ANIMAL PROTECTION LEAGUE OF NEW JERSEY v. NEW JERSEY FISH AND GAME COUNCIL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05285-14T4

ANIMAL PROTECTION LEAGUE OF
NEW JERSEY, ANIMAL WELFARE

INSTITUTE, UNEXPECTED WILDLIFE

REFUGE, BORN FREE USA, SIERRA

CLUB, LAWYERS IN DEFENSE OF

ANIMALS, and ASSOCIATED HUMANE

SOCIETIES,

Appellants,

v.

NEW JERSEY FISH AND GAME COUNCIL,

NEW JERSEY DIVISION OF FISH AND

WILDLIFE, and NEW JERSEY

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Respondents.

__________________________________________

October 27, 2016

Argued October 5, 2016 Decided

Before Judges Reisner, Koblitz and Sumners.

On appeal from the adoption of N.J.A.C. 7:25-5.12(g) by the Department of Environmental Protection, Division of Fish and Wildlife.

Dante Di Pirro argued the cause for appellants.

Yin Zhou, Deputy Attorney General, argued the cause for respondents (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Zhou, on the brief).

PER CURIAM

Appellants, a group of animal welfare organizations, challenge the validity of a 2015 regulation, N.J.A.C. 7:25-5.12(g) (the Regulation), which permits use of enclosed foothold traps to capture small fur-bearing animals, such as raccoons and opossums. They contend that the New Jersey Fish and Game Council (Council) exceeded its authority when promulgating it. Appellants also contend that the Regulation conflicts with the plain language and legislative intent of a 1984 law, N.J.S.A. 23:4-22.1 to -22.8 (the Act), which banned the use of "steel-jaw leghold type" traps. Utilizing the appropriate deferential standard of review, we affirm.

The Regulation provides the following

(g) Enclosed foothold traps may be used to harvest furbearing animals during the prescribed open seasons and shall be subject to the following requirements

1. All triggering and restraining mechanisms shall be enclosed by a housing;

2. The triggering and restraining mechanism is accessible only by a single opening when the trap is set;

3. The access opening does not exceed two inches in diameter or when measured diagonally;

4. The triggering mechanism can be activated only by a pulling force; and

5. The trap has a swivel-mounted anchoring system.

[N.J.A.C. 7:25-5.12(g).]

In 1984, the Legislature enacted the Act, which banned the use and possession of "steel-jaw leghold type" traps, except those "mouse and rat traps designed for use in or under buildings." N.J.S.A. 23:4-22.2, -22.4. Although "steel-jaw leghold type" is not defined within the Act, relevant scientific literature cited by appellants described "leg-hold traps" as having "two jaws that open to 180 when set, and clamp together to hold an animal's foot or leg when triggered."

The Assembly Commerce and Industry Committee's accompanying bill statement described steel-jaw leghold type traps as "the most inhumane and cruel of traps now used on wild furbearing animals[,]" which "does not usually kill its victim, resulting in hours or even days of excruciating pain." In a news release, Governor Kean noted that dogs, cats, and other pets had suffered serious injuries from the indiscriminate closure of steel-jaw leghold traps on their legs. The Governor also acknowledged that the bill was not intended "to drive [trappers] out of business" and stated that alternative traps would allow them to continue their trade "without severe economic loss."

The bill contained a provision directing Rutgers University "to identify or develop" an alternative trap within one year, "which substantially reduces injury and pain to both targeted and nontargeted animals." N.J.S.A. 23:4-22.4. While the resultant Rutgers study cited experts who suggested rubber-padded steel-jaw leghold traps might be preferable, Rutgers did not make a recommendation to the Council. The new trapping systems permitted by the Regulation were not then available.

In 2013, the New Jersey Division of Fish, Game and Wildlife (Division)'s Bureau of Wildlife Management released "Enclosed Foothold Traps: A Report to the New Jersey Fish and Game Council on the performance of new trapping systems as an alternative to steel-jaw leghold type traps" written by the Division's principal biologist, at the request of the New Jersey Fur Harvesters, one of two statewide trapping organizations.

The report discussed three enclosed foothold traps, known as the EGG (introduced in 1987), the Duffer Trap (introduced in 1995), and the Lil'Grizz Get'rz (introduced in 2001). According to the report, these enclosed foothold traps "utilize a round-bar extension similar to those of legal mouse and rat traps to live restrain an animal." When triggered, the metal bar extension exerts pressure against the animal's foot and the trap casing material. Enclosed foothold traps have a restricted, or enclosed, opening, which limits the number of species capable of reaching the pull-activated trigger. In addition, the trigger is recessed, which is intended to hide the bait from view as well as prevent the animal from biting its limb in an attempt to break free. The report compared steel-jaw leghold traps with enclosed foothold traps, and lauded the latter type as "highly selective for capturing raccoons and opossums" because "their design reduces the potential to capture domestic dogs and cats." Furthermore, the report emphasized that the new trapping systems have been shown to "substantially reduce injury to raccoons."

The report also noted that the Act's ban of steel-jaw leghold type traps resulted in decreased sales of trapping licenses, and reduced income to individual trappers and the State. The report cautioned that an ongoing decline in the harvest of furbearing animals could negatively impact other wildlife species because, for example, raccoons are "significant predators of ground nesting birds."

The report cited numerous studies conducted by the Association of Fish and Wildlife Agencies (AFWA), as well as other scientific literature. Through "extensive research and field testing," AFWA established best management practices (BMP) for trapping opossums and raccoons nationwide. Utilizing internationally-accepted performance standards, AFWA evaluated the traps in five key areas: animal welfare, efficiency, selectivity, practicality, and safety. The enclosed foothold traps performed more efficiently and more selectively, capturing a higher percentage of target species, than the steel-jaw traps.

In response to the report's recommendations, the Council proposed the Regulation. During the public comment period, 899 people expressed opposition via an e-mail form-letter contending generally that: the proposed amendment contravened the Act; enclosed foothold traps operate in the same matter as steel-jaw leghold traps and are inhumane; the EGG trap received unacceptable injury scores on raccoons; the Lil'Grizz Get'rz trap was never tested on opossums; and raccoons and opossums can be easily trapped in box traps, making enclosed foothold traps unnecessary. The Council published a response, citing the 2013 Division report and various scientific studies, including those conducted by AFWA involving BMP, in support of the amendment.

The Council justified the need for an alternative trap for economic, environmental, and public health reasons. It explained how trapping contributes to the State's economy, benefits the garment industry, helps control furbearer populations, eliminates nuisance wildlife species, protects endangered species, and reduces human and pet exposure to rabies and other diseases. It further noted that, since the ban, "raccoon harvests have dropped off significantly, allowing the populations to expand."

The Council asserted that "use of enclosed foothold traps will likely increase the harvest of raccoons as these traps increase trapper efficiency and selectivity." It stressed that enclosed foothold traps, which were not available at the time of the Rutgers study, "differ significantly from and are of a different design" than steel-jaw leghold traps since they "do not have 'jaws' like the banned traps do." A ban on "enclosed foothold traps [would] preclude[] the trapper from using the best available technology and make[] him or her resort to using traps which are less effective, non-selective for species, and may result in more damage."

An agency's regulations are presumed valid and reasonable. N.J. Soc'y for Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 385 (2008). Agencies are afforded great deference by the courts because they possess "the specialized expertise necessary to enact regulations dealing with technical matters and are 'particularly well equipped to read and understand . . . documents and to evaluate the factual and technical issues that . . . rulemaking would invite.'" N.J. League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999) (quoting Bergen Pines Cty. Hosp. v. N.J. Dep't of Human Servs., 96 N.J. 456, 474 (1984)). Thus, the challenging party must prove that the regulation at issue is arbitrary, capricious or unreasonable. Ibid.

Generally, we will not invalidate an agency's regulations unless the challenging party demonstrates

(1) the regulations at issue "violate[] the enabling act's express or implied legislative policies;" or (2) "there is [not] substantial evidence in the record to support the findings on which the agency based its action;" or (3) "in applying the legislative policies to the facts the agency clearly erred by reaching a conclusion that could not reasonably have been made upon a showing of the relevant factors."

[N.J. Soc'y for Prevention of Cruelty, supra, 196 N.J. at 385 (quoting In re Petition for Rulemaking, 117 N.J. 311, 325 (1989)).]

However, "if a regulation is 'inconsistent with the statute it purports to interpret,' it will be invalidated." Ibid. (internal citation omitted) (quoting Smith v. Dir, Div. of Taxation, 108 N.J. 19, 26 (1987)).

The Council operates under the umbrella of the Division, and the New Jersey Department of Environmental Protection (Department). N.J.S.A. 13:1B-24. It formulates "comprehensive policies for the protection and propagation of fish, birds and game animals," subject to Department approval. N.J.S.A. 13:1B-28. The Council must "determine under what circumstances . . . by what means and in what amounts . . . fur-bearing animals . . . may be pursued, taken, killed, or had in possession so as to maintain an adequate and proper supply thereof." N.J.S.A. 13:1B-30.

To that end, the Council is authorized to promulgate regulations "after first having determined the need for such action on the basis of scientific investigation and research . . . as it deems necessary to preserve, properly utilize or maintain the best relative number of any species." N.J.S.A. 13:1B-30. With regard to fur-bearing animals, the Council's regulations may "[p]rescribe the manner and the means of pursuing, taking, or killing any species or variety." N.J.S.A. 13:1B-32(d); See U.S. Sportsmen's All. Found. v. N.J. Dep't of Envtl. Prot., 182 N.J. 461, 470 (2005) ("Both statutes require 'scientific investigation and research' to justify action.").

In response to vigorous opposition received during the public comment period, the Council s decision to promulgate the regulation was based upon the recommendations contained within the Division's 2013 report. The report's author conducted a scientific investigation, performed his own research and relied heavily upon AFWA's BMP in recommending that enclosed foothold traps "would serve as a practical humane alternative" to the steel-jaw leghold type trap. See Animal Prot. League of N.J. v. N.J. Dep't. of Env't. Prot., 423 N.J. Super. 549, 562 (2011) certif. denied, 210 N.J. 108 (2012) (requiring reliance on scientific investigation and research).

The reasonableness of the Council's determination is supported by the AFWA studies cited by the Division, which consistently differentiate foot enclosing traps from jaw-type traps. They are categorized separately and described as having different key features. While jaw spread measurements are given for the jaw-type traps studied by AFWA, enclosed foothold traps are not described in any of the studies as having jaws; rather, they are identified and described by their round-bar diameter, opening diameter, and depth of trigger measurements. The studies also include diagrams of the three enclosed foothold traps, as well as the steel-jaw leghold type traps with visible paired jaws.

The Council's determination on this issue falls within its specialized area of expertise as defined by statute, which empowers the Council to promulgate regulations that "[p]rescribe the manner and the means of pursuing, taking, or killing" fur-bearing animals. N.J.S.A. 13:1B-32(d). Our Supreme Court in New Jersey State League of Municipalities, supra, 158 N.J. at 222 (citation omitted), recognized that the Council has specialized expertise necessary to read and comprehend technical materials (such as the Division's report and the AFWA studies discussed above), and is "particularly well equipped" to evaluate these materials in connection with rulemaking.

In New Jersey Society for the Prevention of Cruelty, our Supreme Court held that because the regulations fell within the agency's area of technical expertise, it "would need to discern an inherent flaw in the very process by which they were drafted and adopted or in the record that supports them" to invalidate the regulations. N.J. Soc'y. for the Prevention of Cruelty, supra, 196 N.J. at 393. The Court determined that the "extensive record and careful response of the Department to the overwhelming number of comments" did not warrant such a conclusion. Ibid. The same could be said here.

Moreover, when an issue before the Council elicits differences of opinion, our Supreme Court has held that the agency's determination must be upheld unless "it is plainly demonstrated to be arbitrary." United Hunters Ass'n v. Adams, 36 N.J. 288, 292 (1962). United Hunters concerned the Council's vote in favor of a one-day deer hunt during which deer of either sex and any age could be killed. Id. at 289-90. Upon reviewing scientific data on the size of South Jersey's deer population, the Council concluded the "hunter's choice day would harvest deer which now succumb to other perils, and would restore a proper balance which should yield a better herd no smaller in size" than if only adult bucks are hunted. Id. at 292. Not only did appellants in that matter disagree with the Council's determination, but "division of opinion" existed "within the agency's staff itself." Ibid.

The Court explained its ruling stating

The issue before us is not whether one theme has greater appeal than the other. If a subject is debatable, the agency determination must be upheld.

[Ibid.]

More recently, in 2012, we cited United Hunters in Animal Protection League of New Jersey when we upheld the Council's Comprehensive Black Bear Management Policy (CBBMP), which authorized a bear hunt. Animal Prot. League of N.J., supra, 423 N.J. Super. at 559. We determined: "Despite the conflicting opinions, the CBBMP contains significant substantive professional and scientific support for its conclusions." Id. at 563. We held that the Council's findings were not arbitrary or capricious, and represented "a considered view on one side of an honest disagreement." Id. at 569.

Thus appellants' disagreement with the Council's interpretation of scientific data on enclosed foothold traps is insufficient to overcome the presumption of reasonableness afforded to the challenged regulation, particularly in light of the supporting scientific literature contained in the record.

With regard to appellants' argument that the Regulation conflicts with the Act, statutory construction begins with examination of a statute's plain language. In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 491 (2004). Where the statute's plain language is clear and unambiguous, the court need not look beyond it to glean legislative intent. Id. at 491-92. The words utilized by the Legislature should be ascribed their ordinary meaning. State v. Lenihan, 219 N.J. 251, 262-63 (2014).

The plain language of the Act prohibits use of "steel-jaw leghold type" traps. The new leghold trapping systems are made of steel, but they do not operate as "jaws," having only one part that moves to ensnare the animal when the animal pulls on a lever with its paw, requiring a level of manual dexterity not available to other species such as dogs. Appellants argue that a jaw could refer to only one moving part, especially when the phrase is modified by the word "type." We accept the interpretation of the Council, informed by the history of the Act. See SJC Builders, LLC v. N.J. Dept. of Envtl. Prot., 378 N.J. Super. 50, 54 (App. Div. 2005) (deferring to the agency's reasonable interpretation of a statute which the Legislature entrusted it to enforce). At the time the Act was passed, the steel-jaw leghold traps available had two steel jaws. The Act explicitly banned that type of leghold trap. To read the Act otherwise would be contrary to its plain language.

N.J.S.A. 13:1B-30 and N.J.S.A. 13:1B-32 authorize the Council to promulgate regulations such as the one at issue here, which prescribes the manner and means of taking fur-bearing animals through authorization of enclosed foothold traps as an alternative to the banned steel-jaw leghold type traps, subject to certain conditions. Moreover, the regulation is supported by scientific investigation and research contained in the record. See Animal Prot. League of N.J., supra, 423 N.J. Super. at 562 (when reviewing a challenge to Council regulations, the "critical inquiry [is] whether the Council's decision was based on scientific knowledge and investigation"). We discern no flaw in the process by which the Regulation was drafted and adopted or in the record that supports it.

Affirmed.