Last month, the Atlantic County Superior Court issued its ruling in New Jersey Department of Environmental Protection v. Deull Fuel, No. ATL-L-1839-18 (N.J. Super. Ct. Law Div. Aug. 8, 2019), denying a motion to dismiss the state of New Jersey’s common law trespass claim but granting the motion to limit the plaintiffs’ remedy for public nuisance to abatement. The Deull Fuel case is one of the pending lawsuits in which the state is seeking to recover natural resource damages (NRDs) pursuant to its role as trustee of the state’s natural resources. NRDs compensate the state for injury to natural resources caused by a discharge of hazardous substances.

In Deull Fuel, the court held that the public trust doctrine supersedes the exclusivity element of a common law trespass claim and, therefore, the state could assert a common law trespass claim despite not having exclusive possession of the land at issue. The decision splits from a Middlesex County decision issued on Dec. 21, 2018, in which the court found the plaintiffs’ lack of exclusive possession fatal to their trespass claim and dismissed the count, see New Jersey Department of Environmental Protection v. Hess, MID-L-4579-18 (N.J. Super. Ct. Law Div. Dec. 21, 2018). The ruling creates a split in decision at the trial court level about whether the state, acting pursuant to the public trust doctrine, can successfully assert a claim for trespass of privately owned land.

Background