Home > Uncategorized > NJ Court Decision Striking Down DEP Coastal Rules Is A Disaster For Public Access and The Public Trust Doctrine

NJ Court Decision Striking Down DEP Coastal Rules Is A Disaster For Public Access and The Public Trust Doctrine

Court Finds DEP Lacked Legislative Authority to Regulate Public Access & Enforce The Public Trust Doctrine

Plaintiffs NY/NJ Baykeeper & Hackensack Riverkeeper Make Huge Legal & Strategic Blunder

Pyrrhic Victory

Pyrrhic victory is a victory that inflicts such a devastating toll on the victor that it is  tantamount to defeat. Someone who wins a Pyrrhic victory has been victorious in some way. However, the heavy toll negates any sense of achievement or profit. ~~~ Wiki

Yesterday, a NJ Appellate Court decision struck down the Christie DEP’s  controversial public access rules on the basis that DEP lacked legislative authorization under CAFRA to regulate and that the Public Trust doctrine does not authorize DEP regulation (read decision here).

The DEP public access rules were fatally flawed and deserved to be struck down, but the legal arguments of the plaintiffs that the Court agreed with make the situation far worse.

Plaintiffs could have argued that DEP’s rules relied too heavily on local control and failed to honor their Public Trust obligations, but they did just the OPPOSITE.

The decision is a devastating blow to public access to NJ’s coast and tidal rivers and for enforcement of public rights under the Public Trust doctrine.

[Note: NJ’s earliest public trust doctrine case recognized “regulatory” authority:

Arnold v. Mundy, 6N.J.L. 1, 95 (1821)
Case Highlight: First New Jersey case to apply the Public Trust Doctrine, identifying common property as including the air, the running water, the sea, the fish, and the wild beasts ” …to be held, protected, and regulated for the common use and benefit.

In addition to striking down the DEP rules and essentially forcing the Legislature to act before enforceable public access rights are established, the Court’s legal rationale may become precedent used to undermine enforcement of Public Trust rights and DEP Public Trust duties in other DEP programs and protections that are based on DEP’s Public Trust duties. These other DEP regulations now could become vulnerable to legal challenge a a result of this decision, if it survives appeal and is allowed to stand.

The plaintiffs made a huge blunder and the court got it badly wrong, so the decision must be appealed by DEP and/or American Littoral Society, who filed an amicus brief in partial support of some of DEP’s arguments. Here’s why:

1) What the Plaintiffs Argued and What The Court Found

The Court struck down the DEP rule for 3 reasons:

In sum, we conclude that absent a specific legislative grant of authority, DEP was not authorized by the public trust doctrine to promulgate the Rules. We further conclude that CAFRA’s permitting provisions might implicitly authorize limited portions of the Rules, but it is not our task to identify which limited portions of the Rules could be so authorized. Given their 1) application beyond CAFRA’s territorial limits, and 2) their extensive scope, the Rules exceed any implied grant of legislative authority under the statute. Lastly, we conclude that the creation of a municipal Public Access Fund would be an ultra vires exercise of municipal power, and, while the MLUL could authorize adoption of a MPAP as part of a municipal master plan, the provisions of the MLUL that govern amendment of the master plan leave no room for DEP’s pervasive involvement in the process as set forth in the Rules.

We therefore conclude that the Rules must be stricken, and we invalidate N.J.A.C. 7:7-9.48, the public trust rights rule, and N.J.A.C. 7:7-16.9, the public access rule, as well as any other provisions of the regulations that rely upon those two sections.

Amazingly, it was the NY/NJ Baykeeper – not the NJ Builders Association or the NJ BIA or the League of Municipalities, who made THESE ARGUMENTS:

Appellants argue that DEP has again arrogated to itself the management of lands held in public trust, which power is reserved to the Legislature and has not been delegated to DEP. They also argue the Rules are preempted by, or improperly infringe upon, powers reserved to the State’s municipalities. Appellants further contend that the Rules are not authorized by the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -21, or any other statute.

Not even the NJ League of Municipalities- fervent guardians of home rule powers – has argued that the DEP lacks authority under CAFRA and the Public Trust doctrine to regulate land use to provide public access.

Plaintiffs also argued that the dedicated Public Access Fund, to which developers contribute in lieu of providing public access onsite created by the DEP rules was not authorized by the legislature, an argument that is very similar to the legal attack by the NJ Builders Association:

In New Jersey Shore Builders Ass’n v. Township of Jackson, 199 N.J. 449 (2009), the Court concluded that the municipal appellants lacked the authority to promulgate ordinances that required developers to set aside open space or make payments in lieu thereof.

It is simply shocking that so called environmental groups would make more retrograde legal arguments on home rule and DEP regulatory authority than the League of Municipalities and the NJ Builders Association.

This legal ineptitude and strategic blunder was brought to you and funded by the Dodge Foundation. Heckaofjob Chris Daggett!

Tim Dillingham of ALS, who I often disagree with,  filed an amicus brief in support of DEP, gets it exactly right in this quote from the NJ.Com news story:

“Who will now act as the trustee to protect these interests if not the state Department of Environmental Protection?” Dillingham asked. “The decision would appear to create a void, and in the absence of any state leadership, could promote a return to town-by-town and development-project-by-development-project litigation over the public’s ability — or inability — to access the waterfront.”

Perhaps even worse, the environmentalists are delusional in thinking that the NJ Legislature will pass and Governor Christie will sign legislation authorizing DEP to enforce Public Trust doctrine rights and CARFA land use controls to provide public access to both the shore and inland tidal riverfront lands.

Jeff Tittel of Sierra Club, who wasn’t even involved in the lawsuit, openly exhibits this delusion (NJ.Com story):

“They violated the public trust doctrine by allowing beaches that belonged to all of us to be taken over by beach clubs and private developers,” Tittel said in a statement. “These rules would have taken the side of the 1 percent of those who own the marinas, big houses and the developers over the 99 percent of us that go and use the beaches.”

The environmental groups want the state Legislature to decide who should determine public access.

If Sandy and the risks of climate change and sea level rise have not convinced Trenton policymakers of the need for coastal reforms, do you think public access will, a controversial issue the Legislature has dodged for decades?

Does Tittel seriously think that the Legislature will overrule shore municipalities and developers and set strict standards and delegate broad and sweeping new Public Trust doctrine and land use powers to DEP? Are you kidding me?

The Court’s decision may provide opportunities for certain Legislators running for Governor in 2017 to issue self promotional press releases and introduce legislation, but it is very, very, very unlikely to result in legislation that over-rides the selfish abuse of municipal home rule power to exclude people and actually enforces the Public trust doctrine and provides public access.

And the sloppy thinking here is revealing:

Andrea Leshak, a staff attorney for Hackensack Riverkeeper, which filed the suit alongside  with the NY/NJ Baykeeper, said the decision is a victory for beachgoers.

“It will be good for the typical beachgoer in that their public access is not limited by DEP rules,” she said.

Would Ms. Leshak like to explain, in concrete terms, how that “typical beachgoer” will benefit? Doesn’t she know that access restrictions are imposed by municipalities and private property owners, not DEP? That DEP’s rules failed to end this abuse?

2) Judge admonishes DEP’s Deputy Attorney General

In an unusual move, the Court’s opinion went out of its way to admonish the DEP’s lawyers.

The Court asked them a specific question and were given a legally false answer:

During argument, we asked the Deputy Attorney General representing DEP whether municipalities that did not adopt an MPAP could suffer other negative consequences, specifically eligibility for Green Acres funding. See 44 N.J.R. at 2630-32 (comments and responses 464-83). We were assured that they would not. However, we note that DEP’s current Green Acres regulations provide:

(a) The following are ineligible to apply for Green Acres funding:

….

4. Any local government unit that does not currently provide, or have active plans to provide, public access to the waterfront and to tidally-flowed and dry sand areas subject to the Public Trust Doctrine, consistent with the requirements of the Coastal Zone Management Rules at N.J.A.C. 7:7E–8.11 and governing law.

To emphasize the DEP lawyer’s false assurance and failure to mention the Green Acres sanction, the Court again unusually cited a harsh statement by DEP Commissioner Martin in a news clip:

DEP’s Commissioner called the consequences for municipalities not participating in the MPAP scheme “‘the club if we need it.‘”3

In addition to exposing the DAG’s false assurance and the conflict with the embarrassing DEP Commissioner’s Martin’s “club” comment, the Judge also criticized the DEP’s sloppy legal arguments and mere assertions that lacked legal reasoning.

Perhaps the Court was engaged in the legal equivalent of suspended NY Giants receiver Odell Beckham – emotionally out of control retaliation for shoddy legal work and deception by DEP’s lawyers. Let’s hope the Judge is overridden in the same way that Beckham was suspended by the NFL.

3) Any silver lining?

As a general matter, it is longstanding environmental advocacy policy to support legal arguments that DEP has broad authority delegated by the Legislature. Arguments that a regulatory agency lacks legislative authority (ultra vires challenges) are unusual and should be rarely used by environmentalists and only after thinking through the consequences.

That didn’t happen here – or if it did, very poor judgements were made.

Which poor judgments reminds me of a troubling and related episode. Let me share that story now.

Literally moments before then Assemblyman Barnes’ (now Senator) bill that would have created a Coastal Commission was about to be heard by the Assembly Environment Committee, I happened upon a meeting between Barnes and 6 or so NJ environmental leaders.

As I entered, the leaders of two coastal groups (ALS and COA) were threatening to OPPOSE Barnes’ bill because it would pre-empt local land use powers.

After hearing that, I interrupted and strongly challenged that view, arguing that regional planning and land use regulation by a Coastal Commission was a long ignored and vital shore protection and required to begin the climate change adaptation process. I argued that virtually all land use experts and advocates agree that home rule was major impediment to environmentally sound land use and I questioned how it was possible that coastal conservation groups were supporting home rule over regional planning and Coastal Commission enforced land use powers.

ALS and COA backed down at the meeting and Barnes thanked me for “saving his ass” from the huge political embarrassment of coastal groups opposing his Coastal Commission bill.

Later, in testimony to the Committee, ALS and COA offered tepid support for his bill, but never lifted a finger to pass it and it ultimately quietly died.

Now, back to the silver lining I suggested:

Perhaps this decision could support the ultra vires arguments I have made against the riparian trading and mitigation scheme in DEP’s proposed new Flood Hazard regulations and in challenging the Pinelands Commission’s regulations regarding the “Certificate of Filing” process for private development under the CMP (see point #7).

Other than those remote possibilities, I see nothing but downside in this decision.

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  315. April 30th, 2021 at 21:18 | #315
  316. May 1st, 2021 at 04:16 | #316
  317. May 8th, 2021 at 17:32 | #317
  318. May 8th, 2021 at 19:29 | #318
  319. October 5th, 2021 at 21:38 | #319
  320. October 6th, 2021 at 07:45 | #320
  321. October 6th, 2021 at 15:36 | #321
  322. October 6th, 2021 at 16:38 | #322
  323. October 6th, 2021 at 23:21 | #323
  324. October 7th, 2021 at 00:25 | #324
  325. October 7th, 2021 at 05:27 | #325
  326. October 7th, 2021 at 21:13 | #326
  327. October 8th, 2021 at 06:10 | #327
  328. October 8th, 2021 at 08:36 | #328
  329. October 8th, 2021 at 18:21 | #329
  330. October 8th, 2021 at 23:26 | #330
  331. October 8th, 2021 at 23:56 | #331
  332. October 9th, 2021 at 04:56 | #332
  333. October 9th, 2021 at 17:10 | #333
  334. October 9th, 2021 at 19:00 | #334
  335. October 9th, 2021 at 23:24 | #335
  336. October 23rd, 2021 at 06:31 | #336
  337. October 24th, 2021 at 04:11 | #337
  338. October 24th, 2021 at 23:23 | #338
  339. October 25th, 2021 at 07:30 | #339
  340. October 28th, 2021 at 13:59 | #340
  341. October 31st, 2021 at 14:05 | #341
  342. November 3rd, 2021 at 02:50 | #342
  343. November 10th, 2021 at 00:24 | #343
  344. November 10th, 2021 at 01:09 | #344
  345. November 10th, 2021 at 01:17 | #345
  346. November 11th, 2021 at 01:14 | #346
  347. November 11th, 2021 at 01:28 | #347
  348. November 11th, 2021 at 20:22 | #348
  349. November 23rd, 2021 at 07:09 | #349
  350. November 25th, 2021 at 06:22 | #350
  351. November 26th, 2021 at 04:08 | #351
  352. November 28th, 2021 at 14:52 | #352
  353. November 30th, 2021 at 18:07 | #353
  354. December 4th, 2021 at 14:49 | #354
  355. December 7th, 2021 at 14:13 | #355
  356. December 9th, 2021 at 11:21 | #356
  357. December 9th, 2021 at 17:05 | #357
  358. December 9th, 2021 at 18:42 | #358
  359. December 9th, 2021 at 19:54 | #359
  360. December 9th, 2021 at 23:06 | #360
  361. December 9th, 2021 at 23:52 | #361
  362. December 10th, 2021 at 08:11 | #362
  363. December 10th, 2021 at 08:22 | #363
  364. December 10th, 2021 at 12:54 | #364
  365. December 10th, 2021 at 17:04 | #365
  366. December 10th, 2021 at 17:55 | #366
  367. December 10th, 2021 at 19:42 | #367
  368. December 10th, 2021 at 20:36 | #368
  369. December 10th, 2021 at 22:48 | #369
  370. December 10th, 2021 at 23:18 | #370
  371. December 11th, 2021 at 02:09 | #371
  372. December 11th, 2021 at 05:52 | #372
  373. December 11th, 2021 at 07:36 | #373
  374. December 11th, 2021 at 08:52 | #374
  375. December 11th, 2021 at 09:21 | #375
  376. December 11th, 2021 at 09:24 | #376
  377. December 11th, 2021 at 13:45 | #377
  378. December 11th, 2021 at 14:53 | #378
  379. December 11th, 2021 at 19:07 | #379
  380. December 11th, 2021 at 20:42 | #380
  381. December 11th, 2021 at 21:47 | #381
  382. December 12th, 2021 at 03:32 | #382
  383. December 12th, 2021 at 07:47 | #383
  384. December 12th, 2021 at 08:06 | #384
  385. December 12th, 2021 at 08:50 | #385
  386. December 12th, 2021 at 14:18 | #386
  387. December 12th, 2021 at 15:13 | #387
  388. December 12th, 2021 at 17:11 | #388
  389. December 12th, 2021 at 19:50 | #389
  390. December 12th, 2021 at 20:07 | #390
  391. December 12th, 2021 at 20:08 | #391
  392. December 13th, 2021 at 01:03 | #392
  393. December 13th, 2021 at 02:21 | #393
  394. December 13th, 2021 at 04:43 | #394
  395. December 13th, 2021 at 05:56 | #395
  396. December 13th, 2021 at 11:35 | #396
  397. December 13th, 2021 at 11:53 | #397
  398. December 13th, 2021 at 12:11 | #398
  399. December 13th, 2021 at 12:59 | #399
  400. December 13th, 2021 at 13:09 | #400
  401. December 13th, 2021 at 13:26 | #401
  402. December 13th, 2021 at 14:07 | #402
  403. December 13th, 2021 at 20:30 | #403
  404. December 13th, 2021 at 20:32 | #404
  405. December 13th, 2021 at 23:25 | #405
  406. December 14th, 2021 at 02:45 | #406
  407. December 14th, 2021 at 07:49 | #407
  408. December 14th, 2021 at 12:19 | #408
  409. December 14th, 2021 at 17:15 | #409
  410. December 14th, 2021 at 18:24 | #410
  411. December 14th, 2021 at 19:29 | #411
  412. December 14th, 2021 at 20:17 | #412
  413. December 14th, 2021 at 20:58 | #413
  414. December 14th, 2021 at 22:38 | #414
  415. December 14th, 2021 at 22:49 | #415
  416. December 14th, 2021 at 23:00 | #416
  417. December 15th, 2021 at 01:34 | #417
  418. December 15th, 2021 at 04:51 | #418
  419. December 15th, 2021 at 06:09 | #419
  420. December 15th, 2021 at 07:01 | #420
  421. December 15th, 2021 at 08:54 | #421
  422. December 15th, 2021 at 15:22 | #422
  423. December 15th, 2021 at 15:58 | #423
  424. December 15th, 2021 at 16:52 | #424
  425. December 15th, 2021 at 18:30 | #425
  426. December 15th, 2021 at 22:30 | #426
  427. December 16th, 2021 at 01:15 | #427
  428. December 16th, 2021 at 02:24 | #428
  429. December 16th, 2021 at 05:49 | #429
  430. December 16th, 2021 at 06:58 | #430
  431. December 16th, 2021 at 07:27 | #431
  432. December 16th, 2021 at 11:02 | #432
  433. December 16th, 2021 at 12:10 | #433
  434. December 16th, 2021 at 14:09 | #434
  435. December 16th, 2021 at 16:57 | #435
  436. December 16th, 2021 at 17:49 | #436
  437. December 16th, 2021 at 18:14 | #437
  438. December 16th, 2021 at 20:47 | #438
  439. December 16th, 2021 at 22:20 | #439
  440. December 16th, 2021 at 22:52 | #440
  441. December 17th, 2021 at 03:20 | #441
  442. December 17th, 2021 at 04:47 | #442
  443. December 17th, 2021 at 08:03 | #443
  444. December 17th, 2021 at 09:27 | #444
  445. December 17th, 2021 at 09:28 | #445
  446. December 17th, 2021 at 09:49 | #446
  447. December 17th, 2021 at 12:55 | #447
  448. December 17th, 2021 at 15:24 | #448
  449. December 17th, 2021 at 15:46 | #449
  450. December 17th, 2021 at 21:06 | #450
  451. December 17th, 2021 at 22:49 | #451
  452. December 18th, 2021 at 00:35 | #452
  453. December 18th, 2021 at 02:17 | #453
  454. December 18th, 2021 at 04:23 | #454
  455. December 18th, 2021 at 06:40 | #455
  456. December 18th, 2021 at 08:17 | #456
  457. December 18th, 2021 at 09:33 | #457
  458. December 18th, 2021 at 13:20 | #458
  459. December 18th, 2021 at 16:14 | #459
  460. December 18th, 2021 at 17:14 | #460
  461. December 18th, 2021 at 20:51 | #461
  462. December 18th, 2021 at 22:20 | #462
  463. December 19th, 2021 at 01:49 | #463
  464. December 19th, 2021 at 08:46 | #464
  465. December 19th, 2021 at 10:39 | #465
  466. December 19th, 2021 at 14:19 | #466
  467. December 19th, 2021 at 14:47 | #467
  468. December 19th, 2021 at 16:19 | #468
  469. December 19th, 2021 at 22:06 | #469
  470. December 20th, 2021 at 02:58 | #470
  471. December 20th, 2021 at 08:25 | #471
  472. December 20th, 2021 at 11:17 | #472
  473. December 20th, 2021 at 19:02 | #473
  474. December 20th, 2021 at 21:09 | #474
  475. December 20th, 2021 at 23:51 | #475
  476. December 21st, 2021 at 06:10 | #476
  477. December 21st, 2021 at 06:22 | #477
  478. December 21st, 2021 at 09:12 | #478
  479. December 21st, 2021 at 16:03 | #479
  480. December 22nd, 2021 at 19:05 | #480
  481. December 23rd, 2021 at 19:54 | #481
  482. December 31st, 2021 at 02:53 | #482
  483. December 31st, 2021 at 13:55 | #483
  484. January 2nd, 2022 at 16:44 | #484
  485. January 3rd, 2022 at 16:44 | #485
  486. January 4th, 2022 at 02:50 | #486
  487. January 4th, 2022 at 04:25 | #487
  488. January 4th, 2022 at 14:49 | #488
  489. January 5th, 2022 at 10:36 | #489
  490. January 6th, 2022 at 04:04 | #490
  491. January 6th, 2022 at 15:47 | #491
  492. January 6th, 2022 at 23:53 | #492
  493. January 8th, 2022 at 09:27 | #493
  494. January 9th, 2022 at 08:27 | #494
  495. January 12th, 2022 at 12:43 | #495
  496. January 13th, 2022 at 12:38 | #496
  497. January 13th, 2022 at 23:27 | #497
  498. January 14th, 2022 at 00:54 | #498
  499. January 14th, 2022 at 15:12 | #499
  500. January 14th, 2022 at 15:27 | #500
  501. January 14th, 2022 at 16:13 | #501
  502. January 14th, 2022 at 16:53 | #502
  503. January 15th, 2022 at 03:28 | #503
  504. January 15th, 2022 at 12:16 | #504
  505. January 15th, 2022 at 12:55 | #505
  506. January 16th, 2022 at 04:04 | #506
  507. January 17th, 2022 at 14:43 | #507
  508. January 17th, 2022 at 18:51 | #508
  509. January 17th, 2022 at 20:39 | #509
  510. January 18th, 2022 at 09:03 | #510
  511. January 18th, 2022 at 18:34 | #511
  512. January 18th, 2022 at 19:22 | #512
  513. January 19th, 2022 at 13:11 | #513
  514. January 19th, 2022 at 16:51 | #514
  515. January 20th, 2022 at 00:17 | #515
  516. January 20th, 2022 at 02:34 | #516
  517. January 20th, 2022 at 13:48 | #517
  518. January 22nd, 2022 at 11:16 | #518
  519. January 23rd, 2022 at 22:49 | #519
  520. January 24th, 2022 at 07:11 | #520
  521. January 24th, 2022 at 08:26 | #521
  522. January 25th, 2022 at 12:14 | #522
  523. January 25th, 2022 at 13:55 | #523
  524. January 26th, 2022 at 04:11 | #524
  525. January 26th, 2022 at 04:50 | #525
  526. January 26th, 2022 at 12:32 | #526
  527. January 26th, 2022 at 13:02 | #527
  528. January 28th, 2022 at 02:21 | #528
  529. January 30th, 2022 at 16:02 | #529
  530. January 30th, 2022 at 17:04 | #530
  531. January 30th, 2022 at 19:44 | #531
  532. January 30th, 2022 at 19:54 | #532
  533. January 31st, 2022 at 05:03 | #533
  534. March 24th, 2022 at 13:57 | #534
  535. March 27th, 2022 at 19:32 | #535
  536. March 28th, 2022 at 12:06 | #536
  537. March 29th, 2022 at 05:06 | #537
  538. March 29th, 2022 at 12:32 | #538
  539. March 30th, 2022 at 09:08 | #539
  540. March 31st, 2022 at 09:24 | #540
  541. April 2nd, 2022 at 07:37 | #541
  542. April 3rd, 2022 at 08:11 | #542
  543. April 3rd, 2022 at 10:16 | #543
  544. April 3rd, 2022 at 20:49 | #544
  545. April 4th, 2022 at 06:05 | #545
  546. April 4th, 2022 at 07:10 | #546
  547. April 6th, 2022 at 06:00 | #547
  548. April 6th, 2022 at 16:31 | #548
  549. April 25th, 2022 at 21:42 | #549
  550. April 27th, 2022 at 14:58 | #550
  551. April 30th, 2022 at 12:04 | #551
  552. April 30th, 2022 at 15:11 | #552
  553. April 30th, 2022 at 16:10 | #553
  554. May 1st, 2022 at 19:55 | #554
  555. May 2nd, 2022 at 08:44 | #555
  556. May 7th, 2022 at 11:38 | #556
  557. May 7th, 2022 at 12:47 | #557
  558. May 7th, 2022 at 13:32 | #558
  559. May 9th, 2022 at 11:11 | #559
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