 (Ch. 1903), the court declared unconstitutional an act which provided that tidelands might be conveyed to a municipality for purposes of a public park for a nominal consideration. Therefore, it is clear that were Cheval's contention sound, section 17 of the Act would fall as violative of the constitutional and statutory provisions pertaining to the school fund. But section 17, contrary to Cheval's interpretation, provides for payment to the state. While no lands have yet been conveyed and the issue theoretically is not ripe for review, I will consider the entire tideland argument at this time in view of the Authority's stipulation #10.^*** There is no factual dispute and counsel for Cheval agreed at oral argument that this is a legal issue to be decided by summary judgment.

The following statutory authorities are relevant to the contemplated conveyance. N.J.S.A. 13:1B-13.7(b) provides that an "instrumentality of the State . . . may apply to the [Natural Resource Council] for a conveyance . . . of the State's interest in the meadowlands . . . ." N.J.S.A. 13:1B-13.8(c) states that the Hackensack Meadowland Negotiation Board shall fix the consideration for the conveyance. Pursuant to N.J.S.A. 13:1B-13.9, the Natural Resource Council "shall approve an application for conveyance, if . . . it is satisfied that the conveyance will be in the public interest." N.J.S.A. 12:3-7 declares that riparian lands may be conveyed for a reasonable compensation which shall be fixed by the Natural Resource Council, the Governor and the Attorney General.

N.J.S.A. 13:1B-13.13 is addressed to the aforementioned constitutional provision:

"The net proceeds from the sale, lease or transfer of the State's interest in the meadowlands shall be paid to the Fund for the Support of Free Public Schools established by the Constitution, Article VIII, Section IV, after deducting from the net proceeds any expenditures of the Hackensack Meadowlands Development Commission for reclaiming land within the district. The amount of said deduction for reclamation shall be paid to the Hackensack Meadowland Development Commission."

Clearly, the statutes cited provide for compensation to be paid to the Fund for the Support of Free Public Schools. This is in exact accord with the New Jersey Constitution. The deduction of costs of reclamation from the proceeds is no argument for ambiguity. There is no confusion as to the meaning of this portion of the legislative enactment.

Cheval and Audubon answer that section 17 must rise or fall on its own, since no reference is made therein to the statutes just discussed. Such a ruling would be contrary to a cardinal rule of construction. The Legislature is presumed to be thoroughly conversant with its own enactments relating to the same or similar subject matter. Jacobs v. N.J. State Highway Authority, 54 N.J. 393, 401 (1969). Former Chief Justice Vanderbilt aptly explained the guiding principle in Appeal of N.Y. State Realty & Terminal Co., 21 N.J. 90 (1956):

"It is fundamental that statutes cannot be considered in a vacuum. They must be understood in their relation and interaction with other laws which relate to the same subject or thing, they must be construed together with these related sections in order to learn and give effect to the true meaning, intent and purpose of the legislation as a whole." 21 N.J. at 98.

To follow this principle is not to rewrite the particular section. It is only to proceed in a logical and orderly fashion to effectuate the purpose of the legislators. So viewed, section 17 involves no factual question and is violative of no constitutional provision. The consideration received for any grants of state-owned tidelands pursuant to the pertinent statutory provisions is dedicated to the School Fund. N.J. Const. Art. VIII, § IV, par. 3; N.J.S.A. 18A:56-5; N.J.S.A. 13:1B-13.13.

The argument raised in regard to the tidelands, however, goes much deeper than the just compensation claim. It goes to the very core of the Act, for Cheval and Audubon vigorously submit that [2 ELR 20054] no conveyance can be permitted in view of the proposed use by the Authority. They opt for a re-examination of the means utilized for protection of the tidelands and seek to revisit the proposition that the tidelands belong to the sovereign in trust for the people, i.e., a public trust. As they view it, the trust will be violated per se by a conveyance of the type proposed and will be further breached by the destruction of the ecological balance of the area. More broadly, East Rutherford and Public Counsel strongly urge that the proposed complex will have a deleterious effect not solely on the tidelands, but on the surrounding area as well. It can be seen then, that while counsel focus on different areas, the thrust is essentially the same; to wit, the abrogation by the Legislature of its duties as trustee of the tidelands and as overseer of the people's right to a clean and healthy environment. This latter position will be included in the discussion under (B) of this section captioned "Environment and Ecology."

As stated previously, the parties have stipulated that "the projected site includes substantial acreage designated by the State to be state-owned tideland." In O'Neill v. State Hwy. Dept., 50 N.J. 307, (1967), Chief Justice Weintraub defined these lands as follows:

"The State owns in fee simple all lands that are flowed up to the high-water line or mark. The high-water line or mark is the line formed by the intersection of the tidal plane of mean high tide with the shore. The mean (sometimes called 'ordinary') high tide is defined as the medium between the spring and the reap tides." 50 N.J. at 323.

The genesis of the public trust doctrine can be gleaned from the opinion by Chief Justice Kirkpatrick in Arnold v. Mundy, 6 N.J.L. 1, 69-78 (Sup. Ct. 1821). There are two types of public property, one "reserved for the necessities of the state, and . . . used for the public benefit," Id. at 71, the other "common to all the citizens, who take of them and use them, each according to his necessities, and according to the laws which regulate their use, and are called common property." Id. This common property consisted of navigable rivers², ports, bays, sea coasts, including the land under the water hich could be utilized for "navigation, fishing, fowling, sustenance, and all the other uses of the water and its products (a few things excepted . . .)." Id. at 77. Since by its nature common property did not permit title to vest in the people, the common law "placed it in the hands of the sovereign power, to be held, protected, and regulated for the common use and benefit." Id. at 71. Subsequent to the American Revolution, the sovereign's power vested in the people of each State, to be exercised through their representatives, the Legislature. Id. at 78.

Arnold was cited favorablyin the landmark decision of the United States Supreme Court in Illinois Central Railroad Co. v. State of Illinois, 146 U.S. 387, 13 S.Ct. 110 (1892). In discussing the duties incumbent upon the State in carrying out its fiduciary duty, the Court declared that there could be no abdication of the trust. However, this statement was not without qualification.

"The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining." 13 S.Ct. at 118 (emphasis added).

It can be seen then, that subject to the aforementioned qualifications, there is nothing that prevents the alienability of the trust lands. The New Jersey Legislature has recognized this in its enactment of N.J.S.A. 18A:56-5 and N.J.S.A. 13:1B-13.13.

The conveyance of land envisioned in the Act clearly meets the trust qualifications. As previously indicated, just compensation has been safeguarded and the proceeds will be applied to the support of free public schools.Most importantly, the conveyance will promote a purpose which has been deemed beneficial to the public. The inclusion of a racetrack in no way detracts from the public purpose character of the project. Accordingly, the conveyance of the tidelands will not violate the public trust.

I will now consider the argument raised in regard to the tidelands in its broadest and perhaps most serious impact, that is, the ecological or environmental controversy.

(B) Environment and Ecology

In fashioning their arguments, Cheval, Audubon, East Rutherford and Public Counsel all concede, as they must, that they are required to exhibit a right to relief.Two approaches are taken, one via the Ninth Amendment, the other via the Fourteenth.

The Ninth Amendment states:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others, retained bythe people." U.S. Const. amend. IX.

In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed. 2d 570 (1965) the majority and concurring opinions concerned themselves with this amendment and both spoke of "penumbral rights" as rights guaranteed in addition to those specifically enumerated in the first eight amendments. One commentator has constructed the following theory:

"The rule of construction embodied in the Ninth Amendment could be the foundation for a declaration by the Supreme Court of a constitutional right to an uncontaminated environment. Perhaps to principle is as fundamental as the preciousness of every human life. The Fifth and Fourteenth Amendments offer no less protection to 'life' than to 'liberty'. Surely liberty and the various rights specifically enumerated in the Constitution are meaningless abstractions if life itself is ended through pollution's often invisible but unrelenting and imminently cataclismic environmental assault on the human body." Esposito, "Air & water pollution: What to do while waiting for Washington", 5 Harv. Civ. Lib. — Civ. Rights L. Rev. 32, 47-8 (1970).

Another commentator would combine the "public trust concept with the constitutional basis given by the Ninth Amendment" as a weapon in the battle against the defiling of our environment. Cohen, "The Constitution, The Public Trust Doctrine and The Environment", 1970 Utah L. Rev. 388, 399 (1970).

The theory based upon the Fourteenth Amendment is that certain civil rights, i.e., environmental rights, are being abridged by state action in contravention of 42 U.S.C.A. 1983,

In addition Cheval and Audubon cited other Federal statutes which reflect a growing concern with environment. Principal among these is the National Environmental Policy Act of 1969, 42 U.S.C.A. 4321. This statute has given rise to at least one suit wherein citizens are seeking to restrain the dredging of tidelands. Isaak Walton League v. Macchia, unreported Civil Action No. 1037-70 (D.C.N.J. p. 1071) Cohen, J.; 8 Envmt. Rep. 218 (Current Devlmts. 1971).

The challengers come armed with more than theory. They point to case law which they believe supports their environmental and ecological claims. The cases referred to and discussed hereafter are included in an opinion by Justice Jacobs, Crescent Pk. Tenants Ass'n. v. Realty Eq. Corp. of N.Y., 58 N.J. 98 (1971). But the question in Crescent Park had to do with standing to sue. This is not an issue in this case. No one has questioned the right of the parties to litigate the constitutionality of the Act by filing separate suits.

In the landmark case of Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (2d Cir. 1965), cert. den. 384 U.S. 941 (1966), various conservation groups were successful in setting aside action taken by the Federal Power Commission (FPC).This case involved the controversial "storm king project" wherein Consolidated Edison sought to construct a pumped storage hydroelectric project adjacent to the Hudson River.The 3nd Circuit, in remanding, held that the FPC failed to follow its statutory mandate which required it to consider the conservation aspects of the project. It was noted that the FPC had refused to receive certain testimony, including some pertaining to fish protection devices.

In Udall v. FPC, 387 U.S. 428, 87 S.Ct. 1712 (1967) the Secretary of the Interior challenged FPC's granting of a license to a private company for the construction of a hydroelectric power [2 ELR 20055] project. In remanding the matter to the FPC, the court held the record was barren of any consideration of the project's public interest as required by the Federal Water Power Act. Mr. Justice Douglas stated the public interest should be determined:

"Only after an exploration of all issues relevant to the 'public interest,' including future power demand and supply, alternate sources of power, the public interest in preserving reaches of wild rivers and wilderness areas, the preservation of anadromous fish for commercial and recreational purposes, and the protection of wildlife." 387 U.S. at 450, 87 S.Ct. at 1724.

In Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir. 1970), the plaintiffs challenged the issuance of a permit to allow dredging and filling for the construction of the Hudson River Expressway. In answer to defendant's claim that one of the plaintiffs lacked standing, the court noted that unless that plaintiff had standing at that stage of the project, it would be in a very difficult position "at some later date to overbalance the equities in favor of the State such a large commitment of public funds would engender and its legitimate concern could be irretrievably subverted even though the permit was issued unlawfully." 425 F.2d at 105.

These decisions hold that he courts will intervene to prevent agency action in contraventionof a statutory mandate to consider a project's environmental and ecological ramifications.

The Authority, for the purposes of this motion, has stipulated an assumption that a "factual issue exists with respect to the impact of a major project such as the sports complex upon the environment of the meadowlands district." However the Authority claims that the issue is premature in view of the fact that no decisions have been made and no action has been taken which will affect the environment or ecology. Cheval, Audubon, East Rutherford and Public Counsel submit that the issue should be considered now, since a considerable investment is contemplated. The challengers rely upon the foregoing Federal Court decisions in suppor of their argument that irreparable damage will result if they are foreclosed from a hearing at this time.

I fail to discern the parallel in the case at hand. The foregoing cases and other authorities are clearly based upon statutory mandates which require the particular agency or commission to consider the conservation aspects of the project. These federal mandates support the legal holding that the applicable agency explore all issues relevant to the 'public interest' before any action is taken. Each agency is required to make factual findings concerning the environmental and ecological ramifications. But, I repeat, this is the result of a statutory directive — not a constitutional mandate. All parties agree that the United States Supreme Court has not spoken on the constitutional right to aclean environment to the exclusion of various other rights. This does not mean that any one is opposed to wholesome ecology.

This court is most alert to the changing attitudes of society. I understand fully the prevailing reform in the manner we look at our problems and even in the fashion that we make decisions. I am unequivocally sensitive to the fact that we should view the law in the light of what is good for the people. There must be an awareness of the necessity for environmental balance.

The tempo of the times is such that the Ninth Amendment may carry such a constitutional interpretation. And even if this comes to pass, in the absence of statute, there is no bar to a declaration of constitutionality of this Act and then the necessity for the administrative hearings as to the environmental balance. If the Act is unconstitutional, there is no need for environmental hearings. Such determinations are to be made only by virtue of a constitutional act. The cases cited by counsel in support of a statement that it may be too late to wait do not involve the determination of the constitutionality of a statute.

No case has been cited to demonstrate that the time is ripe at this stage of the proceedings to consider the environmental impact of the Act. Public Counsel points to the alleged legislative failure during the one day hearing to consider any of the environmental repercussions. But an examination of the hearing shows this to be inaccurate. In fact, the record of the public hearing before the Senate Judiciary Committee on April 12, 1971 reveals a number of speakers appeared on behalf of various conservation and ecology interests and groups³. At pages 66-70 of that transcript, Commissioner Sullivan noted his concern for the environment in his answers and observations.

The Act itself addresses the issue. The Legislature specifically provided in section 23 that the Authority

"shall consult with the Meadowlands Commission and the Department of Environmental Protection with respect to the ecological factors constituting the environment of the Hackensack meadowlands to the end that the delicate environmental balance of the Hackensack meadowlands may be maintained and preserved."

It is no answer to say that once consultation has taken place, the Authority is free to do as it wishes. Such a construction would render the section nugatory, and this obviously could not be the purpose that the Legislature had when it enacted the section. Gabin v. Skyline Cabana Club, 54 N.J. 550, 555 (1969); Gualano v. Bd. of Estimate of Elizabeth School Dist., 39 N.J. 300, 313 (1963). Moreover, the Legislature is presumed to know its own enactments and judicial construction thereof. Brewer v. Porch, 53 N.J. 167, 174 (1969). Thus, the Legislature was aware of N.J.S.A. 13:17-1, et seq. wherein it declared that the meadowlands area

"is a land resource of incalculable opportunity for new jobs, homes and recreational sites, which may be lost to the State through piecemeal reclamation and unplanned development; that much of this acreage may be subject to redevelopment under Sect. 3, Art. VIII of the State Constitution; that the orderly, comprehensive development of these areas, due to their strategic location in the heart of a vast metropolitan area with urgent needs for more space for industrial, commercial, residential and public recreational and other uses, can no longer be deferred . . . ." N.J.S.A. 13:17-1 (emphasis added).

This section goes on to state that the area needs "special protection from air and water pollution" and "that the necessity to consider the ecological factors constituting the environment of the meadowlands and the need to preserve the delicate balance must be recognized to avoid any artificially imposed development that would adversely affect not only the area but the entire State . . . ." Id.

It is from this vantage point that the Act in its entirety and section 23 in particular must be viewed. It cannot be assumed that the Legislature, on the one hand, carefully drafted an act for the development of the area and then, on the other hand, in callous and utter disregard thereof, passed a further enactment which would frustrate the former's purpose. To opt for this result is to read the enactments in a vacuum, in utter disregard of the historical background and policy considerations. Borough of Matawan v. Monmouth Ct. Tax Bd., 51 N.J. 291, 299 (1968). Nor is there any need to indulge in any such presumptions of statutory construction in this regard. Section 2 of the Act explicitly notes:

"The Legislature further finds and declares that the location of a sports and exposition complex in the Hackensack meadowlands would stimulate the needed development of said meadowlands." N.J.S.A. 5:10-2.

Considering the statutes in pari materia, it becomes quite evident that the Legislature envisions a balanced development of the Meadowlands.

A further observation is proer. The executive and legislative branches of government in New Jersey have clearly made known their awareness to environmental problems by the passage of such acts as the Clean Ocean Act, Pesticide Control Act, Greenacres Act, Air Pollution Control Act, etc. And it must be emphasized that N.J.S.A. 13:1D established the Department of Environmental Protection in 1970. This Department, referred to in section 23 of the Act, was established and is empowered to initiate complaints, to hold hearings and institute legal proceedings, etc. N.J.S.A. [2 ELR 20056] 13:1D-9. Thus, the executive and legislative branches have brought the problem of environment and pollution to the door of every citizen and industry. If these are the facts, it cannot be argued that section 23 is not meaningful and not responsive to the need.

The determination of constitutionality in this case is not tantamount to a disposition concerning the environmental balance in the Hackensack meadowlands. It does not foreclose the request that the Department of Environmental Protection hold its hearings and make determinations as to environmental balance in the entire meadowlands and specifically in the 750 acres of the complex. Such an inquiry need not be held, and determination made, prior to the court's passing upon the constitutionality of the Act.

Although Cheval and East Rutherford have subscribed to a Land Use Plan in the meadowlands for the building of factories and industrial plants in this same area without such a prior hearing, the position of counsel opposing the determination of constitutionality is simply that the trial judge should take testimony concerning the alleged ecological imbalances and the problems of pollution and environment. Thereafter, they argue, he is required to make a factual determination as to whether or not there is a sufficient environmental impact. Only after this determination, it is contended, should the court consider the constitutionality of the Act. I cannot agree. A determination of constitutionality in this case and under existing law should be made before the court will consider holding such hearings.

I am satisfied that the Legislature has given much consideration to the environmental and ecological issues. In any case, the issue is not relevant at this time. The day may come when a decision or act by the Authority will affect the environment. At that time, judicial and/or administrative relief, if necessary, will undoubtedly be available. For example, if after consultation with the Authority, the Department of Environmental Protection claims the project will have ill effects, it has the machinery necessary to pursue the matter further. The court must presume that the Department will serve vigorously. And when building is undertaken one day, all legal requirements outlined in antipollution legislation, in upgrading waste treatment facilities and in maintaining an ecological balance will be enforced. I cannot agree with Public Counsel that the State will stand committed in the absence of an immediate environmental hearing.

I fully agree that the public should be and is entitled to a further opportunity to be heard on the environmental and ecological overtones of the legislation. Although the court may not have the facilities nor power to be able to police the ecological factors, it may perhaps oversee the actions of the administrative agencies in this vital area. It is before these agencies that experts may appear if the Authority is violating any provision of environmental law. But to determine that this is not the juncture for such a hearing is not to deny the right. Every piece of legislation carries its advantages and disadvantages.The mere passage of the Act is not enough to bring about judicial intervention. And this is as it should be, because in the final analysis, government by judges is inferior to government by legislators.

The environmental issue is ripe for summary judgment under existing law. The judgment of the court declares that the arguments as to the trusteeship of the tidelands and the legal objections surrounding the environmental and ecological factors do not affect the constitutionality of this Act.

* ELR reprints only that portion of the court's opinion which decides the public trust issue in the case together with the court's introductory description of the statute, the validity of which is the core of the litigation. The full opinion is available through the Facsimile Service. See ELR Dig. [194]

7. The judgment herein does not affect Whitney's right to accretion.

8. The description by "chains" was converted into "feet" by the trial court.

** [Ed. Note. The style of this case includes the docket numbers of all cases here referred to by the court.]

1. The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.

*** [Ed. Note. Stipulation 10 was set forth by the court in a portion of the opinion not reprinted. It states:

"10. The projected site [of football stadium, race track exposition hall, hotel and perhaps baseball park] includes substantial acreage claimed by the State to be State-owned tidelands."]

2. Schultz v. Wilson, 44 N.J. Super. 591 (App.Div. 1957) holds that the State has title to the land under tidewater notwithstanding the lack of navigability.

3. Mrs. Edgar Eisler, New Jersey Citizens for Clean Air, Mr. David Moore, North Jersey Conservation Foundation; Mrs. Betty Little, Coordinator for Citizens for Conservation; Commissioner Richard J. Sullivan, Department of Environmental Protection; Mr. Alan J. Miller, National Audubon Society; Mrs. Ella Filippone, Environmental Research Associates, Inc.