Murphy DEP Claims That DEP Is Above The Law
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