\\server05\productn\L\LCA\9-1\LCA103.txt unknown Seq: 1 12-MAY-03 11:48 RESTRICTING THE USE OF ANIMAL TRAPS IN THE UNITED STATES: AN OVERVIEW OF LAWS AND STRATEGY By Dena M. Jones* & Sheila Hughes Rodriguez** Enacting absolute bans on the use of trapping devices and on commerce in trapped animal products has been difficult. Nearly every state, however, has enacted some restrictions on who can trap, what animals can be trapped, where and when animals can be trapped, the type and size of permitted traps, and how often traps must be checked. This article summarizes past and potential approaches to curtail the use of traps in the U.S. at federal, state, and local levels. The article also notes litigation related to trapping and trapping prohibitions. I. INTRODUCTION ......................................... 136 R II. STATE LAWS ............................................ 137 R A. State Legislation ...................................... 137 R B. Case Law on State Legislation.......................... 140 R C. State Agency Regulation ............................... 142 R D. State Citizen Initiatives ................................ 144 R E. Case Law on State Initiatives .......................... 147 R F. State Anti-Cruelty Laws ............................... 149 R III. LOCAL LAWS ............................................ 149 R A. Municipal and County Ordinances ...................... 149 R B. Local Case Law ....................................... 150 R IV. FEDERAL LAWS ......................................... 151 R A. Federal Legislation .................................... 151 R B. Federal Agency Regulation ............................. 153 R C. Federal Case Law ..................................... 153 R V. RESTRICTING THE SALE OF FUR ....................... 154 R VI. INTERNATIONAL LAWS AND AGREEMENTS ............ 155 R VII. CONCLUSION ........................................... 156 R * Dena M. Jones, 2003. Humane Farming Association. M.S. 1988, Arizona State University; M.S. in Animals and Public Policy 1996, Tufts University School of Veteri- nary Medicine. ** Sheila Hughes Rodriguez, 2003. Former Counsel for the Animal Protection In- stitute. M.A. 1987, State University of New York at Buffalo; J.D., 1988, State Univer- sity of New York at Buffalo School of Law. The authors wish to thank Nicole Paquette and Camilla Fox of the Animal Protection Institute for their research assistance. [135] \\server05\productn\L\LCA\9-1\LCA103.txt unknown Seq: 2 12-MAY-03 11:48 136 ANIMAL LAW [Vol. 9:135 I. INTRODUCTION Ending the use of body-gripping traps to capture and kill animals was a major objective of American animal protection advocates during the 20th century. In one survey of subscribers to an animal rights pub- lication, leghold trapping was viewed as the worst treatment of ani- mals by humans among fifteen options presented.1 While the American public has limited knowledge of traps and how they are used, a strong majority opposes the activity, particularly when done for commercial or recreational reasons.2 Opinion surveys demonstrate public disapproval of the killing of an animal, by trapping or other- wise, for its fur.3 Although the level of commercial fur trapping fluctuates from year to year, the number of animals trapped for this purpose in the United States has declined significantly over a recent 20-year period from ap- proximately 19 million in 1978,4 to 14 million in 1988,5 to 6 million in 1998.6 In addition to obtaining pelts for the commercial fur industry, trapping is conducted for other purposes including population control, biological study, animal relocation, and agricultural and residential damage control. The United States Department of Agriculture’s Wild- life Services Program is the largest single user of trapping devices in the United States. In fiscal year 2000, Wildlife Services used body- gripping traps to capture more than 67,000 animals.7 Devices employed to capture mammals fall into two main catego- ries: kill traps and restraining traps. Common kill traps are mouse- traps, neck and body snares, killing box traps, and rotating-jaw traps 1 Rebecca T. Richards & Richard S. Krannich, The Ideology of the Animal Rights Movement and Activists’ Attitudes Toward Wildlife, in Transactions of The Fifty-Sixth North American Wildlife and Natural Resources Conference 363 (Richard E. McCabe ed., Wildlife Mgt. Inst. 1991). 2 Responsive Mgt., The Public and Fish and Wildlife Management: A Literature and Research Review 4-22 (Responsive Mgt. 1997); See also Dena Jones Jolma, Attitudes Toward The Outdoors: An Annotated Bibliography of U.S. Survey and Poll Research Concerning the Environment, Wildlife and Recreation 180 (1994). 3 Telephone Interview by I.C.R. Survey Research Group (Nov. 1995). When asked, “Do you think there are circumstances where it’s perfectly okay to kill an animal for its fur or do you think it’s always wrong to kill an animal for its fur?” 60% of the national sample of 1004 adults responded “always wrong.” Id. 4 Greta Nilsson, Facts About Furs 31 (3d ed., Animal Welfare Inst. 1980). 5 Camilla H. Fox, Trapping in North America: A Historical Overview, in Camilla H. Fox, Cull of the Wild: The Politics of Trapping in the United States (Camilla H. Fox & Christopher M. Papouchis eds., Animal Protection Inst. forthcoming 2003) (manuscript at 1, 3, on file with author). The figure is an estimate only because many states combine hunting and trapping data for furbearing species and others do not collect and report any statistics for trapping. 6 Id. The number of trapping licenses sold in the U.S. has also declined from 190,000 in the 1989–90 trapping season to 130,000 in the 1997–98 season. 7 U.S. Department of Agric., Animal & Plant Health Inspection Serv., Number of Animals Taken and Methods Used by the WS Program, Table 10–Taken–8/20/01 (FY 2000) <http://www.aphis.usda.gov/ws/tables/00table10t.rtf> (accessed Jan. 23, 2002). \\server05\productn\L\LCA\9-1\LCA103.txt unknown Seq: 3 12-MAY-03 11:48 2003] RESTRICTING THE USE OF TRAPS 137 including the Conibear and Sauvageau.8 Common restraining traps are box and cage traps, log traps, drive corrals and nets, foot snares, and various models of the steel-jaw leghold trap including those with padded, laminated, and off-set jaws.9 Animal advocates have used the following three main approaches to affect the use of traps, specifically kill devices and traps that grip a part of the body: 1) banning the individual devices, 2) restricting the use of the devices, and 3) prohibiting commerce in products from ani- mals caught in the devices.10 These restrictions have been proposed through the conventional public policy routes of state, local, and fed- eral legislation and state administrative agency regulation.11 In addi- tion, animal protectionists have tried less traditional avenues including statewide ballot initiatives, federal appropriations, and in- ternational trade agreements. Other innovative strategies attempted by animal advocates include the following: securing trapping rights on state lands, requiring a warning label on fur products, and eliminating government subsidies to the fur industry. II. STATE LAWS A. State Legislation State legislation has been the most popular tool for those who op- pose animal trapping. Between 1901 and 1982, more than 450 anti- trapping bills were introduced in state legislatures.12 During this time, 50% of all policy efforts to restrict or end trapping were at the state level, versus 30% at the local level, and 20% at the federal level.13 A majority of the legislative attempts have been aimed at prohibiting or restricting the use of the leghold trap.14 The first anti-trapping bill was introduced in the New Hampshire Legislature in 1901.15 However, it was the formation of the Anti-Steel- Trap League in 1925 that signified the beginning of an organized ap- proach to reform trapping in the United States. While previous anti- trapping efforts had been motivated by concerns for dwindling furbearer populations, the Anti-Steel-Trap League sought to save indi- vidual animals from unnecessary “pain and suffering.”16 Those push- 8 Gilbert Proulx, Mammal Trapping 3 (Alpha Wildlife Research & Mgt. Ltd. 1999). 9 Id. 10 Dena Jones, Reforming through Public Policy, in Camilla H. Fox, Cull of the Wild: The Politics of Trapping in the United States (Camilla H. Fox & Christopher M. Papouchis eds., Animal Protection Inst. forthcoming 2003) (manuscript at 119, on file with author). 11 Id. 12 John Richard Gentile, The Evolution and Geographic Aspects of the Anti-Trapping Movement: A Classic Resource Conflict 53 (unpublished Ph.D. dissertation, Or. St. U. 1984) (copy on file with Animal L.). 13 Id. at 75. 14 Id. 15 Id. at 51. 16 Id. at 60. \\server05\productn\L\LCA\9-1\LCA103.txt unknown Seq: 4 12-MAY-03 11:48 138 ANIMAL LAW [Vol. 9:135 ing for an end to the leghold trap because of the cruelty inflicted were joined by fox and raccoon hunters concerned about the risks that trap- ping posed to their dogs.17 The Anti-Steel-Trap League’s success in forming a broad base of support for its cause resulted in the passage, between 1925 and 1939, of legislation to restrict trapping in several states, including Arkansas, Georgia, Kentucky, Massachusetts, New Jersey, Pennsylvania, and South Carolina.18 Many of the early United States trapping bans were overturned after 1940, and campaign activity on the issue diminished significantly for much of the next three decades.19 In fact, no new trapping restric- tions were legislated at the state level until 1969