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Sunday, January 10, 2016

HACKENSACK RIVERKEEPER, INC. AND NY/NJ BAYKEEPER VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION A-1752-12T3


HACKENSACK RIVERKEEPER, INC. AND NY/NJ BAYKEEPER VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION A-1752-12T3
Two non-profit organizations challenged DEP's promulgation of its "public trust rights rule," N.J.A.C. 7:7-9.48, and "public access rule," N.J.A.C. 7:7-16.9, first adopted in 2012, re-codified in 2014, and re-adopted as re-codified in 2015. In Borough of Avalon v. New Jersey Department of Environmental Protection, 403 N.J. Super. 590 (App. Div. 2008), certif. denied, 199 N.J. 133 (2009), we concluded earlier versions of the rules were "not statutorily authorized and therefore invalid." Id. at 597. In this opinion, we conclude that the current regulations are not authorized by case law developed under the "public trust doctrine," or by CAFRA, and invalidate the regulations.