WolfeNotes.com

This “Lord Of The Manor” Attitude At DEP Must End

DEP’s Lack Of Regulations To Govern Forest Management Violates Supreme Court Ruling

Last week I wrote about emails from DEP managers that revealed an incredible bureaucratic arrogance and lawlessness, see:

• Murphy DEP Claims That DEP Is Above The Law

Today I want focus on DEP emails that reveal gross violations of NJ laws that require that State agencies are accountable to the public through the rulemaking process established by the NJ Administrative Procedure Act (APA).

While the details are wonky and legalistic, the essential concept is simple: State agencies can’t do just whatever they want to do without justification and involvement of the public in their decisions and review by Courts and the Legislature. 

State agencies first must explain and document the factual, scientific and legal basis for their decisions. They must provide public notice and opportunity for the public to review and comment on their decisions. They must respond to public comments. And all of this is subject to legal challenge in the Courts via administrative review (Office of Administrative Law) and judicial review by the NJ Courts, as well as the ability to review and exercise a veto by the Legislature.

Legally, this is known as “due process” and “notice and comment rulemaking”.

The leading NJ Supreme Court decision on what this means is known as “MetroMedia” see: Metro media Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 331 (1984).
https://law.justia.com/cases/new-jersey/supreme-court/1984/97-n-j-313-0.html

These legal concepts are highly relevant to the DEP’s policies and practices to manage State lands, particularly NJ’s forests.

Simply put:

1) there is no specific State law that authorizes DEP to manage forests and sets policies, standards, and safeguards to prevent abuse. The failure of Senator Smith’s Forestry Task Force to produce legislation to govern DEP “forest management” shines a very bright light on the lack of Legislative authorization and policy direction.

2) If you ask DEP the question of where they find a legal basis to “manage” State forests, they will tell you that this power is derived from their ownership of the land – this is the “Lord Of The Manor” attitude.

3) Regardless of the DEP’s legal authority to manage state forests, how they actually do so blatantly violates the NJ Supreme Court’s MetroMedia doctrine.

DEP relies on what they call an informal internal “14 step process” for the planning and management of State forests. It is virtually the only DEP program and planning process that is not governed by DEP regulations. And it can not withstand scientific scrutiny.

This “14 step” process not only shuts the public out of the key decisions, but it lacks all the safeguards, transparency, and accountability provided by the NJ Administrative Procedures Act.

This is no small matter of details – it is a blatant and intolerable violation of fundamentals that can not stand and will not withstand legal challenge.

See my letter below to DEP Commissioner LaTourette putting him on notice.

I doubt DEP will reform its own abuse, which will require litigation to terminate.

Where are the NJ conservation and environmental groups, particularly those backing a “Green Amendment”? Do these people not see that DEP is violating its duty as Natural Resource Trustee?

Where is the Legislative oversight?

Where is the media?

DEP could never get away with this brazen lawlessness if the “14 step process” applied to private corporate property and development.

The people are citizens with rights, not serfs. DEP must manage land and natural resources in Trust for the people.

Bring lawyers guns and money!

———- Original Message ———-

From: Bill WOLFE <b>

To: “shawn.latourette@dep.nj.gov” <shawn.latourette@dep.nj.gov>, “Sean.Moriarty@dep.nj.gov” <Sean.Moriarty@dep.nj.gov>, “john.cecil@dep.nj.gov” <john.cecil@dep.nj.gov>

Cc: sengreenstein <sengreenstein@njleg.org>, senbsmith <SenBSmith@njleg.org>, “senmckeon@njleg.org” <senmckeon@njleg.org>, “asmScharfenberger@njleg.org” <asmScharfenberger@njleg.org>

Date: 03/30/2024 1:20 PM EDT

Subject: DEP obligations under Supreme Court MetroMedia decision

Dear Commissioner LaTourette:

The Department current implements a “14 step process” for preparing and adopting Forest Management Plans, (e.g. see Section 1.3, page 5):

https://www.nj.gov/dep/fgw/sparta/smwma_approved_forest_stewardship_plan.pdf

This “14 step process” governs the substantive content, DEP review and approval, and public participation in the DEP’s plan development and implementation process.

The Department’s Forest Management Plans have significant impacts on NJ’s forests, wildlife, natural resources, climate, water resources and the public’s access to and use and enjoyment of natural resources and public lands.

The “14 step process” is an informal DEP review practice. It was not adopted in accordance with rulemaking procedures of the NJ Administrative Procedure Act.

The NJ Supreme Court specified the principles, factors, and conditions upon which agency action constitutes “rulemaking” that must follow APA formal notice and comment procedures, see: Metromedia Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 331 (1984).

https://law.justia.com/cases/new-jersey/supreme-court/1984/97-n-j-313-0.html

Because the DEP’s “14 step process” was not adopted in accordance with rulemaking procedures and because it meets the criteria for agency action that constitutes “rulemaking” as articulated by the NJ Supreme Court in the Metromedia decision, it is illegal and must be withdrawn.

All further Forest Management Plan development and implementation of plans that were adopted pursuant to this 14 step process must be withdrawn as well.

You have been advised of this violation of law and I expect that you will act immediately to remedy that violation and act in accordance with law.

I look forward to your timely and favorable reply.

Bill Wolfe

Missed Open Nets, Cheap Goals, And Terrible Late Call Marr Superb Cornell Effort

(Cornell misses wide open net to tie the game, with 3:12 to go in 3rd period, down 2-1)

We wuz robbed!

I was yelling at the computer screen and scaring my puppy, as I watched Cornell get beat in a 2-1 loss to Denver in the Eastern regional NCAA hockey championship.

Cornell played an almost flawless game, and when they did make mistakes, goalie Ian Shane was there to make the save.

I was particularly impressed with Cornell’s focus and crisp and tight play in the first period, where they dominated from 5 minutes in to the end of the period.

In the last 5 minutes, Cornell had 2 open nets they missed, and they controlled the game and scoring chances, particularly in the first and third periods.

Late cheap Denver goals in the last seconds of the first AND second periods won the game.

The slashing call against Cornell on a face-off – merely a chop on the stick in a challenge for the loose puck, absolutely not a slash – at 3:12 left to play with Cornell down 2-1 and surging with pulling the goalie was one of the worst calls in college hockey history.

The Denver player lost his stick on the slashing call – but how do they think the Cornell defenseman lost his stick on the Denver cheap goal with just 4 seconds left in the second period?

(I just walked the dog to the local park, played fetch, and had a pint at the local pub on the way home – which disgorged most of this negative energy).

(Cornell misses another open net in final seconds of the game)

The official who called the slash has some explaining to do.

DEP: “The state doesn’t write rules to govern itself.”

I just was given a trove of emails on the deliberations of Senator Smith’s failed “Forestry Task Force”. That Task Force deliberated for over a year and issued legislative recommendations over a year ago.

But the controversial forestry and climate issues and much needed reforms at DEP have fallen off the radar screen and the controversial recommendations of that Task Force have been flushed down Orwell’s Memory Hole.

Worse, completely ignoring his own Task Force recommendations, Senator Smith reintroduced exactly the same flawed forestry bill he sponsored and failed to pass for over a decade (see: S2424)

So that Task Force not only got Memory Holed and disrespected by Smith, they wasted over a year and thousands of hours of people’s time and energy for absolutely nothing.

Given this fiasco, I felt obligated to review the emails and conduct an autopsy of the rotting corpse.

It didn’t take much time to confirm the exact criticisms we made at the outset and throughout the Task Force process.

But I was stunned by the arrogance, unethical transactions, cozy relationships, and dangerous ignorance revealed in the emails.

Many emails revealed a stunning arrogance, openly stating the need to “educate” and “inform” people who had all sorts of misunderstandings and false views about forests.

The gross ignorance included this gem from DEP Assistant Commissioner John Cecil:

“The state doesn’t write rules to govern itself.”

An Assistant Commissioner at DEP – with decision making and policy making powers over the management of State lands and natural resources – actually wrote that sentence.

Before I even finished reading the emails, I felt compelled to fire off this letter to Cecil to correct the record:

——— Original Message ———-

From: Bill WOLFE <b>

To: “john.cecil@dep.nj.gov” <john.cecil@dep.nj.gov>, “shawn.latourette@dep.nj.gov” <shawn.latourette@dep.nj.gov>, “Sean.Moriarty@dep.nj.gov” <Sean.Moriarty@dep.nj.gov>

Cc: senbsmith <SenBSmith@njleg.org>, sengreenstein <sengreenstein@njleg.org>, “senmckeon@njleg.org” <senmckeon@njleg.org>, “asmScharfenberger@njleg.org” <asmScharfenberger@njleg.org>, “Keys, Mary Ann [ETHICS]” <Maryann.Keys@ethics.nj.gov>

Date: 03/30/2024 10:15 AM EDT

Subject: DEP compliance with regulations

Dear Assistant Commissioner Cecil  – I am writing to clarify what appears to be a troubling false understanding of how environmental and administrative laws apply to DEP practices in general, and more specifically regarding the management of public lands.

A colleague just provided several DEP OPRA response documents regarding the deliberations of Senator Smith’s Forestry Task Force, so I felt obligated to review them and conduct a sort of autopsy.

I came across emails you wrote in response to a document submitted to the Task Force by Thonet Assc.’s In those emails, you make some very troubling claims and urge that this Thonet document not be distributed as it might “confuse individuals regarding the interpretation of existing statutes“ because “The state doesn’t write rules to govern itself.”

In a related email, you wrote:

“The internal processes I referred to are Land Management Review and the 14-step process. They are not established by rules, but then internal operations of agencies don’t go through the rule making process.”

Both these statements contradict laws and regulations and reveal a dangerous ignorance and misunderstanding of fundamentals that I hope are not shared by Commissioner LaTourette (a lawyer) and other DEP managers and staff.

By way of this letter, I am requesting that Commissioner LaTourette take action to assure compliance with applicable laws.

When engaged in statutorily regulated activity, the State (and DEP) are not exempt from State regulatory requirements, thus the State does in fact “write rules to govern itself“.

When implementing programs that have a substantive impact on environmental conditions, natural resources, or related public rights and interests, the DEP is bound by the procedural requirements of the NJ Administrative Procedure Act, even when they comprise what you describe as “internal operations”.

With respect to the general issue of DEP regulations and DEP internal operations, which you seem to believe are not implemented via regulations, I call your attention to the following promulgated regulations that govern DEP operations:

• NJAC 7: 1 – Department Operations
• NJAC 7:1B – Waiver of Department Rules
• NJAC 7:1D – General Practice And Procedure

https://dep.nj.gov/rules/current-rules-and-regulations/

With respect to the “14 step process” for developing forest management plans, please be advised that because that process impacts substantive public rights and material environmental conditions and natural resources, it is bound by the procedural requirements of the NJ APA.

Of course, in addition to forest management plans, all other DEP planning programs are subject to the procedural requirements of the APA, as well as specific additional statutory authorization and compliance requirements.

Equally, the DEP serves as Trustee of the State’s natural resources, which are owned by the people. DEP does not have carte blanche in managing those resources and has an obligation to protect and guarantee the public’s rights in participating in the management of those natural resources. Those public rights and interests are not protected by the informal “14 step process”.

Finally, the OPRA documents reveal multiple private communications between yourself and Eileen Murphy, former DEP Director of Science and Research and more recently Legislative lobbyist for NJ Audubon as Director of Government Affairs. These communications involved Sparta Mt., State lands management, and legislation. Under ELEC regulations, these communications constitute regulated efforts to “influence government processes”.

Before joining the Department, you were employed by NJ Audubon in a management capacity and were directly involved in the Sparta Mt. forest management planning process and statewide State lands management issues. You currently serve in a DEP management and policymaking position over those same issues. I am unaware of any recusal documents you may have filed and other DEP Ethics Officer imposed restrictions.

Accordingly, those communications create an appearance of a conflict of interest and potential actual conflicts. Please be advised that I’ve referred the matter to the State Ethics Commission for investigation and appropriate enforcement.

I look forward to written replies from yourself and Commissioner LaTourette to clarify and correct the errors outlined above.

Bill Wolfe

c: Legislators

environmental leaders in Trenton

The Bridge Did Not “Collapse” – It Was Knocked Down

Lack Of Ship And Harbor Safety Regulations And Strict Liability Standards Led To Crash

Renown public intellectual and Professor Noam Chomsky famously borrowed the phrase “engineering consent” from Walter Lippman, who stole it from Edward Bernays (“the father of public relations” – naming a new term and professional field to replace “propaganda”, which had been discredited by the Germans).

Speaking of engineering consent, the coverage of the Baltimore cargo ship crash presents a perfect case study of literally engineering consent on engineering solutions, a kind of negative variant of Naomi Klein’s “disaster capitalism” (in this case, the disaster is being used to cover up real solutions instead of providing a sham rationale for corporate “reforms” Klein writes about).

One would think that after a series of recent catastrophes – from multiple deadly plane crashes (Boeing), toxic train derailments, and oil and gas well blowouts that were linked to corporate malfeasance and lack of adequate regulatory oversight and strict regulatory standards – that the media would be skeptical of another one involving a cargo ship. Especially when the accident is fully visible on video tape.

One would be wrong.

The news headlines read that the bridge “collapsed”, when in fact it was knocked down.

The “collapse” metaphor attempts to shoehorn a shipping safety issue into an infrastructure investment issue.

As issue framing and propaganda slogan, this does huge things:

1) it blames government and allocates the costs of both the bridge rebuild and future prevention strategies onto the public taxpayer – to wit, Biden immediately pledged full federal funding for bridge replacement; and

2) it lets the entire global logistics system off the hook from multi-billon dollar costs of paying for the bridge replacement and new prevention measures, regulatory shipping and harbor safety mandates like tug boat escorts and dual redundant power and navigation systems on these huge cargo ships, and repeal of liability laws that provide huge subsidies and undermine safety and corporate accountability.

3) it gives the mainstream press permission to avoid real investigative journalism and controversial critical reporting to hold corporate power and government failure accountable.

For example, the Los Angeles – Long Beach California Harbor Safety Plan analyzed exactly the failure that happened in Baltimore (loss of power and navigation) and managed these risks with tug escorts, see:

• History of HSC Tug Escort Guideline And Regulation Development

“The Committee discussed the issue of tug escorts outside the federal breakwater during the 1994- 95 Plan review. Under the existing scheme, all tugs were meeting laden tankers just inside the breakwater entrances. Analysis of marine casualties for vessels operating in the LA/LB port area revealed that an average of 1 in 100 commercial vessels (1 per week) sustained some type of steering or propulsion failure during the inbound or outbound transit. The mechanical problem rate and the ever-decreasing amount of navigable water inside the breakwaters threaten safe transit of vessels through the “relatively” confined breakwater entrances. If a significant allision or collision causes a major oil or chemical release, the environmental and economic costs could be devastating.

The Tug Escort Subcommittee (TES) comprehensively assessed the risk associated with inbound laden tankers approaching and moving through LA/LB breakwater openings. The subcommittee found that the risk of steering failure or power loss justified implementing a tug escort scheme outside the breakwater. In order to develop an appropriate, practical and technically sound scheme, tug capabilities must match tank vessel size, speed and type of casualty. At the time, the San Francisco Glosten Study for Single Failures, (augmenting the less-relevant Dual Failure Study) was nearly complete, and TES felt the study would provide helpful technical insights. The Committee decided to review the Glosten Study results before finalizing a tug escort scheme outside the breakwater. In the interim, the Committees approved the following for the 1995 Harbor Safety Plan:

But instead of reporting on this Harbor Safety Plan (a formal regulatory document), The NY Times dug up some obscure 1980 claim that said the bridge could not survive a cargo ship head on crash ( high school physics – Force = Mass x Acceleration – makes that obvious. No bridge could survive that kind of head on crash).

By ignoring the LA/LB harbor Safety plan issues and reporting only the bridge design, engineering, and maintenance issues, The NY Times is engineering consent.

As an illustration, NPR just interviewed an academic structural engineer. The entire focus was on bridge engineering, possible engineering causes of collapse, and engineered devices to deflect ships away from crashing into bridges.

When the final question was perfunctorily asked: how can we prevent future vessel strikes?, the structural engineer proposed more engineering and said nothing about real ship and harbor safety plans and regulations and liability reforms and corporate accountability.

Three years from now when the NTSB issues its investigation Report, no one will be paying attention.

And the shipping industry and ports will continue on with the deadly status quo.

Cornell Takes On Denver In Regional Final On Saturday

Rematch With Denver Of Cornell Win Last Year

Cornell Big Red Hockey advanced to the NCAA Regional Finals with a dominating 3-1 win over 6th nationally ranked Maine in the Eastern Regional Finals tonight.

The game was delayed for 90 minutes by the double overtime preceding game, where Denver beat U-Mass 2-1 in double overtime (this forced an unplanned beer run!).

Maine scored first, on what I saw as two errors by the Cornell defense – first when a defenseman took a wide angled shot on goal (instead of just dumping the puck in the corner) that went wide and his partner pinched to collect the carom off the boards and got beaten to the puck, leading to a goal scoring rush by Maine. Highly unusual for Cornell defense to make those kind of basic errors, never mind two on the same play. Cornell was lucky to score and escape that first period with a tie, 1-1.

The second period was controlled by Maine, who seemed the quicker and more organized team, but they didn’t score.

But the third period was all Cornell, as they played their classic defense (keeping pucks to perimeter and blocking shots) and advanced swift counter- offensive rushes to score 2 goals to seal the 3-1 win.

Cornell was the larger and stronger team and dominated the physical game and the boards and corners and front of the net.

The forwards showed an outstanding forecheck and quick back check that made it difficult for Maine to sustain any momentum or flow or puck control.

Cornell plays Denver on Saturday for the regional Championship and a path to the Frozen Four in Minneapolis. I was not impressed with Denver’s OT win over U-Mass, and I loathe the style they play (e.g cycling at the point by defenseman Devine. That’s not hockey, it’s more like basketball or lacrosse).

Cornell goaltender Ian Shane was spectacular again – showing why he leads the Country in goals against.