United States: New Jersey Court Upholds NJDEP's Regulation Permitting The Use Of A Foothold Trap

Last Updated: November 9 2016
Article by Nancy E. Halpern, DVM, Esq.

NJDEP adopted a regulation in 2015 that "permits use of enclosed foothold traps to capture small fur-bearing animals, such as raccoons and opossums." N.J.A.C. 7:25-5.12 (g).

As set forth in the 2015-16 New Jersey Game Code, the use of the enclosed foothold traps is expressly permitted while the use of steel-jaw leghold traps is prohibited:

(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.

(e) Steel-jaw leghold type trap:

  1. Effective October 27, 1985, and thereafter, no person in this State shall:

    1. Manufacture, sell, offer for sale, possess, import or transport an animal trap of the steel-jaw leghold type;
    2. Take or attempt to take any animal by means of a trap of the steel-jaw leghold type; or
    3. Use a steel-jaw leghold type trap.

Rejecting a challenge by several state and federal animal rights organizations that the New Jersey Fish and Game Council exceeded their authority by permitting the use of the enclosed foothold traps, the Appellate Division panel of the Superior Court of New Jersey upheld the regulation and the found no deficiencies in the process used to promulgate the rule.

Specifically, the Court found there was statutory authorization for "the Council to promulgate regulations such as the one at issues here, which prescribed 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."

Citing to New Jersey Society for the Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366 (2008) the Court agreed with the holding by the state Supreme Court, that the process used by the Council was sound, stating:

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 [humane care of livestock], it 'would need to discern an inherent flaw in the very process by which they were drafted and adopted . . .' to invalidate the regulations . . . 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 . . .The same could be said here. (internal citations omitted).

The extensive record and careful response of the Department, defending the humane standards of care of livestock referenced was my responsibility as the Director of the Division of Animal Health at the time, with great assistance from DAG Nancy Costello-Miller. In that case, the appellate division upheld the regulations, but the activists appealed to the Supreme Court.

Here, an appeal is also likely. What is clear is that the Senate Concurrent Resolution and its sister Assembly version 25 that would have determined "that Fish and Game Council's proposal to allow use of enclosed foothold traps is inconsistent with plain language and legislative intent of 1984 law banning animal traps of steel-jaw leghold type" is now moot. However, a bill to ban the foothold traps is likely to be introduced.

A note about rabies, a nearly 100% fatal zoonotic disease that has been endemic in New Jersey since individuals relocated infected raccoons from the south to New Jersey. The NJ Department of Health reports on rabies testing each year and results each year. The latest report is available here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Nancy E. Halpern, DVM, Esq.
 
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