An environmental legal defense legal strategy that worked!

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.

What personal responsibility does the governor have in creating our current stress?

“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.

The Power of Government Lawyers

Today’s news carries reports about president Trump switching to a team of government lawyers to defend him in an active rape case. I feel bad for the rape victim. I found out firsthand how difficult it is when corrupt politicians use government lawyers against you in a case a few years ago “State of New Jersey vs. Tony Novak et. al”. It is simply overpoweringly. Even if the government attorneys are ethical, they are working for criminals and presenting faulty evidence derived by criminals for political gain.

In my experience, the Attorney General whose name appeared on the docket was probably not even familiar with the facts of the case. He assigns staff lawyers who have no choice but to represent the government whether government is at fault or not. An individual citizen on the other side of the legal case cannot compete in the courtroom packed with highly paid government lawyers. This appears likely to be the case in this Trump rape case where the evidence against him is developing in court but the rapist is now being defended by government lawyers.

In my case, the criminals in government were protected from even being identified and questioned and were not even investigated as far as I know. The government lawyers eventually had to give up their case against me and my family when they realized they could not win. But in both legal cases the taxpayers will pay a huge price to protect corrupt government officials. This is plainly wrong but I realize there is nothing that we as citizens can do to fight this corrupt government practice. Government corruption using the court system as a method to ‘strong arm’ individuals is always a risk to those who challenge powerful politicians.

Four years after storm Jonas

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.

Finding a new strategic plan

In this first week of December I am settling into a regular pattern again after a month of chaos from the move. Not that the chaos is ended, it just that I can clear a half day now to focus on strategic goals.

The immediate plan is to meet and interview people in my new hometown. I’m focused on identifying people who are aware that they can make a difference in the future of their community. What I’m finding, so far, is that I need a more effective approach to convince them to break their routine and talk with me.

Also, Sebastian, my business coach, alerted me this week that my interview technique is pretty much terrible. I figure it will improve with learning and experience; mostly the latter.

Overall, I’m not happy with the pace of this project and today thinking about how I can ‘pick up the pace’. That phrase immediately triggers thoughts of college coaching when that same phrase was used again and again to propel our wrestlers to higher levels of performance. It was clearly a Pavlovian response and appears to still be powerful with me today. It worked once to raise our performance to record setting national championships. Can I harness that power again?

At this point the four step objective of this project is clear:

1. Meet the influentials.

2. Ask about their priorities and goals.

3. Learn about their recent successes and make note of the techniques.

4. Ask about their ongoing struggles, unmet needs and look for patterns that might indicate opportunities for new economic solutions.

Once I’ve collected feedback from at least a dozen people then I will be in a better position to take the next steps to develop a new business plan for myself.

Which door leads to the best path forward?

Sometimes you just gotta do what’s right (update on environmental activism at the bayshore)

“Sometimes you just gotta do what’s right inside and hope that maybe the rest of the world will come around to it. And maybe they will and maybe they won’t, but the truth is, you gotta take care of yourself first,“ – Elizabeth Warren, talking about her own life at a campaign rally, December 1, 2019. Perhaps the strongest statement made in this campaign to date.

Today I finished paying off my legal costs resulting from environmental justice activism in rural southwest New Jersey over this past year. It’s been financially devastating; the lawyers’ costs, court costs, fines. Some, including a judge, have admonished me to keep quiet and stay offline with my social media projects. We are aware that government trolls this web site and presumably all of my activism. The prosecutor for the New Jersey Attorney General said “stop breaking the law” as if I had personally created any of the disasters we face today. The past president of the New Jersey Society of Certified Public Accountants wrote today in reply to my latest editorial “Come on man!”, apparently ignorant of the real life challenges we face as a result of systematic discrimination under the status quo. A New Jersey elected official threatened me at a public meeting in response to a published editorial critical of government a few months ago.

These comments from prominent community members tell me that they have no clue that this is only the beginning of a movement of peaceful lawbreaking protests against environmental injustice against so many in the lower echelon of the economy. No matter what the cost, backing down, keeping quiet and following the law is not an option. State governments will continue to increase prosecutions against environmental activists, whether they are marching in the street like these protestorsor trying to develop sustainable rural communities like me.

To add insult to injury, there is no indication that any of my attention-getting efforts have resulted in any form of economic development or new opportunities for our community. Nobody I know, from our local Cumberland County elected leaders (Derella and other freeholders) all the way up to the governor’s office, has a viable plan to address continued environmental injustice issues here at the bayshore1, 2. It’s just outside of their scope. Local mayors and business leaders do have viable ideas but lack the financial clout to get it done. My support of a proposed New Jersey State bank drew much criticism lately; many (mostly Republicans) are opposed to the wealth treasure mechanism that moves investment capital to riskier but socially supported projects.

In the end, I just have to do what I know is right, and hope that the rest of the world comes around to it. At this time, it’s the only ethical option.

Tony Novak, environmental activist with Baysave, the target of multiple New Jersey prosecutions in 2019


Footnotes:

1Governor Murphy launched an environmental justice exploratory project by executive order in early 2019 I’ve entered written and oral public testimony as part of that project (covered in my other blogs) and I made multiple requests for follow-up conversation but have had no response to my communications.

2People often suggest approaching federal government with environmental justice concerns. I do maintain good working relationships with our current (VanDrew) and former (LoBiondo) Congressman and both US Senators (Booker and Menendez), both individually and through grassroots PACs. But I find that the federal government has relatively little role in the environmental justice issues that affect us locally. These are primarily state government controlled issues.

“Lack of oversight”

Lack of oversight by Florida International University, the Florida Department of Transportation, contractors and engineers is to blame for the deadly collapse of a pedestrian bridge on the school campus in 2018, federal investigators said Tuesday.” – UPI 10/22/2019

The tragic story of the 2018 Florida bridge collapse in the news again today results in each party pointing the blame at another; nobody accepting responsibility for the failure. It reminds me that this is the same rotten behavioral pattern that we see here at Money Island with each government branch or agency and contractor denying responsibility for the overall failure of the oversight but pointing the finger at another. I guess that one of the sobering realities of being an ‘adult’ is that you cannot expect responsible ethical behavior out in the real world.

We don’t have any resulting deaths here yet. But in 2006 my criticism of government for lack of oversight that caused infrastructure failures resulted in death threats against me and eventually, years later, a grand jury indictment for attempted manslaughter planned by government. In the most recent developments, the State Attorney General is willing to blame and sue anyone – literarily “John Doe and Jane Doe” named as defendants in the AG’s active legal action here that closed the marina and hosted businesses – rather than accept responsibility by government itself.

I no longer hold out hope that government will be held accountable for it’s responsibilities, nor its contractors. But I do expect to tell the story so that the truth about environmental injustice at the bayshore is not forgotten.

Our “undocumented” neighbors

A few of our local people are “undocumented” but not in the common usage of the word. They have apparently chosen and managed to live with little government interaction.

The most memorable example of this was a peaceful old man who lived just a few doors away on a branch of Nantuxent Creek. He had a boat and a dock that he built himself. Remnants of the dock are still visible today. He made his living on the water but I wasn’t astute enough then to pay attention to those details. He was poor but not destitute. He did not stand out from any other neighbors in those years. I think that’s the main point.

I remember my NJ-born waterman neighbor, a black man, who died about 15 years ago (2002-2003) in his 80s (he didn’t know exactly how old he was) primarily because had no significant contact with government his whole life. Other seniors in this community remembered him as a child in Newport so his story checked out. But he had no social security card, had avoided the draft, never received medical care except a local doctor. He bragged that he never had a social security card. He drove but never had a drivers license, never paid income taxes, etc. He had a cabin on the water on property that he apparently did not own. (The cabin was almost completely over the water. This would not be permitted today but there was no government enforcement in those days).

I’ll likely remember his name at some future time. Part of the purpose of this blog is to record partial histories so that they are not lost and may later be pieced together. For now, I’m leaving all names out of this published story. The only other thing I remember about him was that he was the only neighbor not connected to the shared water well. I heard that the former well owner did not like him and that perhaps racism was a factor.

An officer from the sheriff’s office asked me about him years later after I presumed or heard that he died. He did not die here. I vaguely recall something about a woman. His cabin was deteriorated from storms at that time. His cabin remained closed up for many years and was eventually demolished by the new property owner. (The new property owner came from Sea Breeze and also died a few years later). I still have a few relics from the old cabin collected after the demolition. The only other thing at the site is a bulkhead that was partly reconstructed later.

The fact is that according to the “law” he was illegal, a lawbreaker, a criminal, undocumented. But to me he was an ordinary pleasant guy who just happened to live here in peace at this remote rural place of Money Island. I helped him occasionally, including once with a medical issue, although I don’t remember any other details.

We still have some people in this bayshore area who live with minimal outside contact. When our kids were young they imagined these neighbors to be fugitives with some dark secret. I’ve come to realize that they are just people who made a different lifestyle choice. The politics of this is heightened with the fear of local ICE raids. Continue reading “Our “undocumented” neighbors”

#WorldMentalHealthDay and environmental justice in New Jersey

Today is noted in news broadcasts as World Mental Health Day. In this past week I’ve had more discussions about mental health than is typical.

The book “The Drowning of Money Island” released October 1 talks about the nervous breakdown of the former business owner who is still one of my closest neighbors. I did not know about this detail until I read the book. I might have guessed the mental stress that came with their post-Sandy bankruptcy. The book also questions my mental status and decisions; a topic best saved for another post.

Two days ago I met with another neighbor, a business owner and engineer, who said that I looked much better now than the last time he saw me. At that time I was in the middle of two brutal legal attacks by the State of New Jersey. Like me, he is struggling to get by day to day. We talked about how the environmental justice struggles of the bayshore have taken a toll on our businesses, our physical health, the compound effect of loss of sleep, and the effect that stress has on deteriorating our marriages and family relationships. We did not directly discuss our own mental health concerns; it seems like just not a thing that guys do.

The main point is that it is not nature that is causing the mental stress around here. We can deal with storms, flooding and lack of fish. Unnecessarily cruel government antagonism, a complete lack of empathy, and sometimes outright criminal behavior is causing the mental stress here.

In the years following Superstorm Sandy I often wrote and spoke about the increase in mental illness, divorce and drug use in our community. It still breaks my heart that I never saw some friends again since the day before Sandy hit. I heard that one later committed suicide. I recall two public meetings where Cumberland County Health Department officials nodded agreement with my anecdotal observations but had little actual data to back these observations.

My observations, again and again, indicate that the increase in mental illness here is a direct result of failures of government to implement fair environmentally just policies. I brought this to the attention of the Governor’s office again this past year. I have yet to receive any acknowledgement of my letters, speeches, emails, calls or social media messages. I conclude that it’s not that the government isn’t getting the message but rather than our officials are deliberately avoiding addressing this difficult issue.

Lessons from “The Drowning of Money Island”

I read Andrew Lewis’ book “The Drowning of Money Island” today. I am reminded that we can learn in at least three different ways from a documentary book like this. I did; and I’ll likely have many The learning aspects are amplified, of course, since I’m reading partly about my own story.

First, I benefited from reading the things I already know. Seeing familiar facts laid out in a book format, organized and interpreted by someone else brings a fresh perspective to understanding these facts. Andy’s analysis, for example, is something that had much more impact in writing than in our discussions.

Second, I benefited from learning new information and details. Andy spent about two years gathering information and conducting interviews. It is natural that he knows more about these topics covered than anyone else. Toward the end of the book-writing process I recognized this accumulated and began asking his opinion as an “expert” whenever a new bay issue came up. The book is loaded with details that I did not know before.

Third is the learning that does not come from what’s written on the pages. This is the analytical part, the real value of reading and structured education. I’ve been hugely influenced by many books in the past and this book will have an oversized impact.

I will comment later on details and lessons learned – some fall in each of these three categories.