May I Come In?: N.J. Supreme Court Approves Warrantless DEP Searches of Residential Property Subject to Freshwater Wetlands Permit

In a unanimous decision that was at once sweeping and limited, the New Jersey Supreme Court held that the Department of Environmental Protection (DEP) need not obtain a warrant before entering a residential parcel to ensure compliance with the terms of a wetlands permit. The Court stopped short of a blanket validation of all warrantless searches under the wetlands statute, or of all warrantless searches of residential property subject to any sort of permit, instead grounding its holding in the protections afforded by the process that DEP must follow, and limiting it to searches of properties that are subject to a wetlands permit.

The case concerned the property of Robert and Michelle Huber. The parcel was subject to a permit issued to the developer of the property in 1992 under the Freshwater Wetlands Protection Act (FWPA). A deed restriction referring to the permit was recorded when the developer sold the property in 1994. The property was sold once again, in 1997, before the Hubers acquired it in 1999. Their title report also referred to the permit.

In 2002, after complaints from a neighbor about the placement of fill and the mowing of vegetation in restricted portions of the Hubers’ land, DEP sent an inspector to the property. The parties disputed whether he received permission to enter the property, but he did in fact enter and collected evidence of violations. Subsequent inspections, aerial photographs, and the Hubers’ own admissions eventually established clear evidence of permit violations. DEP assessed a civil penalty and ordered the Hubers to submit a restoration plan. An administrative law judge, the DEP Commissioner, and the Appellate Division all upheld the DEP order.

Before the Appellate Division, the Hubers argued, for the first time, that the evidence from the first DEP inspection should have been excluded because the inspector lacked a warrant, as required by the federal and state constitutions. The Appellate Division rejected that argument, holding that the reasoning of the U.S. Supreme Court’s 1987 decision in New York v. Burger, which permitted warrantless administrative searches of commercial property in closely regulated industries, should be extended to residential properties like the Hubers’ parcel.

The New Jersey Supreme Court at first denied certification, but then the case took an unusual turn. After the denial of certification, the Hubers filed a petition for certiorari with the U.S. Supreme Court. The denial of the petition was accompanied by a statement from Justice Alito (joined by Chief Justice Roberts and Justices Scalia and Thomas) that questioned whether Burger could be applied to residential property. Seizing on this statement, the Hubers sought reconsideration, and the New Jersey Supreme Court granted certification.

Answering Justice Alito’s question, the Court first rejected the Appellate Division’s extension of Burger outside of the setting of a commercial property in a closely regulated industry. The Court contrasted the “heightened privacy interests that are associated with a private, residential property” with the lesser privacy interests in a commercial setting, especially one where highly regulated activity occurs.

A separate line of cases, however, provided a rationale for upholding DEP’s warrantless search of the Hubers’ property. In cases decided in 1970 and in 1978, the U.S. Supreme Court had “signaled,” without so holding, “that a legislative determination to establish standards for reasonableness for searches and seizures can receive favored treatment where that process does not include ‘forcible entries without a warrant.’” Analyzing the details of the wetlands statute and DEP’s implementing regulations, the Court found that the process that DEP is required to follow in seeking to enter the property of a permit holder– from the inspector’s presentation of credentials, to issuance of an order if access is refused despite the permittee’s statutory duty to allow entry, to a judicial action to enforce such an order — satisfied the criteria suggested by the U.S. Supreme Court. The process avoids a forcible, nonconsensual entry into a residential property. More generally, said the Court, the inspection scheme is reasonable when applied to a homeowner whose property is subject to a permit because, by seeking permission to disturb lands protected by the statute, the homeowner (as well as his or her successors in title) are bound to compliance with terms of the permit, including the requirement to allow reasonable entry.

The question, then, is not so much whether DEP can gain entry — the statute virtually guarantees it — but how DEP can gain access if the permit holder refuses. The Court concluded that the process established by the statute and regulations was sufficiently protective of the homeowner’s expectation of privacy. That expectation is reduced where, as in the Hubers’ case, the homeowner acquires the property subject to a recorded deed restriction that explicitly referred to a permit that, in turn, gave DEP the right to access. “Put simply,” the Court concluded, “the rights of the FWPA permittee are subject to the statutory scheme by which the permit operates, and that includes submitting to a reasonable inspection scheme.”

The Court was careful, however, to limit its holding to situations involving FWPA permits: “We do not mean to suggest that any permit issued by any governmental entity may now bear a condition foisting upon the homeowner a duty to accept a right of suspicionless entry by the government.” Nor does the holding apply to FWPA inspections of property that is not subject to a permit, as the Court made clear that “we need not decide what showing is required under the FWPA for the DEP to gain access to residential property that is not subject to a FWPA permit, and we leave for another day the application of such circumstances in the context of open fields or when entry is sought in other nonresidential settings.”

In one final twist, the Court then held that its holding on the weighty constitutional question of warrantless administrative searches was not even necessary to its disposition of the case. Reluctant to decide the disputed question of whether the Hubers granted permission for that inspection — for if it found that permission had been denied, the logic of its opinion would require that it order DEP to go back and follow its prescribed procedures — the Court held that even without any of the evidence from the initial inspection, there was more than enough evidence to sustain DEP’s finding of a violation.

Huber sends clear messages to both property owners (having a permit can make you subject to warrantless inspections) and regulators (you must build procedural safeguards into your inspection regime). The message of Huber, however, may be subject to future modification inasmuch as its holding is grounded in signals, rather than holdings, from the U.S. Supreme Court. In any event, its reasoning and its scope are likely to be tested in future cases involving other permitting programs.