Protect Our Wildlife v. Fish and Wildlife

Termont Superior Court
Filed 03/26/25
Washington Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 24-CV-00189
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org

Protect Our Wildlife, a nonprofit 501(c)(3) organization et al v. Fish and Wildlife Board, an Agency of
the State of Vermont et al

Opinion and Order

In June 2022, the Legislature adopted Act 159 ("An act relating to best

management practices for trapping") and Act 165 ("An act relating to hunting coyotes

with dogs"). The Acts required the Fish and Wildlife Board (the Board) to revise its

trapping rules and adopt rules regulating hunting coyotes with dogs for the first time.

The Board responded by promulgating an amended Furbearing Species Rule (the Rule),

10 V.S.A. app. § 44, Code of Vt. Rules 12 010 073, available at https://tinyurl.com/

47nw6arce. The plaintiffs in this case consist of four nonprofit organizations Protect Our

Wildlife, Animal Wellness Action, Center for a Humane Economy, and Vermont Wildlife

Coalition who jointly challenge the validity of various components of the Rule as

contrary to legislative intent or arbitrary (and on one issue for lack of any relevant

rulemaking authority). Plaintiffs seek a declaration in that regard, an order reinstating

a moratorium on hunting coyotes with dogs, see 2021, No. 165 (Adj. Sess.), § 2, and any

other injunctive relief that may be warranted. Defendants Christopher Herrick, in his

official capacity as the Commissioner of the Department of Fish and Wildlife, the

Department of Fish and Wildlife (the Department), and the Board jointly argue that the

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Rule is valid as adopted, and that Plaintiffs lack constitutional standing to assert

invalidity as to one point of contention.

I. Background

Act 159, as relevant here, required the Department to recommend “best

management practices (BMPs) for trapping that propose criteria and equipment designed

to modernize trapping and improve the welfare of animals subject to trapping programs.”

2021, No. 159 (Adj. Sess.), § 1(a). The Board was instructed to revise its trapping rules to

be “at least as stringent” as the BMPs recommended by the Department. Id. § 2 (adding

10 V.S.A. § 4861(b)).

Act 165, as relevant here, adopted 10 V.S.A. §§ 5008, 5009. 2021, No. 165 (Adj.

Sess.), § 1. These statutes require a permit from the Department to hunt coyotes with

dogs, bars such hunters from releasing dogs on land posted pursuant to 10 V.S.A. § 5201

or on property for which law enforcement has advised that such hunting is not permitted,

and establishes penalties for violations. Section 2 of the Act established a moratorium on

hunting coyotes with dogs until the Board adopted rules pursuant to Section 3, which

sets out the requirements for that rulemaking. The general purpose of the rulemaking is

to “reduce conflicts between landowners and persons pursuing coyote with the aid of

dogs” while preserving “the humane taking of coyote, the management of the population

in concert with sound ecological principles, and the development of reasonable and

effective means of control.” Id. § 3(a).

In response to both Acts, the Board adopted the Rule over the objection of the

Legislative Committee on Administrative Rules (LCAR), and the Department lifted the

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moratorium on hunting coyotes with dogs. The consequence of LCAR’s formal objection

to the Rule is discussed below.

Plaintiffs claim that the Rule is invalid for the following reasons:

(1) The definition of “control” of dogs and related requirements are contrary to

legislative intent insofar as they do not require enough control over dogs during hunting

or training. They also are arbitrary insofar as they fail to improve the pre-Rule status

quo and do not include more or better restrictions on dog behavior.

(2) The definition of “public trail” (from which a safe distance for traps may be

measured) is contrary to legislative intent and arbitrary insofar as it includes irrational

limitations on the meaning of the expression and deviates from reasonable expectations

among members of the public as to what a public trail is.

(3) It contains an exemption for traps in water or under ice from the “safe

distance” away from certain locations where traps may be placed is contrary to legislative

intent and is arbitrary insofar as the record is devoid of evidence supporting the

exemption and water attracts recreating people and pets.1

(4) It purports to define “trapping” to be a form of “hunting,” which might have

constitutional repercussions at some point in the future, is contrary to legislative intent

because it changes the definition in Act 159, and it is arbitrary because there is no

meaningful rationale offered in support of it.

1 Plaintiffs asserted another challenge to the setback for traps in their “complaint” to the

effect that the size of the general setback on its face is not a safe distance, but they later
withdrew that challenge.
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(5) The BMPs for body gripping traps are arbitrary because they are based on

flawed research, and the Board should have considered limiting or banning certain types

of traps and regulating them on a species-by-species basis.

The Court denied Plaintiffs’ motion for a temporary restraining order and a

subsequent motion for preliminary injunction. See Opinion and Order on Plaintiffs’

Motion for a Temporary Restraining Order (filed January 18, 2024), available at 2024

WL 1492589, and Opinion and Order on Plaintiffs’ Motion for Preliminary Injunction at

18 (filed Feb. 22, 2024), available at 2024 WL 1492588. The parties have fully briefed

the issues, and a hearing was held on February 25, 2025.

II. Standards

A challenge to the validity of an administrative rulemaking is subject to record

review. See State Dep’t of Taxes v. Tri-State Indus. Laundries, Inc., 138 Vt. 292, 294

(1980); see also 3 V.S.A. § 807 (declaratory judgment on validity or applicability of rules).

The applicable procedural rule is Vt. R. Civ. P. 74. See Conservation Law Found. v.

Burke, 162 Vt. 115, 125 (1993). Typically, the burden would fall to the challenger to

demonstrate invalidity. See Hatin v. Philbrook, 134 Vt. 456, 458 (1976). “Rules are

‘prima facie evidence of the proper interpretation’ of the enabling legislation. They enjoy

a presumption of validity and are valid if they are reasonably related to the purposes of

the enabling act. Further, ‘absent compelling indication of error,’ we accept the

construction of a statute made by the administrative agency responsible for its

implementation.” Miller v. IBM, 163 Vt. 396, 399 (1995) (citations omitted).

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A. Effect of LCAR’s Objection, Generally

These standards are complicated in this case by LCAR’s certified objection to the

final version of the Rule. See 3 V.S.A. § 817 (LCAR). Part of the rule promulgation

process includes presenting the final version of a proposed rule to LCAR, which can

recommend withdrawal or amendment. 3 V.S.A. § 842(a). Potential bases for objection

include:

(1) a proposed rule is beyond the authority of the agency;
(2) a proposed rule is contrary to the intent of the Legislature;
(3) a proposed rule is arbitrary;
(4) the agency did not adhere to the strategy for maximizing public input
prescribed by the Interagency Committee on Administrative Rules;
(5) a proposed rule is not written in a satisfactory style in accordance with
section 833 of this title;
(6) the economic impact analysis fails to recognize a substantial economic
impact of the proposed rule, fails to include an evaluation and statement of
costs to local school districts required under section 838 of this title, or fails
to recognize a substantial economic impact of the rule to such districts; or
(7) the environmental impact analysis fails to recognize a substantial
environmental impact of the proposed rule.

3 V.S.A. § 842(b). Ultimately, if LCAR is dissatisfied with the result, it can certify its

objection to the Secretary of State. 3 V.S.A. § 842(c)(1).

A certified objection does not prevent a rule from taking effect, but it is not

without consequence. Section 842(c)(2) provides:

[T]o the extent that the objection covers a rule or portion of a rule, the
burden of proof thereafter shall be on the agency in any action for judicial
review or for enforcement of the rule to establish that the part objected to is
within the authority delegated to the agency, is consistent with the intent of
the Legislature, is not arbitrary, and is written in a satisfactory style in
accordance with section 833 of this title, and that the agency did adhere to
the strategy for maximizing public input prescribed by the Interagency
Committee on Administrative Rules and its economic and environmental
impact analyses did not fail to recognize a substantial economic or
environmental impact. The objection of the Committee shall not be
admissible evidence in any proceeding other than to establish the fact of the
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objection. If the agency fails to meet its burden of proof, the court shall
declare the whole or portion of the rule objected to invalid.

In its decision denying a preliminary injunction, the Court held that this provision, to the

extent applicable, removes the presumption of validity and switches the burden to the

State to prove validity, but it does not create a presumption of invalidity. Opinion and

Order on Motion for Preliminary Injunction at 6 (filed Feb. 22, 2024). The Court also

held that it applies, as the plain text says, only “to the extent” of the objection. See id.

Thus, if the certified objection is limited to one basis—e.g., provision X is contrary to the

intent of the Legislature—then the presumption of validity disappears, and the burden is

on the State to prove that X is not contrary to the intent of the Legislature. A challenge

to X on other grounds, such as whether X was written in a satisfactory style, remains

subject to the ordinary presumption of validity, and the burden is on the challenger to

establish invalidity if such a matter is contested.

Plaintiffs argue that the Court’s latter holding is incorrect, and a better reading of

§ 842 is that, if LCAR certifies any objection whatsoever to a particular provision of a

rule, then the State must affirmatively prove validity on all grounds listed in § 842(c)(2),

including all grounds that were not cited as a basis for LCAR’s objection. The Court,

however, continues to see no basis for such a construction of § 842 in its text and

discerns no good purpose for such a reading either. If LCAR voices one ground of

objection but not another, there is no reason to remove the traditional presumption of

validity and impose a burden of proving validity on the State as to the unobjected-to

ground. Doing so would be tantamount to using § 842(c) to create a presumption of

invalidity even though § 842(c) only applies “to the extent” of the objection and only

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switches the burden from one party to another. The Court declines to revise the

preliminary injunction decision on this point.

The objections certified by LCAR to the Secretary of State are as follows:

–the objection to Sec. 3.20, the definition of trapping, on the ground that it
is contrary to the intent of the General Assembly, including the intent of
2022 Acts and Resolves No. 159, Sec. 1(d), to add the word hunt to the
definition;

–the objection to Sec. 3.14(b), a portion of the definition of public trail, on
the ground that this portion of the definition is contrary to the intent of the
General Assembly, including the intent of 2022 Acts and Resolves No. 159,
Sec. 1(a)(4), to include all trails where persons may reasonably be expected
to recreate;

–the objection to Sec. 4.15, trapping setbacks, that excepts from the setback
requirements traps set in the water or under ice on the ground that it is
contrary to the intent of the General Assembly, including the intent of 2022
Acts and Resolves No. 159, Sec. 1(a)(4), to exempt traps set in the water or
under ice from setback requirements; and2

–the objection to Secs. 3.6, definition of control of dog(s), and 4.20, taking
coyote with the aid of dogs, on the ground that it is contrary to the intent of
the General Assembly, including the intent of 2022 Acts and Resolves No.
165, Sec. 3(b)(4), to allow the taking of coyote with aid of dogs unless there
is a required means of controlling dogs that sufficiently minimizes the risk
that dogs pursuing coyote will enter onto land that is posted against
hunting; enter onto land where pursuit of coyote with dogs is not
authorized; harass or harm people or domestic animals; and cause other
unintentional damages to people or property.

Letter from LCAR to Secretary of State Sarah Copeland Hanzas (Dec. 14, 2023). All

objections are that the cited provisions are contrary to the intent of the Legislature. No

other ground of invalidity is asserted.

2 So in original. LCAR presumably meant “the intent of 2022 Acts and Resolves No. 159,
Sec. 1(a)(4), [not] to exempt traps set in the water or under ice from setback
requirements.”
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Accordingly, to the extent that Plaintiffs challenge the cited provisions as being

contrary to the intent of the Legislature, there is no presumption of validity, and the

State has the burden of proving that these provisions are not contrary to the intent of the

Legislature. To the extent that Plaintiffs challenge the cited provisions as arbitrary or

on some other basis, the provisions are presumed to be correct, valid, and reasonable,

and the burden of proving otherwise is on Plaintiffs.

Plaintiffs also argue that, to the extent the burden is on the State, the State must

make a clear and convincing showing of validity. Plaintiffs cite exclusively to In re

Johnston, 145 Vt. 318 (1985), in support of that contention. In that case, the Court said,

In appeals from the actions of administrative agencies we have applied a
deferential standard of review to claims of insufficiency of evidence. Absent
a clear and convincing showing to the contrary, decisions made within the
expertise of such agencies are presumed correct, valid and reasonable. The
revocation decision here was clearly within the Board’s area of expertise.
We hold that licensee has failed to make the clear and convincing showing
necessary to overcome the presumption of validity. Our review is limited to
whether, on the record developed before the Board, there is any reasonable
basis for the Board’s actions.

Id. at 321–22 (citations omitted, emphasis added). As described in Johnston, clear and

convincing is the showing necessary to overcome the presumption of validity that

attaches to a decision made within the agency’s area of expertise. That deference is

afforded due to the Court’s recognition of such expertise in light the powers delegated to

the agency. The Court sees no basis to impose a counter-presumption, a presumption of

invalidity, from an LCAR objection; and neither the language of the law nor the logic of

In re Johnston support such a result. The “sanction” imposed by law following an LCAR

objection is that the State will bear the burden of proof to justify the rule as regards the

basis for the objection. No more is required.
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B. Effect of LCAR’s Objection on Deference

Relatedly, Plaintiffs argue that the Court should give the Board’s interpretations

of applicable statutes no deference and, instead, should interpret those statutes de novo.

The State argues, on the other hand, that the deference ordinarily given agency

interpretations of a governing statute remains intact because, while 3 V.S.A. § 842(c)

switches the burden to prove validity to the State, it says nothing about eliminating the

traditional deference given to agency interpretations.

Plaintiffs have the better of the argument. If the Court were to defer to the

Board’s interpretation of relevant statutes, there would be little left of the State’s burden

to prove that the Rule is valid. The only palpable way of accommodating the switched

burden under § 842(c) when considering issues of legislative intent is if the Court

interprets those statutes de novo.

C. Statutory Interpretation, Generally

As to statutory interpretation: “Our primary objective when construing a statute

‘is to give effect to the intention of the Legislature.’ In effectuating that intent, ‘[w]e

examine the plain language of the statute, and if this language is clear and

unambiguous, we enforce the statute according to its terms.’” Maple Run Unified Sch.

Dist. v. Vermont Hum. Rts. Comm’n, 2023 VT 63, ¶ 13 (citations omitted). To properly

interpret a statute, the Court “will not excerpt a phrase and follow what purports to be

its literal reading without considering the provision as a whole, and proper construction

requires the examination of the whole and every part of the statute.” TD Banknorth,

N.A. v. Dep’t of Taxes, 2008 VT 120, ¶ 15, 185 Vt. 45, 53 (citation omitted); see also Ran-

Mar, Inc. v. Town of Berlin, 2006 VT 117, ¶ 5, 181 Vt. 26, 29 (“We construe all parts of
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the statutory scheme together, where possible, as a harmonious whole, and ‘[w]e will

avoid a construction that would render the legislation ineffective or irrational.’” (citations

omitted)).

D. Act 159 Challenges vis-à-vis LCAR’s Objection

The unusual structure of Act 159 further complicates matters in relation to

LCAR’s objection. Specifically, the responsibilities of the Board and the Department are

distinct. As explained above, Section 1 of Act 159 tasked the Department with proposing

BMPs for trapping and provided some subject areas to be addressed and certain

standards for those recommendations. The Department was directed to “provide an

opportunity for public review and comment and shall hold at least one public hearing.”

The Department then was to report those recommendations to the “Senate Committee on

Natural Resources and Energy, the House Committee on Natural Resources, Fish, and

Wildlife, and the Fish and Wildlife Board.” The Department was not instructed to adopt

any rules based on those recommendations or to do anything else with them.

Instead, Section 2 directed the Board to revise its trapping rules in light of the

Department’s recommendations. The sole statutory constraint on how the Board might

do so is this: “The revised rules shall be at least as stringent as best management

practices for trapping recommended by the Department of Fish and Wildlife to the

General Assembly.”

If a person were disappointed with a recommendation by the Department, she

surely would be disappointed if the same recommendation was directly incorporated into

the Rule. Yet the Rule, on that point, necessarily would be “as stringent as” the

recommendation and so would be fully consistent with legislative intent. As a result,
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when looking at the Rule, the question as to whether the Board complied with legislative

intent is whether the Rule is “at least as stringent” as the Department’s

recommendations, not whether the Rule meets some other standard that someone thinks

the Department’s recommendations should have met. Act 159 is not ambiguous in this

regard.

This is not remotely how either side has approached the matter of legislative

intent, however. Rather, both side shave collapsed the distinction between the

Department and the Board, ignored the bifurcation of responsibilities in Act 159, and

have applied the perceived intent behind Section 1 as though it applies directly to the

Board’s Section 2 undertaking–without any analysis of whether the Rule is at least as

stringent as the Department’s recommendations. Such an approach is not consistent

with the statute and effectively nullifies the Board’s express Section 2 mandate to adopt

a rule “as stringent as” the Section 1 recommendations.3

This raises some uncertainty as to how the Court should approach the briefing on

questions of legislative intent addressing those parts of the Rule falling under Act 159

and objected to by LCAR. The State has the burden of proving consistency with

legislative intent on such matters, yet both sides have overlooked the plain language of

Section 2. The Court concludes that, while the burden of persuasion is on the State on

such issues, and thus it is the party with the ultimate responsibility to show that the

Rule is as stringent as the recommendations, Plaintiffs (at least) had the burden of

raising the stringency question if they viewed that as a failing of the rule. Their failure

3 The substance of LCAR’s objection indicates that it likely did as well.
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to do so, in the Court’s view, operates as a waiver of any claim that the rule fails the

stringency metric. As that is the only intent the Court can glean from the Act 159, there

is no evidence suggesting that the rule fails to meet that intent. To conclude otherwise

would turn the switched burden into a presumption of invalidity.

Accordingly, considering the plain language of Section 2, the Rule necessarily is

consistent with legislative intent. Nevertheless, and in the alternative, because both

sides address larger issues of perceived legislative intent disconnected from the language

of Section 2, the Court will also address those arguments as framed by the parties.

E. Arbitrariness Challenges

As to Plaintiffs’ arbitrariness challenges, arbitrary is defined in the Administrative

Procedures Act (APA), 3 V.S.A. §§ 800–848, as follows:

“Arbitrary,” when applied to an agency rule or action, means that one or
more of the following apply:

(i) There is no factual basis for the decision made by the agency.

(ii) The decision made by the agency is not rationally connected to the
factual basis asserted for the decision.

(iii) The decision made by the agency would not make sense to a reasonable
person.

3 V.S.A. § 801(13)(a). Accordingly, as to arbitrariness challenges, the Court presumes

that the Rule is valid, and the burden is on Plaintiffs to establish one of the cited

arbitrariness grounds.

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III. Analysis

A. The “control” of dogs (Act 165)

Plaintiffs challenge the definition of “control” of dogs and related requirements as

both contrary to legislative intent and arbitrary. LCAR objected as to legislative intent,

switching the burden on that issue to the State. As to arbitrariness, the Court presumes

the validity of the Rule, and the burden of proving one of the arbitrariness grounds under

3 V.S.A. § 801(13)(a) is on Plaintiffs.

The principal focus of Plaintiffs’ motion for preliminary injunction was that the

definition and related control requirements do not conform to legislative intent. The

Court addressed that matter in detail in Part II(c) of the resulting decision, ultimately

concluding that “the Board is likely to satisfy its ultimate burden of proving that the

Rule complies with legislative intent.” Opinion and Order on Plaintiffs’ Motion for

Preliminary Injunction at 18 (filed Feb. 22, 2024), available at 2024 WL 1492588.

Further briefing and record analysis has given the Court no cause to revise the analysis

in that ruling. Accordingly, the Court adopts that part of the preliminary injunction

decision for present purposes and concludes that the State has satisfied its burden of

proving that the definition of control in the Rule is consistent with the intent of Act 165.

Because Plaintiffs focus so intently on the word “minimize” in 2021, No. 165 (Adj.

Sess.), § 3(b), however, the Court will briefly expound further on its interpretation of that

word. Act 165 has two overarching purposes, both of which are expressly set forth by the

Legislature:

The General Assembly through the rules required under this section intends
to reduce conflicts between landowners and persons pursuing coyote with
the aid of dogs by reducing the frequency that dogs or persons pursuing
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coyote enter onto land that is posted against hunting or land where pursuit
of coyote with dogs is not authorized. In addition, the General Assembly
intends that the rules required under this section support the humane
taking of coyote, the management of the population in concert with sound
ecological principles, and the development of reasonable and effective means
of control.

2021, No. 165 (Adj. Sess.), § 3(a). That is, to reduce conflict while keeping the hunting

activity viable. As detailed at length in the preliminary injunction decision, the rest of

Act 165 plainly addresses both risk reduction and hunting maintenance. Where Act 165

instructs the Board to come up with a definition of “control,” however, it says that the

definition should be designed to “minimize” the risks of trespassing, harassing or

harming people or domestic animals, or causing “other unintentional damages to people

or property.” 2021, No. 165 (Adj. Sess.), § 3(a).

Plaintiffs seize on the different words—reduce v. minimize—and argue that

minimize must mean not just to reduce but to reduce as much as possible. If that were

literally so, then the Legislature curiously would have required the Board to merely

reduce risks generally, but then tasked it with finding a way to reduce risks much more,

and to do so exclusively by how a single word is defined. That single word, whose

meaning is consistent with both side’s views, cannot bear such weight.

Indeed, the Court rejected that contortionism in the preliminary injunction

decision, and it adopts that analysis for present purposes. It is clear that the Legislature

wanted the definition of control to contribute to the mission of reducing risks, and it

plainly does, as one part of a network that also serves that mission in other ways.

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Otherwise, Plaintiffs also argue that these provisions are arbitrary insofar as they

fail to improve the status quo (largely as to GPS collars), will be ineffective, and do not

include more or better restrictions on dog behavior.

Act 165, § 3(b)(4) required the Rule to include a definition of “control” that would

“minimize” certain risks presented by dogs on coyote hunts. It required adoption of:

a definition of control to minimize the risk that dogs pursuing coyote:
(A) enter onto land that is posted against hunting;
(B) enter onto land where pursuit of coyote with dogs is not authorized;
(C) harass or harm people or domestic animals; and
(D) cause other unintentional damages to people or property.

As the Court explained in the preliminary injunction decision, the Rule contains

numerous provisions, many of which are new, that would minimize the risks of the listed

undesirable interactions. The definition of “control” is but one mechanism for doing that.

The Rule defines “control” to mean: “that when transporting, loading, or unloading

dogs from vehicle(s); and handling, catching, restraining, releasing, or following dogs at

all times during training dogs and taking of coyote with the aid of dogs; the permittee

shall be able to locate and remotely recall the dogs. Collar(s) with GPS functions, track

log capability, and training/control features in the collar(s) shall be required to locate and

track dogs at all times while taking coyote with the aid of dogs. At no time shall dogs be

in pursuit of coyote without a GPS track log being maintained by the permit holder.”

Rule § 3.6 (emphasis added).

The Rule further provides:

(1) A person shall not take coyote with the aid of dogs unless the person is in
control of the dog(s).

(2) No person shall take a coyote with the aid of dogs by using any
Unregistered Dog. No person shall have an Unregistered Dog in their
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possession (including in a vehicle) while hunting, pursuing, or taking a
coyote.

(3) A person hunting with dogs, pursuing, and taking coyote with the aid of
dogs shall attach a collar or collars with GPS functions, tracklog capability,
and training/control features for remote recall; and shall attach a
Department Registration Dog-Tag and a metal identification name plate
with the person’s name, address and telephone number to the dog’s collar.

(4) A person taking a coyote with the aid of dogs shall maintain a GPS
location log of each dog taking coyote and shall maintain the log for at least
30 days after the close of the season.

(5) A person taking a coyote with the aid of dogs shall only take a coyote
with a Pack of Dogs as defined in this rule. No person shall pursue, hunt, or
take coyote by Relaying any Dog or Pack of Dogs.

(6) Two or more permit holders may hunt together and combine Department
Registered Dog(s) to form a Pack of Dogs. The combined Coyote Dog Permit
holders shall not take coyote with the aid of more than four dogs combined
forming a single pack of dogs. The combined Coyote Dog Permit holders
shall not possess any Unregistered Dogs while hunting, pursuing, or taking
coyote with the aid of their dogs.

Rule § 4.20(3)(d).

Plaintiffs’ argument that the Rule merely codified the status quo, because hunters

already used GPS devices on their dogs before the Rule, is overstated. At most, there is

evidence that most such hunters used GPS units of some kind prior to the Rule. See, e.g.,

FW 0008758 (“It is the Department’s experience that most hunters who take coyote with

the aid of dogs currently possess GPS units and control collars.”); FW 0009182–83

(testimony from a wildlife biologist that GPS collars “have proven to be an indispensable

tool and virtually all hunters owning hounds now use them and would not consider

hunting without this technology”); FW 0013102 (memorandum from the Vermont Coyote

Coexistence Coalition generally asserting that the Department’s recommendations

regarding the control of dogs “is what most coyote hounders are already doing”). Before
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the Rule, however, there were no applicable regulations. Now all hunters must use GPS

collars, those units must have specific capabilities, those capabilities will help ensure

that hunters do not violate any restrictions imposed by the Rule, and there are

significant penalties if violations occur. This was not remotely the status quo ante.

Plaintiffs additionally argue that the Rule could have included numerous

provisions that would have reduced risks further, such as requiring hunters to keep dogs

within their line of sight, and it could have subjected hunters to particular training and

third-party certification requirements. Plaintiffs also point out that GPS units may not

work in certain terrain, and some GPS units could be more effective than others.

These arguments arise largely out of Plaintiffs’ view that Act 165 required the

Board to reduce the risk of conflict “to the least quantity possible.” As explained above,

that interpretation of Act 165 is not reasonable. The Rule includes many provisions

obviously intended to reduce the risk of conflict. That the Rule does not adopt every

possible control provision and is not perfect from Plaintiffs’ perspective, is insufficient to

demonstrate arbitrariness.

Moreover, the Department takes the position that some such improvements—such

as keeping dogs in the line of sight—would amount to a ban on hunting with dogs

altogether. Department General Counsel Catherine Gjessing explained in a letter

November 30, 2023, letter:

The October 26, 2023, LCAR Memorandum asserts that the definition
of control does not meet legislative intent and suggests that only leashes,
voice control, or keeping hunting dogs within sight will do so. Hunting
coyote with dogs entails chasing a coyote through fields and forests in
locations where people cannot follow with a motorized vehicle or a horse.
Requiring a hunter to maintain sight or voice distance from the dogs would

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eliminate any possibility of a successful hunt. In other words, these
requirements would be a de facto ban on hunting with dogs.

The plain language of Act 165 does not require the rules to eliminate
risk and it does not require that the Board fashion rules that mandate that
hunting dogs must be within sight or voice distance or on a leash. Hunting
coyotes with dogs is currently unregulated in Vermont. The rules
impose significant new requirements for this low-risk activity that are not
applicable to other forms of hunting with dogs. In addition, the failure to
follow any of the new requirements will be a violation of the rules, subject to
penalties.

FW 0016798; see also FW 0017301 (prepared remarks by Will Staats noting extreme

difficulty in attempting to run after dogs in pre-GPS days).

The overarching intent of Act 165 is to balance the need for regulation with the

desire to keep the practice viable, not to regulate it into oblivion. Had the Legislature

wished to ban such hunting it could have done so. It did not. If the Legislature wanted

to add specific requirements such as those advocated by Plaintiffs, it could have done so

as well. Instead, it delegated substantial rulemaking discretion to the Board to weigh

and balance such concerns.

Finally, Plaintiffs point to little in the record to establish that conflicts with dogs

on coyote hunts—other than a small handful of isolated incidents—has been any kind of

widespread or recurrent problem in the past that would require the Board to provide an

extraordinary remedy now. See, e.g., FW 0009182 (letter from Will Staats: “The author

[of a competing letter] continues to cite the two isolated incidents that occurred several

years ago in Central Vermont. These incidents, while unfortunate and traumatic for all

involved, are far from the norm and represent a tiny fraction of the thousands of hunts

that occur each year. No one was bitten, however, and . . . both instances involved an

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altercation between a domestic dog and the hounds. In 40 years of working with hunting

dogs these two episodes are the only instances in Vermont I have ever heard of!”).

Plaintiffs have failed to establish that the Rule is arbitrary on this issue.

B. The definition of “public trail” (Act 159)

Act 159 required the Department’s recommendations to include “requirements for

the location of traps, including the placing of traps for purposes other than nuisance

trapping at a safe distance, from public trails, class 4 roads, playgrounds, parks, and

other public locations where persons may reasonably be expected to recreate.” 2021, No.

159 (Adj. Sess.), § 1(a)(4). Act 159 does not define “public trails.” The Rule provides, in

relevant part:

No foothold traps or body-gripping traps shall be set on or within 50′ of the
travelled portion of a legal trail, public trail or public highway, unless set in
the water or under ice. Setbacks shall not apply to public trails on Wildlife
Management Areas except those public trails the Department specifically
designates as requiring a setback. The Department shall post signage on
Wildlife Management Areas advising the public of hunting seasons and
locations where setbacks apply.

Rule § 4.15(a). “Public trail” is defined as follows:

a) a path or corridor open to the public, used for nonmotorized recreational
purposes such as hiking, walking, bicycling, cross-country skiing, horseback
riding, and other similar activities; that is designated and mapped by a
municipality on municipal lands, the managing agency or department on
Vermont state owned land, or a federal agency on federal land; within the
state of Vermont;

b) a path or corridor open to the public, commonly used for nonmotorized
recreation purposes such as hiking, walking, bicycling, cross-country skiing,
horseback riding, and other similar activities; that is designated, managed,
maintained and clearly marked as a trail on municipal lands, on Vermont
state-owned land, or on federal land, within the state of Vermont; or

c) Vermont Rail Trails designated and mapped by the Vermont Agency of
Transportation, the Appalachian Trail designated, mapped and managed by
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the National Park Service, and the Long Trail designated, mapped and
managed by the Green Mountain Club.

Plaintiffs object that this definition does not extend to trails on private property or to

trails on public property that are not “maintained and clearly marked.” They argue that

Act 159 does not authorize these carve-outs. Instead, they assert that § 1(a)(4) of Act 159

reflects the intent to extend its requirements to trails of any kind, no matter whether

marked, maintained, or on private property, so long as members of the public might

reasonably be expected to be there.

LCAR objected as to legislative intent, switching the burden on that issue to the

State. Again, however, the proper question of intent is whether the Rule is as stringent

as the Department’s recommendations, and Plaintiffs do not contest the Rule on that

basis. As explained above, the Court treats the absence of such an objection as a

concession that the Rule is valid on this issue. As to arbitrariness, the Court presumes

the validity of the Rule, and the burden of proving one of the arbitrariness bases under 3

V.S.A. § 801(13)(a) is on Plaintiffs.

The Court nevertheless addresses in the alternative the substance of the

Legislative intent question as framed by the parties. Section 1(a)(4) of Act 159 does not,

by its plain terms, include within its reach “all trails of any kind,” as advocated by

Plaintiffs. It refers generally to “public trails” and includes them as one of several

“public locations.” Act 159 easily could have but does not define “public trails.” The need

for the Rule to do so was manifest. Trappers and others need some cogent way to clearly

identify where the setback applies. See FW 0016800 (Letter from Department General

Counsel Catherine Gjessing to LCAR members, explaining the need for the definition to

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be “easily understandable” or else it would be “largely unenforceable”). “Public trails,” on

its own, is vague. That statutory vagueness left considerable room for clarification in the

Rule. Generally speaking, the expression public location may be reasonably understood

to exclude private locations, and public trails similarly may be reasonably understood to

exclude private trails. The definition is not inconsistent with the intent reflected in the

language of the law.

As to arbitrariness, Plaintiffs argue that Vermonters have the expectation that

private land is open to the public, and State law encourages that; thus, the limitations

make no sense. See, e.g., 10 V.S.A. § 5201 (posting vis-à-vis taking game on private

land), 12 V.S.A. §§ 5791–5795 (limitation on landowner liability). The State’s retort is

that regulating privately owned land in the manner advocated by Plaintiffs might induce

such landowners to stop permitting members of the public to recreate on their land. This

is not an unreasonable or untenable position. It is further supported in the record by the

need for all concerned to have clarity as to which trails are covered by the Rule and

which are not.

Plaintiffs do not like how public trails are defined in the Rule, but the State has

demonstrated that the definition is not contrary to the intent of the Legislature, and

Plaintiffs have not shown that the definition is arbitrary.

C. Traps in water or under ice (Act 159)

In the Rule, traps “set in the water or under ice” are entirely exempt from both the

50 and 100-foot setbacks. Rule § 4.15(a), (b). Rule § 4.4 further provides that: “All traps

under ice will be marked with a tag visible above the ice.” Act 159, § 1(a)(4) requires

traps to be set at a “safe distance” from regulated locations. Plaintiffs argue that a zero
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distance cannot possibly be a safe distance within the meaning of Act 159. They also

argue that this exemption is arbitrary in that it makes no sense because recreating

people and pets are attracted to streams and other water bodies.

LCAR objected as to legislative intent, switching the burden on that issue to the

State. However, the proper question of intent is whether the Rule is as stringent as the

Department’s recommendations, and Plaintiffs do not contest the Rule on that basis. As

explained above, the Court treats the absence of such an objection as a concession that

the Rule is valid on this issue as to legislative intent. As to arbitrariness, the Court

presumes the validity of the Rule, and the burden of providing one of the arbitrariness

bases under 3 V.S.A. § 801(13)(a) is on Plaintiffs. In the alternative, the Court will also

address the merits as presented.

While Plaintiffs’ argument as to the lack of set-backs has superficial appeal, the

Board has persuasively countered that there is no evidence that trapping presents any

real risk to humans, as there has never been a “report of a member of the public trapped

or harmed by a trap.” FW 0016542. The Board also reports that the best information

available to it is that there have only been 2 incidents of dogs being injured by traps in

the water, and both were nuisance trapping situations that occurred outside the aquatic

trapping season. FW 0016802. The aquatic trapping season is the end of October

through the end of March, when “[m]any public camps, campgrounds, and parks are

closed,” FW 0016542, and the water is cold or frozen over, FW 0016802. During this

time, aquatic traps are impossible or hard to access (under ice) or in highly undesirable

places for people and pets (very cold water). The record history and circumstances,

therefore, support the view that the exemption from the setback is safe within the
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meaning of Act 159 and not arbitrary. See FW0016556 (trapping statistics documenting

consistently low number of incidents); FW0016802 (of which only 2 involved traps in

water, and both were nuisance trapping situations occurring outside the regular season).

Plaintiffs further assert that the statistics available to the Board as to harm to

members of the public or their pets is limited and that any reliance on water

temperature or ice historically does not account for changing temperatures caused by

global warming. Plaintiffs point to nothing in the record, however, to the effect that

better statistical evidence was available to the Board and it ignored that better evidence,

or that global warming has caused a shift in water temperature and ice formation to the

extent that the Board’s reliance on ordinary expectations about seasonal conditions have

changed so much as to reveal the Rule as arbitrary.

The State has satisfied its burden of showing that the setback exemption is

consistent with legislative intent. Plaintiffs have failed to show that it is arbitrary.

D. The definition of trapping (Act 159)

Act 159, § 1(d) provides: “As used in this section, ‘trapping’ means to take or

attempt to take furbearing animals with traps, including the dispatching of lawfully

trapped furbearing animals.” Trapping is not otherwise statutorily defined. Rule § 3.20

defines trapping as follows: “‘Trapping’ means to hunt, take or attempt to take fur-

bearing animals with traps including the dispatching of such lawfully trapping fur-

bearing animals.” Take or taking is statutorily defined as follows: “Take and taking:

pursuing, shooting, hunting, killing, capturing, trapping, snaring, and netting fish, birds,

and quadrupeds and all lesser acts, such as disturbing, harrying, worrying, or wounding

or placing, setting, drawing, or using any net or other device commonly used to take fish
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or wild animals, whether they result in the taking or not; and shall include every attempt

to take and every act of assistance to every other person in taking or attempting to take

fish or wild animals, provided that when taking is allowed by law, reference is had to

taking by lawful means and in a lawful manner.” 10 V.S.A. § 4001(23).

Plaintiffs principally argue that the definition of trapping in the Rule is contrary

to the intent of the Legislature as demonstrated by the different definition of trapping in

Act 159. They also argue that there simply is no delegation of rulemaking authority in

Act 159 empowering the Board to adopt any definition of trapping at all, which is

completely unnecessary to the Rule. Finally, for the first time in their reply brief and

without any citation to the record, Plaintiffs assert: “Notably, the proposed change in the

definition was never placed on any rulemaking agenda, was not in any agency summary

of the proposed rule, and no public comment was taken about the change by the agency

directly. The entire process lacked the level of transparency critical to the democratic

process.”

The State argues that Plaintiffs lack standing to challenge the definition of

trapping in the Rule as they have identified no nonspeculative injury caused or

threatened by it. It also argues that the definition is not contrary to legislative intent

and facilitates the mandate to modernize and clarify Vermont’s trapping regulations.

On the standing question, Plaintiffs have the burden of proof. See Brod v. Agency

of Nat. Res., 2007 VT 87, ¶ 9, 182 Vt. 234, 239. As to the issue of legislative intent,

LCAR objected as to that point, switching the burden on that matter to the State. As

noted above, however, the proper question of intent is whether the Rule is as stringent as

the Department’s recommendations, and Plaintiffs do not contest the Rule on that basis.
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The Court treats the absence of such an objection as a concession that the Rule is valid

on this issue as to legislative intent. As to arbitrariness, the Court presumes the validity

of the Rule, and the burden of proving one of the arbitrariness bases under 3 V.S.A. §

801(13)(a) is on Plaintiffs. With those standards in mind, the Court will analyze the

claim regarding the definition of trapping.

“Standing doctrine is fundamentally rooted in respect for the separation of powers

of the independent branches of government.” Hinesburg Sand & Gravel Co. v. State, 166

Vt. 337, 341 (1997) (noting at 340–41 that “[o]ne of the ‘passive virtues’ of the standing

doctrine is to promote judicial restraint by limiting the occasions for judicial intervention

into the political process”). Standing “confin[es] the judiciary to the adjudication of

actual disputes and prevent[s] the judiciary from presiding over broad-based policy

questions that are properly resolved in the legislative arena.” Parker v. Town of Milton,

169 Vt. 74, 77 (1998).

The contemporary federal doctrine was described in Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992), as follows:

[T]he irreducible constitutional minimum of standing contains three
elements. First, the plaintiff must have suffered an “injury in fact”—an
invasion of a legally protected interest which is (a) concrete and
particularized and (b) “actual or imminent, not ‘conjectural’ or
‘hypothetical.”’ Second, there must be a causal connection between the
injury and the conduct complained of—the injury has to be “fairly . . .
trace[able] to the challenged action of the defendant, and not . . . th[e] result
[of] the independent action of some third party not before the court.” Third,
it must be “likely,” as opposed to merely “speculative,” that the injury will
be “redressed by a favorable decision.”

Id. at 560–61 (citations omitted). These are the constitutional (as opposed to prudential)

limits on federal courts’ jurisdiction.

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The federal standing requirements have been adopted in Vermont. Parker, 169 Vt.

at 77–78 (explaining that in Hinesburg Sand & Gravel, the Vermont Supreme Court

adopted the standing test articulated in Lujan). Vermont courts are not, however,

inflexibly bound by federal standing precedents insofar as standing in Vermont state

court presents a legal question under the Vermont, rather than United States,

constitution. See Ferry v. City of Montpelier, 2023 VT 4, ¶ 15, 217 Vt. 450, 461–62.

Plaintiffs argue that they only need to show standing in relation to the form of

relief sought rather than in relation to each claim asserted. They also assert that some

nonspeculative injury can be located in the risk that there could be unspecified

constitutional repercussions sometime in the future to the new definition of trapping.

Plaintiffs are correct that they must have standing for each form of relief sought.

See Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). They also must have

standing as to each claim asserted, however. See DaimlerChrysler Corp. v. Duno, 547

U.S. 332, 352 (2006) (“[O]ur standing cases confirm that a plaintiff must demonstrate

standing for each claim [it] seeks to press.”). Plaintiffs have the burden of demonstrating

constitutional standing regarding their challenge to the definition of trapping.

Apart from constitutional standing, they also are statutorily required, as a

condition to bringing this claim, to demonstrate that “the rule, or its threatened

application, interferes with or impairs, or threatens to interfere with or impair, the legal

rights or privileges of the plaintiff.” 3 V.S.A. § 807.

The principal issue is whether there is any ascertainable injury. Plaintiffs cite to

the Vermont Constitution, which provides: “The inhabitants of this State shall have

liberty in seasonable times, to hunt and fowl on the lands they hold, and on other lands
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not inclosed, and in like manner to fish in all boatable and other waters (not private

property) under proper regulations, to be made and provided by the General Assembly.”

Vt. Const. ch. II, § 67. Section 67, on its face, does not indicate the breadth of the

expression hunting. Plaintiffs apparently fear that the definition of trapping in the Rule

could have some impact on whether trapping is considered hunting within the meaning

of § 67, at least at some point in the future and, if so, that might lead to some

determination that the right to trap is coextensive with the constitutional right to hunt.

Plaintiffs presumably believe that the right to trap should be more limited than the right

to hunt in some manner. They profess, in challenging this provision of the Rule, to be

playing “the long game.”

The Court fails to see any present, actual, and cognizable injury in Plaintiffs’ long-

term apprehension. First, the Vermont Supreme Court may well have already indicated

that trapping is a category of hunting for constitutional purposes. See Hunters, Anglers

& Trappers Ass’n of Vermont, Inc. v. Winooski Valley Park Dist., 2006 VT 82, ¶ 6, 181 Vt.

12, 16 (“Section 67 vests the Legislature with the power to regulate hunting and trapping

even on privately held lands, and we have previously held that the Legislature may

delegate this power to some other ‘body or person.’”). Moreover, as stated in that case,

the right in § 67 is subject to the Legislature’s power to regulate, as trapping would be if

it were not considered to be a form of hunting. It is therefore wholly unclear what injury

Plaintiffs could possibly suffer based on trapping’s status as hunting for § 67 purposes.

Second, ignoring that case, future construction of a constitutional term is not controlled

by an agency’s action. Ultimately, the judiciary is responsible for interpreting the

Constitution, something the Board cannot undermine by dint of the definition of a word
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in a rule. At a minimum, the idea that there is some kind of definitional “long game”

underway here between trapping adversaries is purely speculative.

Plaintiffs lack standing to challenge this portion of the Rule for lack of any

identified injury. Though that is sufficient to dispose of this claim, it bears noting that

the definition in the Rule is consistent with the definition in Act 159 and 10 V.S.A. §

4001(23). Act 159 merely classifies trapping as a form of taking. Under 10 V.S.A. §

4001(23), both hunting and trapping already were forms of taking. Classifying trapping

further as a form of hunting leaves both pursuits takings, which is not contrary to 10

V.S.A. § 4001(23) or Act 159.

Plaintiffs’ argument that there is a wholesale lack of rulemaking authority to

adopt a definition of trapping also is unfounded. Act 159 broadly directs the Board to

revise its trapping rules. The only constraint on that authority is that BMPs in the new

Rule must be at least as stringent as those recommended by the Department. Plaintiffs

point to no way in which the definition of trapping in the Rule somehow deviates from

that constraint. Beyond Act 159, the Board has expansive rulemaking authority to adopt

fish and wildlife regulations. 10 V.S.A. § 4082. Plaintiffs do not explain in any cogent

way how the definition of trapping in the Rule somehow falls outside these broad

delegations of authority. Certainly nothing in Act 159 bars the Board from addressing

the definition of trapping in the Rule.

Nor is the definition arbitrary in any palpable sense. Although the record provides

scant support for the asserted need for such a definition, the Rule reflects the Board’s

view of the matter, is not inconsistent with Vermont law in any identified way, is not

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irrational, and the Court presumes that it is correct, valid, and reasonable. That is

sufficient to survive an arbitrariness challenge.

Finally, to the extent that Plaintiffs have challenged the process by which the

Board adopted the definition of trapping, that argument was first raised in their reply

brief and is not supported by any citations to the record. Arguments first raised in a

reply brief are not properly presented. See In re Wal-Mart Stores, Inc., 167 Vt. 75, 86

(1997). Moreover, the State’s representations in the record appear to squarely contradict

Plaintiffs’ representations:

The definition of trapping in section 3.20 of the rule was in the draft rule
prior to filing the rule with the Secretary of State, months before the Board
voted on the final rule for filing with LCAR. The draft rule with the
definition was first voted on by the Board on April 5, 2023. It was posted on
the Board section of the Department website before the Board’s first vote,
prior to the filing with the Interagency Committee on Administrative Rules.
This language remained in the draft rule, was posted on the website, and
was readily available to the public, before the public comment period and
the public hearings related to the rule. No one commented on the definition
until after the public comment period when Ms. Galdenzi of Protect Our
Wildlife inquired about the change on August 30, 2023, and subsequently
asserted on September 1, 2023 that “trapping is not a form of hunting.”

FW 008988. The Court declines to address this matter further.

Plaintiffs lack standing to bring a challenge to the Rule’s definition of trapping.

Even if they had standing, they failed to properly object that the definition is not as

stringent as the Department’s recommendations. Moreover, the State has demonstrated

that the definition is not inconsistent with the legislative intent of Section 1 of Act 159,

and Plaintiffs have failed to demonstrate that it is arbitrary or otherwise outside the

rulemaking authority of the Board.

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E. Body-gripping traps (Act 159)

Plaintiffs take issue with the best management practices (BMPs) in the Rule

regarding body-gripping traps. They argue that there is insufficient evidence that the

BMPs related to body-gripping traps meet the Association of Fish and Wildlife Agencies

(AFWA) performance standard, the AFWA has not seriously studied body-gripping traps,

the AFWA has not produced any species-trap-specific data, and the Board should have

considered banning or limiting the use of body-gripping traps altogether.

LCAR did not object to the Rule for any reason related to body-gripping traps.

Therefore, the Court presumes that the challenged provisions are correct, valid, and

reasonable. Plaintiffs have the burden to prove the contrary.

To the extent that Plaintiffs take issue with the AFWA BMPs used by the

Department in crafting recommended BMPs, the Legislature expressly required that

result. “The BMPs shall be based on investigation and research conducted by scientists

and experts at the Department of Fish and Wildlife and shall use the ‘Best Management

Practices for Trapping in the United States’ issued by the Association of Fish and

Wildlife Agencies as the minimum standards for BMP development.” 2021, No. 159 (Adj.

Sess.), § 1(a).

To the extent that Plaintiffs’ position is that AFWA’s BMPs do not meet its own

“performance standard” in the case of body-gripping traps, at least for some species, and

so the Department should have limited or banned them, the argument is insufficient to

demonstrate arbitrariness. Again, the Legislature required the use of the AFWA BMPs.

Plaintiffs’ dissatisfaction with those BMPs, or their belief that those BMPs do not have

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an adequate evidentiary basis, does not demonstrate that reliance on those standards is

irrational or nonsensical to a reasonable person.

To the extent that Plaintiffs argue that the BMPs in the Rule may be arbitrary

because the data upon which the AFWA BMPs rely are not publicly available, the Court

reiterates that the Legislature required the Department to use the AFWA’s BMPs as a

starting point for its own BMPs. See FW 0012872 (e-mail from Bryant White explaining

the proprietary nature of the underlying data). Plaintiffs can hardly fault the

Department for doing what the Legislature plainly required of it.

Plaintiffs also object that the AFWA BMPs are species-specific while the Rule’s

BMPs are not. The point is accurate. On the other hand, the Rule is presumptively

valid, and Plaintiffs bear the burden of showing its invalidity. Here, the explanation for

not incorporating species-specific standards is in the record is as follows:

While the proposed rules do not set forth species specific BMPs, there is
empirical scientific evidence that the recommendations will address animal
welfare and selectivity. For example, swivels, limited chain length, and
adjustable pan tension will improve the mobility and selectivity of trapped
animals and will reduce injuries. Similarly, padded, offset, or laminated
trap jaws will limit injury to trapped animals. The jaw measurements,
including padding, are all within BMP recommendations for all species
trapped in Vermont.

The proposed rules are not designed to address each species independently
from one another, because such rules would be overly complicated and
would require law enforcement to determine what species a trapper
intended to target. The BMPs imbedded in the rule are specific and
enforceable.

FW 0016238–39; see also FW 0004389 (comment of Kevin French advocating position “to

make [BMPs] realistic for trappers to adhere to them”); FW 0005425 (comment of

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Madeline Cowan advocating position that would serve the interest in keeping the BMPs

“straightforward for trappers to understand and for wardens to enforce”).

Plaintiffs spend little, if any, time arguing that the failure to adopt any of the

species-specific requirements somehow works to the detriment of any person or species.

Nor do they counter the State’s evidence establishing its consideration of species-specific

regulations, and the reasons why it rejected those in favor of a clear standard applicable

to all. Those considerations, supported by the record, are not irrational or manifestly

unreasonable. Indeed, just the opposite. They fully support the Board’s decision to have

a more generic standard that more easily may be understood and enforced.

Conclusion

For the foregoing reasons, the Court affirms the validity of the Rule.

Electronically Signed on March 25, 2025, per V.R.E.F. 9(d)

__________________________
Timothy B. Tomasi
Superior Court Judge

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