Friday, December 16, 2016

It’s time to re-visit deference to bureaucracies

Few laws have been more vetted than New Jersey’s 1984 ban on any “type” of steel-jaw leghold trap. 

In 1985 the Fish and Game Council and the fur industry tried to undercut the new statute by regulating a modified padded trap. The Attorney General and the Superior Court said “No.”

As both houses rejected amendments and changed language, the Legislature created a clear record of what it sought to ban. Because of that record, the law has for thirty-two years withstood trade challenges.

In October, three Appellate Division judges made a mockery of that process when they casually allowed the Council to defy the statute by regulating another modified leghold.  The judges delved no further than the Council’s own “report.” Humane organizations and the Sierra Club are appealing the decision.

Editorial boards familiar with the tweaked traps were incredulous. The Court’s bow to the Council’s claim that the modified trap doesn’t really have jaws because “only one part moves” – is “absurd” said the state’s largest paper. The Council’s approach is “dishonest,” wrote another, and the Court added “another layer of dishonesty.”

The Assembly has twice voted that the Council’s regulation violates the law.

The modified traps are spring-loaded leghold type traps with co-acting jaws that slam shut, with up to 60-pounds of bone-crushing clamping force, on the foot or leg of an animal. That is the classic, irreducible function of any steel-jaw leghold trap. The traps inflict the same types of injuries, and hold the animals for an extended period of time, inflict excruciating pain, injury, anxiety and fear, and attendant suffering. The traps, called “dog-proof,” capture and maim cats.

How can a court permit a breach of intent and spirit so apparent to everyone else? Judicial practice habitually gives administrative agencies generous, sometimes excessive, leeway.  Yet this deference should not apply to the interpretation of law, especially when the Council is the entity from which the statute must be protected. Nor should it apply to an agency with a plain partisan purpose at the expense of the law itself.

The red flags were everywhere. Legislative and legal records unexamined by this Court broadcast that the Council’s interpretation of the leghold statute is fraught with bias, misrepresentation, and conflict of interest.

The Council and the Division of Fish and Wildlife, which serves the Council, represent trapping interests who want to use leghold traps. They’ve tried this trick before, and didn’t get away with it. They waited through several Administrations until Governor Christie took power to try again.

In 1985, the Attorney General noted that the Council and the Division used a legal opinion by a lobbying group that represented the trap’s maker and the fur industry.[1] They claimed, as they do now, that another, modified leghold trap was “technically different” from steel-jaw leghold traps. The approach – relocate or add a part or two and call the result something else – is called hyper-technical, and it is used to get around laws.

The Kean Administration wouldn’t allow it. In the words of Attorney General Irwin Kimmelman, the ban is “absolute,” “unambiguous,” and applies to “technical modifications.”[2] The Council dropped its rule and the industry sued. “Modification” means partial or minor change.

In 1985, as now, the Council and trade used trap tests coordinated by the Association of Fish and Wildlife Agencies. The Association comingles state wildlife employees and the industries they regulate. Its recent modified trap tests were performed by fur trappers with no real supervision. Its trapping literature involved the National Trappers Association, Fur Takers of America, and the Fur Institute of Canada. The latter represents commercial fur sealers, trappers, fur farmers, wholesale fur dealers, fur manufacturers-processors, fur retailers and support industries.  
It is hardly surprising that in 1985, the Attorney General called this group and its trap tests “biased.”[3] Tests involved many irregularities. Contrary to claims, injuries sustained by animals were “serious” and “painful.”

Astonishingly, in 2016, the Appellate panel based its decision entirely on the Council’s and Association’s representations and tests (“scientific literature”) and allowed both to supercede the New Jersey law they could not overturn in 1985. In fact, the panel’s ruling was based on a single report by a Division employee described as a “member” of New Jersey Fur Harvesters, the 276 member trapping club that the Division says asked for the modified traps in the first place.[4]

As noted by the Attorney General in 1985, whatever the trade calls the trap is immaterial to the law; ordinary language applies.[5]

In 1985 legislative committees objected to the cruelty, and to the trap’s “use as a holding device which does not usually kill its victim, resulting in hours or even days of excruciating pain.”[6] The modified traps, called “dog proof,” capture and maim cats.

Moreover, the Senate had twice rejected amendments to exempt a modified leghold trap from the ban. As important, the Assembly changed amendment language to ensure that the ban was not limited to leghold traps then “currently in use” but to future legholds as well. As noted in the Superior trial court’s (1986) opinion, these changes “clearly indicate” that the “Legislature did not intend to permit use of, or even the study of, modification of steel-jaw traps. Clearly, these amendments are highly probative of the Legislature’s intent to prohibit all traps of the steel-jaw leghold type.”[7] The Superior Court further held that the Act “banned all jawed leghold traps.”[8]

That’s the ballgame, and that is why this decision should not stand.

[1] As confirmed by the Attorney General (see Exhibit A, page 12-13):  As of March 29, 1985 the Fish and Game Council had received only one opinion on the legality of the padded trap. That opinion was from the Wildlife Legislative Fund of America, a lobbying organization which had opposed passage of the Act (2T 141-22 to 143-4).  . . . In proposing the soft-catch regulation, the Fish and Game Council relied upon the legal opinion from the Wildlife Legislative Fund (Ra131 to 137).
[2] Letter from State of New Jersey to Fish and Game Council, July 12, 1985. Also, Exhibit B
[3] In both cases, claims of “substantially reduced injury” are based on trapping tests coordinated by the Association of Fish and Wildlife Agencies (Association) in cooperation with commercial fur trapping interests who advocate the use of leghold traps. In 1986, the Attorney General noted the “bias of the persons who designed and performed them [the tests]” and the “serious injuries and pain to the animals caught.” (See Exhibit A, p. 32.)
[4]  New Jersey Fur Harvesters has referred to  Mr. Burnett as a member:  “Our guest speaker/member Andrew Burnett (our state fur bearer biologist) gave his report, which covered the states approved bear hunt, species specific traps, beaver seasons, coyote numbers, and many of the members’ questions. Thanks Andy Posted by: New Jersey Fur Harvesters September 2010 Report Categories: Article Index New Jersey Fur Harvesters admin. (accessed Ap 2015).
[5] As argued by the Attorney General of New Jersey in 1986 (see Exhibit A, pages 17-18):
Finally, plaintiffs also assert that the padded and unpadded traps were recognized by experts as distinctly different types of traps and that the ‘technical meaning’ of the terms should control. This is neither in accord with the facts nor with the law.   There was no evidence that the terms had any recognized technical acceptance at the time the Act was passed; later efforts to put technical labels on the traps are totally irrelevant. In any event, the controlling law is to use the ordinary meaning, not a technical or trade meaning. E.g. Body-Rite Repair Co., Inc. v. Director, Division of Taxation, 89 N.J. 540, 543 (1983) (“Expert testimony on esoteric concepts of syntax or trade usage has little relevance to the interpretation of statutory language. . .”); Ford Motor Co. v. New Jersey Department of Labor and Industry, 5 N.J. 494, 503 (1950) (“In the absence of an explicit indication of a special meaning, words are to be given their common usage . . .”).
[6] The Attorney General, in 1986 (see Exhibit A, pages 31-32): As enacted, S831 reflects the same concern. The Act was never amended to establish an acceptable level of injury or pain caused by traps of the steel-jaw leghold type.  That would have permitted the feature which the Committee focused on as particularly objectionable – its use as a holding device which “does not usually kill its victim, resulting in hours or even days of excruciating pain. . .” Even the studies relied upon by plaintiffs demonstrate that padded traps of the steel-jaw leghold type cause serious injuries and pain to animals caught in the traps. Even ignoring the limited scope of the studies which plaintiffs rely upon (limited to injuries to the trapped leg only, and only to certain target animals), and the bias of the persons who designed and performed them, they prove that both padded and unpadded traps of the steel-jaw leghold type cause the same kinds of damage, providing yet additional support for the reasonableness of the Legislature’s determination to bar that method of trapping. (Emphasis added, APLNJ)
[7] Exhibit A, page 24: As Judge Farrell noted in his opinion, these changes clearly indicate that the Legislature intended to limit the study to “alternatives” to steel-jaw traps generically, not just alternatives to those “currently in use” and, further, that the Legislature did not intend to permit use of, or even the study of, modifications of steel-jaw traps.  Clearly, these amendments are highly probative of the Legislature’s intent to prohibit all traps of the steel-jaw leghold type, including the “cushion-hold” trap which was referred to in the Division’s statement dated February 2, 1984 (Ra158).
[8] The Superior Court held that the Act “banned all jawed leghold traps” (see Exhibit A. p. 7).     

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