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.