WolfeNotes.com

It is inconceivable that any of this could possibly be the intent of the legislature in passage of OPRA and NJ’s wildlife management laws.

I just submitted the below email request to DEP Commissioner McCabe.

[edit – criticism deleted. I sent to wrong McCabe email address]

I urge others to write similar letters and contact legislators to call out this latest DEP abuse.

Dear Commissioner McCabe:

I am writing to request that you re-open the public comment period on the Department’s proposed rules regarding OPRA exemptions for certain DEP records, including those related to black bear management.

The proposal was published in the December 17, 2018 NJ Register, during the holidays. A public hearing was held on January 31, 2019 and the public comment period closed on February 15, 2019.

As you know, there is no issue before the Department that has been more controversial, been subject to more media attention, public concern, and litigation, including numerous public protests and acts of non-violent civil disobedience than the issue of black bear management.

The people of NJ care deeply about how the bear population is managed by the Department.

Therefore I – and many others involved in the issue of black bear management – were shocked to learn of the proposal just yesterday.

I was not aware of any stakeholder outreach conducted by the Department in developing this proposal.

As you know, such pre-proposal stakeholder review (i.e. “advance notice of rules“) is mandated by Gov. Christie’s Executive Oder #2 – which has not been repealed by Gov. Murphy and therefore still legally applies to executive branch agencies – which provides in pertinent part (emphases mine):

https://nj.gov/infobank/circular/eocc2.pdf

1. […], State agencies shall:

a. Engage in the “advance notice of rules” by soliciting the advice and views of knowledgeable persons from outside of New Jersey State government, including the private sector and academia, in advance of any rulemaking to provide valuable insights on the proposed rules, and to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted.

I was not aware of any press releases issued by the Department regarding this proposal.

I also am questioning the timing of the Department’s posting of the proposal on the DEP’s website – it seems that it was posted after the public comment period closed.

Finally, basic fairness and good government practices would discourage proposal of such a significant, novel, and controversial regulation, with so little public knowledge or involvement prior to the proposal. The Department’s public outreach in proposing this rule was totally deficient and completely undermines public trust and confidence in the Department.

In addition, contrary to the objectives of OPRA to maximize public access to and disclosure of public records, the proposal would create a novel interpretation of OPRA, one that severely limits the public’s access to important information regarding the Department’s policies, programs and practices, while at the same time, providing critical information to private landowners that could be used to assist hunters in locating, tracking, and killing bears and generating economic windfalls (e.g. sale of access privileges to private lands).

It is inconceivable that any of this could possibly be the intent of the legislature in passage of OPRA and NJ’s wildlife management laws.

Accordingly, I strongly urge you to file a public notice that extends the public comment period on the proposal an additional 60 days.

Sincerely,

Bill Wolfe

Proposal would help hunters locate, track and kill bears

Proposal would keep DEP bear management practices secret

We will be seeking legislative oversight and veto, because it could not possibly be the legislature’s intent to authorize DEP to keep important bear management policies and practices secret, while helping hunters track and kill bears.

Apparently I’m not the only one who missed DEP’s December 17, 2018 controversial bear hunt secrecy proposal – which was published during the holidays and New Year. My friends at Sierra Club and the Animal Protection League of NJ missed it too. I suspect very few people were aware of this.

Given the intense public and media controversy about the bear hunt, I’m baffled as to how that happened and was allowed to happen by DEP.

I strongly suspect bad faith on the part of DEP and that this proposal was intentionally stealthed to avoid public awareness. Here’s why:

I’ve been working on DEP regulations for over 30 years, both as a DEP policy analyst and rule drafter and as a public interest advocate in the environmental community.

I am intimately familiar with the nuts and bolts of how DEP internally  develops regulatory proposals, including how they are vetted by DEP managers, reviewed and approved by the Attorney General’s Office and sometimes the Governor’s Office (for major or controversial rules), and how they are conveyed to the Office of Administrative Law for publication in the NJ Register.

Over the years, to their credit, DEP has developed additional mechanisms to expand public awareness and invite public participation in rule making, beyond the minimum legal requirements of publication in the NJ Register.

These mechanisms include: 1) informal “Stakeholder” consultations prior to formal rule proposal; 2) press releases; 3) electronic  list serve distribution of rule proposals; and 4) publication on the DEP web page.

I try to follow DEP rule making very closely.

I am on DEP’s rule electronic list serve and I regularly check the DEP “current proposal” webpage.

Most recently, I accessed that DEP webpage to review the DEP’s December 3, 2018 stormwater rule and the December 17, 2018 RGGI rules. I also received an electronic heads up from DEP on both those proposals.

With respect to the Murphy DEP, I’ve :

• monitored and harshly criticized their regulatory inaction with respect to proposing rules
• filed several OPRA requests that have been denied and been harshly critical of their OPRA practices
• criticized DEP’s  bear management policies

The current controversial proposal is a trifecta: it hits all three of these issues I’ve been following closely and writing about.

I’ve also criticized DEP’s pre-proposal “Stakeholder” consultation process – which apparently didn’t happened on this bear hunt rule.

I’ve even monitored and criticized the Murphy DEP’s press release and website posting practices.

So, with that issue focus, how did I possibly miss all this?

How did I miss the DEP electronic list serve notice?

How did I not see the proposal on the DEP webpage?

Well, I don’t think I missed them.

I strongly suspect that DEP failed to provide electronic list serve notice and published the proposal on the webpage recently, after the public comment period had closed on the proposal.

If so, that would be incredible bad faith on the part of DEP.

And DEP did not issue a press release about this controversial proposal either to give the public a heads up about what amounts to a radical new secrecy policy.

That is further evidence of a conscious effort to stealth this controversial secrecy proposal.

We will get to the bottom of this – and find out whether I (and many others) just failed badly and missed this, or whether DEP intentionally stealthed it.

We will be seeking legislative oversight and veto, because it could not possibly be the legislature’s intent for DEP to keep important bear management policies and practices secret, while helping hunters track and kill bears.

Note to the legal eagles out there: the proposal is also vulnerable to lawsuit on at least 2 grounds:

1) as arbitrary and capricious because it lacks any factual basis; and

2) as not authorized by, inconsistent with, and thus a violation of OPRA.

We’re northeast of Tucson, somewhere near Oracle, Az – sunny and quite warm the last 2 days (75-80 degrees).

That sure beats the 10 degree nights and 10 inches of snow we got the week before in Bisbee, Az.

Just passed a sign for “Biosphere 2″ – sounds creepy to me.

Pretty harsh landscape – Bouy takes refuge in the shade of the bus.

We weren’t here for half an hour before the crows checked us out. A pair circled just 30 feet overhead three times – so close their wings sounding “whoosh, whoosh, whoosh”. Shortly after, the pair was joined by a third crow and they returned for two more circling rounds.

Lots of cactus hazards on the desert floor, he got several wicked thorns in his paws this morning. Pulling them out was painful and I got stuck and bleeding too.

The coyotes yipping at sunrise really set him off this morning. Of course, as soon as I opened the door, he bolted out after them. I thought he was going to get eaten alive by the pack. But he came back 15 minutes later, tongue hanging out and panting for water.

I’m reading “How The Canyon Became Grand“ by Stephen Pyne – a cultural and intellectual history of the Grand Canyon.

I heard Pyne speak as a panelist at the Tucson Festival of Books last weekend. More on that in a subsequent post.

[Update: As we were enjoying the sunset, about 30 cows just wandered through. Bouy freaked out, of course. Lucky to get him back on the bus before harm was done.]

Proposal would frustrate anti-bear hunt activists and benefit private landowners & hunters

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

[Update: 3/24/19 – Rich Cowen of the Bergen Record wrote a killer story today:

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

[More Updates below]

I just noticed this December 17, 2018 DEP rule proposal – but unfortunately the public comment period closed on February 15, 2019.

The Murphy DEP is seeking to exempt certain DEP records from NJ’s Open Public Records Act (OPRA) law.

The intent of OPRA was overwhelmingly to promote public disclosure of public records, so any regulations to implement the specific exemptions the Legislature did provide in OPRA should be narrowly construed and be considered an option of last resort.

This proposed OPRA exemption caught my eye – it would exempt certain DEP records from OPRA. But while exempting from OPRA and thereby keeping these records secret to the public, the DEP proposed to allow private landowners to get them:

The doesn’t seem to meet narrow construction and last resort tests, and I’m curious if the anti-bear hunt activist interpret it the way I do:

1. as targeted at anti-bear hunt activists (under a sham pretext of protecting public safety)

2. designed to frustrate their anti-hunt activism and shield DEP bear hunting and bear management actions from public scrutiny and accountability; and

3. to benefit private landowners who allow hunters to access their land (keep in mind that the Murphy DEP allows bear hunt on private lands, but not public lands).

Here is the DEP’s explanation of why they seek to keep certain public records – specifically including those related to DEP black bear hunt and bear management practices:

Proposal would increase protections on 749 miles of “exceptional quality” waters

But, it is not nearly as good as it sounds

The Murphy DEP finally proposed a real regulation – real in the sense that it provides enforceable and measurable protections for NJ’s environment. (sorry folks, the RGGI proposal fails to meet both those criteria).

The Murphy DEP just proposed significant expansion of Category One protections for 749 miles of exceptional water quality streams – read the proposal.

The Murphy DEP proposal includes all the C1 candidates (121 miles) identified and listed by Christie DEP in a Nov. 2012 Report, plus 628 additional miles, many  in South Jersey. 

That Christie DEP Report – surprisingly – explicitly validated the prior and original 2003 McGreevey DEP designation methodology. But the Christie DEP never proposed upgrades of the C1 candidates identified by DEP scientists.

The BAD NEWS is that Murphy DEP failed to close huge loopholes in Category One stream buffer protections adopted by Christie DEP rollbacks. This was a perfect opportunity to do that. Therefore, the C1 protections are far less significant and protective than former C1 upgrades.

Finally, the Murphy DEP did not propose any C1 upgrades on the basis of “exceptional water supply”. I’m not sure what explains that, but our water supply source waters clearly need additional protections from pollution and development.

So, I hope the environmentalists and the media keep these flaws in mind in their praise of this proposal.

It is not nearly as good as it sounds.