Background
In 2022, the Vermont Legislature passed Act 165 and Act 159, requiring the Fish and Wildlife Board to adopt rules governing the pursuit of coyote with dogs and to update trapping best management practices, respectively. The Board proposed amended furbearing species rules in August 2023, including a definition of “control” for coyote-hunting dogs requiring GPS collar use and remote-recall capability, a definition of “public trail” for trap-setback purposes, and an exemption from fifty-foot setback requirements for traps set in water or ice.
The Legislative Committee on Administrative Rules (LCAR) reviewed the proposal and formally objected to all three of those provisions as contrary to legislative intent. The Board made minor revisions but adopted the rule over LCAR’s certified objections in December 2023. Four wildlife-protection nonprofits — Protect Our Wildlife, Animal Wellness Action, Center for a Humane Economy, and Vermont Wildlife Coalition — then filed suit in the Civil Division seeking a declaratory judgment that the objected-to provisions were invalid and injunctive relief halting coyote hunting with dogs.
The trial court upheld the rule, holding that LCAR’s objection shifted the Board’s burden only as to the ground LCAR asserted (legislative intent), not as to all statutory factors, and that the Board had satisfied that narrower burden. Plaintiffs appealed, arguing the trial court misread the burden-shifting statute and that the challenged provisions remained inconsistent with legislative intent.
The Court’s Holding
The Supreme Court of Vermont affirmed the trial court’s judgment upholding the rule, but corrected the trial court’s interpretation of the burden-shifting provision. Under 3 V.S.A. § 842(c)(2), a certified LCAR objection shifts the burden to the agency to prove all factors listed in the statute — not merely the specific ground on which LCAR objected. The court relied on the statute’s repeated use of the conjunctive “and,” reading that language to require the agency to establish, at minimum, that the objected-to rule is within its authority, consistent with legislative intent, not arbitrary, and written in satisfactory style, among other factors. The court further held, however, that the applicable standard of proof is preponderance of the evidence, not clear and convincing evidence; the statute contains no heightened-standard requirement, and the ordinary civil standard governs.
Turning to the merits, the court reviewed the Board’s interpretation of Acts 159 and 165 de novo, without agency deference, because an LCAR objection also removes the presumption of validity that would otherwise attach. On each disputed provision, the court found the Board had met its burden. The GPS collar requirement with mandatory real-time remote-recall capability was a “strict definition of control” consistent with Act 165’s goal of reducing conflicts while preserving lawful hunting; the definition of “public trail” (which covered unmapped designated trails on public land and named long-distance trails) was reasonable under Act 159; and the water and ice setback exemption was supported by evidence that such traps pose minimal risk to the public and that shoreline placement is necessary to trap semi-aquatic furbearers like beaver.
The court also noted, but did not reach, that plaintiffs forfeited any claim that the Board failed to satisfy the other five statutory factors (delegated authority, public-input strategy, rule style, economic impact, and environmental impact) by never arguing those grounds in the trial court or on appeal.
Key Takeaways
- A certified LCAR objection under 3 V.S.A. § 842(c)(2) shifts the burden to the agency to prove compliance with all enumerated statutory factors — not just the factor that prompted the objection — whenever the rule is challenged in a judicial proceeding.
- Despite that broad burden shift, the standard of proof remains preponderance of the evidence; the court declined to judicially impose a clear-and-convincing standard absent explicit statutory language, though it suggested the Legislature could constitutionally adopt one.
- An LCAR objection also eliminates the deference courts would otherwise give to an agency’s interpretation of its enabling statute, requiring de novo statutory construction.
- Challengers who fail to argue specific statutory factors in the trial court forfeit those grounds on appeal, even where the statute places the burden on the agency to prove those factors.
Why It Matters
This decision is the Vermont Supreme Court’s first definitive ruling on the scope of the burden-shifting mechanism triggered by a formal LCAR objection under the Vermont Administrative Procedure Act. By holding that the entire enumerated checklist in § 842(c)(2) falls on the agency — not just the ground LCAR identified — the court significantly strengthens the Legislature’s oversight role in administrative rulemaking and raises the stakes for agencies that press forward with rules over legislative objection.
For practitioners advising regulated entities and agencies, the case also confirms that LCAR objections effectively waive agency deference on statutory interpretation, making it critical for agencies to build comprehensive administrative records that address all § 842(c)(2) factors before adopting a contested rule. Wildlife advocates and environmental litigants will note that while the structural holding favored a broader agency burden, the Board survived scrutiny here by presenting detailed factual evidence — GPS-collar effectiveness, shoreline-trapping necessity — rather than relying on deference.