Is the Maine Department of Inland Fisheries and Wildlife legally required to run a specific coyote snaring program, or can it design its own?
Plain-English summary
Representative McKee asked whether the Department of Inland Fisheries and Wildlife was legally obligated to run a specific coyote snaring program. The AG had previously advised that any such program had to comply with the federal Endangered Species Act, and the Department had suspended snaring while applying for a USFWS permit. The follow-up question asked whether state law mandated the suspended program.
The AG concluded it did not. 12 M.R.S.A. § 10105(3) says the commissioner "shall maintain a coyote control program," but the implementing details use the permissive "may." The commissioner may employ qualified persons as agents, may deploy them in unorganized townships during winter, and decides "where predation by coyotes is posing a threat to deer or other wildlife." The decision-making authority sits with the commissioner.
The opinion's broader point: an agency head receives deference for reasonable interpretations of statutes the agency is charged with enforcing. Where the Legislature wrote in flexibility (the "may" verbs, the discretionary site-selection authority, the requirement that programs accommodate federal law), the Department is not boxed into a specific design. The Legislature retained appropriation and oversight authority if it wanted a different outcome.
Currency note
This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Q: What does "shall maintain" mean if the rest of the section is permissive?
A: The Department had to have some coyote control program. It did not have to have the specific program representative McKee wanted reinstated. "Shall maintain" sets the floor; the substance of the program is the commissioner's call.
Q: Why was snaring suspended?
A: Because the program had to comply with the federal Endangered Species Act. The Department suspended snaring while it applied to the U.S. Fish and Wildlife Service for a permit. The opinion does not detail which protected species drove the concern.
Q: Can the Legislature force the Department to use snaring specifically?
A: Yes, by amending the statute to remove the "may" verbs and substitute "shall." The current language gives discretion; the Legislature can take that discretion away. The AG specifically noted that the Department's programs "remain subject to legislative appropriation and oversight."
Q: Does federal law override Maine law here?
A: When federal law (the ESA) and state law conflict, federal law preempts. Here the Department's reading of state law was that it had flexibility to comply with both. If state law were rewritten to mandate snaring of all coyotes regardless of bycatch, that mandate would still have to bend to the ESA.
Background and statutory framework
12 M.R.S.A. § 10105(3) emerged from a 2003 recodification. Public Law 2003, ch. 414, § D-7 replaced similar language in the now-repealed 12 M.R.S.A. § 7053(3)(A) and (B-1), with the change effective April 30, 2004 (90 days after the adjournment of the second regular session of the 121st Legislature).
Subsection (3)(A) authorizes the commissioner to employ qualified persons as agents "for purposes of coyote control." Agents must be trained in animal damage control techniques and deployed "in areas where predation by coyotes is posing a threat to deer or other wildlife." Subsection (3)(B) addresses snaring in unorganized townships during winter, with all activity under departmental direction and adequately posted areas. Subsection (3)(C) lets the commissioner use agents for agricultural protection when reimbursed by the Department of Agriculture, Food and Rural Resources.
The opinion reads "shall maintain a coyote control program" as the operative mandate and the lettered subparagraphs as discretionary implementation. Standard administrative-law deference applies to the commissioner's reasonable choices among them. The federal Endangered Species Act adds the federal constraint.
Citations and references
Statutes:
- 12 M.R.S.A. § 10105
- 12 M.R.S.A. § 10053
- P.L. 2003, ch. 414, § D-7
- Endangered Species Act
Source
- Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
- Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2004/ag_20040621.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.
REGIONAL OFFicas; 04-3
84 Hartow St., 2no Floor
Bangor, Maine 04401
- ‘Tau: (207} 941-3070
Fax: (207) 941-3075
44 Oak Street, 4th Floor
PorTLanb, Mame 04101-30:4
Twi: (207) 822-0260
Fax: (207) 822-0259
G. STEVEN ROWE
ATTORNEY GENERAL
}
Telephone: (207) 626-8800 STATE OF MAINE TDD: (877) 428-8800
‘TOO: (207) 628-8865 OFFICE OF THE ATTORNEY GENERAL 128 Swap St., Sts. 2
6 Stare House STATION Tat: (207) W637 $
Aucusta, Marne 04333-0006 Fax; (207) 496-3291
June-21, 2004
Representative Linda Rogers McKee
Walton Road -
BR 1 Box 280 |
Wayne, Maine 04284
Dear Representative McKee:
This is in response to your request for an opinion on the question of whether the
Department of Inland Fisheries and Wildlife has a legal obligation to carry out a particular
coyote snaring program, In my previous opinion to you, I advised that any such program must
} comply with applicable federal laws, including the Endangered Species Act. In response to that
~~ opinion, I understand that the Department has suspended this program while applying fora
permit from the U:S. Fish and Wildlife Service. In response to your most recent question, for the
reasons that follow, we do not believe that Maine law requires the Department to undertake a
particular coyote snaring program.
The statute that is directly applicable to this program.currently' reads as follows: .
- Coyote control program. Pursuant to section 10053, subsection 8, the
commissioner shall maintain a coyote control program as follows:
A. The commissioner may employ qualified persons to serve as
agents of the department for purposes of coyote control These agents
must be trained by the department in animal damage control
techniques and must be utilized by the department to perform coyote
contro] duties in areas where predation by coyotes is posing a threat to
deer or other wildlife. Each agent shall execute a cooperative
agreement with the department specifying the conditions and
limitations of the agent’s responsibilities as an agent, including any
terms for reimbursement of expenses or payment of wages.
H
' This statute replaced similar language in repealed 12 M.R.S.A. § 7053(3) (A) and (B-1), effective 90 days after the
adjournment of the Second Regular Session of the 121" Legislature, which means as of April 30, 2004. 2.L. 2003,
c, 414 § D-7.
i Printad on Recycted Paper
B. Agents must be trained in the use of snares and must be deployed
in the unorganized townships to control coyotes during the winter
months. All snaring must be carried out under the direction of
department officials and with the knowledge of the local game warden.
All areas of snaring activity must be adequately posted. .
C. Agents may be utilized for the benefit of agricultural interests as long as the
department is reimbursed annually for the cost of those efforts by the Department of
Agriculture, Food and Rural Resources from funds specifically appropriated or
otherwise made available to the Department of Agriculture, Food and Rural
Resources for that purpose.
The question is whether this statutory language mandates a particular program or allows
discretion for the Department to fashion a coyote snaring or other coyote control program as it
deems appropriate. It is important to note that in the above quoted statute, while the Legislature
states that “the commissioner shall maintain a coyote control program as follows,” what then
follows is, that the “commissioner may employ qualified persons to serve as agents of the
department for purposes of coyote control.” The statute further grants to the commissioner
decision-making authority regarding the determination of “where predation by coyotes is posing
a threat to deer or other wildlife.” § 10105(3)(A). The statute further provides that any agent that
the commissioner may employ must execute 4 cooperative agreement the terms of which are to
be determined by the Department subject to applicable law. Id.
- Generally speaking, the law affords deference to an agency head’s interpretation of.
statutes that her or his department is charged with enforcing. In this case, that broad decision-
maling authority is further reflected in the particular statute governing this program, and the
state law must also be sufficiently flexible to accommodate compliance with applicable federal
law. The Legislature enacted the state law and, of course, all of the Department’s programs
remain subject to legislative appropriation and oversight. For all of the foregoing reasons, we
believe that the law does not legally compel the Department to carry out a particular coyote
snaring program.
[hope that this answers your question. If you have any further questions, please let me
know.
4 Ye Pon
b Steven Rowe
Attorney General
GSR/djp