After the Drowning of Money Island

This has been the #1 big issue for the past decade and it will become larger issue for us in the future. Author Andrew Lewis who wrote the Money Island documentary predicts that eventually only rich people will be able to live at the bayshore. https://sebsnjaesnews.rutgers.edu/2022/11/living-at-the-shore-after-sandy-should-residents-stay-or-go/

The environmental law case of State of New Jersey vs. Tony Novak, et. al., CUM-C-17-18 was settled in March 2020 but becasue of pandemic related difficulties within the court, the settlement order was delayed until September 2020 and I received a copy of the court’s settlement order in June 2021.

About a decade ago, Baysave agreed to acquire and restore some degraded properties at Money Island, New Jersey. The goal was to transfer them to the state at a low cost. I formalized that offer in writing to the State in early 2012. The land acquisition program manager at Green Acres didn’t even have access to the very low cost (my out-of-pocket expenses) that I was asking. The state asked for more time to consider the offer. The program manager continued to communicate informally for the next five years asking me to be patient while they tried to find funds to acquire the properties. Meanwhile, the cost of maintenance skyrocketed so the deal became much more expensive. Then in 2019 the local township government passed an ordinance to purchase the properties under eminent domain as essential to the community and public good. I would love to se that, but I am understandable skeptical about government’s ability to come up with purchase money.

That original transfer plan was started before Superstorm Sandy that changed everything. Water level rise took out many of the former homes and commercial structures and the state argued that current law gave them control over all of the property that was now under the high tide line that had moved about 75 feet inland since the 1990s.

We believed then, and still believe now, that the courts will eventually hold this government land grab as unconstitutional. The government should not benefit from its negligence to effectively manage the effects of climate change. The book and underlying story of “The Drowning of Money Island” cover the details of the government’s actions in assuming a course of action under the cover of environmental law.

In addition – and I didn’t see this coming – it turns out that the land itself is virtually worthless but the business, environmental research, aquaculture and other uses of the properties are very valuable.

In 2018 the State of New Jersey took the unusual action of suing Baysave, some of its associates, it’s founder, and some of its founders family members. (Some of the named defendants in the do not exist; we pointed that out to the court and Judge Anne McDonnell actually shrugged her shoulders in response).

Some of the defendants initially consulted an attorney for possible defense representation. None actually hired a lawyer for defense, or, at least, no defense attorney representation was entered into court records. I noted several times throughout the process that if the state had directed the money that it wasted on legal costs to actually solving the problem, we would be in good shape now. But for reasons we do not understand, the state elected to sue the environmentalists and run up massive legal bills for both sides.

After these legal consultations, I agreed to be the sole defendant to answer the case. Baysave and the other defendants would accept default judgments if necessary, but I would attempt to assume all the liability and defend the case in a way that vindicated all the defendants. It was a risky move.

Baysave’s directors took a number of defensive actions. Most of those defensive measures remain in effect today. One action was to temporarily transfer title of the properties to Tony Novak, an individual, to answer the lawsuit. I agreed to transfer the properties back when conditions were safe and warranted this.

Now, looking back, I see that this was an effective legal strategy. This is how it unfolded:

First, our environmental consultant who focused on governmental relations, Dr. Edward Mahaney, proposed undertaking a check of my personal credibility and reputation within the NJDEP and other relevant government and legal groups. I had a longstanding reputation of being an environmental activist. In fact, the reason that I was first invited to Money Island was based on successes I had in Ocean City as a sea level rise response activist. In recent years, however, I was involved as a whistleblower in post-Sandy government corruption. Some of that corrupting possibly implicated current or former NJDEP employees, although I did not know for sure. Despite my credibility as an environmental advocate, it was not clear that having me defend pro se was our best possible strategy.

The NJDEP had recently cited Baysave’s exemplary work in living shoreline work at Money Island and has issued permits on our lands for additional restoration below the new higher mean high tide land (that they now claimed control over). That seemed encouraging. Meanwhile, Dr. Mahaney is the former mayor of Cape May who played the pivotal role in the redevelopment of Cape May’s commercial seafood port. The effort was overwhelmingly successful. Money Island is the state’s 2nd most productive seafood landing port with a bright future in the region’s aquaculture transition. I felt that if anyone could lead this effort toward a common sense solution, it was Dr. Mahaney. Dr. Mahaney reported back that I had a good reputation and held some credibility within NJDEP.

That gave us clearance to try this legal defense strategy. Baysave and others executed quit claim deeds on the properties. I filed the sole answer to the lawsuit as a pro se defendant. It was a ‘David vs. Goliath’ situation and I was well aware of the slim chance of success in court against the state.

I filed the sole answer to the lawsuit. The complaint and answer are republished on Baysave’s web site. I addressed the misinformation and perceived maligned actions by some within NJ government. The court did not address these. (I ordered a copy of the court hearing transcript but have not received it yet. Yesterday I asked for help from the court ombudsman’s office. When this is available, I will publish it).

Throughout the case, I pointed out that the information that the NJDEP fed to its attorneys in the Attorney General’s Office was not based in fact. I do not blame the AG, they had a weak case from the start and the attorneys were apparently unfamiliar with the historical facts and case history. There were some well-documented errors and even indication of maligned intent. I had at least two higher level relationships within the NJDEP that I trusted and called friends. One even came down to Money Island and we walked the length of the community together talking about the issues. They offered the same advice that I heard from others: “Keep fighting. You will eventually be successful.”

Today I noticed that the caption of the named defendant on the court filings changed over time. There was no formal release or change of defendants. But the ficticuous named defendants were removed over time. Baysave, the primary initial defendant, was no longer named in the final case closing order. Of course, the “et. al” implies that legally there is no change. But the change in named defendants as typed is significant.

After the case closed, I notified the Attorney General that the properties were transferring back to Baysave. I received angry response email from attorney Knoblauch. He threated to sue again. I confirmed that I did it anyway and gave the reasons for my decision. So far, he has not sued for my post-settlement transfer of the properties back to Baysave. I do not know if there is a stature of limitations on this action, but I feel confident that I could prevail if they sue me again.

The original case caption on filings back in 2018:

The case caption on the closing order as issued September 1, 2020 by the court:

The final order says “there are no current violations”. Baysave adopted a policy to not allow any use that requires a government permit. Our new post-pandemic business plan is beginning to unfold based on activities that do not require a permit and we see a bright future ahead in managing Money Island properties without the burden of the permitting process.

“There’s more stress in our state in our country that I think any of us have ever seen. This is exactly not the time to be going after each other. The stress levels are overwhelming. I get it.” – Governor Murphy’s comment this week in response to a foul-mouthed Trump supporter abusing his family at an outdoor restaurant last week. Despite our state’s many difficulties and his failings and the loud criticism by this crowd, Governor Murphy maintains the highest level of support of any governor in memory. He’s obviously way more popular and more trusted than our last governor who had less than half the voter approval rating. Even president Trump has spoken highly of our governor this year and we know that’s rare for any Democrat. But what does any of this mean to us locally? Here at Money Island, we faced extreme government-created stress long before the pandemic.

Friends know, although I don’t speak of it much publicly, that the limited information I have is that Governor Murphy personally declined to get involved in the litigation by the State of New Jersey against me on the Money Island issue. My information comes through our government relations liaison who is, frankly, the only person I know with personal connections and access to that level of state government. Becasue of the sensitive nature of these relationships, the information I get is always vague. I would never hear, for example, that “on (specific date) (specific person) said (specific quote). I would only hear a sanitized version of a meeting or phone conversation. I was aware that Money Island issues were usually tacked onto discussions and meetings on other matters since we are not a big enough issue to warrant our own communications in Trenton. In that 2018 case against us the state wasted years and countless dollars pursuing a case in New Jersey Superior Court that they could not possibly win, was poorly advised, was opposed by local governemnt, was based on inaccurate case information, and that cost me dearly in health and money. There were viable paths forward outside of litigation yet the information I received in May 2018 was that Governor Murphy personally declined to get involved. That was a bad decision that proved so over time. The state has since dropped the case after wasting time and massive resources that could have been used to solve our problems.

I have no specific information that the Governor or the Attorney General was involved in any decisions. When I did receive information attributable to a specific person in Trenton, the name was always removed. My attempts to identify persons in state government for personal accountability were always unsuccessful. From the early efforts of a low level person to solicit bribes to the high level persons who met with our liaison, I do not have any names.

But from May 2018 until June 2020 the meritless legal case dragged on against us. Based on the very little information I have, I would hold the governor personally responsible for our current state of stress and depression that we all feel now at Money Island.

This week marks four years since winter storm Jonas that brought the most severe flooding in New Jersey in our lifetime. I’ve read anecdotal comments that New York City was “shut down”, and that almost all of Ocean City was flooded.

Here at Money Island almost all of our land was underwater on January 23, 2016. The depth of water at our highest points was astounding. Our marina work truck, a 1984 Ford 350, was parked just outside Bruce’s trailer. It barely escaped being ruined. My elevated tool shed flooded for the first time and so I elevated it further and built an access ramp the following spring.

We know that it will happen again. I feel a little better prepared each time. We still have preparations to make: a ramp of last resort and more elevated vehicle parking. Yet I have the confidence to say that storm flooding will not be a major impediment to the sustainability of Money Island for the remainder of my life. The only real threat remaining after the removal of the majority of residents is government. Government’s actions or inactions in preserving the road and litigating again property owners of partially flooded lots will determine our future.