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.
No. 25-AP-131
Supreme Court
January Term, 2026
2026 VT 21
Timothy B. Tomasi, J.
On Appeal from Superior Court, Washington Unit, Civil Division
Rachel L. Seelig, Megan E. Grove, and Geoffrey H. Hand of SRH Law PLLC, Burlington, for Plaintiffs-Appellants.
Charity R. Clark, Attorney General, and Justin G. Sherman, Assistant Attorney General, Montpelier, for Defendants-Appellees.
PRESENT: Reiber, C.J., Eaton and Waples, JJ., and Valente, Supr. J., and Cohen, J. (Ret.), Specially Assigned
¶ 1. WAPLES, J. Plaintiffs Protect Our Wildlife, Animal Wellness Action, Center for a Humane Economy, and Vermont Wildlife Coalition appeal the civil division’s decision affirming the validity of amendments to a Fish and Wildlife Board rule regulating trapping and coyote hunting with dogs, to which the Legislative Committee on Administrative Rules (LCAR) formally objected. Plaintiffs argue that the civil division improperly relieved the Board of its statutory burden to prove that the objected-to portions of the rule were valid. Plaintiffs further argue that three aspects of the rule are inconsistent with legislative intent and arbitrary: the definition of “control” of a coyote-hunting dog, the definition of a “public trail” for purposes of trapping, and the exemption of traps set in water or ice from setback requirements. We agree that LCAR’s objections meant that the Board had the burden of proving the validity of the objected-to portions
I. Factual Background
¶ 2. In 2022, the Legislature passed Act 165, which required the Fish and Wildlife Board to adopt a rule regulating the pursuit of coyote with the aid of dogs.1 Among other criteria, the rule was required to include “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.” 2021, No. 165 (Adj. Sess.), § 3(b)(4). Act 165 imposed a moratorium on hunting coyote with dogs, with some exceptions, until the Board’s rule became effective.
¶ 3. During the same session, the Legislature also passed Act 159, “[a]n act relating to best management practices for trapping.” Act 159 required the Commissioner of Fish and Wildlife to submit to the Legislature best management practices 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 best management practices were to include recommended “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.”
¶ 5. In October 2023, LCAR responded with a letter seeking modifications to the proposed rule. LCAR asserted that the rule was insufficient to minimize the risk that dogs pursuing coyote would enter onto land that was posted against hunting or where pursuit of coyote with dogs was not authorized. LCAR further asserted that the definition of public trail and the exemption for trapping in water or ice from setback requirements were inconsistent with legislative intent.2
¶ 6. On November 13, 2023, the Board notified LCAR that it had revised the proposed rule by, among other changes, expanding the definition of public trail to include unmapped designated trails on public land as well as rail trails, the Long Trail, and the Appalachian Trail, and requiring that coyote hunters be able to locate and remotely recall dogs using GPS collars at all times. The revised rule retained the exemption for traps set in water and expanded that exemption to traps set in ice. The Board explained that the risk such traps posed to the public or
¶ 7. The revisions did not satisfy LCAR, and on November 16, 2023, LCAR informed the Board that it had voted to formally object to the definitions of control and public trail and the exemption from setback requirements of traps set in the water or under ice. It asserted that these portions of the rule were contrary to legislative intent as expressed in Acts 159 and 165.
¶ 8. In response, the Board made some slight changes to the definitions of control and public trail but declined to modify the exemption for traps set in the water or under ice. In December 2023, it adopted the amended rule over the objections of LCAR. LCAR then certified its objections to the Secretary of State.
¶ 9. In January 2024, plaintiffs filed a complaint in the civil division for declaratory and injunctive relief against the Fish and Wildlife Board, the Fish and Wildlife Department, and the Commissioner of the Fish and Wildlife Department. Plaintiffs sought a declaratory judgment that the objected-to portions of the final furbearing species rule were contrary to legislative intent and asked the court to set aside the rule. Plaintiffs also sought a preliminary injunction prohibiting coyote hunting with dogs, asserting that LCAR’s objections to the rule meant that the moratorium in Act 165 was still in effect until the Board proved that the rule was consistent with legislative intent and not arbitrary.
¶ 10. Following a hearing, the trial court denied the preliminary injunction. The court observed that although plaintiffs would normally bear the burden of proving that they were likely to succeed on the merits of their complaint, LCAR’s objections meant that the Board bore the ultimate burden of proving that the rule complied with legislative intent. The court noted that to the extent plaintiffs argued that the rule was arbitrary and capricious, LCAR did not object on those grounds. Thus, it reasoned, the rule was entitled to its ordinary presumption of validity on that issue and plaintiffs bore the burden of proving otherwise. The court held that § 2 of Act 165
¶ 11. In their briefing on the merits, plaintiffs argued that under
¶ 12. In its final decision, the trial court reaffirmed its prior holding that LCAR’s objections only removed the presumption of validity as to the ground that was the basis for the objections, which was that the objected-to portions of the rule were inconsistent with legislative intent. Accordingly, plaintiffs retained the burden of proving their claims that those sections were
¶ 13. Turning to the merits, the court rejected plaintiffs’ argument that in directing the Board to define “control,” Act 165 required the rule to “minimize” the risks of trespassing or harming people or property, meaning not just to reduce but to reduce as much as possible. The court rejected this interpretation as unreasonable and held that the rule’s provisions were designed to reduce the risk of conflict and were not arbitrary. The court held that the rule’s definition of public trail was reasonable and consistent with Act 159. It upheld the exemption for traps set in water or under ice as consistent with legislative intent and the evidence available to the Board. This appeal followed.
II. Analysis
¶ 14. On appeal, plaintiffs argue that the trial court misinterpreted
¶ 15. As explained below, we agree with plaintiffs that the effect of LCAR’s objections was to shift the burden to the Board of proving the validity of the objected-to provisions on all bases set forth in
A. Scope of Burden Shift Under 3 V.S.A. § 842(c)(2)
¶ 16. We begin by addressing the proper interpretation of
¶ 17. Section 842 is part of the subchapter governing administrative rulemaking in the Vermont Administrative Procedure Act. The statute requires that after an agency proposes a rule, holds a hearing, and receives public comment, the agency must file a final proposed rule with LCAR.
- (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.
¶ 18. The legal effect of a certified objection is set forth in
After a Committee objection is filed with the Secretary under this subsection, or on the same grounds under subsection 817(d) of this title, to 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 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.
¶ 19. Here, the trial court interpreted
¶ 20. This is evident from a close examination of the first sentence of
¶ 21. The Supreme Court of New Hampshire reached a similar conclusion when interpreting a similar provision of New Hampshire’s administrative procedure act in Appeal of Toczko, a declaratory judgment action challenging the New Hampshire Department of Safety’s administrative rules regulating water ski craft. Under the law then in effect, a formal objection to a final rule by the joint legislative committee on administrative rules “shift[ed] to the commissioner the burden of demonstrating that the rules are ‘within the authority delegated to the agency, [are] consistent with the intent of the legislature, and [are] in the public interest.’ ” Appeal of Toczko, 618 A.2d 800, 802 (N.H. 1992) (second and third alterations in original) (quoting
This argument ignores the impact of the APA, which shifts to the commissioner the burden of proving that the rules are within the agency’s delegated authority, consistent with the legislature’s intent, and in the public interest. Because the petitioners pled the fact that the joint legislative committee objected to the proposed rules, the commissioner must now allege and establish these three issues as a rebuttal. The petitioners carry no burden of pleading issues which might be raised by the agency as a defense.
Id. (emphasis added) (citation omitted).
¶ 22. Similar to the New Hampshire statute quoted above, the effect of an LCAR objection under the plain language of
¶ 23. Notwithstanding their insistence that the burden shifted on all seven factors, plaintiffs failed to argue below or on appeal that the Board did not meet its burden on any ground other than legislative intent and arbitrariness. The parties focused solely on whether the objected-to portions of the rule satisfied those two factors; they did not present argument on the other five factors listed in
B. Clear and Convincing Evidence
¶ 24. We therefore turn to plaintiffs’ argument that the Board should be required to prove the
¶ 25. Typically, this Court defers to an agency’s interpretation of its enabling legislation, and agency rules implementing that legislation are entitled to a presumption of validity. State v. Rolfe, 166 Vt. 1, 8, 686 A.2d 949, 955 (1996). Thus, we have held that the court “must defer to the agency’s judgment absent a compelling indication” that it misinterpreted the enabling statute. Vt. Ass’n of Realtors, Inc. v. State, 156 Vt. 525, 530, 593 A.2d 462, 465 (1991) (quotation omitted). Section 842(c)(2) removes this presumption of validity by forcing the agency to affirmatively prove compliance with the seven factors when the objected-to rule is challenged in a judicial proceeding. However, the statute does not indicate that the agency is also subject to a higher standard of proof in such a proceeding. “Generally, the standard of proof for civil and administrative proceedings in this state is a preponderance of the evidence.” Shaw v. Vt. Dist. Ct., 152 Vt. 1, 6, 563 A.2d 636, 639 (1989); see also 2 K. Broun et al., McCormick on Evidence, § 340 (R. Mosteller ed., 9th ed. 2025) (explaining that “the traditional measure of persuasion in civil cases is by a preponderance of evidence”). The clear-and-convincing evidence standard is used in
¶ 26. Plaintiffs argue that their position is supported by the comment to § 3-204 of the 1981 Model State Administrative Procedure Act, which, like Vermont’s statute, was based on Iowa’s administrative procedure act and was adopted by the Uniform Law Commission around the same time that Vermont enacted § 842. They note that the drafters of the model act describe the agency’s burden as a “special burden” and contend that this requires a higher standard of proof. Model State Admin. Proc. Act 1981 § 3-204 cmt. (Unif. L. Comm’n 1981). We have reviewed the comment and this statement clearly refers to the fact that the person challenging a rule, and not the agency, usually bears the burden of proving that it is invalid. Thus, the burden shift imposed by a legislative objection is a “special” or “unusual” one.
¶ 27. However, legislative adoption of a heightened standard for judicial review in such cases would be consistent with separation-of-powers principles.
¶ 28. We agree with the trial court, however, that an LCAR objection necessarily removes the deference we would normally give to an agency’s interpretation of the enabling statute for the objected-to rule. Cf. Rolfe, 166 Vt. at 8, 686 A.2d at 955 (explaining that this Court ordinarily defers to agency’s interpretation of its enabling legislation). To hold otherwise would relieve the agency of some of its burden under
C. Definition of Control
¶ 29. Plaintiffs assert that the Board did not meet its burden of demonstrating that the definition of “control” in the rule is consistent with legislative intent and not arbitrary. “In construing legislative intent, we must consider the entire statute, including its subject matter, effects and consequences, as well as the reason for and spirit of the law.” Shires Hous., Inc. v. Brown, 2017 VT 60, ¶ 9, 205 Vt. 186, 172 A.3d 1215 (quotation omitted). “To determine whether the Board acted ‘arbitrarily,’ we must decide whether the decision makes sense to a reasonable person . . . .” In re Town of Sherburne, 154 Vt. 596, 605, 581 A.2d 274, 279 (1990); see also
¶ 30. Act 165 required the Board to adopt “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.” 2021, No. 165 (Adj. Sess.), § 3(b)(4). The final rule contained the following definition of control:
“Control of dogs(s)” means 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.
¶ 31. Plaintiffs argue that the rule fails to effectuate Act 165’s requirement that the definition of control “minimize” the risk of trespassing, personal injury, or property damage because the only means of control specified by the rule is the use of GPS collars, which plaintiffs assert are inadequate. Act 165 does not define the term “minimize.” The ordinary definition is “to reduce or keep to a minimum.” Minimize, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/minimize (last accessed June 4, 2026). Minimum, in turn, means “the least quantity assignable, admissible, or possible.” Minimum, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/minimum (last accessed June 4, 2026). Plaintiffs argue that Act 165 therefore requires the Board to adopt a means of control that keeps the risk of dogs trespassing or causing damage to the least quantity possible, such as requiring dogs to be kept on leashes or within sight.
¶ 32. The term “minimize” must be construed consistently with the statute as a whole. Shires Hous., 2017 VT 60, ¶ 9. Act 165 contains the following statement of legislative intent:
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 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). This provision makes clear that the Legislature did not intend for the Board to regulate coyote hunting out of existence, but instead to adopt rules that would lessen conflicts between hunting dogs and others while still encouraging responsible hunting. Viewed in this context, we conclude that the term “minimize” in § 3(b)(4) of Act 165 means to reduce the risk of conflict to the least quantity possible that still reasonably allows hunting to occur.
¶ 33. The rule’s definition of control is consistent with this construction. Section 3.6 requires a hunter to be able to locate and remotely recall dogs “at all times” while hunting coyote.
¶ 34. Plaintiffs argue that the Board was required by Act 165 to demonstrate that GPS collars are an “effective” means of control and failed to do so. This argument is unpersuasive. First, plaintiffs mischaracterize what is required by the statute. Act 165 states that the Legislature “intends that the rules required under this section support . . . the development of reasonable and effective means of control.” 2021, No. 165 (Adj. Sess.), § 3(a). This language does not require the Board to adopt or generate a perfect means of control, but to adopt rules that “support . . . development” of “reasonable and effective” means.
¶ 36. Plaintiffs point to evidence that some GPS collars have finite ranges and are not one-hundred-percent effective in keeping dogs out of posted property in hilly terrain, and that hunters may be hesitant to shock their dogs to avoid making them not want to hunt. Act 165 required the Board to adopt a definition of control that minimizes risk of trespassing or damage; it did not require the Board to completely eliminate such risks. Thus, the fact that GPS collars may have some limitations does not mean that the Board’s incorporation of them into the definition of control makes the rule arbitrary or inconsistent with legislative intent.
¶ 37. Plaintiffs further argue that other means of control are more effective and the Board’s failure to adopt these means renders the rule arbitrary. The Board specifically considered the argument that leashing or requiring dogs to remain within visible or audible distance would be a more effective means of control. The Board explained that these methods were not feasible when
D. Definition of Public Trail
¶ 38. We next address plaintiffs’ claim that the rule’s definition of “public trail” is contrary to legislative intent as expressed in Act 159 and is arbitrary. As explained above, Act 159 required the Department to submit best management practices (BMPs) for trapping to the Legislature by January 15, 2023. 2021, No. 159 (Adj. Sess.), § 1. The BMPs recommended by the Department were 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.”
¶ 39. Plaintiffs provided only a portion of the Department’s BMP report in their printed case, which omits the Department’s recommendations regarding trapping setbacks. According to the report available on the Department’s website, the BMPs submitted by the Department to the Legislature recommended that traps be set at least twenty-five feet away from public highways or trails on state-owned public land, “unless set in a culvert, in the water, or at least 5’ above the ground.” Vt. Fish & Wildlife Dep’t, Report to the Legislature, Response to Act 159, at 9 (Jan. 17, 2023), https://www.vtfishandwildlife.com/trapping-bmps-and-coyote-hunting-regulations-
¶ 40. The amendments adopted by the Board prohibit traps from being set within fifty feet of “the travelled portion of a legal trail, public trail or public highway, unless set in the water or under ice,” and from within 100 feet of parks, playgrounds, and other areas “owned and managed by municipal, state or federal entities,” unless set in the water or under ice.
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 recreational 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 the National Park Service, and the Long Trail designated, mapped and managed by the Green Mountain Club.
¶ 41. Plaintiffs argue that Vermont has a longstanding tradition of public access to private land and that many recreational trails cross private land. Plaintiffs argue that because Act 159 required the Board to protect places where the public recreates, the rule’s definition of a public trail should include trails that are on private land.
¶ 42. Act 159 does not define the term “public trail.” Clarification in the rule was therefore important to provide notice to trappers and the public of where setbacks apply,
¶ 43. The Board’s definition clarifies that public trails, for the purposes of trapping, include designated trails on public land, Vermont rail trails, and the two major long-distance hiking trails that pass through the state of Vermont. This definition is consistent with Act 159, which includes “public trails” as one of several listed “public locations” from which traps must be placed at a safe distance. As the trial court observed, the terms “public trail” and “public location” can reasonably be understood to exclude private trails and private locations, which may be closed to public use at the owner’s discretion. Cf. Property, Black’s Law Dictionary (12th ed. 2024) (defining private property as property “protected from public appropriation—over which the owner has exclusive and absolute rights” and public property as “State- or community-owned property not restricted to any one individual’s use or possession”). The other locations specifically listed in Act 159—class 4 roads, playgrounds, and parks—are places that are typically owned by a municipality or other governmental entity. The Board’s definition of a public trail is consistent with this list because it includes trails on public lands as well as several major trails that may cross some private land but are permanently protected and managed for free public use in affiliation with government agencies.
¶ 44. Plaintiffs cite examples of other trails that are mapped and signed and may cross private land, such as the Cross Vermont Trail or the Kingdom Trails, and argue that the exclusion of these trails shows that the rule’s definition is arbitrary. There is no evidence about these trails in the record, and plaintiffs have not shown that they are dedicated and managed for free public use in conjunction with government entities in the same manner as the trails listed in the rule. We therefore find this argument unpersuasive. Plaintiffs further argue that the rule’s definition of
¶ 45. The Board’s definition of “public trail” is reasonable and not arbitrary. The rule provides clear notice of where trapping setbacks are required—trails on public land and certain other heavily used trails that are formally mapped and signed and are widely recognized as “public”—and is not difficult to understand. It also avoids unnecessary conflict with Vermont’s existing legislative scheme governing trapping, which requires trappers to secure landowner permission before setting traps on private property and gives private landowners the right to exclude trappers. See
E. Traps Set in Water or Ice
¶ 46. Finally, plaintiffs claim that the exclusion of traps set in water or ice from trapping setbacks is inconsistent with Act 159’s requirement that traps be set at a “safe distance” from recreational areas and is arbitrary. As noted above, the Department’s BMPs recommended that traps set in water be omitted from setback requirements, so the rule is facially consistent with Act 159. We agree with the trial court that the rule is also not arbitrary or inconsistent with the legislative goal of ensuring that traps are set at a safe distance from trails and recreational areas.
¶ 47. The Board explained that trapping posed a very low risk to public safety. It noted that there was no evidence that any person had been caught or injured by a trap in Vermont, including under ice. There were also no known incidents related to pets being caught in traps under the ice. Persons and pets cannot access traps set under ice unless they reach or jump into
¶ 48. The Board’s explanation for excluding water- and ice-set traps from setback requirements is reasonable, consistent with Act 159, and supported by the record. Plaintiffs do not dispute that there is little to no evidence that traps placed in water or ice during trapping season pose a safety risk to humans or pets. The two reported incidents of pets being harmed by traps occurred in nuisance traps set outside of trapping season; thus, requiring setbacks would not have prevented these incidents. The low risk of such traps, coupled with the potential that setback requirements would actually increase conflicts by requiring more out-of-season nuisance trapping, supports the Board’s chosen approach. We therefore see no reason to invalidate the rule.
¶ 49. As explained above, the Board met its burden of demonstrating that the objected-to portions of the furbearing species rule were consistent with legislative intent and were not arbitrary. We therefore affirm the decision of the trial court.
Affirmed.
FOR THE COURT:
Associate Justice