Flemington, NJ 08822
908-832-2400 Phone/Fax
www.NJForestry.org
Via email and USPS
October 16, 2023
New Jersey Highlands Council, Members and Staff
c/o Ben Spinelli, Executive Director
100 North Road
Chester, NJ 07930
ben.spinelli@highlands.nj.gov
cc: Gabrielle Gallagher, Esq., Chief Counsel
(gabrielle.gallagher@highlands.nj.gov)
Re: New Jersey Forestry Association Comments
Regarding New Jersey Highlands Council’s Draft
“Best Management Practices for Forestry in the New
Jersey Highlands Region”
To All Members of the New Jersey Highlands Council:
The New Jersey Forestry Association, Inc. (the “NJFA”)1 is very concerned about
the New Jersey Highlands Council’s draft, identified as “BMPs2 for Forestry in the New
Jersey Highlands Region” and hereby voices its opinion, as follows, objecting thereto.
In our view, these BMPs are devastating to virtually all landowners in the
Highlands Act geography, are in contravention of the Highlands Act, violative of sciencebased
principles and practices of responsible sustainable forestry, potentially force
violation of the Farmland Assessment Act by thousands of property owners, render
properties in the Highlands Act geography valueless, and constitute a taking without just
compensation.
1 The NJFA, a 501(c)3 organization, founded nearly fifty years ago (with historic roots extending back to
1895, with the launch of the publication, The New Jersey Forester), is dedicated to the wise use,
conservation and scientific management of the private and public forest resources of New Jersey, now
and for future generations.
2 BMP is the abbreviation for Best Management Practices. We refer to them as “identified as,” since, in
our opinion, they do not reflect (and ignore) the input of many trained, credentialed, experienced, forest
management professionals and recognized organizations.
The New Jersey Highlands Council
October 16, 2023
2
In summary, these BMPs ignore and for practical purposes virtually prohibit the
employment of recognized, accepted and proven science-based forest management
practices – thereby damaging the long-term resiliency and sustainability of forests within
the Highlands Act geography. The BMPs will impinge upon forestry activities,
agricultural and horticultural non-forestry activities, as well as non-farming activities,
including many which fall within the express exceptions and waivers to the Highlands
Act.
In our opinion, these so-called BMPs effectuate the desires of special interests
and ignore virtually all of the core findings of the Report of the Sustainable Forestry
Technical Advisory Committee to the Highlands Water Protection and Planning Council,
dated March 28, 2006 (the “Highlands Forestry Report”), and years of input from the
science-based forest management community, including the input recently provided to
representatives of the Highlands Council.
The document which is the subject of this letter is referred to by the Highlands
Council as “Section 3. Highlands Region BMPs and New Jersey Statewide Guidance,”
and is apparently a section of a broader BMP document which has not yet been
disclosed.3
Forced Violation of the Farmland Assessment Act
It is our view that these and related BMPs will impact compliance by landowners
with the Farmland Assessment Act (the “FAA”), both agricultural and horticultural, which
include all forms of farming, forest management and forest stewardship. We believe
that these and related BMPs will compel landowners (including landowners of adjacent
or local properties) operating under the FAA to limit or curtail their activities so as to
unjustly force their violation of the provisions of the FAA, expose them to disqualification
for not meeting income requirements under the FAA and/or failing to conduct required,
state-approved activities under the FAA, and expose them to roll-back taxes under the
FAA.
Prohibition on Science-Based Forest Management
Despite the Highlands Council having received prior input from credentialed,
experienced and recognized forest experts and professionals, and recognized
organizations prior to drafting the BMPs, as well as the Highlands Forestry Report, the
BMPs ignore and effectively prohibit proven, accepted, time-tested, science-based,
responsible forest management and stewardship practices. Those generally accepted,
science-based practices are intended to improve forest resiliency and sustainability,
3 The Highlands Council has indicated that they will be circulating sections 1 and 2 in the future. We do
not understand how sections of such a potentially impactful and devastating document can be selectively
circulated and commented upon piecemeal. As discussed below, we are extremely concerned with the
selected and limited circulation of the draft BMPs and the failure to provide copies of the draft to key
organizations and persons for review and comment.
The New Jersey Highlands Council
October 16, 2023
3
while fulfilling a range of goals, including water protection, fire resistance and resilience,
storm resilience, resistance to disease and insect damage, invasive species
management, animal habitats, carbon sequestration, recreation, deer management, and
other goals, without the risk of the monolithic, special interests approach of the BMPs.
The proposed BMPs will force non-compliance with proven, accepted, sciencebased
management practices, without regard to the negative long-term forest impacts
due to lack of effective management. The BMPs also effectively force upon landowners
an obligation to conduct affirmative deer management, because for most landowners
and properties, fencing for passive deer management is cost and maintenance
prohibitive. Hence, the BMPs are imposing on landowners the conduct of mandatory
hunting, culling and killing of deer and the risks, liabilities and costs of such activities.
Moreover, an overlay of the implementation of the “BMPs” on forest parcels
within the Highlands Act geography reveals that responsible, science-based, forest
management and stewardship would be effectively prohibited on the majority of the
acreage of those forestlands.4
Taking Without Just Compensation
The BMPs put into effect a taking without just compensation because they will
effectively prohibit economically viable use of land, and render land valueless,
consistent with the Supreme Court’s recent summary and discussion of compensable
takings in Cedar Point Nursery v. Hassid, 923 F.3rd 524 (2021) and analysis under
previous precedent.
BMP Impacts Extend Far Beyond Forest Management
A careful reading of the BMPs reveals that they are not limited to forestry
activities or forest properties and can be employed to impact a broad range of property
types and activities. For example, and without limitation, the Highlands Act contains
fourteen (14) express exemptions (P.L. 2004, c.120, C.13:20-28) and four (4) express
waivers (N.J.A.C 7:38-6.4)5 that were material in the adoption of the Highlands Act into
law. These and future related BMPs will impact many activities within the exemptions
and waivers and may de facto eliminate or severely limit the future implementation of
4We understand that the BMP’s, as proposed, will materially impact approximately 75,000 forest
properties comprising approximately 250,000 acres which fall within the proposed BMPs buffers. The
application of the proposed BMPs would preclude virtually all science-based forest management on those
lands, weakening forest resiliency and sustainability, water protection, animal habitats, fire resistance and
resiliency, carbon sequestration, and resistance to disease and invasive plants and insects.
5We suggest that the potential nullifying impacts of these BMPs on each of the express exemptions and
waivers in the Highlands Act must be reviewed and considered, and we do not limit our comments herein
to forests and farmland, or forest management/forest stewardship activities.
The New Jersey Highlands Council
October 16, 2023
4
exempted activities and issuance of waivers - effectively rendering a broad range of
those exemptions/waivers null and void.6
Parallel Activities Produce Conflicts
We do not understand the sudden rush to draft and implement these monolithic,
special interest restrictions in the name of “best management practices.” (See Selected
Distribution of BMP Document for Comment, below.) Our concerns are heightened by
the various pieces of forest management legislation and regulation occurring in parallel,
as well as the effective transformance of “recommendations” into “regulations” within the
BMPs and the potential for conflicts going forward. For example, we note the potential
conflicts between the BMPs and their application with the ongoing oversight and
existing regulations of New Jersey’s public and private forests by the New Jersey Forest
Service, the provisions of the Farmland Assessment Act (including the woodland
management plans and forest stewardship plans required thereunder7), generally
accepted best management practices in forest management, as well as the proposed
legislation regarding New Jersey’s public forests based upon the holistic report and
recommendations of the New Jersey Forest Task Force. A race to produce conflicting
law and regulation does not benefit New Jersey, but rather may run to the benefit of
special interests, while harming the long-term future of our forests, and the interests of
individuals, including property owners.
Selected Distribution of BMP Document for Comment
It is our understanding that the Highlands Council elected to not include on their
distribution list many significant, recognized, experienced and important professionals
and organizations who are generally acknowledged for their science-based forest and
wetland expertise and qualifications, even though some had been previously requested
to provide input to the Highlands Council, or have extensive knowledge and/or important
interests in the region - particularly with respect to forestland and farmland. Although
the Highlands Act was adopted in 2004 and the Highlands Forestry Report was
delivered in 2006, we also understand that the Highlands Council allowed only a very
small window for line-by-line comments to these BMPs (and then only by a limited
group). We are perplexed by this approach to circulation and comment on the BMPs,
and why comments from such professionals and organizations were not sought at this
juncture.
6See https://www.nj.gov/njhighlands/act/exemptions/ for a list of the express waivers and exemptions
under the Highlands Act.
7 It is estimated that approximately 1,500 forest properties within the Highlands Council’s geography are
subject to state-approved woodland management and forest stewardship plans, all prepared and annually
reviewed by foresters approved under N.J.A.C. 7:3-2, employing generally accepted best management
practices, and virtually all of which will be adversely affected, materially limited, or nullified by the BMPs.
The New Jersey Highlands Council
October 16, 2023
5
Specific Comments
Line-by-line comments will be separately provided by the NJFA, as appropriate.
Requested Action
We respectfully request that the Highlands Council members commence a review
of the BMP development process, the BMPs, the BMP review and comment process, all
submitted comments, and the contents of this letter.
In your review, we urge you to consider not only the well-established body of
science-based forest management, but also the interests of landowners, including,
without limitation, owners of farms, forests and other lands, including lands subject to
the Farmland Assessment Act, and those operating under state approved woodland
management and forest stewardship plans.
We have delivered this letter to Executive Director Spinelli and Chief Counsel
Gallagher, for distribution to all Members of the New Jersey Highlands Council and
appropriate Highlands Council staff. We would be pleased to meet with you and your
staff at your convenience to discuss our concerns and thank you for your attention in
this important matter.
Respectfully,
Elmer Platz
Elmer Platz, President
101623R
