Number 16 July 30, 1975

Number 16 July 30, 1975 James M. Shepard, Director Division of Fisheries and Game Leverett Saltonstall Building 100 Cambridge Street Boston, Massachusetts 02202 Dear Mr. Shepard: You have requested my opinion as to an apparent conflict between section 80A and sections 4, 5 and 37 of G. L. c. 131. Section 80A, which was added to c. 131 by c. 796 of the Acts of 1974, restricts the use of steel jaw leghold traps and certain other devices for the capture of fur bearing mammals. Specifi- cally, you have asked the following questions: 1. As presently worded, do any of the four sections (4, 5, 37, 80A) supersede the others? 2. Does the passage of the statutory legislation which dictates open seasons, status of game animals, method of taking, etc. operate so as to subvert the intent of the laws which have traditionally vested the administrative responsibility for resource management and regulation in professional resource people acting as a result of inputs considered at public hearings? It is my opinion that section 80A clearly takes precedence over the other more general provisions of c. 131. I decline to answer your second question for reasons set forth below. Section 80A prohibits a person from using a steel jaw leghold trap for the capture of fur bearing mammals except in limited circumstances in or under buildings and in water under certain circumstances.' This section seems to 'Section 80A states in pertinent part: No person shall use, set, place, or maintain any steel jaw leghold trap on land for the capture of fur-bearing mammals except in or under buildings on land owned, leased or rented by him. The steel jaw leghold trap may be used for the capture of fur- bearing mammals in water only if set in such a manner that all reasonable care is taken to insure that the mammal dies by drowning in a minimum length of time. No other device which is set in such a manner that it will knowingly cause continued suffering to such a mammal caught therein, or which is not designed to kill such a mammal at once or take it alive unhurt shall be used, set, placed or mamtained for the capture of fur-bearing mammals; provided however, that a person or his duly authorized agent may apply to the director for a special permit to use such traps, other than the steel jaw leghold trap, on property owned by such person. P.D. 12 89 be in conflict with other, more general, provisions of c. 131 which delegate considerable discretion to the Director with respect to the trapping of animals.- It is a long standing principle of statutory interpretation that an "earlier statute has no higher standing than the later and may be superseded thereby wholly or in part when such is the clear legislative intent." Boston Elevated Ry. V. Comm., 310 Mass. 528, 551 (1942). This principle is particularly applicable where the earlier statute is of general application and the later of specific application. Pereira v. New England Lng. Co., 1973 Mass. Adv. Sh. 1207, 1216; Clancy \. Wallace, 288 Mass. 557, 564 (1934); Copelandv. Mayor and Aldermen ofSpringfield, 166 Mass. 498, 504 (1846). When a later enacted statute conflicts with earlier enacted provisions, the priority must be to give effect to the legislative intent in such a way that the later legislative action may not be futile. "The earlier enactment must give way." Sullivan v. Worcester, 346 Mass. 570, 573 (1963). Insofar as there is a conflict between various sections of c. 131, the later and more specific provisions of § 80A govern. I find that § 80A adds limits to those imposed by § 37 on the means by which an owner, tenant or any other person may capture a fur bearing mammal. Similarly, the specific provisions of § 80A limit the broad discretion vested in the Director by § 4(2) and § 5. Section 80A, in delineating the narrow circumstances when otherwise prohibited traps may be used or when these traps may be used with the approval of the director is more specific than the general provisions of sections 4 and 5. The clear intention of the legislature was to ban the use of steel jaw leghold traps and similar devices, except as specifically provided in G. L. c. 131, § 80A. Neither the Director nor anyone else may use or authorize the use of such devices except as provided for in that section. Your second question is inappropriate, since it does not present a legal question but rather a policy question traditionally resolved by the legisla- ture. Your view that such "recent bills filed dealing with matters tradition- ally reserved to the appropriate state agency officials, constitutes a deliberate attempt to circumvent the normal regulatory process . . .," overlooks the important principle that the legislature, which delegates responsibility to your agency in the first instance, has the power to pass specific statutes which limit or even eliminate your discretion, unless the statute violates some provision of the Massachusetts or United States Constitution. The Supreme Judicial Court has consistently upheld statutes which fur- ther a policy against causing unnecessary suffering to animals. "The general subject of suppression of cruel treatment of animals being within legislative competency, the details in the main must be regarded as within the discretion 'Seclion 4. clause 2 empowers the director "notwithstanding any other provisions of this chapter . . . (to) take or in writing authorize other persons to take and possess, . . . mammals at any lime or in any manner for purposes of observation, research, control or management and, in his discretion, excuse certain persons so authorized from any licensing provisions of this chapter." 5eciion 3 directs the director to ". . . make rules and regulations relating to . . . methods of taking. . . ." Section 37 provides that "An owner or tenant of land . . |may| hunt or take by any means, except by poison or snare, any mammal which he finds damaging his property." 90 P.D. 12 of the law making power." Commonwealth v. Higgins, 277 Mass. 191, 195 (1931). While you may disagree with the wisdom of legislation, such as section 80A, it is your duty to enforce it. Very truly yours, FRANCIS X. BELLOTTI Attorney General