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Neighbor Charged By Police for Trying To Stop Motorcycle Noise Nuisance

Biker Noise and Threats on Easter Sunday Go Unaddressed by Police

[* 4/15/15 – Correction: I just learned it wasn’t a Harley, it was a Suzuki – apologies to all the Hogs out there!]

[Update – No charges filed against bike owner or me. Apparently, local noise code enforcement requires State approval. Bordentown Police lack training and equipment and funding to meet state standards and have not sought delegation. And the NJ Supreme Court had invalidated the local ordinance I was threatened with violating. ~~~ end]

Today, around 6:30 pm, all hell broke loose on Oliver Street in Bordentown, NJ.

Because I was as the center of the dispute – and apparently now face police charges for “interfering in a police investigation” –  I thought I’d memorialize the episode here.

Over the last few weeks, a neighbor of mine runs his *Harley at half full throttle at all hours of the day, typically for 10 minutes or more. It is incredibly loud and disruptive.

The bike is parked on the sidewalk, up against his concrete front porch, so the loud noise and vibrations are projected right into the homes of neighbors on the block. This happens at all hours of the day, and the noise and vibrations are an incredible nuisance.

I’m not the only neighbor who thinks this is totally unacceptable.

So tonight, after sitting on the porch with the dog and reading during a lovely warm spring sunset, the guy started the Harley up. He lives about 200 feet and across the street from my house (see above photo).

Shortly after the racket began, I yelled to his wife, who was sitting on the porch, that he needed to shut that down.’ SHUT IT DOWN” I yelled at the top of my lungs at least 3 times. I used no profanity, but made my demand very clear. I had to yell to be heard over the racket from the Harley.

My engagement prompted neighbors, who were equally angry about this, to come out onto their front porches and agree with me and complain.

Immediately after I shouted to shut it down, the Harley owner, a large man of at least 6’3″ and 250 pounds, came across the street to my porch and began arguing with me. He used profanity multiple times, and I fired right back. It almost came to blows (his fists, my face).

To put it mildly, it got very heated and damn near violent.

After a 5 minute screaming match that almost got violent, I went inside.

Because he refused to shut the thing down and was so *menacing, I called the Bordentown police to file an incident report, in case there were future retaliation or violence.

The police came and I explained the situation.

One of my neighbors came out and explained the situation to the police, to tell them that I was not the only one who objected to the noise, and that the entire block did too.

So, the police officer then went across the street and began talking to the Harley owner’s wife.

After several minutes of the police officer talking to the Harley owner’s wife, from my front porch, 200 feet away, I yelled: “Start the motor – document the noise – collect data – interview neighbors – conduct a real investigation”

The police officer shouted back and told me to be quiet and go in my house.

I refused to go inside (I was on my own porch) and repeated my demand:  “Start the motor – document the noise – collect data – interview neighbors – conduct a real investigation”.

After a few minutes, another police car rolled up. I was later told that he was called because of my demands.

The two  officers now continued their interview, at which point the Harley owner drove up (he had left after our heated exchange, probably because he knew I was likely to call the police, given the threats made).

The cops then asked the man to start the Harley, which he did, but at an idling throttle, which is far lower RPM and far lower noise and vibration.

I again yelled that they needed to hear the Harley at the loud RPM he idled it at, with the choke full.

The cops again told me to be quiet, but they then agreed with me and required the owner to idle at a higher RPM.

The police later came back to my porch and told me that they felt that the noise was not unreasonable, a conclusion I immediately objected to and told them that they: 1) failed to measure the actual decibel level; 2)  failed to ask all the neighbors about how they perceived the noise; and 3) failed to enforce idling restrictions.

At this point, after the police told me that my Harley neighbor was not facing any violations of idling, noise, or nuisance laws, the police told me that I was being charged with interference with a police investigation.

My alleged crime was failure to obey his order “to go inside” and yelling at the police from 200 feet away from my front porch to demand that they:

“Start the motor – document the noise – collect data – interview neighbors – conduct a real investigation”.

So, a reasonable citizen, who called the police in an effort to document threats by a thug and enforce basic neighborhood standards of decency on Easter Sunday, is now the bad guy and the only one facing police charges,

Heckofajob!

We’ll keep you posted on how this turns out.

If Christie Knew, Why Would He Defend the $225 Million Settlement As Aggressive?

Did Christie Know DEP Was 0 for 3 – That DEP Had Lost The Only 3 NRD Court Cases It Litigated?

Did Christie Know DEP failed to honor Brad Campbell’s 2004 Lawsuit Settlement to propose NRD regulations?

Did Christie know that his own DEP transition Report recommended that DEP adopt NRD regulations?

If Christie Knew All This, Why Didn’t He Just Blame The DEP Bureaucracy, Corzine, & Campbell?

It’s never Christie’s fault! Source: Star Ledger

[Update: 4/6/15 – Joel Rose of WNYC All Things Considered gets the story right:

Picco says state officials have never written detailed regulations for how to assess natural resource damages — a point some environmentalists concede has hurt the state in court, and in settlement negotiations.

Bill Wolfe heads the New Jersey chapter of Public Employees for Environmental Responsibility.

“The polluter knows that he’s gotta pay something,” he says. “But they know that push comes to shove, they have a good likelihood of winning in court. So they’ve got a stronger hand than the state. And that negotiation results in the three cents on the dollar we’ve seen in the Exxon deal.” ~~~ end update]

Tomorrow, the Christie Administration’s controversial $225 million “Natural Resource Damage” (NRD) settlement with Exxon will be published for a 30 day public comment period.

The first look at the terms of the settlement is sure to spark another new round of media coverage and criticism.

Going into that dynamic, I have a very basic political question: How did Gov. Christie’s PR machine bungle this so badly?

In my experience in government, the prime imperative was “No Surprises” and “Never put the front Office in jeopardy or embarrass the Governor”.

That would mean that the Gov. would get a heads up from both the DEP Commissioner and Attorney General that the Exxon settlement was coming and that it would be controversial.

That heads up to the Governor would include a legal and policy briefing memo on the issues, as well as media talking points.

I’ve done this work before myself and been chastised for failure to do it properly, so I know exactly how this game is played.

Did Gov. Christie get that briefing? If he did, was in an honest briefing?

And if Christie did get this briefing and the DEP and the AG fully disclosed the State’s legal vulnerabilities – disclosed in detail for the first time in Friday’s NJ Law Journal article – why did  Gov. Christie ignore it?

Even worse, Christie is a former prosecutor. He understands legal risk.

He had to know that  the much spun fact that Exxon was already found by the Court to be “liable” – under the strict liability standard in NJ Spill Act – is of no significance – NONE – at all with respect to the issue of whether the State’s $8.9 billion NRD claim would be upheld.

If Christie knew that the State had a weak legal hand, why would he take weeks – weeks! – of scathing  criticism by the national and NJ media and a pounding by NJ Democrats – particularly at a sensitive time that he is seeking the Republican 2016 nomination?

There are certain things that Gov. Christie is very good at: anticipating and getting out in front of controversial issues, framing them in his own terms, and blaming others for failures or things that explode in the media.

So, how did his Administration get their PR and response so wrong on the Exxon NRD Settlement?

The narrative up until Friday’s NJLJ story was framed by Brad Campbell’s Op-Ed:

Mr. Christie’s chief counsel inserted himself into the case, elbowed aside the attorney general and career employees who had developed and prosecuted the litigation, and cut the deal favorable to Exxon.

Governor Christie was blindsided by this and responded by a lame personal attack on Campbell as a “failed former DEP Commissioner”.

If Christie was aware of the Exxon Settlement and had been briefed on the issues, why didn’t he just blame the bureaucrats at DEP, including the Corzine DEP, for failing to do their job, honor the 2004 settlement in the SEED case to adopt regulations?

Why didn’t he attack Brad Campbell himself as the DEP Commissioner who made and failed to honor the SEED settlement?

If Christie were aware of the Exxon legal vulnerabilities and the DEP’s 0 of 3 record in litigation, as a former prosecutor, why didn’t Christie just say he was dealt a weak hand by the Corzine administration and had to settle or lose it all?

Why would Christie defend the settlement and stake his own reputation on it?

Why were Christie’s responses to withering criticism, including by the NY Times, so substantively weak?

Why wouldn’t the Gov. use the legal vulnerability created by DEP’s failure to adopt regulations as an excuse?

I can only conclude that the Gov. could not have known about the State’s legal vulnerabilities that were laid out in Friday’s NJ Law Journal story.

And for that failure to provide a timely and honest heads up briefing on Exxon NRD, heads should role at DEP and the AG’s Office for violating two prime imperatives: “No surprises”  and “Never embarrass the Governor”

Of course, another explanation could be that the Gov. was briefed but was just too busy campaigning to govern effectively.

[Update: The New York Times wrote an in depth story based on high level anonymous sources, that talked about the history on negotiations with Exxon.

This paragraph is revealing and supports what I’ve been saying about the “quiet dance” for pennies o the dollar:

Mr. Wells [Exxon’s lawyer] said in the meeting that he considered the $325 million offer “outrageous,” a person with knowledge of the discussions recalled. Mr. Wells largely repeated the arguments he had made before and said the company did not feel it was being treated fairly or consistently with how other major corporations had been treated in such cases.

Exxon wanted – and ultimately got – pennies on the dollar too.  ~~~ end update.]

NRD is based on science and quantified – NRD is not “inherently subjective”

DEP Consultant Relied on Widely Used & Federally Approved NRD Habitat Equivalence Method

The lack of enforceable NRD regulations is what weakened DEP’s hand in Exxon deal

“There’s this wink and a nod going on where the DEP is saying, ‘We won’t squeeze you too hard if you just come to the table and settle,’” Wolfe said.

It’s been “a quiet little dance for 10 years,” with the state knowing it can’t get more than pennies on the dollar”, Wolfe said. ~~~ NJ Law Journal (4/3/15)

[Update below]

I was hopeful that yesterday’s NJ Law Journal’s story on how DEP’s failure to adopt Natural Resource Damage (NRD) regulations led to the controversial Exxon settlement would pierce the political narrative and get legs.

Instead, it spawned a backlash and is generating a cover story, spun by DEP and lapped up by a reporter who missed the NRD story for years.

As the NJLJ story documented, as we’ve written, DEP lost all 3 NRD cases it litigated, going back over a decade to 2004.

• New Jersey Society of Environmental & Economic Development (SEED) v. Campbell (N.J. Super. Law Div., Mercer County, 2004)
• N.J. Dept. of Envtl. Prot. v. Exxon Mobil Corp., Docket No. MER-L-2933-02 (N.J. Super. Ct. Law Div. Aug. 24, 2007
• New Jersey Department of Environmental Protection, et al. v. Essex Chemical Corporation (Appellate Division, 2012)

As the NJLJ documented, the underlying legal reason DEP lost all 3 NRD cases it litigated was due to a lack of enforceable NRD regulations to define and quantify natural resource injuries and compensation/restoration requirements.

As the NJLJ story exposed, the DEP entered into a legal settlement agreement in the 2004 SEED case that obligated DEP to adopt NRD regulations, a commitment backed up by a letter from the Attorney General’s Office.

But you wouldn’t know any of that by reading today’s Bergen Record story –

Nor would you know that back in 2012, because DEP lost cases, failed to adopt regulations, and was not aggressively recovering NRD compensation, we petitioned the NJ Comptroller to audit the DEP NRD program – which is exactly what Assemblyman McKeon is now seeking to do in a classic after the fact ass covering move.

Jim O’Neill of the Record writes the Christie DEP cover story.

O’Neill uses sources to say that NRD cases are complex (which is true) and that NRD are “like pain and suffering” and “inherently subjective” – which is totally false. Oneill wrote:

Andrew Robins, an environmental lawyer in Newark, said that “natural resource damages in the environmental sphere is akin to the term ‘pain and suffering’ in a personal injury case: It’s very difficult to measure.” […]

“It’s difficult to establish objective criteria to assess damage,” Robins said. “These elements are inherently subjective.”

Robins is clueless.

Quantifying NRD is a science based exercise. One wonders if Mr. Robins or reporter Jim O’Neill even read the DEP consultant’s Report, by Stratus Consulting

Stratus relied on what is known as  “Habitat Equivalence Analysis” (HEA) methodology:

Stratus found that over 600 organic chemicals had been detected in some 1,600 acres of soil, sediments and wetlands (see table 3.1 for the long list of chemicals). Here are the impacted habitats:

Based on the historic destruction of habitat, Stratus derived on site restoration requirements and off site replacement compensation cost estimates:

The Record story would have us believe that DEP settled the Exxon case because NRD is “complex”, “inherently subjective”, and “like pain and suffering”.

That is just flat out wrong.

Yes, HEA is complex, but it is used under federal Superfund and Oil Spill laws, as discussed by EPA and the Science Advisory Board. Habitat equivalence is approved and used by NOAA.

Habitat equivalence is approved and used by the US Army Corps of Engineers and the US Department of Interior’s Bureau of Land Management.

The DEP’s Office of Natural Resource Restoration  even has their own natural resource injury methods documents – one for calculating groundwater injury and one for identifying ecological injury, which defaults to the site remediation program’s “Baseline Ecological Assessment” conducted as part of the cleanup process at contaminated sites.

But none of these HEA or NRD methods have been promulgated as regulations and therefore NJ courts have found that they are legally vulnerable to challenge by polluters.

[***Note: Jeff Tittel just reminded me that when I worked with him at Sierra, around 1997 or so I served on a Whitman Administration DEP NRD Task Force led by Asst. Commissioner Rick Gimello (and coordinated with Asst. Commissioner Jim Hall of Natural Resources). At that time, DEP had NRD formula’s that could have been adopted as rules, but that was nixed by Whitman due to strong opposition by the corporate polluters. More on this historical aspect in future posts.]

That’s why DEP agreed, way back in 2004, to adopt regulations to make the NRD program enforceable.

A March 23, 2003, letter from deputy attorney general Richard Engel to Picco said the DEP “has long planned to promulgate regulations to improve the current Natural Resource Damage program” and “is currently developing its regulatory proposals, and plans to file one or more rule proposals prior to Aug. 1, 2005.”

The “forthcoming rules clearly will afford the NJ SEED plaintiffs an administrative forum, subject to judicial review, in which to present policy and legal arguments presented in or related to the pending litigation,” Engel said in the letter.  ~~~~   NJ Law Journal

And DEP’s failure to do so is what led to 3 legal losses and the legal vulnerability that drove the need to settle the Exxon case for less than 3 pennies on the dollar.

[Update: my emphasis on NRD regulations was a key conclusion of a 2006 FDCC Quarterly law review article on DEP’s NRD program – we posted this piece in our 2007 PEER press release:

We conclude that the industry and insurers would be wise to monitor the progress of New Jersey’s NRD initiative, but that there is no clear indication that other jurisdictions  will follow New Jersey’s lead. This is in part due to the appointment of a new NJDEP commissioner and NJDEP’s promise to issue new NRD regulations for public comment. The release of these regulations will likely be followed by extensive industry comment and, perhaps, litigation. Thus, New Jersey’s NRD enforcement program is likely to undergo significant changes over the next year, and other jurisdictions will likely wait to see how successful New Jersey is at collecting NRD penalties before devoting resources to beef up their own programs. (page 347 – 348) ~~~ end update]

NJ Law Journal nails the history of DEP’s failure to adopt NRD regulations

Expose’ likely to give political cover to Gov. Christie, but will it lead to reforms?

A March 23, 2003, letter from deputy attorney general Richard Engel to Picco said the DEP “has long planned to promulgate regulations to improve the current Natural Resource Damage program” and “is currently developing its regulatory proposals, and plans to file one or more rule proposals prior to Aug. 1, 2005.”

The “forthcoming rules clearly will afford the NJ SEED plaintiffs an administrative forum, subject to judicial review, in which to present policy and legal arguments presented in or related to the pending litigation,” Engel said in the letter.  ~~~~   NJ Law Journal

[Updates below]

The NJ Law Journal has a bombshell story today, which finally gets to the heart of the matter on the Exxon NRD deal.

Mary Pat Gallagher at the Law Journal lays out a story we have been warning about for a decade, see:

• Some Say NJ Had Little Choice but to Settle With Exxon

The $225 million pollution settlement between New Jersey and Exxon Mobil Corp. has been criticized as inadequate, given the state’s $8.9 billion damages claim, but some lawyers and environmentalists have questioned whether the state’s valuation of the case would have withstood judicial scrutiny.

The settlement, for a century of pollution at Exxon’s Bayway and Bayonne refinery sites, has been attacked as a deal that would pay less than three cents on the dollar for natural resource damage that had been pegged by the state’s experts at $8.9 billion, in the context of a case where liability was already decided and a ruling on a dollar figure, after months of trial, was imminent.

But some lawyers and environmental advocates said the state’s failure to adopt a methodology for calculating damages for harm to natural resources through the formal rule-making process—as it committed to do more than a decade ago when it settled another suit—weakened its negotiating position and led to a lower settlement in not just the Exxon case but in other natural resource damage suits it has brought.

The Law Journal story echoes exactly what we said about the DEP’s failure to adopt regulations, way back in 2007:

Trenton — In a stunning legal setback, the State of New Jersey cannot recover damages from polluters in what may be thousands of contaminated groundwater cases, according to Public Employees for Environmental Responsibility (PEER). The problem stems from the state’s failure to adopt regulations governing how to calculate “natural resources damages” (NRD) for polluted drinking water.[…]

“This regulatory train wreck was completely preventable,” stated New Jersey PEER Director Bill Wolfe, a former DEP analyst, pointing to repeated acknowledgements by state officials of the need to act:

• In 2002 “Vulnerability Assessments,” DEP estimated that as many as 4,600 cases may require NRD litigation which would necessitate both rule making and extending the statute of limitations. This data prompted former DEP Commissioner Bradley Campbell to say he was “astounded to find on taking office in [2002] that the [DEP] had not pursued, or left unsettled, thousands of cases against polluters responsible for a wide range of damages to New Jersey’s natural resources,” pledging to put the program “back on track”;

• In a 2004 settlement agreement of the case New Jersey Society of Environmental & Economic Development (SEED) v. Campbell (N.J. Super. Law Div., Mercer County) DEP legally committed to propose formal natural resource damage regulations; and

• At a May 24, 2005 seminar at Rutgers’ Cook College, John Sacco, Chief of DEP’s Office of Natural Resource Restoration pledged that natural resource damage regulations will “hopefully” be proposed in fall 2005. But since then, there has been no apparent activity to move rules forward.

“The corporations who had the most at stake stalled the NRD program during the Whitman administration but failed to kill it outright. Now, through inaction, the Corzine administration has provided polluters precisely the relief they sought,” Wolfe added. “Those officials responsible for these policies and blocking these regulations should be identified and drummed out of public service.”

But the Law Journal adds damning new facts I was not aware of, including a letter from Deputy Attorney General Rick Engel regarding a legal settlement agreement with plaintiffs in the SEED case:

The plaintiffs asked the court to compel the DEP commissioner “to promulgate and adopt the method of quantifying [the] alleged legal obligation to compensate the state for groundwater NRD in accordance with the provision of the New Jersey Administrative Procedures Act.”

The case settled soon after, with the state agreeing to adopt formal rules.

“We were going to win that case,” Picco said. “We started to talk and they said, ‘We’ll come out with rules.'”

A March 23, 2003, letter from deputy attorney general Richard Engel to Picco said the DEP “has long planned to promulgate regulations to improve the current Natural Resource Damage program” and “is currently developing its regulatory proposals, and plans to file one or more rule proposals prior to Aug. 1, 2005.”

The “forthcoming rules clearly will afford the NJ SEED plaintiffs an administrative forum, subject to judicial review, in which to present policy and legal arguments presented in or related to the pending litigation,” Engel said in the letter.

But the rule making never occurred, according to Picco.

“It’s never been done despite repeated requests to do it,” Picco said. “We followed up until it became clear that their inability to come up with rules was costing them in court.”

The state has never won a natural resource damage case in court, Picco said.

Ouch! We expect that phones are ringing in the AG’s and DEP Commissioner’s Office.

I’ve locked horns before with the SEED attorney Steve Picco – in our victory over the Mercer County incinerator – and know him as a good man and competent lawyer.

But it pains me to agree with him, in part:

Picco said the lack of rules governing natural resource damage calculation may have impacted the state’s decision to enter into the Bayway/Bayonne settlement with Exxon.

“I’ve got to believe that in addition to whatever budget or political pressure was involved, they have got to be a little nervous about their record,” Picco said. “The law is clear that they have the right to charge NRD but they have never been able to come up with a judicially approvable methodology.”

Picco said he believes the state “would have had to be concerned about how it would justify the number”—referring to the $8.9 billion damage figure—and that concern would serve as “an incentive to settlement.”

But that agreement is only partial, because Picco doesn’t tell the complete truth about what was really going on in the DEP NRD program. Picco represents polluters who don’t want to pay for the damage to natural resources caused by their pollution. He has no interest in DEP adopting and enforcing strong NRD regulations.

I capture that dynamic with this quote:

Wolfe said the lack of valuation rules leaves the state vulnerable to challenges on the amount of damages.

The state “knows it has a weak legal hand,” making it reluctant to push too hard and more willing to settle, Wolfe said.

Exxon’s lawyers are “sharp enough to know this” and to assume the state knows it is legally vulnerable, Wolfe said.

“There’s this wink and a nod going on where the DEP is saying, ‘We won’t squeeze you too hard if you just come to the table and settle,'” Wolfe said.

It’s been “a quiet little dance for 10 years,” with the state knowing it can’t get more than pennies on the dollar”, Wolfe said.

What is left unsaid in the Law Journal story but which I have alluded to is another ugly set of facts and incentives.

While Picco’s clients have no interest in an aggressive DEP NRD program, surely – you would think – NJ conservation groups do.

But you would be wrong.

Many NJ conservation groups were involved in and were funded by the DEP NRD program (see this Report @ page 14), which includes a $1 million NRD settlement revenues awarded to the NY/NJ Baykeeper, and – GET THIS! – favorably touts a close relationship with Gov. Christie’s former US Attorney’s Office: (@ page 17)