Attorney General: Honorable Arthur J. Rocque, Jr., Department of Environmental Protection, 2000-012 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

March 10, 2000

Honorable Arthur J. Rocque, Jr.
Department of Environmental Protection
79 Elm Street
Hartford, CT 06106

Dear Commissioner Rocque:

You have asked for an interpretation of Conn. Gen. Stat. 26-3 as regards DEP's authority to take any animal by whatever means reasonably necessary to carry out its functions, even if the means DEP intends to use is contrary to another statutory provision. For the reasons expressed below, it is the opinion of this office that a court is likely to find that the DEP's general authority in Conn. Gen. Stat. 26-3 is limited by other specific statutory provisions related to the taking and killing of animals. Although a less restrictive interpretation of the statutes is possible, you have represented to this office that an interpretation which restricts the Commissioner's power under 26-3 may present a danger to agricultural crops, plants, or wildlife, and hinder DEP's ability to protect public health. Therefore, since it is quite possible that a court would interpret 26-3 in a restrictive manner, you may wish to seek a statutory change to clarify the Commissioner's authority.

The Commissioner's general power to manage wildlife is found in Conn. Gen. Stat. 26-3. Section 26-3 provides in relevant part that the Commissioner "may take at any time or place any fish, crustacean, bird or animal for scientific and educational purposes, public health and safety, propagation and dissemination." Further, this section provides that the Commissioner "may destroy and dispose of any undesirable or diseased wildlife species in the interest of wildlife management if he determines that the species (1) aggressively invades, or is likely to be detrimental to, agricultural crops or native wildlife, (2) is likely to be a carrier of insects, disease or parasites detrimental to such crops, plants or wildlife or (3) is likely to have a detrimental effect on natural or agricultural ecosystems." 1

In our opinion, if the Commissioner's actions under 26-3 are challenged, a court is likely to find that the Commissioner's powers under 26-3, while broad, are limited by other specific statutes relating to the taking or killing of wildlife. Pursuant to this interpretation, the Commissioner may not, for example, take, hunt, wound or kill any species of swan; kill deer by jacklighting; or cut down a tree to take a raccoon even if acting under the authority of Section 26-3 because each of these acts violates a specific statutory provision relating to the taking and killing of wildlife, which could be read to apply to the Commissioner. For example, Conn. Gen. Stat. 26-94 prohibits persons from hunting, taking, wounding, killing or attempting to hunt, take, wound or kill any species of swan. "Person" is defined in Conn. Gen. Stat. 22a-2(c) as "any individual, firm, partnership, association, syndicate, company, trust, corporation, limited liability company, municipality, agency, political or administrative subdivision of the state or other legal entity of any kind." (Emphasis added). Because the Commissioner is a person under this definition and because this definition is applicable to Chapter 490 containing  26-94 and 26-3, the Commissioner's power under Conn. Gen. Stat.  26-3 would be limited by the prohibition in  26-94. When two statutory provisions apply to the same subject and one applies generally and the other is particular, then the particular provision must prevail, "and if both cannot apply, the particular provision will be treated as an exception to the general provision." Kelly v. Dewey, 111 Conn. 281, 292-93 (1930) (citations omitted).

Other rules of statutory construction also support this interpretation. "[T]here is a presumption that the legislature, when enacting a statute, does so with regard to existing relevant statutes so as to make one consistent body of law." C. Whole & Son, Inc. v. Rocky Hill, 181 Conn. 114, 123 (1980). A consistent body of law in this area can be created by concluding that the Commissioner's general powers to destroy animals for the reasons set forth in  26-3 are limited by other more specific statutory provisions in Chapter 490 which restrict the manner in which a species can be taken, or which prohibit the taking of certain species.

A different interpretation of the Commissioner's authority under 26-3 is possible. Under this alternate interpretation, the 1997 amendments to 26-3 could be read to evidence a legislative intent to remove the applicability of those specific statutes in Chapter 490 which limited the Commissioner's ability to take animals if the animal "(1) aggressively invades or is likely to be detrimental to agricultural crops or native plants or wildlife, (2) is likely to be a carrier of insects, disease or parasites detrimental to such crops, plants or wildlife, or (3) is likely to have a detrimental effect on natural or agricultural ecosystems." See C. Whole & Son, Inc. at 123. By virtue of the 1997 amendment, the argument could be made that the Commissioner was empowered to destroy or dispose of an animal if one of the three circumstances listed above exists, regardless of other statutory provisions protecting specific species or prohibiting specific means of wildlife control.

This interpretation is bolstered by a second change made to  26-3 in 1997. Prior to the amendment,  26-3 provided "[the Commissioner] may destroy and dispose of any undesirable and diseased species in the interest of wildlife management." (Emphasis added.) The Legislature changed the word "and" to "or," enabling "the Commissioner to "destroy and dispose of any undesirable or diseased wildlife species in the interest of wildlife management," thereby expanding the circumstances under which the Commissioner may take animals, evidencing its desire to increase the Commissioner's authority. (Emphasis added.)

The legislative history of P.A. 97-250 provides some support for this interpretation. Speaking in support of P.A. 97-250, Representative Stratton stated that the change to  26-3 "allows the Department to dispose of nuisance or diseased wildlife." 40 H.R. Proc., pt. 7, 1997 Sess. 6492 (June 4, 1997) (Remarks of Rep. Stratton).

It is the opinion of this office, however, that a court is likely to determine that the better interpretation of the Commissioner's powers under 26-3 is that they are limited by the specific statutory provisions of Chapter 490 prohibiting the killing of certain species or the taking of animals in a specified manner. You have expressed concern for the danger to wildlife management and the public health and safety which you feel that this interpretation could create. Accordingly, you may wish to request clarification from the legislature of your powers under 26-3.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Kimberly P. Massicotte
Assistant Attorney General

RB/KPM/bjg


1 Section 26-3 was adopted in 1949. In 1997, the Legislature added criteria for exercising the Commissioner's authority to destroy and dispose of undesirable or diseased wildlife, but the Commissioner's core authority to take, destroy, and dispose of wildlife has existed since 1949.

In 1997, the legislature added, "if he determines that the species (1) aggressively invades or is likely to be detrimental to agricultural crops or native plants or wildlife, (2) is likely to be a carrier of insects, disease or parasites detrimental to such crops, plants or wildlife, or (3) is likely to have a detrimental effect on natural or agricultural ecosystems" following "may destroy and dispose of any undesirable or diseased wildlife species in the interest of wildlife management." Conn. Pub. Act 97-250.


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