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.
http://www.newjerseyhunter.com/forums/84-small-game-action/101259-dog-proof-traps.html
(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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