The DEP Sparta Mountain “Stewardship” Plan Contradicts Governor Christie’s Veto of “Forest Stewarship” Legislation

DEP lacks authority to conduct “Forest Stewardship” on public lands

Failure to adopt regulations violates NJ Supreme Court’s “Metromedia” decision

Public comment period closes tomorrow

The public comment period on the Sparta Mountain WMA “Forest Stewardship Plan” closes tomorrow, so today we put DEP Commissioner Martin on notice of fatal legal and policy flaws. Yesterday, I urged legislators to intervene.

We will be submitting additional technical comments (see this for NJ Highlands Coalition comments) – you can hit this think to submit comments to DEP.

Dear Commissioner Martin:

Please accept the following comments on the Department’s s proposed Forest Stewardship Plan (FSP) for Sparta Mountain Wildlife Management Area (SMWMA).

I will be submitting detailed technical comments to your staff, but wanted to bring these 3 fatal legal flaws and serious policy issues personally to your attention.

1. Inadequate and unlawful public notice and comment

At a minimum, I request that the Department issue a public notice and extend the public comment period for at least 90 days.

The 90 day period is approximately how long the public has been provided to review the Plan since its informal public release by the Department on December 23, 2015. I note and object to the fact that the public release by the Department apparently was not conducted in accordance with formal public notice and comment procedure required by law for formal agency regulatory decision-making.

As I previously wrote to Mr. Golden and Ms. Petzinger of your staff, an extension is required so that the public can have the same opportunity to review and comment on a critical attachment to the Plan regarding the basis and methodology for de-designation of SMWMA as “High Conservation Value Forest” (HCVF) by NJ Audubon.

The Department made that critical Plan attachment publicly available via email on March 8, 2016 from Ms. Petzinger. Just 23 days is not sufficient time to obtain the supporting data and review and comment on that critical Attachment to the plan. Equally, many people may not even be aware of the opportunity to review and comment on this Attachment, given the lack of public notice.

2. Lack of Legislative authority and contradiction of Governor Christie’s Conditional Veto

I request that you withdraw the plan unless and until the NJ Legislature authorizes and the Governor signs legislation to engage in “Forest Stewardship” on public lands, including lands acquired with Green Acres funds and the Department adopts rules and regulations to implement the program.

The legislative history is troubling and illustrates this lack of authority and the Department’s failure to comply with law.

In 2009, the Legislature passed a bill signed into law by Governor Corzine that authorized “Forest Stewardship” on private lands, see: P.L. 2009, c. 256

http://www.njleg.state.nj.us/2008/Bills/PL09/256_.PDF

That 2009 law also required that DEP:

“shall establish a forest stewardship program” and “shall adopt, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations“, including rules “setting forth policies, guidelines and best management practices that establish standards designed to ensure the sustainability of forest lands, which may be applicable to any publicly and privately owned forest land“. [emphases mine]

Importantly, the 2009 law mandated that the Department adopt regulations to provide protective standards, create an Advisory Committee and a public planning and review process for “Forest Stewardship”.

The Department has failed to comply with these critical and non-discretionary requirements of the 2009 law.

More recently, Governor Christie conditionally vetoed (CV) a bill passed by the Legislature that would have authorized a DEP program of “Forest Stewardship” for public lands, see:

http://www.njleg.state.nj.us/2012/Bills/S1500/1085_V1.PDF

The Governor’s CV stated the following:

“This bill requires the Department of Environmental Protection (“DEP”) to establish a forest stewardship program for State-owned lands. I commend the bill’s sponsors for their efforts to address this important environmental issue. I agree that it is in the public interest to establish a program for the responsible stewardship of forests on State-owned lands to promote the long-term health and vigor of New Jersey’s forests.

My sole concern with the bill is the requirement that DEP abdicate its responsibility to serve as the State’s environmental steward to a named third party. According to the Office of the Attorney General, this constitutes an improper delegation of Executive Branch authority in violation of the Constitution.” [emphases mine]

Please note the Governor’s use of the word “establish”. The plain meaning of that word is to create something that did not previously exist. Legally, this equates to legislative authorization or enabling authority. Because the Governor used the word “establish”, he correctly determined that a “Forest Stewardship” program did not then exist and had not been legislatively authorized.

The Legislature has not concurred with the Governor’s CV and the bill died. It has since been reintroduced in subsequent sessions, but has not been passed by the Legislature.

Accordingly, the Department has not been legislatively authorized to implement a “Forest Stewardship” program on public lands. That makes the entire plan an ultra vires exercise.

Secondly, the Governor raised a Constitutional flaw regarding “improper delegation” of the Department’s powers to a “named third party”.

The Department has repeated that Constitutional flaw by effectively delegating the development, preparation, and supporting data generation for the SMWMA Plan to private entity NJ Audubon.

Worse, private NJ Audubon developed the SMWMA FSP in accordance with the private Forest Stewardship Council (FSC) standards and procedures. The FSC is the “named third party” in the Governor’s conditional veto.

Not only does this contradict the Governor’s concerns expressed in his CV, it effectively improperly delegates the Department’s authority to a private third party.

The facts show that – by allowing NJ Audubon to develop the SMWMA in accordance with FSC standards – the Department did exactly what Gov. Christie’s CV called “an abdication” of its responsibility and a Constitutionally improper delegation to a private third party.

The Department’s abdication is compounded by the fact that way back in 2009 the Legislature directed the Department to develop a Forest Stewardship program and promulgate implementing regulations.

We note that the SMWMA plan was developed to meet the private FSC standards, not the Department’s own regulatory standards for Forest Stewardship that were mandated by the 2009 law.

We note that the SMWMA was developed in accordance with the private “Stakeholder” and public consultation process procedures of the private FSC, not the public procedures required by the 2009 law and the formal procedures governing agency decision-making pursuant to the Administrative Procedures Act and case law regarding the public and private property owners’  procedural due process rights.

3. The Department’s “14 step process” is rulemaking that violates the NJ Supreme Court’s “Metromedia” decision

According to the SWMA Plan, it was developed and reviewed in accordance with the Department’s internal “14 step process”.

The Department’s “14 step process” is not available to the public as far as I know and it has not been adopted in accordance with the rule making requirements of the NJ Administrative Procedures Ac or the Legislation governing “Technical Manual” procedural requirements.

The elements of the Department’s “14 step process”, particularly with respect to development and review of plans written by a private entity like NJ Audubon, is particularly in need of transparency and public review.

The Department’s “14 step process” appears to govern the substantive content requirements of a “Forest Stewardship” plan as well as whether such a plan complies with DEP regulatory standards and policies.

The Department’s “14 step process” not only serves to define the substantive content of a Forest Stewardship plan and DEP’s internal review of such a plan, but it also governs the PUBLIC review process and procedures for such a plan.

The SMWMA Forest Stewardship Plan is highly significant and would have huge substantive impacts on the environment, the recreational users of SMWMA, the use and enjoyment of private property owners, and the powers and responsibilities of local governments.

Any “14 step process” for the review of such a Plan is highly substantive with respect to determining compliance with environmental laws and regulations, representing the prerogatives and powers of local governments, and protecting the Constitutional and statutory rights of the public and private property owners.

Accordingly, the Department’s “14 step process” constitutes a “regulation”, as defined by the NJ Supreme Court in the “Metromedia” decision, that must be promulgated in accordance with the rule-making procedures of the NJ Administrative Procedures Act, see:

http://www.leagle.com/decision/198441097NJ313_1394.xml/METROMEDIA,%20INC.%20v.%20DIRECTOR,%20DIV.%20OF%20TAXATION

In Metromedia, the NJ Supreme Court defined a rule by these factors:

“We can synthesize from this authority that an agency determination must be considered an administrative rule when all or most of the relevant features of administrative rules are present and preponderate in favor of the rule-making process. Such a conclusion would be warranted if it appears that the agency determination, in many or most of the following circumstances, (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. These relevant factors can, either singly or in combination, determine in a given case whether the essential agency action must be rendered through rule-making or adjudication. [emphases mine]

The Department’s “14 step process” for Forest Stewardship Plans (FSP’s) meets all six of these criteria (a single one triggers rule making requirements:

1. it is intended to have statewide coverage in review of Forest Stewardship plans that effect thousands of people and property owners and scores of local governments;

2. it applies generally and uniformly to all similarly situated persons who prepare FSP’s and the environmental resources and publics that are impacted by them.

3. it is prospective and applies to all current FSP’s, those under development and future FSP’s

4.  it clearly “prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization” (see prior discussion of the legislative history)

5. it clearly  “reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; – 

The FSP for SMWMA is part of a new initiative within DEP. There are no regulations promulgated to define and implement the program.

Most important, he concept of “forest stewardship” is a controversial, emergent, vague and novel scientific and policy initiative.

6. The 14 step process very clearly “reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy.”

The process applies data and determines compliance with the standards and protections and procedures of the NJ Freshwater Wetlands Protection Act, the Highlands Act, the Water Pollution Control Act, and the Stormwater Management Act and implementing regulations, among others.

The impacts of the SMWMA and all FSPs on the protected rights of the environment, private property and forest users are are highly subsantive and material.

The Department may not implement such a highly material and significantly substantive program informally via this 14 step process.

I request that you withdraw the SMWMA FSP immediately and seek legislative authority and promulgate regulations to implement any FSPs in NJ.

Respectfully,

Bill Wolfe