Understanding and Interpreting the Trapping Law

M.G.L. Ch 131 § 80A The Wildlife Protection Act

Understanding and Interpreting the Law  

1996:  The Ballot Initiative

In 1996, sixty-four percent of the voters in Massachusetts declared their opposition to the use of body-gripping traps for capturing fur-bearing mammals by voting in favor of the Wildlife Protection Act (WPA), Question 1 on that year’s ballot. The initiative passed in 14 of 15 counties, 75% of all cities and towns both rural and urban and 95% of all House and Senate districts.

The intention of this ballot initiative was, in part, to put an end to both the recreational trapping of fur-bearing mammals and the dangers posed by body-gripping traps to companion animals. Those who wrote the text also clearly intended to allow traps to be used in cases of threats to human health and safety, and in cases where there was no other alternative to solving an animal problem that was causing property damage.

When the ballot initiative passed, M.G.L. Ch 131 § 80A expressly prohibited the use of “traps designed to capture and hold a fur-bearing mammal by gripping the mammal’s body or body part . . . including steel jaw leghold traps, padded leghold traps, conibear traps, and snares.”

There were two exceptions to this prohibition:

  1. federal and state departments of health could use any of the prohibited traps for the “purpose of protection from threats to human health and safety”; and
  2. anyone could apply to the state Division of Fisheries and Wildlife (now MassWildlife) for a permit to use the prohibited conibear trap or snare, if they stated that “an animal problem exists which cannot reasonably be abated by the use of alternative, non-lethal management techniques or of traps other than those prohibited by this section."

 2000:  A Conference Committee Compromise

In July 2000, a conference committee in the state legislature made changes to M.G.L. Ch 131 § 80A in response to growing pressure from people on both sides of the trapping debate those who had concerns about animal welfare, and those who wanted more immediate relief from property damage caused by fur-bearing mammals than they were getting from MassWildlife.

The conference committee worked diligently with organizations on both sides the Massachusetts Society for the Prevention of Cruelty to Animals, Massachusetts Audubon Society, the Massachusetts Farm Bureau, and the Cape Cod Cranberry Growers Association and reached a unanimous agreement that was supported by all four organizations and is currently the law in the Commonwealth. The negotiations centered around allowing reasonable exceptions to the prohibitions on trapping in order to facilitate solutions to property damage caused by beavers and muskrats, while still retaining the spirit and intent of the 1996 ballot initiative.

The intention behind the changes was to move some control from the state to the local level in order to make the permitting process in cases of threats to health and safety more expedient. As the law now stands, municipal boards of health in addition to state and federal departments of health can make a determination about what constitutes a threat to public health or safety and, based on that determination, can issue emergency permits for three things:  1) using the conibear trap; 2) breaching a beaver dam; and 3) installing water flow devices to alleviate flooding caused by beaver dams.

The law includes a somewhat cumbersome permitting process that was designed to discourage indefinite use of the conibear trap and encourage the use of non-lethal alternatives like water control devices to combat property damage problems. 

Interpreting the Law

In 1996, there were two ways in which people could seek to use prohibited traps:

  1. from state and federal departments of health in cases of threats to human health and safety; and
  2. from the MassWildlife in cases where property damage has not been abated by permissible traps or non-lethal management techniques

Currently, there are still two ways in which people can seek to use prohibited traps:

  1. from local, state and federal departments of health in cases of threats to human health and safety; and
  2. from the MassWildlife in cases where property damage has not been abated by permissible traps or non-lethal management techniques

Issues with Implementation

Currently, there is some confusion in interpreting M.G.L. Ch 131 § 80A, and it centers on subsections

(a) (i), which is a list of things that may potentially be threats to human health and safety. The law states that “a threat to human health and safety may include, but shall not be limited to . .  .” and then lists nine possible threats. It’s important to note that the law says may, not shall. The language was very carefully crafted to ensure that subsections (a) (i) were suggestions of what might constitute a threat to human health and safety, not mandates. This was very deliberately intended to allow local health officials the flexibility to use their professional judgment in determining whether a true threat to health or safety exists, while also specifying some potential threats to assist them in making those determinations.

As stated above, the law currently also allows a person to apply to MassWildlife for a special permit to use prohibited traps. The last three paragraphs of M.G.L. Ch 131 § 80A were deliberately left unchanged from the 1996 version in order that people experiencing property damage that was not a threat to human health or safety could find relief through the state wildlife agency, just as they have always done.

The confusion comes into play in practice. MassWildlife has interpreted the law to mean that every issue that falls under subsections (a) (i) must be taken up by local boards of health before MassWildlife will respond to any requests for help. They will not respond, therefore, to a citizen’s request for assistance until local boards of health have issued a determination that the problem is not a threat to human health or safety and have denied an application for a permit to use prohibited traps. Nowhere in the law does it say that a person must apply to the municipal health authority for permits (the law says they may), nor does the law state that problems that fall within subsections (a) (i) can only be addressed by local health boards.

The Massachusetts Department of Public Health has interpreted the law in a slightly different way. In DPH’s document to local health authorities “Guidance for Boards of Health Implementing M.G.L. Ch 131 § 80A they write the following:

“The activities in this list [subsections (a) (i)] are intended to be suggestions about what could constitute a threat, but the determination of whether an activity poses a threat is left to the judgment of local health officials. If local health officials determine that there is not a threat to public health or safety, this does not mean that the person seeking help is without options. With appropriate permits, they can still install water flow devices, breach dams, or trap, under different conditions, which are outlined within the last three paragraphs of M.G.L. Ch 131 § 80A. The person can also appeal the Board’s decision to MDPH or MDFW.”

What these varying interpretations mean in practice is that people who turn first to MassWildlife for assistance will get a message that MassWildlife is “out of the beaver business” and that they must apply for a permit through their local health officials, even if the person seeking help does not believe there is a threat to their health or safety. This was not the intention of extending authority to local health officials; the intention was to give people an additional faster avenue of assistance if they were experiencing an emergency that needed immediate attention that wouldn’t come quickly enough from MassWildlife. If the intention had been to remove MassWildlife from the law altogether, the last three paragraphs of M.G.L. Ch 131 § 80A would have been stricken. They were not.

Further clarification and direction about the proper interpretation of the law is necessary in order to ensure effective implementation of M.G.L. Ch 131 § 80A.