Thanks JJ! I am not sure what's happening here, especially since these are occurring inside a try so they shouldn't side.:: weird part is, I tried one, and additionally later on and it was fine, thoughts on structure etc are welcome.
That's a first, just searched the adobe forums, and found my own question RE the same issue. I still am not sure what causes this, but I was able to find out a couple things. I can replicate it easiest by using the action below, maybe since I created it in an old version, and running the below, isn't formatting the exact same. In fact if I disable the first 4 steps, it doesn't cause an issue.

I was however able to figure out a scripting work around, it seems if I create and delete a layer before running this, it negates whatever error is occurring.
var decoyLayer = activeDocument.artLayers.add();
decoyLayer.remove();
app.activeDocument.layers[0].name = "test";
This is definitely a bug, but this workaround is fairly painless. Other option that I didn't seem to run into issues with was renaming the selected layer after running my action.