Maine’s highest court has upheld the claim of an Aroostook County man who was fined $100 for violating a state trapping regulation that didn’t exist.
Michael Bresett, 46, of Van Buren was convicted in September 1998 of violating a Department of Inland Fisheries and Wildlife administrative regulation prohibiting use of a live trap to trap a non-fur-bearing animal – in his case, a bear.
At one point, Bresett said, a prosecutor told him that if he put four sections of state law together he could “figure out” that live trapping of bear was a violation.
Bresett pleaded not guilty to the charge but was convicted by Aroostook County Superior Court Justice Paul T. Pierson and fined $100 plus $20 in fees.
So the veteran trapper appealed to the Maine Supreme Judicial Court, which overturned the conviction May 9.
In reviewing the case, the justices found no rule that prohibited Bresett from using a live trap to trap a bear and that the complaint charging him with violating the rule had failed to state an offense. The complaint against him should have been dismissed, the high court justices wrote.
“Sometimes the principles are expensive,” Bresett said during a recent interview. He said he spent about $2,000 pursuing his case in the state court system. “To me, it was worth the sacrifice,” he said.
In response to the high court’s decision, DIF&W Commissioner Lee Perry conceded recently, “Occasionally, we use incorrect judgment. We do make mistakes.”
Bresett, who raises about 10 acres of strawberries and raspberries and maintains hives of bees used to pollinate those fruits, had been live-trapping bear that September about 2,000 feet from his house on his Van Buren property.
“We have a high population of bears, and trapping them does help reduce the population,” he said. That, in turn, helps protect his crops from the foraging animals.
For Bresett, live-trapping a bear is more humane than using a leg-hold trap. An animal in a leg-hold trap will tear its legs as it thrashes to get loose, he said. He had caught cubs in his live trap before and let them go, but said a leg-hold trap usually means death for those young animals. “I’ve caught cubs so small that they can actually squeeze out of the cage,” he said.
Live-trapping bears was prohibited in the 1970s because trappers were using the live bears they captured to train their hounds for hunting, according to DIF&W Maj. Tom Santaguida. Others, he said Thursday, were transporting the animals for viewing – in essence, keeping an animal in captivity without a license. At that point, the department started treating bears separately from other animals to enhance their protection.
Bresett fears other trappers may have been convicted of the same charge in the 1990s. But whether that’s true isn’t clear because the department doesn’t track such specific charges.
When Bresett went to check his trap in September 1998, he noticed the door to the cage had been set off as if an animal had edged close to it. As he reset the trap, two game wardens headed toward him. They had been hiding in the woods, waiting for him to reset the trap, he said.
The wardens told Bresett a leg-hold trap or a snare would have been legal for bear, but a live cage-type trap was against the law. Having been a trapper for years and familiar with DIF&W rules, Bresett said, he asked the wardens to indicate where in the department’s rule book DIF&W prohibited such a move.
It was later, Bresett said, when a prosecutor suggested that four sections of law together would make clear that live-trapping bear was against the law.
Perry, the DIF&W commissioner, said during a telephone interview that the specific rule pertaining to bear trapping had been confusing at the time of Bresett’s 1998 conviction. “There never was any place [in the department’s rule book] that said clearly that it was unlawful to live-trap bears,” he said. When Bresett’s case was making its way through the courts, Perry said his department had some discussions about the need to clarify the rule, which was done later.
Bresett is not impressed.
“They’re trying to enforce laws that are vague even to them,” he said. “I think they’re trained well enough, but not enough in the laws.”
Bresett isn’t alone. Skip Trask of Readfield, a former game warden and former deputy commissioner for the department, is now the legislative liaison for the Maine State Trappers’ Association. He said some game wardens have considerable trapping experience but some others new in the field aren’t as knowledgeable about the rules. Trask said his group assists in the training of wardens, but added “there should be more focus placed on” trapping.
Still, Trask said, trappers should know exactly what the rules are before they set a trap.
In fact, it was Trask who helped the department rewrite the various trapping rules as Bresett’s case was headed to the state’s highest court. The confusion about the trapping rules, he said, existed throughout the 1990s until they were clarified. “I think they’re pretty clear now,” Trask said.
The changes made in the trapping laws have little to do with the fact that fewer people are trapping than in previous years, according to Trask. About 4,000 people hold licenses to trap this year, compared with nearly 5,000 in 1990. Those who trap either do it to control animal damage or for the fur, he said.
“Trapping is really an essential management tool,” Trask said.
Perry said game wardens receive exceptional training in all areas including administration of trapping regulations, but he admitted, “I think there’s always the opportunity for more training.”
Trask, noting the complaints of people who say DIF&W is too powerful, said the department has more watchdogs than other state agencies, from the Maine State Trappers’ Association to an assortment of other sportsmen’s organizations. In addition, a 10-member council serves in an advisory capacity, he said.
According to Santaguida, the department also has a citizen complaint process to investigate complaints. “We’re very open about that. I think the citizens’ complaint process provides us with a unique opportunity,” he said.
And even though fish and game rules are written by his department and not the Legislature, Perry said each rule goes through a public comment process.
Perry said a rule for his department is developed on the recommendation of a biologist, a sportsmen’s organization or the public. The rule is advertised in various media and a public hearing may be held to seek comment. If no public hearing is held, the department waits 30 days, then a DIF&W advisory panel reviews the rule. This panel has veto power, he said.
In the event of a new substantive rule or a major change, the department presents it to the Legislature first for its approval, according to Perry.
Bresett questions DIF&W’s tactic of hiding in the woods to wait for violators. “The wardens will go out of the way to catch people; they’re not out there to deter crimes. They go out of their way to make sure they can catch a crime,” he said.
“Instead of hiding in the woods and telling stories to each other, they should have been studying the law,” Bresett said.
Santaguida said game wardens must resort to all kinds of tactics to catch offenders. “Our main goal is voluntary compliance, but when the facts and circumstances lend themselves to someone intentionally and knowingly violating the laws, we strive to apprehend and prosecute them,” he said.
Bresett, however, believes game wardens should use common sense in their operations. He believes a lot of people are intimidated by game wardens. “A lot of people are ignorant to the law and [wardens] use that to their benefit,” he said.
Santaguida doesn’t see it that way. “The vast majority are in full compliance, which tells me we have a very educated user group,” he said.