According to the New Jersey Department of Environmental Protection (NJDEP), the common law rule of the Public Trust Doctrine was first codified by the Roman Emperor Justinian around 533 AD as part of Roman civil law, and establishes “the public’s right to full use of the seashore.” One-thousand, four-hundred and ninety-two years later, NJDEP’s own little emperor, Shawn LaTourette, is poised to end the public’s sovereignty over coastal access.
NJDEP has proposed a new rule which would allow them authority to restrict tidal waters and/or the adjacent shoreline to protect threatened or endangered species of wildlife and their critical habitat areas, whether those species are actually there or not. In a nearly 12,000-word proposal authorized by LaTourette, the NJDEP wants authority to circumvent New Jersey’s public trust to prohibit public access to coastal habitats, all in the name of protecting “threatened” and “endangered” species.
“These coastal habitats include critical habitat areas that support various stages of a threatened or endangered species’ life cycle, such as foraging, breeding, nesting, and overwintering behaviors,” the proposed rule states, adding “Everyday human beachgoing activities significantly impact the success of these crucial life cycle stages, jeopardizing the continued survival of these species.”
The proposed new rule spearheaded by commissioner LaTourette and the “endangered species” folks inside the NJDEP would further erode the concept of the public trust doctrine, giving unelected bureaucrats, today and in the future, the authority to identify “critical habitat areas” where members of the public should not be allowed to tread, and it’s all thanks to the New Jersey legislature!
As described in a legislative bill introduced in 2018 by New Jersey senators Robert Smith and Christopher “Kip” Bateman, “The public trust doctrine establishes the rule that ownership of land flowed or formerly flowed by tidal waters is vested in the State to be held in trust for the people, that the public has the right to tidal lands and waters for navigation, fishing, and recreational uses.” The same Smith/Bateman bill (A1074) also awarded power to the NJDEP to “restrict public access to tidal waters and adjacent shorelines to protect critical habitat areas from injurious uses, or threatened or endangered species or their habitat areas from injury or injurious uses.” Third and final passage of the Smith/Bateman bill came on June 21, 2018 in a 36-4 vote allowing the NJDEP to violate the public trust doctrine wherever the deem a “critical habitat area” in need of advanced protection.
Rather than list the names/parties of the 36 state senators who voted to give NJDEP the power to decide when, where and how the public trust doctrine applies, it’s easier to give props to the four state senators who stood in opposition to this hostile takeover of the public trust; my thanks to state senators Paul Sarlo and James Holzapfel, as well as former senators Jeff VanDrew (now a U.S. Congressman) and Chris Connors (retired).
With less than a year left in his reign of terror as Governor Phil Murphy’s hand-picked environmental czar, LaTourette is taking another parting shot at coastal anglers in hopes of leaving a legacy for NJDEP to restrict tidal waters and/or adjacent shoreline whenever threatened or endangered species are in a bureaucratically defined critical habitat area, or even when, as the rule states, they might be “anticipated to use” one of these areas. The proposed rule acknowledges the legislature’s 2018 vote, while recognizing the Smith/Bateman legislation as stating “the public trust doctrine has some limitations.”
Find the official Notice of Rule Proposals at dep.nj.gov/rules/notice-of-rule-proposals – the final deadline for comment is February 13. You can also read portions of an official letter written by George Browne on behalf of Berkeley Striper Club, Hudson River Fishermen’s Association, New Jersey Beach Buggy Association, Jersey Coast Anglers Association and The Fisherman in our News Briefs.