LCAR Certified Objection Shifts the Full § 842(c)(2) Burden to the Agency (Without Raising the Standard of Proof)

Case: Protect Our Wildlife, a nonprofit 501(c)(3) organization v. Fish and Wildlife Board, an Agency of the State of Vermont
Court: Supreme Court of Vermont
Date: 2026-06-12 (2026 VT 21)

1. Introduction

This appeal arose from Vermont’s modern legislative oversight framework for administrative rulemaking, specifically the consequence of a certified objection by the Legislative Committee on Administrative Rules (LCAR) under 3 V.S.A. § 842(c)(2). Plaintiffs—animal-welfare and wildlife-advocacy organizations—challenged amendments to the Fish and Wildlife Board’s “furbearing species” rule governing (1) pursuit of coyotes with dogs (Act 165) and (2) trapping best management practices and setbacks (Act 159).

LCAR formally objected to three components of the proposed rule: (i) the definition of “control” of coyote-hunting dogs, (ii) the definition of “public trail” for trapping setbacks, and (iii) an exemption from setback requirements for traps set in water or under ice. Plaintiffs sought to invalidate those portions as inconsistent with legislative intent and arbitrary, and argued that LCAR’s objection increased the agency’s burden of proof (including, they claimed, a heightened “clear and convincing” standard).

The Vermont Supreme Court used the case to clarify the scope and force of § 842(c)(2)’s burden-shifting mechanism, and then applied that clarified framework to uphold the objected-to provisions on the merits.

Core holdings (doctrinal):
  • A certified LCAR objection shifts to the agency the burden to prove all § 842(c)(2) factors for the objected-to rule portion; the “to the extent” phrase limits which text is covered, not which grounds must be proven.
  • The agency’s burden under § 842(c)(2) is by preponderance of the evidence; the statute does not impose clear and convincing proof, and the Court will not judicially add it.
  • An LCAR objection removes the usual deference to the agency’s interpretation of its enabling statutes for the objected-to rule portion; courts construe the statutes de novo.
  • Parties can forfeit arguments that the agency failed to satisfy other § 842(c)(2) factors if they do not raise them with specificity in the trial court and on appeal.
Core holdings (application):
  • The Board proved the “control” definition aligned with Act 165’s intent and was not arbitrary.
  • The “public trail” definition aligned with Act 159 and was not arbitrary.
  • The water/ice setback exemption aligned with Act 159, was supported by the record, and was not arbitrary.

2. Summary of the Opinion

The Court agreed with plaintiffs on a key procedural point: once LCAR certifies an objection, § 842(c)(2) places on the agency the burden to prove the validity of the objected-to rule portions under the statute’s enumerated factors. However, the Court rejected plaintiffs’ claim that the agency must meet that burden by clear and convincing evidence, holding the ordinary civil standard—preponderance—applies absent express legislative command.

Turning to substance, the Court held:

  • Control of dogs: Act 165’s “minimize risk” language, read with the Act’s expressed intent not to eliminate coyote hunting with dogs, supported a rule requiring hunters to locate and remotely recall dogs at all times using GPS/training collars and track logs.
  • Public trail: Limiting “public trail” (for trapping setbacks) largely to designated/mapped/managed trails on public land and certain iconic trails was reasonable, gave notice, and fit Act 159’s focus on “public locations.”
  • Water/ice exemption: The exemption was consistent with the Department’s BMPs and supported by record evidence that risks to people/pets were minimal during season, while setbacks could impede effective beaver/semiaquatic management and increase nuisance trapping.

The Court affirmed the civil division’s judgment upholding the rule amendments.

3. Analysis

3.1 Precedents Cited

The opinion’s statutory interpretation, burden-shifting analysis, and administrative-law posture are built from an interlocking set of Vermont and out-of-state authorities.

A. Statutory interpretation and plain meaning

  • Swett v. Haig's, Inc., 164 Vt. 1 (1995): Cited for the basic interpretive presumption that the Legislature intends the plain, ordinary meaning of the statutory text. This frames the Court’s rejection of the trial court’s narrowing construction of “to the extent” in § 842(c)(2).
  • Vt. Hum. Rts. Comm'n v. State, 2012 VT 45: Cited for de novo review of statutory construction. This supports the Court’s posture that interpretation of § 842(c)(2) is a legal question for the judiciary.
  • In re Request for Jurisdictional Opinion re: Changes in Physical Structures & Use at Burlington Int'l Airport for F-35A, 2015 VT 41: Cited for the proposition that repeated use of “and” is conjunctive—critical to the holding that an agency must prove each listed factor in § 842(c)(2), not merely the ground LCAR asserted.
  • Sutherland Statutory Construction § 21:16 (8th ed. 2025): Used to reinforce the conventional rule that “and” ordinarily signifies cumulative requirements. The treatise functions as a canon-of-construction buttress to the Court’s textual reading.
  • Robes v. Town of Hartford, 161 Vt. 187 (1993): Cited for the presumption that the Legislature chooses its words advisedly, underscoring why courts should not dilute § 842(c)(2)’s enumerated list.

B. Effect of legislative committee objection; comparative authority

  • Appeal of Toczko, 618 A.2d 800 (N.H. 1992): The opinion’s central comparative analogue. New Hampshire’s statute similarly shifted the burden to the agency after a legislative committee objection. The Vermont Court adopted the same conceptual move: once the fact of objection is pleaded, the agency must allege and prove the statutory factors in “rebuttal,” and challengers need not plead each factor as an element. This helped the Court validate its reading that LCAR’s objection triggers a full burden shift (within the covered text), not an issue-by-issue shift.

C. Issue preservation and forfeiture

  • State v. Ben-Mont Corp., 163 Vt. 53 (1994): Cited for the preservation rule requiring specificity and clarity to give the trial court a fair opportunity to rule. It supports the Court’s holding that plaintiffs forfeited any claim the Board failed to satisfy the other five § 842(c)(2) factors beyond legislative intent and arbitrariness.

D. Administrative deference and presumption of validity; what changes after objection

  • State v. Rolfe, 166 Vt. 1 (1996): Cited for the ordinary rule that agency interpretations of enabling statutes receive deference and implementing rules enjoy a presumption of validity. The Court uses this baseline to explain what § 842(c)(2) disrupts: the presumption is removed as to objected-to portions.
  • Vt. Ass'n of Realtors, Inc. v. State, 156 Vt. 525 (1991): Cited for deference absent “compelling indication” of error. The Court implicitly contrasts this deferential regime with the de novo statutory construction required once an LCAR objection triggers § 842(c)(2).
  • State v. Therrien, 2011 VT 120: Cited for the proposition that statutory interpretation is reviewed de novo. It supports the Court’s conclusion that the agency’s interpretation is not afforded deference for the objected-to provisions.
  • In re Conservation L. Found., 2018 VT 42: Cited to situate the Court’s approach within its broader administrative-law tradition: even where presumptions exist, courts independently review whether the agency exceeded statutory authority or acted unreasonably. Here, the objection makes independence more direct and explicit.

E. Standard of proof in civil/administrative cases

  • Shaw v. Vt. Dist. Ct., 152 Vt. 1 (1989): Cited for the general rule that preponderance is the standard in civil and administrative proceedings. It anchors the Court’s refusal to impose clear-and-convincing proof absent statute.
  • McCormick on Evidence § 340 (9th ed. 2025): Used to reinforce that preponderance is the traditional civil measure of persuasion.
  • Model State Admin. Proc. Act 1981 § 3-204 cmt. (Unif. L. Comm'n 1981): Plaintiffs relied on the comment’s phrase “special burden.” The Court rejected the inference that “special” means heightened evidentiary standard; instead it means “special” in the sense of who bears the burden (agency rather than challenger).

F. Separation of powers as context for legislative oversight

  • Hartness v. Black, 95 Vt. 190 (1921): Cited for separation of powers guarded by checks and balances. The Court uses it to contextualize LCAR’s objection process as a legislative check on executive rulemaking. Notably, the Court signaled that a legislatively adopted heightened standard of proof could be consistent with these principles—while declining to create it judicially.

G. “Arbitrary” review and rationality

  • In re Town of Sherburne, 154 Vt. 596 (1990): Cited for the formulation that a decision is arbitrary if it would not make sense to a reasonable person. The Court pairs this with the VAPA definition.
  • 3 V.S.A. § 801(13)(A): Quoted for the statutory definition of “arbitrary” agency action—lacking factual basis, lacking rational connection, or not making sense to a reasonable person.

H. Notice, definiteness, and penal consequences

  • State v. Cantrell, 151 Vt. 130 (1989): Cited for the principle that penal statutes must define offenses with sufficient certainty to inform ordinary people and to prevent arbitrary enforcement. The Court uses this to justify the Board’s need to define “public trail” clearly, given criminal penalties for rule violations.

I. Statutory-purpose construction

  • Shires Hous., Inc. v. Brown, 2017 VT 60: Cited for construing legislative intent by considering the whole statute, consequences, and the spirit of the law. This is central to the Court’s reading of “minimize” in Act 165 as “reduce as much as possible consistent with allowing hunting to occur,” rather than “reduce to the absolute theoretical minimum.”

3.2 Legal Reasoning

A. The new rule of § 842(c)(2): “to the extent” limits the text covered, not the grounds

The opinion’s most significant doctrinal contribution is its textual parsing of § 842(c)(2). The trial court treated LCAR’s objection as removing the presumption of validity only as to the ground asserted (legislative intent), leaving challengers to carry the burden on arbitrariness unless LCAR objected on that basis. The Supreme Court rejected that reading as inconsistent with the statute’s structure:

  • The phrase “to the extent that the objection covers a rule or portion of a rule” is a scope-of-coverage limiter (which provisions are subject to the burden shift), not a ground limiter.
  • The statute then lists a series of criteria linked repeatedly by “and,” signaling the agency must establish each criterion when the burden shifts.
  • The statute also bars the objection’s substantive content from being admitted “other than to establish the fact of the objection,” confirming that the mere fact of certified objection triggers the shift, not the objection’s reasoning.

In practical terms, once an LCAR objection is certified and the objection fact is pleaded, the agency must be prepared to litigate the objected-to portion across all enumerated § 842(c)(2) dimensions—authority, legislative intent, arbitrariness, style, public-input strategy adherence, and economic/ environmental impact analysis sufficiency—unless challengers forfeit some issues.

B. Forfeiture as a limiting principle on the “all factors” rule

While the Court held the agency’s burden legally spans all seven factors, it also held plaintiffs forfeited any arguments about five of them by not raising them. This matters doctrinally because it clarifies that § 842(c)(2) is not self-executing in the sense that courts must sua sponte invalidate rules if an agency fails to prove unlitigated factors. The adversarial system still requires issue development, and the preservation doctrine (as articulated in State v. Ben-Mont Corp.) applies.

C. Standard of proof: burden shift yes, heightened standard no

The Court treated plaintiffs’ “clear and convincing” request as a separation-of-powers sensitive question: the Legislature can calibrate judicial review, but courts should not rewrite the statute. The Court’s reasoning proceeded in three steps:

  1. Baseline rule: Preponderance applies in Vermont civil/administrative proceedings (Shaw v. Vt. Dist. Ct.), with clear-and-convincing reserved for certain exceptional contexts or explicit statutes.
  2. Textual silence: § 842(c) says nothing about elevating the standard, so the Court will not add one.
  3. Model Act comment: The “special burden” language describes who bears the burden, not the quantum of proof.

The opinion also included an important dictum: if the Legislature did adopt a heightened standard (especially for evidentiary factors such as economic/environmental impacts), doing so could be consistent with separation-of-powers checks and balances (citing Hartness v. Black).

D. Deference: § 842(c)(2) removes interpretive deference for the objected-to provisions

Even while keeping the preponderance standard, the Court strengthened judicial scrutiny by holding that an LCAR objection removes the ordinary deference to the agency’s interpretation of enabling legislation for the objected-to portion. This is the operational mechanism by which § 842(c)(2) “forces the agency to affirmatively prove” validity: if courts deferred on statutory meaning, the agency’s burden would be materially diluted.

E. Application to the challenged provisions

(1) “Control” of coyote-hunting dogs under Act 165

The central dispute was semantic and purposive: whether “minimize the risk” means reduce risk to the least conceivable amount (plaintiffs’ view) or reduce risk as much as feasible while preserving regulated hunting (the Court’s view). The Court resolved the ambiguity by anchoring “minimize” in Act 165’s explicit intent clause: the Legislature sought to reduce conflicts while supporting humane taking, ecological management, and “reasonable and effective means of control,” not to regulate the practice out of existence.

On arbitrariness, the Court relied on record evidence that GPS-enabled training/control collars can locate dogs in real time, overlay parcel boundaries, and use tone corrections for recall (“tone broke” dogs). It accepted that collars are not perfect in all terrain, but rejected perfection as the legal benchmark. It also accepted the Board’s explanation that leash/line-of-sight requirements would function as a de facto ban, contrary to Act 165’s stated intent.

(2) “Public trail” for trapping setbacks under Act 159

Plaintiffs argued Vermont’s tradition of public recreational access over private land requires “public trail” to include many private-land trails. The Court instead emphasized (i) Act 159’s phrasing (“public trails” among other “public locations”), (ii) the need for clear notice because criminal penalties attach, and (iii) the coherence of limiting the term to trails that are designated/mapped/managed on public land or otherwise formally institutionalized as public (rail trails, Long Trail, Appalachian Trail).

This portion of the opinion is as much about administrability and fair notice as it is about legislative intent: an enforceable setback regime must tell trappers, wardens, and the public which corridors trigger the setback. Invoking State v. Cantrell, the Court treated definiteness as a rule-of-law value in regulatory drafting.

(3) Water/ice setback exemption

The Court upheld the exemption largely on a rational-risk and management tradeoff: limited evidence of human/pet injury from such sets during season, limited access to under-ice sets, and the practical need to trap semi-aquatic species near shore to avoid nuisance flooding. The Court also noted that the Department’s BMPs recommended omitting water sets from setbacks, reinforcing alignment with Act 159.

3.3 Impact

A. A clarified litigation framework for objected-to rules

The opinion’s most durable impact is procedural: in any future challenge where LCAR has certified an objection covering a rule portion, the agency must be prepared to prove, for that portion, every § 842(c)(2) factor—unless challengers fail to preserve issues. This will likely change how agencies:

  • compile rulemaking records (anticipating evidentiary showings for arbitrariness and impact analyses);
  • draft responsiveness memos to LCAR and to the Secretary of State file;
  • litigate (affirmatively pleading and proving § 842(c)(2) compliance rather than relying on presumptions and deference).

B. Incentives in the LCAR–agency dialogue

By confirming the burden shift is broad and deference is removed, the decision increases the practical leverage of a certified LCAR objection. Even without a heightened evidentiary standard, the agency now faces a more demanding posture in court. This may encourage agencies to accommodate objections pre-adoption to preserve the ordinary presumption of validity.

C. No judicially created “super-burden”

The Court’s refusal to impose clear-and-convincing proof stabilizes expectations: the Legislature can heighten scrutiny explicitly, but courts will not do so by implication. That said, the opinion’s separation-of-powers discussion reads as an invitation for legislative clarification if Vermont wishes the objection mechanism to have still stronger judicial effects.

D. Substantive wildlife regulation: deference to pragmatic risk balancing (within statutory bounds)

On the merits, the Court signaled that where statutes require risk reduction but also presume continued regulated activity (hunting/trapping), agencies may adopt pragmatic, enforceable standards even if they are not the most restrictive imaginable. The arbitrariness review remains tethered to reasoned explanations and record support, not to a “best possible policy” inquiry.

4. Complex Concepts Simplified

Key terms in plain language

  • LCAR (Legislative Committee on Administrative Rules): A legislative oversight committee that reviews proposed agency rules. If it formally objects and certifies the objection, that triggers special consequences in later court cases.
  • Certified objection: A formal, recorded LCAR objection filed with the Secretary of State. In court, it can be used only to prove that an objection happened—not to prove the objection’s correctness.
  • Burden of proof: Who must persuade the court. Under § 842(c)(2), once there is a certified objection covering a rule portion, the agency (not the challenger) must prove the objected-to portion is valid under the statute’s listed criteria.
  • Standard of proof: How convincing the proof must be. “Preponderance” means more likely than not. “Clear and convincing” is higher. The Court held § 842(c)(2) shifts the burden but does not raise the standard.
  • Deference: Courts often give weight to an agency’s interpretation of its own statute. Here, for objected-to provisions, the Court held that deference drops away and judges interpret the statutes independently.
  • Arbitrary (and capricious) action: A decision that lacks a factual basis, lacks a rational connection to the stated facts, or would not make sense to a reasonable person.
  • Legislative intent: What the Legislature meant to accomplish. Courts derive it from statutory text, structure, and purpose—not from policy preferences.
  • Forfeiture (issue preservation): If a party does not clearly raise an issue in the trial court and on appeal, the appellate court generally will not decide it.

5. Conclusion

Protect Our Wildlife v. Fish and Wildlife Board establishes a clear rule for Vermont administrative law: a certified LCAR objection triggers a full burden shift under 3 V.S.A. § 842(c)(2) for the objected-to rule portion, requiring the agency to prove compliance with all enumerated factors, while also eliminating ordinary interpretive deference for that portion. At the same time, the Court declined to elevate the evidentiary standard to clear and convincing absent legislative direction, and reaffirmed that litigants must preserve issues or forfeit them.

Applied to wildlife regulation, the Court upheld the Board’s pragmatic, enforceable measures: GPS-enabled remote recall and logging for dog control, a notice-centered definition of “public trail,” and a record-supported exemption for water/ice sets. The broader significance lies less in trapping or coyote hunting than in the strengthened—and clarified—judicial posture that follows when the Legislature, through LCAR, formally flags a rule for nonconformity risk.