It Is Absurd To Log Protected Highlands Forests
Exemption for destructive commercial logging on preserved public lands is absurd.
DEP Lawyers Are Incompetent
In law, there is a concept known as the “absurdity principle”. We’ll let one of the leading administrative law experts, Cass Sunstein, expand upon that:
In the last two decades, federal courts have been developing a new and thus far unacknowledged canon of regulatory law: As a general rule, administrative agencies will be taken to have the authority to interpret statutes so as to avoid absurd or patently unreasonable results, even if the interpretation is hard to square with the literal language of the statute. This canon authorizes agencies, and in particular agencies that regulate the environment, far more flexibility in the interpretation of literal language than courts are now permitted to have.
But I’m getting way ahead of myself. Let me explain:
As expected, today the Murphy DEP denied my petition for rulemaking to protect publicly owned forested lands in the Highlands region from destructive commercial logging. For the text of and background on that petition, see:
For a broader analysis of how DEP is not using their existing authority to protect not just the forests, but water and natural resources of the Highlands, see:
[Full disclosure: I worked on drafting S1, the introduced version of the Highlands Act 20 years ago. That version had NO EXEMPTIONS.]
I expected the denial, because the lawyers at DEP reached out to me informally and requested that I withdraw the petition. I assume that was to avoid doing the work of drafting a denial document and to avoid the political embarrassment of supporting controversial and absurd legal interpretations and publishing them in the NJ Register.
To push back, I invoked Cass Sunstein’s “absurd” analysis and sent the following to Senate Environment Committee Chairman Bob Smith, whose forest management bill has been stalled – for YEARS:
Dear Chairman Smith – As expected, the DEP today denied my petition for rulemaking (see the attached denial document).
The petition sought to narrow the scope of the current exemption in the Highlands Act for forest management activities on public lands as approved by the DEP State forester.
I argued – given the legislative history, findings, goals, objectives, and environmental standards of the Highlands Act – that the language in the exemption legitimately could be interpreted more narrowly to be limited to private lands.
Common sense alone would dictate that if the Legislative goal of the Highlands Act is to protect intact contiguous forests, reduce forest disturbance, preserve forest canopy, and protect habitat and water resources, then an exemption for destructive commercial logging on preserved public lands is absurd.
The law does allow the legitimate exercise of discretion via regulatory interpretations of statutes to avoid absurd results. (see Cass Sunstein:
- Avoiding Absurdity – A New Canon in Regulatory law
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1070&context=law_and_economics
“As a general rule, administrative agencies will be taken to have the authority to interpret statutes so as to avoid absurd or patently unreasonable results, even if the interpretation is hard to square with the literal language of the statute.”
But the DEP is more interested in logging preserved public lands (and the revenues therefrom) than creative regulatory policy to protect critical natural resources.
Given DEP’s current absurd forest management policies, I strongly urge your attention to action on legislation to protect and preserve what’s left of NJ’s vanishing forest resources.
Please avoid the current absurd outcomes DEP produces.
Bill Wolfe
End Note: The DEP denial document makes this (false) claim as a basis for their denial:
The petitioner provides no specific documentation of legislative findings or intent contrary to the plain language of the statute.
That is false and an egregious lie.
My petition was based on the following specific legislative findings and intent:
In passing the Highlands Act, the Legislature found:
“the New Jersey Highlands contains other exceptional natural resources such as clean air, contiguous forest lands, wetlands, pristine watersheds, and habitat for fauna and flora, includes many sites of historic significance, and provides abundant recreational opportunities for the citizens of the State.”
… the existing land use and environmental regulation system cannot protect the water and natural resources of the New Jersey Highlands
The Legislature further finds and declares that the protection of the New Jersey Highlands, because of its vital link to the future of the State’s drinking water supplies and other key natural resources, is an issue of State level importance that cannot be left to the uncoordinated land use decisions of 88 municipalities, seven counties, and a myriad of private landowners; that the State should take action to delineate within the New Jersey Highlands a preservation area of exceptional natural resource value that includes watershed protection and other environmentally sensitive lands where stringent protection policies should be implemented; that a regional approach to land use planning in the preservation area should be established to replace the existing uncoordinated system; that such a new regional approach to land use planning should be complemented by increased standards more protective of the environment established by the Department of Environmental Protection for development in the preservation area of the New Jersey Highlands.
In light of this legislative intent and the objectives, policies, and regulatory standards in the Highlands Act, the Department has engaged in an absurd interpretation of exemption #7 to apply in a way to exempt public lands from the requirements of the Highlands Act.”
There is no way the legislature intentionally exempted commercial logging.
I provided the following additional evidence to support the petition, so again DEP lied:
The explicit legislative text and legislative intent clearly apply only to activity conducted on private lands.
At the time of enactment, woodland management plans pursuant to section 3 of P.L.1964, c.48 , forest stewardship plans approved pursuant to section 3 of P.L.2009, c.256, forest management plans, and forest stewardship plans that were prepared for and approved by the State Forester were limited to private lands.
The Legislature wrote the text of exemption #7 and used the terms “woodland management plans” and “forest stewardship plans” and “forest management plans” and “forest stewardship plans”, including citations to prior laws that applied exclusively to private lands, not public lands.
The term “public lands” is NOT included in the text of exemption #7.
It is inconceivable that the Legislature intended to exempt “harvesting of forest products” on forested public lands from the policies, standards, and regulatory review procedures of the Highlands Act, as that would directly contradict the fundamental forestry, natural resource, and water resource protections of the Highlands Act.
Had the legislature intended to exempt activities on public lands – a huge policy decision, particularly given the significant acreage of publicly owned forested lands in the Highlands then they would have made that abundantly clear in the text of the exemption.
The primary legislative intent of exemption #7 was to facilitate the ability of private property owners to receive farmland assessments and local property tax breaks. It was also intended to streamline reviews and avoid duplicative regulatory reviews by the DEP and the State Forester.
I was an architect and drafter of the introduced version of the Highlands Act.
There were NO exemptions in that bill, S1. The bill was driven by a US Forest Service Report on Highlands forests. I staffed Gov. McGreevey’s Highlands Task Force, whose Report preceded the legislation.
The Legislature intended to protect and preserve Highlands forests, not log them.
The fact that DEP fails to understand that illustrates how absurd their regulatory exemption is, which is based on a misreading of the Act and legislative intent and legislative history.
(British Columbia, Canada)