WolfeNotes.com

The Spirit of Kumbaya Prevails – Over An Invisible Community

The Regulatory Lion Has Lain Down With the Conservation Lamb

When I came to Trenton in the fall of 1985 as a DEP policy planner fresh out of Cornell Graduate School, there were 2 spheres of the NJ “environmental community”:

1) the “conservation groups” (NJCF, Audubon, TPL, TNC, PPA, ANJEC, and several smaller regional land trusts) who worked primarily on open space and voluntary land acquisition, a voluntary State Plan, and voluntary local Environmental Commissions. They would take credit for or co-opt the work of more aggressive local groups that would arise to fight developments, especially in the Highlands.

2) the Trenton groups (NJ PIRG, NJ Environmental Federation, Sierra Club) who focused on air and water pollution, toxic waste sites, hazardous and solid waste management, public health, and environmental quality. They were supplemented by very aggressive local and regional groups like Madelyn Hoffman at GREO, Bob Speigel at Edison Wetlands, Joe Morris Jersey City chromium and brownfields; Peter Montague, and nascent environmental justice groups forming in Newark and Camden who worked on stopping garbage incinerators, banning ocean dumping, anti-toxics, Pollution Prevention, the Precautionary Principle and pesticides. Labor was involved via Rick Engler at NJ Work Environment Council.

There was very little overlap in the issues they worked on; or the legislative, regulatory, and political agendas; or the funding sources; or the media; or the political endorsements; or the overall message, framing, strategy, and tactics used – thus there was little conflict or competition between the two groups.

But that all changed dramatically when two things happened:

1) The Whitman administration divided the community.

Whitman’s attacks, primarily on DEP and environmental regulation, created incentives for the conservation community to find political cover for their failures to criticize the Whitman administration, who they were working with on a “million acre” open space goal. Mike Catania led that effort. They also sought to tone down the Gov.’s harsh critics.

At the same time, some Trenton labor leaders who were close to Democrats (Jeff Scott of CWA 1034, DEP’s local) – who funded NJ Environmental Federation, a leading Trenton group – thought they could form a coalition to co-opt the Republican leaning conservation groups to back their agenda. At the time, CWA/NJEF’s agenda primarily focused on stopping Gov. Whitman’s deep cuts to DEP’s budget (thus the CWA’s leading role. Tim Dillingham, then head of Sierra, was involved as well. That’s where the first successful Constitutional dedication of the Corporate Business Tax campaign came from. Full disclosure: CWA paid my salary at the time and I did the research for an was on the inside of this strategy – on several issues, it went straight from Torricelli to Gore).

These parallel incentives for both camps led to the formation of a “unified” community coalition under the banner of “The Environmental Summit” led by conservationists and Republican Candy Ashmum.

It turns out that Jeff Scott was dead wrong – he failed to co-opt the conservationists, they co-opted everyone else. The hunter was captured the game! (h/t Jerry Garcia!)

2) Conservation groups and their Foundation backers challenged the prevailing leadership and sought an ideological and political shift

The conservation groups – backed by NJ’s elite corporate Foundations (Dodge, Wm. Penn, et al), grant funding from DEP programs, like the CBT fueled Watershed Planning Process and all the local watershed groups, and corporate “mitigation” money provided by Mike Catania’s “Conservation Resources, Inc.” model  and the rise of NJ Audubon’s “Corporate Stewardship” – began to expand their scope and encroach on the sphere of operations and the traditional turf and issue set of the Trenton based groups. Conservation leaders like Catania, Ashmum, and Daggett also sought to shift the policy agenda away from some Trenton DEP based regulatory issues (like toxic sites, air and water pollution, command and control regulation, and corporate accountability) and moderate the “strident” voices of people like Jeff Tittel. They wanted to stop working at cross purposes and airing dirty laundry.

[Update: Jeff Tittel correctly takes me to task for minimizing exactly what these people wanted to do. He writes:

They didn’t try to moderate my voice -the tried to drown it out –  the funders gave money to the groups to use one funder put it to take the press away from jeff tittel and gave money the weenies and njef to do it – they failed ~~~ end update]

A decade or so later, new groups emerged on the scene, like Food And Water Watch, Sustainable NJ, NJ Future, NJ LCV, “Renew NJ”, Delaware River Partnership, and the EJ groups. These folks had little to no historical, political or institutional understanding or scientific or regulatory expertise in many issues.

Some of the groups were Foundation money created – basically astro-turf operations.

So, 25 years later, here we are. Sitting around the DEP’s Stakeholder table.

My goodness, it’s now OK that a former Exxon Mobil “scientist” heads “partner” NJ Audubon:

An entire community, sold for the proverbial mess of pottage.

The dreams of Chris Daggett (Dodge Foundation), Mike Catania (Duke Foundation), and Candy Ashmum (recently deceased) have come true: the NJ environmental community is finally unified, controlled, and speaks with one voice.

But it is the voice of a eunuch, where the lowest common denominator of “consensus” calls the tune. [BTW, for the language police out there, the term “eunuch” in this context has no gender basis. The definition includes: “an ineffective person”. Look it up!]

Those pesky Trenton radicals – who used aggressive tactics and harsh rude media rhetoric to criticize DEP, the Governor, Legislators, and powerful NJ based chemical, pharmaceutical and energy corporations and land developers – have been marginalized and co-opted by the moderate and civil conservation community.

The primary focus on making “politically unfeasible” demands for State legislation and regulation backed by enforcement teeth and funding has been diverted to modest, incremental, market based incentives.

Rude nasty voices of criticism from people like Joe Morris (Jersey City), Bob Speigel (Edison Wetlands), Bill Neil (NJ Audubon), Curtis Fisher (NJ PIRG), Bill Wolfe (NJ PEER) and Jeff Tittel (Sierra Club) have been defunded, effectively silenced, and exiled.

No more will loud voices from Trenton be splashed across NJ news to make the placid privileged lives of conservationists in Basking Ridge uncomfortable.

No more will internal disagreements spill into public view and no longer will “green” dirty laundry be aired.

An entirely new group, NJ League Of Conservation Voters, now provides political cover for lame political endorsements and day to day policy defense for the Gov. and DEP.

The core leaders all take care of each other: they log roll on funding, they sit on each others Boards of Directors (in the corporate world, this is denounced as corrupt: “interlocking directorates”. I call it the “Green Mafia”), and they all come from the same elite class and cultural background.

No longer will there be all those disturbing press conferences, protests, and media events attacking and ridiculing government and corporate NJ.

The community is unified.

Civility, consensus, and partnerships with government and corporate NJ rule the day.

The community can finally work in partnership with the governor and the legislature to promote corporate friendly, market based, voluntary, individual incentives and local solutions, not some one size fits all, top down, Trenton based, Soviet style, command and control regulatory mandates!

[End Note: I just received a detailed email from my friend Bill Neil that provides several specific examples of the dynamics I’ve overviewed above. Bill reminds me that I left a lot out. I’m aware of an in agreement with everything Bill wrote. Bill is a brilliant writer, so I’m trying to get him to guest author a followup Part 2 of this post, fleshing those issues out in detail. We’ll let you know how I make out.

A Kafkaesque Nightmare

Absent “an imminent peril to the public health, safety, or welfare,” the APA requires public notice and an opportunity for comment before the adoption of any rule. See N.J.S.A.52:14B–4. (NJ Supreme Court)

It is obvious that DEP Commissioner LaTourette – based on the egregiously biased “science” of the pro-hunt faction in DEP’s Division of Fish and Wildlife and political pressure from the Fish and Game Council and pro-hunt lobby – has cynically manufactured a pretext to justify a black bear hunt.

They have done so to eliminate public participation in that decision and evade political accountability, in a bad faith violation of law.

Instead of responding to a true emergency and making a valid trade-off between efficient, timely necessary action and public participation, the DEP is perversely using emergency rulemaking to evade a longstanding public controversy and to impose controversial and discretionary long term management requirements. There is nothing “imminent” and DEP is not reacting to an “emergency”. DEP had many months to plan for this hunt – and therefore plenty of time to consult and conduct traditional notice and comment rulemaking.

The decision-making is so blatantly flawed and illegal that a reasonable observer can reach no other conclusion.

Here’s my letter to DEP Commissioner LaTourette, urging him to revoke his decision to adopt emergency rules to authorize the hunt, just like he withdrew his ill advised decision to adopt emergency flood rules earlier this year.

Expect the legal eagles to tee up a similar but far more credible legal brief:

Dear Commissioner LaTourette:

I understand, via reading a press release, that the Gov. has *supported consideration by the Fish and Game Council (FGC) of a black bear hunt for 2022, based upon NJ DEP’s Comprehensive Black Bear Management Plan (Plan). Apparently, the FGC will consider and vote on approval of amendments to that Plan that authorize the hunt on November 15. If approved, the DEP then will implement the Plan based on an emergency rulemaking pursuant to the NJ Administrative Procedure Act (APA).

I strenuously object to this hunt and blatantly illegal and Kafkaesque procedure on multiple scientific and legal grounds, as outlined below.

1. Under the NJ APA, the Department may issue emergency rules only under conditions of “imminent peril”, see: N.J.S.A.52:14B–4.

At this time, there is no “imminent peril” associated with risks to public health, safety or welfare from black bears. Current data suggested in the Gov.’s press release is not an adequate basis for any assertion that there is. Regardless of the forum, the data do not deviate significantly from prior years when no emergency existed and none was declared.

Any delays to procedural Plan amendments and DEP implementing regulations that would impinge upon authorization of a 2022 hunting season are due to the delays by the DEP. DEP may not declare an “emergency” of their own creation.

The Plan is a deliberative and forward looking multi year policy and management plan. It is not a reaction to an emergent or imminent peril. The DEP is manufacturing an “imminent peril” and attempting to impose discretionary long term management requirements for foreseeable issues under cover of that pretext.The DEP emergency rule is not adoption of necessary short term regulatory remedies required to respond to an emergent or imminent peril.

As you know, there has been enormous public controversy regarding a hunt, including protests, civil disobedience, arrests and litigation, over many years. Bear protectors have met with your personally on these issues. The DEP is now cynically trying to eliminate and bypass public participation via emergency rulemaking and thereby evade public accountability.

This violates basic Constitutional due process concerns as well as the APA statutory requirements.

The 60 day limit on emergency rules under the APA is not an adequate safeguard in this case, because the hunt will be over after 60 days and the public will have no effective participation in the hunt decision.

Absent litigation, in addition to an inability to review and comment, the public will have no legal recourse either – the bears will be dead.

All of these facts suggest bad faith on the part of the Department.

2. As determined by the NJ Supreme Court, final decisions on black bear management issues, including the decision to authorize a hunt, are under the control of the Commissioner of DEP, see: SPORTSMEN ALLIANCE FOUNDATION v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION NJDEP:

“In the event that comprehensive policies are agreed on and a dispute arises between the Commissioner and the Fish and Game Council over whether a hunt or any other preservation or propagation methodology is justified, the [DEP’s] comprehensive policies will provide the standard for adjudicating the issue”

https://caselaw.findlaw.com/nj-supreme-court/1054774.html

The DEP can not delegate this issue to the FGC.

3. Under the NJ APA, the Gov. must sign off to concur and approve the DEP’s basis for and finding of an “imminent peril” that would justify emergency rulemaking, see: N.J.S.A.52:14B–4 and NJAC 1:30-6.5, which provides a 4 step procedure, as follows: .

1. A Certificate of Proposal, Adoption, and Promulgation (form OAL APF-(year)-(version) (for example, Form OAL APF-17-1)) signed by the agency head adopting the emergency rule;

2. A written summary of the subject matter of the emergency rules, which includes a finding that there is an imminent peril that necessitates emergency proceedings; the basis for the finding; and social and economic factors that bear upon the finding;

3. A signed statement from the Governor concurring as to the existence of an imminent peril that justifies the emergency rulemaking proceeding; and

4. The text of the emergency rule.

The Governor violated that procedure by publicly announcing his support in a press release, in advance of and PRIOR to the DEP’s basis for “imminent peril”, thereby making a mockery of the scientific basis for DEP’s non-existent “imminent peril” determination.

The Gov. and the DEP also violated general legal norms of decisionmaking  by announcing public support for the hunt, before the DEP “imminent. peril” findings were issued AND before the Fish and Game Council reviewed and approved the Plan and hunt.

4. The Department posted a link to the Gov.’s press release on the DEP website, along with a link to the Division of Fish and Game website. But nowhere is there a link to: a) the Plan; b) contemplated amendments; or c) the DEP’s “imminent peril” findings and emergency rule text.

It is therefor impossible for the public to meaningfully participate in the review and comment on decisions, including such core considerations as access to the relevant documents pending review and decision by the FGC and DEP and the Gov.

[the camera pans to a little old lady in an overcoat who demands: “Where’s the beef?”]

5. l am attempting to obtain a copy of the DEP’s Comprehensive Black Bear Management Plan (plan), the amendments contemplated by the FGC, the DEP “imminent peril” findings, and the emergency rule text.

I am unable to locate them on line at the DEP website, the Division of Fish and Game website, then FGC website, or the Governor’s website.

6. The FGC public hearing announcement for Nov. 15 stated that public comment would be allowed by “in person” testimony only. That restriction frustrates public involvement in the FGC and the DEP’s decisions on the hunt.

7. There are several examples of flaws in the basis of prior DEP scientific justifications in support of the hunt that I have read.

At this time, I am limiting comments to procedural and legal matters, but reserve my right to provide scientific and other substantive comments.

Based on the foregoing, I urge you to issue a public statement revoking prior announcements to support a hunt for 2022.

Respectfully,

*revised – deleted “authorized” as not accurate

After an incredible fall journey down the Washington and Oregon pacific coast, east across Washington up the Columbia river valley, across Idaho into Montana, and south though Idaho and Nevada’s Great Basin – for which we’ll soon post awesome photos – we arrived last week in our winter home in the Sonoran desert of Arizona about 30 miles from the Mexican border.

Shortly after the dust had literally settled, we were treated to an awesome display of sunset, which immediately brought home why we love the place and return to exactly the same campsite.

Silence. Dark skies – Distinct Milky Way – Stars (admittedly which were not nearly as incredible as those I enjoyed in Idaho). Yipping coyotes (although this makes my dog insane and his barking disturbs a good night’s sleep). Sunrise creates a glowing landscape – even the air is multi-colored. Hummingbirds. Abundant strange life in the tree lined riparian wash. Scurrying lizards. Strange plants and cacti. Dusty walks. Smells, especially after it rains. Warm sunshine on your face while drinking coffee. Cool nights. Warm days. Shade from the hot sun. Clean air. Mystery. Solitude.

We awoke refreshed and unloaded the stuff of daily life into our kitchen, eating area, and back yard lounging arena – America’s last great refuge: the spectacular public lands!

There Is No”Imminent Peril” & “Emergency” In Bear Safety Or Management

The DEP – Not The Fish And Game Council – Is In Charge Of The Bear Hunt

DEP To Issue Emergency Rule To Evade Public Comment, In Bad Faith Violation of Law

[Update 12/6/22 – I was wrong, see:

• The Appellate Division Just Gave DEP A Blank Check on Regulatory Power

[Update – End Notes – Correction – below]

Yesterday, NJ Gov. Murphy reversed his prior “commitment” to end the bear hunt and announced that he authorized a bear hunt for December (you can read the initial media coverage here and here and here).

The Governor’s decision is bad public policy, grossly anti-democratic, underhanded, and it is to be implemented in violation of NJ law.

It is also a transparently cynical and bad faith attempt to evade public criticism that would result from compliance with laws that require public participation in DEP regulatory decisions. DEP waited until the last minute, avoided public awareness and opposition on what they knew was a major long-standing public controversy, and then unilaterally decided to impose the rule under a manufactured pretext emergency.

I suspect that the Gov. did this to curry support of the hunters and avoid any major political controversy (Headline: “Young girl killed by black bear – Family blames Gov. Murphy for ending the bear hunt“) that might undermine his prospects in running for President. He’s Governing by campaign ad issues (think of a Willie Horton for bear attack ad).

In the announcement, Gov. Murphy and DEP Commissioner LaTourette sought to deflect responsibility for approval of the controversial hunt by suggesting that the Fish and Game Council will make the decision about the hunt on Tuesday.

That is false. The power of DEP over the Fish and Game Council is clear and settled law. NJ courts have clearly found that the DEP makes the decisions on whether to conduct a bear hunt, not the Fish and Game Council, see:

• The NJ Supreme Court Ruled That DEP Is In Charge Of Management Of Black Bears, Including Policy On Whether To Hunt

After falsely trying to point the finger at the Fish and Game Council, the Gov.’s press release reveals, at the very end, that DEP will implement the decision via emergency rules:

Should the Fish and Game Council approve the filing, Commissioner LaTourette will sign the Comprehensive Black Bear Management Plan to evidence the DEP’s concurrence with authorization of the hunt under the emergency proposal.  

Hunt opponents will surely seek some form of an injunction challenging the hunt, specifically the emergency rulemaking procedure.

NJ courts will impose one and then strike down the DEP’s emergency rules as a violation of the NJ Administrative Procedure Act and constitutional due process guarantees. NJ law provides:

Absent “an imminent peril to the public health, safety, or welfare,” the APA requires public notice and an opportunity for comment before the adoption of any rule. See N.J.S.A.52:14B–4. (NJ Supreme Court)

I previously explained why emergency rulemaking would have been illegal for DEP to rely on to impose Climate PACT regulations, see:

• Murphy DEP Commissioner LaTourette Warned: Do NOT Propose Climate PACT Regulations As “Emergency Rules”

The NJ business community also sharply criticized illegal DEP emergency rules in a letter to Gov. Murphy

DEP reliance on emergency rulemaking also contradicts Gov. Murphy’s Executive Order #63, regarding Regulatory Principles and Procedures: (emphasis mine):

WHEREAS, open government, meaning a government that consults with residents, affected individuals and entities, and community organizations that represent and espouse a broad range of expertise and perspectives, is better able to craft policies and support regulations that foster the goals of predictability, clarity, and a high quality of life for the State’s residents…..[…]

Governmental decisions should be based on the best available data, including scientific data if applicable. Where scientific evidence is an important element in developing or evaluating a rule, State entities should seek out and make productive use of scientific expertise available to them. […]

To carry out the goals set forth in Section 2, State entities should adhere to the following principles before issuing a rule proposal, to the extent permitted by law and to the extent applicable and practicable:

a. State entities should engage with affected communities, and provide opportunities for various groups to work in partnership with the State in crafting solutions.

b. The options State entities should consider may include, but are not limited to:

1. 1. Gathering information through meetings and/or other discussions with affected communities in advance of formulating a proposed rule; and/or
   2. Publishing and broadly disseminating a notice of pre-proposal, and seeking comments.

The DEP’s use of emergency rules to implement the longstanding highly controversial bear hunt is a gross violation of every facet of the Gov.’s own Executive Order #63.

The DEP acted by stealth and blindsided the public and hunt opponents. There was no scientific input by hunt opponents. There was no engagement with the community. There was no opportunity to work in partnership with the DEP in crafting solutions. There were no meetings and discussions and no information gathered. There were no drafts of pre-proposals circulated for input.

[Update: 11/12/22 – Correction – The above is technically correct with respect to this specific emergency rule to authorize the hunt. There was no consultation on it, specifically. But it is misleading. So I need to set the story straight. This is actually worse than no consultations. I just learned that back in April of 2021, there were meetings and some consultation and sharing of science and data. But apparently the animal rights folks were blindsided by the reversal on the hunt. According to an alert I just received:

APLJ counseled the Governor’s staff numerous times, in meetings and in writing, that it must initiate a trash mitigation program before banning the baited hunt.

We were hopeful, and we were bamboozled. We invited the country’s leading bear program authority to a subsequent meeting set up by the Governor’s staff with DEP Commissioner Sean LaTourette, who gave the expert all of, maybe, a minute. It was embarrassing.

We then provided the commissioner with a comprehensive non-lethal black bear management plan with emphasis on trash management and other programs that work elsewhere.

From that point on, for many months, the DEP stonewalled enquiries regarding the progress of the plan, which never materialized. During much of this time, the Governor’s office and DEP secretly committed staff, time and resources to the “emergency” hunt, rationale, and rule.

We’d been trying to arrange for a meeting between a Western city’s urban wildlife director and the Governor’s staff. We finally got the meeting a few weeks ago. Unbeknownst to us, Murphy’s office was wrapping up the “emergency” hunt package. It is now apparent that the only reason for the sudden interest was to use the information, pick our brains, so that they could include yet another “pilot” trash program run by the hostile Division of Fish and Wildlife as a sop to bear enthusiasts and for political cover. Trash programs do not require “pilots” – they work. The hunters’ agency has run several “pilot” programs, none of which go anywhere. At no time during the meeting, did the Governor’s staff tell us that they were experiencing problems with  bears, let alone that a hunt was imminent. ~~~ end update]

This DEP makes a sham of Gov. Murphy’s Executive Order #63 which they are legally bound to comply with.

Additionally, the legal issues involved in DEP emergency rulemaking recently gained media attention after DEP Commissioner LaTourette promised to issue emergency flood rules last summer, and then recently reversed that decision. DEP was sharply criticized and publicly humiliated for that unforced error.

Given that high profile controversy, the Governor, the Attorney General’s Office and DEP obviously rigorously researched the law on emergency ruelmaking and are fully aware of the constraints imposed by the NJ APA and the Courts.

So, in light of that legal research, it is absolutely stunning that they chose to go forward under emergency rules to implement the bear hunt in such clear violation of law. A cynic might even suspect that they are intentionally sabotaging the hunt by making such an obvious procedural error (e.g. they can blame the courts and the animal rights activists for any downstream bad news).

And it is absurd that while the Governor – for over 5 years – has failed to use his emergency powers to declare a climate emergency (a scientifically real emergency and for the Governor, a legally legitimate exercise of his emergency powers), and he blocked DEP from using emergency rulemaking procedures to issue flood hazard regulations, but he now supports DEP’s use of emergency rules to kill bears.

The Murphy Administration is just as bad – or worse – than the Christie Administration in failing to protect the natural environment – which is exactly what you might expect from a Governor that is a former Wall Street Goldman Sachs executive and his former corporate lawyer as head of DEP.

[End Note 1: There is also an interesting potential legal challenge involving the administrative law doctrine of “reliance”. The concept of “reliance” is explicitly included in DEP land use regulations. I wrote about that recently here:

• Developers, Banks, Insurance Companies, And The Real Estate Industry Can No Longer “Rely” On DEP Wetlands and Flood Hazard Delineations

Interestingly, Ray Cantor of NJBIA subsequently tipped his hand and planted the seed of a “reliance” legal attack in his recent comments on DEP’s plan to forego emergency flood rules: (NJ Spotlight)

“It is unfair, these projects were started, and financed, in reliance of being outside the flood zone,” Cantor said. “They did everything right, now they may need to start over. Many will go bankrupt.”

Basically, that “reliance” doctrine says that if investors rely in good faith on government regulations in place at the time that there make a “reasonable investment backed decision”, then the government can’t do a regulatory u-turn and wipe out those investments.

That doctrine recently received public attention and judicial consideration during many legal challenges of Trump EPA reversals of Obama EPA regulations.

So, the challenge would be framed like this, an iteration of “Do Trees Have Standing”:

Do black bears and their defenders have the same legally recognized and protected interests to rely on government regulations as investors and their reasonable investment backed expectation decisions?

[End Note 2: On DEP’s emergency rulemaking powers. I’ve long been a champion of strong DEP regulatory power, but not in this case.

(see this primer  on emergency rulemaking from Florida for background. Here are the NJ Office of Administrative Law requirements. Here is one NJ case I found – here’s a relevant Fordham Law Review article –

Here’s a Stanford Law Review on the federal APA “good cause” exception, but NJ has a far narrower “imminent peril” standard that puts a much higher burden on DEP. Noted this:

DEP’s own delay is behind the asserted “need” to authorize the bear hunt via emergency rules.

The NJ legislature has Constitutional veto power of agency rules as “inconsistent with legislative intent”, so this recent paper by NCSL may be useful:

• Legislative Oversight of Emergency Executive Powers

In a true “emergency” and “imminent peril” – lets say a flood or a snowstorm or a drought – it would be totally legitimate for DEP to engage an emergency rulemaking on necessary (non-discretionary) and consensus responses, i.e. to provide flexibility in storage and disposal of plowed snow; or to relax solid waste management requirements for disposal of flood debris; or to impose water conservation measures, respectively.

But the bear hunt is nothing at all like that. It is not emergent. It was foreseeable. It is not “imminent”.

Instead of responding to a true emergency and making a valid trade-off between efficient, timely necessary action and public participation, the DEP is perversely using emergency rulemaking to evade a longstanding public controversy (there is no consensus) and to impose basic and discretionary long term management requirements (there previously was a 7 year long bear management plan). There is nothing “imminent” and DEP is not reacting to an “emergency”. DEP had many months to plan for this hunt – and therefore plenty of time to consult and conduct traditional notice and comment rulemaking.

I hope the legal challenge can focus on DEP’s emergency rulemaking – I think that’s where the best legal attack is targeted. But in listening to Sen. Lesniak on NJN, it sounded like he was focused on data and science and the DEP’s justification for the hunt. It is very, very, difficult to defeat DEP on their turf – courts defer to agency expertise and there is a legally high bar “the arbitrary and capricious test” that DEP almost always wins.

But courts provide no deference at all on legal issues – and whether there is an “emergency” that would support an emergency rulemaking given the facts of this situation is purely a legal issue. The issue emerged over many months and the DEP’s management approach is not a necessary response to anything “imminent”.

Conservation Leaders Are Cowardly And Corrupt

(Caption: Source: Pinelands Commission, October Monthly Management Report – Maybe someone could photoshop the roadside clearcuts (see below) and put an ATV on the road?)

This morning on NPR, I heard Joe Biden respond to a question about how he would respond to a Republican Congress, by saying that “nothing would fundamentally change”.

How could he possibly use that phrase?

It shows that he is totally oblivious to the criticism and ridicule he has gotten for telling Wall Street and wealthy corporate donors during the 2020 campaign that “nothing would fundamentally change” under a Biden administration.

That level of detached obliviousness is pathological.

Well, exactly the same level or arrogance, detachment, and pathological obliviousness to criticism was just revealed by the Pinelands Commission (I probably should say the Staff, because the Commission probably didn’t review the above photo before it was released publicly).

That photo’s lovely view of a Pinelands road was plastered on the cover of their publicly released October Monthly Management Report –

That photo was shoved down the public’s throat just 2 weeks after the Commission approved a 13 MILE Long 50 foot wide CLEARCUT along Pinelands roads (with an additional 150 feet wide “feathering treatment” that would cut more than 90% of trees and sharply reduce canopy cover – the canopy would be reduced by 74%!!).

Here’s how the Pinelands Commission approval – which relied solely on DEP’s claims – described that 13 mile clearcut:

The applicant [DEP] indicates that this type of thinning creates a gradual transition in tree density from zero trees per acre created by the proposed forest firebreak to 33 trees per acre for a distance back from the proposed forest firebreak of 75 feet. Canopy cover will be reduced from 74% to 19% by the “feathered” variable density thinning treatment. The applicant indicates that this “feathered” treatment is intended to reduce the harsh forest edges and create a more visually appealing aesthetic between the proposed forest firebreak and the variable density thinning treatment.”

Keep that “more visually appealing aesthetic” in mind – with the canopy reduced by 74% (and that’s behind a 25 foot wide clearcut). We Tweeted a question about that:

The viewshed will be more like a State highway, maybe something that looks like this (Source: John Cecil presentation to the Pinelands Commission, March 2021):

I guarantee that you won’t see any photos of that clearcut on the cover of any future Pinelands Monthly Management Report!

Just as pathological, the people and organizations that are supposed to be the watchdogs for the integrity of Pinelands forests – Carleton Montgomery of the Pinelands Preservation Alliance and Emile DeVito of the NJ Conservation Foundation – called that 13 MILE CLEARCUT the creation of a “MEADOW” (along with a pack of other pathological lies about the DEP 1,300 acre logging plan).

Repeat: they called a 13 mile long clearcut scar across the forest a MEADOW! (25 foot wide clearcut on each side – bisected by a road – is a fucking MEADOW! Orwell would be red faced!)

I’m in the Arizona desert for the winter, but so help me, I will drive across the country to take photos of this logging after its done and I will publicly shove those photos up Carleton and Emile’s asses. 

As they (used to?) say, that’s not a threat, it’s a promise.

They worked their asses off lying and successfully have blocked – blocked! – our efforts to get the attention of people or press about this forest rape. Unforgivable.

The rest of the NJ “environmental leaders” can go to hell as well, specifically including the “new and improved” NJ Sierra Club.

I’m done with all this crap, it’s negatively impacting my blood pressure and sleep.

This DEP logging plan is not an anomaly – years ago, the Corrupt PPA, NJCF and the Pinelands Commission signed off on the project below, calling it “stewardship and  “forest restoration” Hit that link and check out photos of that stream buffer. See if you can count all the stumps!