Is D&R Canal Commission Being Neutered in Advance of Bull’s Island Review?

A NJ Mystery: Murder on the Delaware Express

[Update: 9/9/12 The lack of a quorum issue I discuss below and at the meeting was later addressed in this story:  Delaware & Raritan Canal Commission in need of members – end update]

The D&R Canal Commission held their regular monthly meeting this morning.

I went to update the Commission on important recent Bull’s Island developments and to followup on the commitment made at their last meeting.

At that previous meeting, the Commission reached a consensus to write a letter to DEP asking the Department to make a public presentation of their plans for Bull’s Island.

Curiously, that is not exactly what the minutes of that meeting reflect. There is no mention of the letter. The Commission secretary keeps very accurate and comprehensive minutes, so I am sure that that oversight is no accident. But I am getting ahead of myself.

Here’s what went down this morning and why it is important.

In an unusual private meeting before the public meeting, the Acting Chairman resigned.

The DEP representative – a voting member of the Commission – did not even show up.

While DEP Commissioner Martin has plenty of time to do multiple self promoting press photo ops, he can’t see that his representative attends Commission meetings?

As a result, the Commission lacked a quorum and could not do official business and could not formally act on any project review or approval.

Worse, in another unusual move, the only conservation oriented member of the Commission, Allison Mitchell, recused herself from any involvement on Bull’s Island (more on the significance of that below).

Under Commission rules, which include a “deemer” clause, if the Commission fails to act, any project is automatically approved 45 days after a complete application is submitted.

[Update: I have been told that the deemer clause does not apply to public projects, but have seen nothing in writing to confirm this.]

In the event that the Commission is unable to establish a quorum, they can not act.

[Update: during the August 15 meeting, there was talk of the doctrine of “necessity” with respect to quorum, recusal and voting – it sounded very troubling. More to follow on that.]

There are vacant Commission member slots that have not been filled by Governor Christie.

As you will recall, the Governor and DEP Commissioner Martin previously tried to abolish the Commission. That move was blocked by the legislature.

Since then, unable to kill the Commission outright, DEP has dragged its feet in approving staff for the Commission.

So, with: 1) the resignation of the Acting Chairman of the Commission, 2) Gov. Christie’s failure to appoint Commission members, 3) the DEP member a no-show, 4) huge delays in staffing the Commission, and 5) the unusual recusal of the only pro-conservation vote on the Commission, it sure looks like Christie and DEP Commissioner Martin are quietly killing the Commission politically behind the scenes by making it impossible for the Commission to meet and do their work.

Could all this just be a coincidence? No way.

How convenient just at the time the Commission begins to raise issues regarding review of the DEP controversial Bull’s Island clearcut of killer trees!

It is technically possible – and not inconceivable – that DEP could file a complete Bull’s Island clearcut application and the Commission would be unable to form a quorum to review it and it could be automatically approved. 

Aside from all that, here’s what I learned at the meeting with respect to Bull’s Island:

1. The Bull’s Island State Park Supervisor (a DEP employee) said nothing about Bull’s Island during her Monthly Report to the Commission. Mum’s the word! So much for transparent government and an open and accessible planning process.

2. The NJ Water Supply Authority rep. said nothing about Bull’s Island during his Monthly Report to the Commission, despite the fact that the US Army Corps of Engineers issued a cease and desist order to NJWSA because the USACE dredge permit had expired. NJWSA is now seeking a new dredge permit, and that is relevant and should be reported to the Commission because the dredge will impact the canal and Bull’s Island.Again, the oversight is no accident – mum’s the word!

3. Executive Director Dooley briefed the Commissioners on Bull’s Island related items.

Curiously, she somehow forgot to mention the Resolution adopted by Alexandria Township opposing the DEP Bull’s Island clearcut plan and requesting an open public planning process. When I called her on it, Dooley acknowledged that she had received the Resolution – which both I and the Town Clerk sent her.

Again, ED Marlen Dooley is a lawyer, and like the Secretary, is very thorough and precise, so I doubt that this omission was an accident.

But, without my prompting, Dooley did note that she received a call from DEP Assistant Commission Boornazian, who advised her that DEP would not pursue emergency land use permits and would be willing to meet privately with her and certain Commissioners to discuss DEP’s Bull’s Island plans. Dooley said that DEP is not ready to go public yet.

I asked if the meeting with the Commission would be public – Dooley said no. How nice!

Since everyone else was being so circumspect on Bull’s Island, during the public comment session, I made the Commission aware of the following recent developments:

1.  Alexandria Towsnhip passed a Resolution, linked to the Lower Delaware Wild and Scenic River Management Plan. The Resolution opposes a clear-cut and requests a public planning process to develop a mangement plan;

2. The National Parks Service supervised Lower Delaware W&S management committee will meting on June 28 in Frenchtown (7 pm) and Bull’s Island issue is on the agenda. NPS staff contact out of the Philly Office is Julie Bell;

3. DEP Parks and Forestry posted a notice on their website  – it mentions the formation of an internal “coordinated team” that is working to develop a “management plan”, but says NOTHING about public involvement in development or review of this plan. 

I filed an OPRA requesting relevant documents.

4. I spoke with the USACE – they issued a ceae and desist order to NJWSA due to expired permits. NJWSA is now seeking new permit.

I filed a federal FOIA requesting relevant documents.

5. I then raised major concerns about the recusal of Ms. Mitchell.

In her day job, Ms. Mitchell is Policy Director of the NJ Conservation Foundation (NJCF).

Mitchell stated that NJCF staff was involved and the organization was taking a strong position on Bull’s Island and therefore she felt she needed to recuse.

I noted that:1) Ms. Mitchell is the only conservation oriented public member and voice on the Commission, 2) conservation organization membership is a cognizable factor under the statute regarding Commission appointments, and 3) Mitchell’s recusal would have dramatically negative impacts on the public deliberations and harm the public interest, particularly in light of recent inability to form a quorum.

I questioned the rationale and legal basis for the recusal, and noted that it would set a very bad precedent for other bodies, where members of conservation groups serve (i.e. Tracy Carcluchio of Delaware Riverkeeper sits on the Highlands Council, Emile Devito of NJCF sites on several bodies, and I’m sure there are many, many other examples).

If Ms. Mitchell steps down in this case, she opens up all those others to attacks that force them to recuse and neuter their voices and votes.

This would be a very bad policy and practice, statewide.

The Commission’s Counsel agreed with my request to reconsider and at this point Ms. Mitchell’s recusal is temporary”.

He did not agree to reduce the rationale to a formal legal opinion – and Commissioner Knights objected to my request for that.

We’ll keep you posted as this develops –

In the interim, I strongly encourage folks to contact friends and:

• call and write the Governor (State House, Trenton NJ – 609-292-6000)
• call or write and your legislators
• call or write Bob Martin, DEP Commissioner
  401 E. State St.
  7th Floor, East Wing
  P.O. Box 402
  Trenton, NJ 08625-0402
  phone: (609) 292-2885
• Members of the D&R Canal Commission 
  Martin D. Jessen, Acting Chairman (just resigned)
  Bob Martin, Commissioner, DEP
  David H. Knights
  John S. Loos
  Phyllis L. Marchand
  Alison Mitchell
  Tony mack (Mayor of Trenton)

[PS – just noted this in prior May 22 minutes and had to share  🙂

 Mr. Knights thanked Mr. Wolfe for bringing the issues at Bulls Island to light. Mr. Wolfe agreed with Mr. Knights that the corrective measures at Bulls Island were good and noted that a problem had been identified and it was getting corrected.