WolfeNotes.com

Abuse of OPRA is now looking a lot like a coverup

Crowd-sourced Funding Request

One day after a scathing Sunday Bergen Record story exposed the DEP’s scheme to deny the public access to public records regarding the bear hunt – including criticizing DEP’s failure to respond to press inquiries about the proposal – the DEP just notified me that I must pay $271.64 in “special service fees” for access to public records I requested regarding the DEP’s development, review and approval of the controversial proposal.

The Director of DEP’ OPRA Office – who acts under the direction of DEP Commissioner McCabe – wrote the following reply to my OPRA request:

For Request Items # 1 through # 4, the NJDEP is applying a special service fee pursuant to OPRA (C.47:1A-5) due to the nature of the record type, the extensive number of records that would be “Deliberative” and within “Attorney-Client privilege”, and the extraordinary efforts required to review the potentially responsive email records and produce the responsive disclosable records. The NJDEP estimates that it will take approximately 6.7 hours for the Division of Law to review the potentially responsive email records for privilege concerns for a total estimated special service fee of $271.64.

That’s mostly non-sense, an abuse of OPRA, and a bureaucratic move to prevent the release of embarrassing information to the public.

As I’ve noted, I’ve been involved in dozens of DEP rule proposals since 1985 and am intimately familiar with the detailed steps of and documents produced during DEP’s internal rule development and rule proposal process.

I understand the critical public documents that are produced by DEP, including documents that reveal critical scientific, legal and political information, including documents that expose internal disagreements over science, law, and policy, and include potentially embarrassing information.

So, based on this knowledge, I filed an OPRA request for the following documents with respect to the controversial bear hunt secrecy scheme.

The specific public records I requested in #1-4 below are all mandatory steps in the formal DEP rule-making process, so I know these documents exist:

1) DEP communications with the Office of Administrative Law (OAL)

2) DEP communications with the Attorney General’s Office

3) DEP communications with the Governor’s Office

4) Communications between the Division of Fish and Wildlife, Office Of Legal Affairs, press office, and the Commissioner’s Office

Very few people realize that, for example, all DEP rule proposals must: (Source: DEP Rule-making Manual and various laws, regulations and Executive Orders)

1) explicitly consider “policy”, “economic”, and “political” implications;

2) be sent to and are reviewed by the Governor’s office prior to proposal in the NJ Register;

3) be sent to and are reviewed by the Governor’s office prior to legal adoption by DEP; and

4) be developed with the review, consultation, and input of a broad range of “stakeholders”, prior to proposal

5) consider and respond to public comments submitted on the proposal, including political ramifications (and the Gov.’s Office must be briefed on all this too);

6) involve the press office (prior to and at the time of proposal) – as a way to get the talking points and message (AKA “spin”) coordinated within the DEP and Governor’s Office.

The DEP rule making process – by design-  is not some purely scientific and/or legal enterprise.

Yet, the political backstory of a rule making initiative is rarely ever discussed publicly or covered by the media – and a Governor is rarely held accountable for DEP regulatory policy initiatives.

My OPRA was designed to tease out and publicly disclose these internal debates that DEP always hides and is now trying to cover up.

It is totally unacceptable for DEP to now abuse OPRA and impose huge “special service fees”, especially because they know that I am effectively retired and have no income and can not afford to spend that kind of money.

Worse, on top of that OPRA abuse, DEP is signaling that they will invoke sham “deliberative” and “attorney client” privileges to deny many public records that I do pay for.

Finally, the DEP’s rationale for imposing the “special service fees” is total sham – I am not requesting, as DEP claims, an “extensive number of records” and they would not be required to undertake an “extraordinary effort” to disclose them.

OPRA Item #1 is a DEP memo to the Office of Administrative Law. Unless there were technical flaws with the proposal, there would only be a short memo from OAL to DEP confirming upcoming NJ Register publication dates.

OPRA Item #2 is not likely a large number of records, unless there was a significant legal debate within the AG’s Office as to the legality and wisdom of this DEP secrecy proposal.

If that is the case, the public should know about it. But these records would likely be withheld as “attorney client privileged”. Still, the OPRA denial would require a “privilege records log”, showing the dates and number of emails and documents, the authors and recipients, and the subject headings. This is very important and quite revealing information.

OPRA Item #3 is comprised, at a minimum, of a DEP briefing memo to the Governor’s Office. That memo would include what DEP views as the political implications of the proposal. It also might include the response and policy direction by the Governor’s Office.

Who signed off on this scheme in the Gov.’s Office?

Again, while this is potentially politically embarrassing material  this is not a large number or volume of documents, as DEP claims.

This too is likely to be denied as “executive privilege” or deliberative privilege”, but still, important information would be revealed to the public by this disclosure, redactions, and the privilege log.

OPRA Item #4 would reveal the real views of DEP Fish and Wildlife professionals, including how they make decisions, the science they rely on (or fail to consider), and their views about public oversight of their work. 

I can’t exaggerate the importance of this information, almost all of which could not be withheld by DEP as executive, deliberative, or attorney-client privileged because it is factual material that formed the technical basis of the rule proposal.

So, we now must consider how to raise the money to pay DEP fees.

Is there any appetite from folks in making financial contributions to this effort?

If so, shoot me an email and I will advise DEP that I’ll make the payment.

[End Note: I’ve filed scores of OPRA’s over many years – involving many thousands of pages of DEP documents – and this is the first time DEP ever pulled this stunt.]

DEP ADMITS THAT RULE TARGETS ANTI-HUNT PROTESTERS

Activists should reach out to legislators and seek oversight hearings and a legislative veto of the rule as inconsistent with legislative intent under OPRA and NJ State wildlife laws.

Veteran reporter Rich Cowen of the Bergen Record wrote a killer story today, exposing the Murphy DEP’s scheme to throw a huge secrecy blanket over their black bear data, science, and management, read the whole thing:

• NJ DEP doesn’t want you to know where the bears are

We broke this story back on March 4 and I more recently spoke with Cowen, so I was pleasantly surprised to see that I was not only given a quote but a link to the original Wolfenotes post.

In that post, I criticized the proposal for improperly targeting anti-hunt protesters and lacking any factual justification:

Using secrecy to frustrate the exercise of constitutionally protected activities under the guise of protecting public safety is a disgrace….

This proposed [OPRA] exemption seems not only very broad, but poorly justified – there are literally no facts or evidence provided to justify the proposal.

So I was stunned to read that DEP confirmed that the proposal specifically targeted anti-hunt protesters: (Record)

DEP spokesman Larry Hajna said the intent is to keep people from interfering with wildlife management. He pointed to an incident last October, when two anti-hunt protesters, Catheine McCartney, 50, and Mark Nagelhout, 43, were arrested for freeing a bear cub from a trap that Fish and Wildlife had set outside a condominium complex in Vernon. Both were recently found guilty in Vernon Municipal Court of obstructing a government function.

But as I suspected, when asked by Cowen, DEP failed to provide any science based justification for the proposal and did not defend their total failure to consult with and include the public prior to proposing the rule.

DEP also refused to even respond to questions Cowen asked them. I was very pleased to see Cowen call them out for this underhanded stonewalling:

When questioned, the DEP itself has been less than forthcoming about the potential impacts of the rule change. [DEP’s] Hajna declined to answer any specific questions about the change, and also would not comment on whether the department had done its best to engage the public. 

Of course DEP refused to comment – they not only had not “done their best to engage the public”, they intentionally shut out the public. And Cowen did a good job in exposing that bad faith as well:

Bill Wolfe, a former DEP official who now writes a blog, WolfeNotes.com, recently wrote a letter to DEP Commissioner Catherine McCabe asking her to re-open the public hearing. He cited Executive Order No. 2 signed by Governor Christie and still in force, that requires the agency to aggressively reach out to the various stakeholders and interested parties to gather as much input as possible.

Wolfe said the process has been marred by a lack of transparency.

“The public has been blindsided by this,” Wolfe said. “The bear hunt has been a controversy in this state for what, 15 years? There’s been protests, litigation, people getting arrested. It’s unprecedented that a rule of this significance would get no public input at all.”

Wolfe said the rule would undoubtedly favor hunters by giving property owners special access to information that was once available to everyone.

We don’t often get such good coverage and rarely do reporters call out the DEP press office for stonewalling them.

In my letter to DEP Commissioner McCabe, I was just trying to buy some time to build public awareness, media coverage and opposition to emerge and organize.

In terms of next steps, activists should understand that DEP is not likely to extend the public comment period and hold another public hearing, and even less likely withdraw this proposal.

Once a rule is proposed, it is hard for DEP to admit they were wrong and walk it back. The best they could hope for would be for DEP to just quietly let it expire after 1 year.

But activists should not passively wait and see.

They should organize, agitate, and reach out to legislators and seek oversight hearings and a legislative veto of the rule as inconsistent with legislative intent under OPRA and NJ State wildlife laws.

I don’t know her position on the bear hunt, but Senator Weinberg has been a leader on OPRA reforms so folks might want to contact her.

More to follow on the arguments to support those legislative veto requests.

US Forest Service Does Its Part In The War On The Poor

Late Wednesday afternoon, on a suggestion from a local hiker, we arrived in Prescott National Forest.

It’s nice to be back in the forest, after months in the desert and along the pacific coast.

It had rained hard on Tuesday night and there were patches of snow along the road and packed in the mountains. The forest service road was muddy and getting steep.

Because I’ve already learned that the bus is not good in the mud and as it was getting dark, we pulled off the road and parked in what was clearly previously used as a campsite (e.g. a large parking area and fire ring). I then walked the dog a mile or so to find a better campsite. About 1/4 mile down the road, there were several designated dispersed campsites, but they were littered with trash.

No thanks. We went back to the bus for the night.

We’ve been on the road two years now, about a third of that time spent dispersed camping in dozens of National forests. During that entire time, we never once saw a US Forest Service Ranger in the forest.

So we were surprised to be awakened at the crack of dawn Thursday morning by a US Forest Ranger.

He advised that I was not in a designated campsite and therefore illegally camped.

I responded that I had been camping for 2 years in US Forests and thought that the dispersed camping rules prohibited off-road disturbance of vegetation and merely restricted camping to sites where there had been previous disturbance – for a maximum of 14-21 days, depending on the forest (a time restriction that rarely is enforced).

The Ranger advised that I was in a “Wildland-Urban Interface” (WUI) where dispersed camping was restricted to designated campsites, for a maximum of 7 nights during a 30 day period.

He said that USFS makes the WUI designation based on proximity to dense population, where heavy demand and heavy use created “impacts”.

Curiously, he seemed to ignore the “impacts” of the clearcuts and forest thinning projects nearby as well as the water quality impacts of road construction and maintenance. I also noted on my walk the night before that “designated dispersed campsites” were less than 25 feet from sensitive headwater streams!

I guess those “impacts” – created by the US Forest Service – don’t count.

The Ranger then asked for my drivers license and said he would issue me a warning instead of a ticket. He gave me a brochure on the Prescott NF WUI program.

While, based on the science, it seems that USFS is most legitimately concerned about wildfire risks to adjacent urban areas, in the Prescott WUI I think other non-scientific social and political factors are motivating the dispersed camping restrictions.

Specifically, I saw a lot of really nice houses along the ridges surrounding the forest.

Like I’ve seen across the country, I also saw a lot of homeless people living in cars, vans, and RV’s.

The Prescott WUI brochure says nothing about fire risks to neighbors, but does say this: (emphases mine)

The Prescott Basin is often referred to as a wild land-urban interface (WUI) are because the forested public lands are adjacent to the urbanized areas of the greater Prescott community.

WUI areas typically experience greater human impacts due to increased visitor use and demand for recreation than other National Forest System lands. This is why dispersed camping is only permitted in designated dispersed camping areas for 7 days.

Of course I could be wrong, but my guess is that the wealthy owners of those homes on the ridges have political clout and really hate seeing the riffraff driving by and camping in “their backyard” view-shed.

My guess is that the USFS WUI designation is in response to wealthy neighbor complaints seeking to keep these homeless people out of their “backyards”.

If so, its just one more example of the war on the poor and homeless.

Longtime Trenton Insider Unconditionally Featured By NJ Spotlight

Business Group Brags About Revolving Door 

Ray Cantor, longtime Trenton insider

[Update below – “Lies are good for business”]

Two days in a row now, NJ Spotlight has quoted Ray Cantor, who was recently installed as a Vice President at the NJ Business and Industry Association (NJBIA).

No doubt, those quotes shaped the NJ Spotlight coverage, while displacing other critical voices from the story.

(In fact, NJ Spotlight seems to have done a complete U-Turn in how they reported the public access story, i.e. see this prior coverage. Did Cantor spin that – like he spun the Christie DEP rules? Or was the favorable coverage today a result of Tim Dillingham’s cowardly and corrupt fold? –

Update: A Trenton reader wrote me to say the amendments were drafted by Cantor and conveyed to DEP and on to legislators from the DEP. Sounds plausible, but I have no evidence to back that up.)

The first was regarding stormwater legislation and the second was about legislation regarding public access to NJ waterfronts.

Both quotes provided no context for readers to learn about who Mr. Cantor is, what he has worked on, and who he has represented.

Curiously, both quotes by NJ Spotlight failed to mention Mr. Cantor’s very recent and very controversial roles in both issues he was given quotes on.

Even NJ ethics rules restrict post employment work – I think there is a one year period during which high level state officials are prohibited from lobbying on issues they worked on while in State government. That post employment restriction is worthy of mention in Cantor’s case. Is he in compliance?

Because we believe readers need context and good information to judge the credibility of news sources and should understand how Trenton operates, we thought we might provide some of that important context.

Ironically, Cantor’s recent installation at NJBIA was announced by a fellow revolving door boss, Michele Siekerka, formerly a politically appointee and Assistant Commissioner in the Christie DEP.

Either NJBIA is tone deaf about the “optics” and ethics of revolving door abuses, or they are bragging with impunity about undue influence peddled by their Trenton insiders.

But at least NJBIA – in contrast to NJ Spotlight – honestly disclosed Cantor’s background:

Cantor, a former assistant commissioner and, later, chief adviser to the commissioner of the Department of Environmental Protection, will lead NJBIA’s advocacy efforts on environmental and energy matters affecting the business community, effective Feb. 11, Siekerka said.

I first met Mr. Cantor in the 1990’s, when he served as staff to the Senate Environment Committee, Chaired by Hank McNamara.

While I rarely agree with him, I like him personally and he is smart, hard working and competent.

But, Ray is essentially a hack: he aggressively and often effectively represents his boss’ interests, often regardless of the science, the public interest and the facts.

More recently, Cantor was involved in highly controversial disputes, yet somehow managed to dodge any personal accountability for a series of high profile train wrecks, such as:

1. The US EPA took a highly unusual step and wrote a letter to call out Cantor’s false testimony to the legislature.

2. Cantor was involved in Christie’s Bridge-gate and was interviewed by Mastro. He personally was involved in promoting development in Hoboken and using his DEP position to accommodate the regulatory needs of the Rockefeller Group. For a link to Cantor’s Mastro interview summary and other details, see this post.

3. Cantor was the DEP point person on the highly controversial Christie DEP rollback of public access rules – this role is directly relevant to contextualize his NJ Spotlight quote today. I wrote

Cantor opened the hearing, repeating DEP’s continuing pattern of half truths and misleading spin. He claimed that the Department’s intent is exclusively to expand and “maximize” public access and respond to the Avalon Court decision.

He thinks we are stupid.

Sounding like an Israeli right winger defending illegal settlements as “facts on the ground” in Palestine, Cantor claimed that current public access restrictions are a function of geography and history, and that DEP is powerless to change that.

Cantor claimed that no current access will be lost, but did not say how that claim is supported by the proposed new rules or how it would be enforced. Cantor claimed that in the proposed “Municipal Access Plan” approach, that DEP was not delegating any powers to local government because DEP could reject local plans. He then went on to respond to critics, basically claiming that they were misinformed.

4. Cantor was the DEP point person on the highly controversial Christie DEP rollback of the Highlands septic density standards, as I wrote: (that’s Cantor presenting and spinning the rollback)

5. Cantor was the DEP point person for the highly controversial Christie DEP rollback of the stream encroachment and Category One stream buffer rules – this role is directly relevant to contextualize his NJ Spotlight quote yesterday. I wrote:

By repealing the SWRPA, the DEP is eliminating the only linkage between stream encroachment permit requirements and Surface Water Quality Standards.

Today, DEP gave conflicting responses to this criticism. Ray Cantor and Ms. Kopkash claimed it was resolved in the adoption document, but contradicted themselves by later by saying it was resolved in the Concurrent proposal.

Both claims are false.

In all these debates, Cantor was less than honest and constantly spun, misled and manipulated the public, the media and legislators about the true objectives and impacts of the relevant Christie DEP regulatory rollback initiatives.

So, I was not surprised to learn of Cantor’s career move to the NJBIA – he’s been representing business interests in the Republican party, the legislature, the DEP and the media for a long time.

But what I am surprised and disappointed by is the bold impunity with which NJBIA essentially openly brags about revolving door abuses of the public interest.

Just as bad – no, worse – is Tom Johnson’s embrace of a longtime Trenton insider, and giving him a platform to continue to mislead readers and the public about issues essential to the public interest.

That’s beyond lazy journalism – it is just more evidence of the corruption endemic in Trenton circles. 

[Update – the Cantor story reminds me of a prior exchange with Dennis Toft, where I concluded “Lies are good for business” (just ask Boeing about that – snark)

Lies are good for business

The lead witness for the business community (Chamber of Commerce, NJ BIA, NAIOP) at yesterday’s Senate Environment Committee hearing on a Resolution (SCR 66) to veto the Christie DEP’s proposed flood hazard rules was lawyer Dennis Toft – previously with the disgraced law firm Wolff & Samson –  a man I have described as a “heavy hitter”.

During his introduction, Chairman Smith praised Toft as “the best environmental attorney in the state”.

Take a look at all the damage Toft has done to protections of public health and the environment during the Christie regime:

• Wolff & Samson Lobbying of DEP Is Directly Related to The Port Authority Harrison PATH Project Redevelopment
• Wolff & Samson Helped “Transform” DEP Enforcement Policy
• Wolff & Samson Has Multiple Inside Tracks with the Christie Administration
• Christie Cronies Doing Well, Law and Ethics Be Damned

Toft testified that the C1 steam buffer regulations (SWRPA) the Christie DEP rolled back were a major barrier  to redevelopment. Toft testified:

“… within 150 feet you could do nothing. … There has been no process to redevelop those sites. Developers are stymied because they can’t go within 150 feet.  The rules eliminated the hardship exemptions.”

Smith challenged Toft’s claim regarding the lack of a process to be granted a hardship waiver.

DEP agreed with Smith, but was unable to answer Smith’s question about how many hardship waivers were granted.

Later in the hearing, during my testimony, I noted that Toft’s claim that C1 buffer rules served as a barrier to redevelopment was false, because the rules do not apply to previously disturbed land. Redevelopment within the existing disturbed footprint is not restricted by the C1 buffer rules (and there are not many C1 waters in urban areas anyway).

I also noted that Toft’s claim “within 150 feet you could do nothing” directly contradicted DEP Ray Cantor’s testimony that so many waivers were issued that DEP had to make it easier to get them.

After the hearing, in the hall outside the hearing room, I ran into Mr. Toft, who told me that I should continue to mention his name on my blog, because it was good for his business.

A beautiful end of 3 days of heavy rain and cold at Roosevelt Lake recreation area.

After freezing our asses off in the rain for 3 days – almost got stuck in the mud getting out of the desert – we headed northeast to Payson.

We hit snow in the mountains there – frying pan to fire.

So we were delighted by the warmth in Phoenix.

We’re now in Agua Fria National Monument – part of an awesome landscape:

A grand tour!