The Murphy DEP Must Explain Their Broad Interpretation Of A Legislative Exemption For Forest Management
An Exit Ramp From Exemption #7
My petition for rulemaking to the Murphy DEP was designed to force the DEP to explain to the public why they interpreted a narrow technical provision of the Highlands Act that exempts certain forestry activities to apply broadly to commercial logging on public forested lands.
In my view, the exemption was intended to apply to private landowners to facilitate their participation in DEP managed forestry programs that were designed to allow private landowners to enjoy local property tax breaks for “agricultural use” (commonly known as the Farmland Assessment program – read the “Agricultural Use” tax exemption – it applies only to private landowners).
Here is the text of the Legislative exemption from the Highlands Act, which explicitly cites the Agricultural Use tax exemption for private landowners (emphasis mine):
(7) an activity conducted in accordance with an approved woodland management plan pursuant to section 3 of P.L.1964, c.48 (C.54:4-23.3) or a forest stewardship plan approved pursuant to section 3 of P.L.2009, c.256 (C.13:1L-31), or the normal harvesting of forest products in accordance with a forest management plan or forest stewardship plan approved by the State Forester;
But the DEP argues that the second prong (in boldface above) expands the exemption to public lands.
So the whole debate turns on the question of what “normal harvesting of forest products” means.
At the time the Legislature deliberated and passed the Highlands Act (2004), was it “normal” to engage in commercial logging in publicly owned NJ Highlands forests?
Did the Legislature intend to stealth a 5 word phrase – tacked on to the end of a provision designed for private landowner agricultural use tax exemptions – to exempt commercial logging of all public lands in the entire Highlands forested region from all the protective regulatory standards of the Highlands Act?
Commercial logging is a destructive practice that totally contradicts the entire protective regulation and preservation and conservation policy thrust of the Highlands Act.
Having been an architect of the introduced version of the Highlands Act (Senate #1) as the representative of the DEP Commissioner, I say no way.
When the legislature passes laws, they routinely delegate regulatory authority to the Executive Branch to interpret and implement the law. This delegation applies equally to interpreting Legislative exemption provisions as to the other language of the law.
Generally, when the legislature deregulates or exempts certain potentially destructive activities from DEP oversight, DEP finds a way to effectively narrow the exemption and ensure that proper regulatory safeguards are adopted to prevent abuse, consistent with the overall law and Legislative intent of the law.
Despite the fact that in this case the Legislative intent of the Highlands Act is very clearly to preserve forest resources in the Highlands and strengthen DEP regulations – there is no mention of promoting commercial logging in the Act – in the case of Exemption #7, DEP did exactly the opposite.
DEP interpreted the exemption broadly and in a way that totally contradicts the thrust of the Highlands Act and the Legislature’s intent to strengthen DEP regulations and better protect forest resources.
So, the DEP is now faced with a big decision: will they double down and maintain this ill conceived and destructive exemption?
Or will they use their delegated regulatory authority under the Highlands Act to interpret Exemption #7 narrowly and to apply to private lands only?
Below I provide a face saving “Exit Ramp” rationale that DEP can use to approve my petition by a correct interpretation the text of Exemption #7.
The issue all turns on interpretation of the phrase “normal harvesting of forest products”.
That involves both statutory interpretation and an analysis of legislative intent. So lets get to it.
Obviously, “harvesting” means cutting and removal. And “forest products” means commercial timber harvest and sale in markets. This implies private sector activity, as State government does engage in commercial activity.
But what does “normal” mean? Dictionary says:
- “the usual, average, or typical state or condition.”
- “conforming to a standard; usual, typical, or expected.
Back in 2003, what was “normal” in NJ Highlands public forests? Was commercial logging “normal”? A “typical state or condition”? “Expected”? “Usual”?
Or was the rate and volume of commercial timber harvest on public lands extremely small and declining?
The NJ Farm Bureau testified to the Legislature that commercial timber harvest on NJ State lands was effectively over in the 1980’s:
“In the early 1980’s, the state stopped participating in timber sales. So the state lands that were managed in timber, up to that point in time, were an important part of attracting the timber industry to the State. […]
The other part of it is that pretty much since the State stopped timbering, there has been a decline of the overall forest health.
DEP forest management intended for conservation and preservation for public (non market, non commercial) purposes was the norm.
The DEP’s own forestry Reports (2010) confirm a small scale commercial harvest program in decline:
An approximate, additional 652,800 cubic feet of wood are harvested on state lands annually for a total of approximately 2.1 million cubic feet harvested for commercial forestry annually. This is less than 4% of annual growth. Indicating that NJ’s timber resource is largely underutilized.
As NJ’s forests mature and smaller trees grow into the larger size classes, the amount of sawtimber available on timberlands statewide is increasing as well.” ~~~ NJ DEP “Statewide Forest Resource Assessment and Strategies” (2010)
At the time the Legislature deliberated and passed the Highlands Act, the forestry aspects of the Highlands Act were almost completely based on the US Forest Service’s 2002 Highlands Report.
I represented the DEP Commissioner on the OLS team that drafted the introduced version of the bill, S1 (it had no exemptions at all). There was zero input from DEP’s forestry programs on this version of the bill. I know, because I was in the room and directly involved in drafting it.
The whole Chapter of the USFS Highlands Report on forest resources is overwhelmingly focused on preservation and public use, with very little mention of commercial timber harvesting, even less on private land commercial timber harvesting (most cutting was small lot for personal use as firewood), and NOTHING on public lands commercial harvesting.
1. Here’s what the USFW Report says about forestry on public lands. This paragraph was preceded by an analysis of PRIVATE owned forested lands and the harvest expectations of private landowners. Note that USFS does NOT even mention harvest of forest products, never mind the “normal” harvesting. Instead, the USFW report says lands are “predominantly” used to provide public benefits.
There is no way to square the meaning of the use of the word “predominantly” public benefits with “normal harvest of forest products”. These terms contradict each other.
See the following excerpt from the USFS Report (note also how they refer to the funding source for purchase of public lands, which implies Green Acres conservation, not commercial timber harvest):
“Most of the public lands are owned by State agencies, but a significant area is also owned by various local and Federal agencies. The authority and regulations used to purchase and manage the public lands makes the fate of these lands more predictable than that of the lands owned by private individuals and organizations. The publicly owned forest lands are predominately owned to provide the general public with clean drinking water and recreational opportunities and to provide habitat for wildlife and rare species, and are unlikely to be converted to other land uses.” (page 49)
https://www.nj.gov/njhighlands/grantprograms/HCA/ny_nj_highlands02.pdf
2. In 2002, there were only 5,267 acres managed by USFS “forest management plans” under the Forest Stewardship program (key findings, p. 50).
In their recent request that I withdraw the petition, DEP claimed that the “forest management plan” language in the exemption was designed to address USFS forestry programs by private land owners. Are you telling me that an issue as huge as exempting ALL public lands in the Highlands to promote commercial logging is consistent with the USFS Report and the Highlands Act?
No way a tiny amount (5,267 acres) of private land under federal oversight (harvested mostly for personal use firewood, not forest “products”) was relied on to support a Legislative intent to exempt all public lands for commercial harvest. No way.
3. The USFS key finding on timber is not consistent with “routine harvesting” for commercial logging (“forest products”).
First, private land owners are harvesting for personal use of firewood.
Second, forest cover is INCREASING, meaning that there is no significant commercial harvest of timber going on so that also contradicts the ideas of a “routine” harvest. If commercial harvesting was “normal”, the forest cover would be declining, not increasing and net timber would not be increasing significantly.
USFS Report found:
“The amount of forest land classified as timberland by the USDA Forest Service is holding steady in the New York – New Jersey Highlands. In New York Highlands counties, the amount of timberland decreased by approximately 7.5 percent from 1980 to 1993. In New Jersey Highlands counties, the amount of timberland increased by more than 6 percent during the 1987 to 1999 time period. This is due primarily to the gradual and increased conversion of farm and grassland to forest land over the period.”
“The net timber volume grew by more than 24 percent during the 1980’s and 1990’s. The annual removal is less than half of the net growth of sawtimber and growing stock.”
4. Harvesting timber (commercial logging) creates fragmentation, reduces canopy cover, destroys habitat, increases erosion, and impairs water quality. These are “abnormal” conditions and they contradict the fundamental Legislative Findings and Legislative goals, objectives, policies, standards and aspirations of the Highlands Act.
These negative and abnormal impacts also contradict the findings of the USFS Report.
5. I can go back and check the Legislative history, but I don’t recall public testimony on the pending Highlands Act from the forest products industry, demanding exemptions for commercial logging. That suggests that the Legislature stealthed this exemption. On an issue of this magnitude? That contradicted the whole purpose of the Act? Highly unlikely, even in corrupt Trenton.
6. Finally, when interpreting the legal meaning and legislative intent of the word “normal”, consider that DEP’s entire policy and scientific approach to water quality objectives is based on “non-degradation”, meaning maintenance of natural background conditions. Logging forests destroys natural background conditions.
There is no way to interpret that exemption #7 to allow destruction of these resources and allow an exemption to contradict the goals of the Act – both from a statutory construction action and a legislative intent perspective.
The tail does not wag the dog.
So, if DEP is reading this, here is your face saving Exit Ramp!
