Hunters, Anglers & Trappers Assoc. of VT v. Winooski Valley 
  Park District (2005-056)

2006 VT 82

[Filed 17-Nov-2006]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2006 VT 82

                                No. 2005-056


  Hunters, Anglers and Trappers                  Supreme Court
  Association of Vermont, Inc.
                                                 On Appeal from
       v.                                        Chittenden Superior Court


  Winooski Valley Park District                  March Term, 2006 


  Matthew I. Katz, J.

  Jacob B. Perkinson, South Burlington, for Plaintiff-Appellant.

  Richard C. Whittlesey of Roesler, Whittlesey, Meekins & Amidon, Burlington,
    for Defendant-Appellee.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

        
       ¶  1.  JOHNSON, J.   This appeal arises from a challenge by
  plaintiff Hunters, Anglers and Trappers Association of Vermont, Inc.
  ("HAT") to the Winooski Valley Park District's posted ban on hunting and
  trapping on lands within the District.  The superior court upheld the
  hunting ban, granting summary judgment to the District on HAT's principal
  claim.  HAT contends the court erred by: (1) concluding that the District
  possessed the authority to prevent hunting and trapping within the
  District; (2) relying on evidence outside the record, and refusing to order
  discovery, regarding the issue of whether hunting and trapping could be
  accomplished safely within the District; (3) dismissing as moot HAT's
  claims that the District lacked authority to ban possession of firearms
  within the District; and (4) failing to rule on HAT's motion to amend its
  complaint to add further claims against the District.  We affirm.

       ¶  2.  The relevant facts, which are not in dispute, are as follows. 
  HAT is a non-profit corporation "comprised of people and entities
  interested in the activities of hunters, anglers and trappers in Vermont." 
  The District is a union municipal district containing portions of the
  municipalities of Burlington, Colchester, Essex, Jericho, South Burlington,
  Williston, and Winooski.  It was chartered in 1972 to engage in "[t]he
  planning of its lands and waters in the Winooski Valley for the purposes of
  conservation, recreation, the establishment of parks and the preservation
  of natural areas" and "[t]he acquisition and management of lands and waters
  in the Winooski Valley."  Under the statute allowing formation of union
  municipal districts, such districts possess all of the powers of a
  municipal corporation upon their formation, 24 V.S.A. § 4865, including the
  power to acquire real property.  10 V.S.A. § 6302.  The District has
  acquired an ownership interest in approximately 1,730 acres of land, and it
  leases an additional 134 acres.  The District manages this land as parkland
  that is open to the public for a variety of uses.  The District does not
  allow hunting, shooting, or trapping on any District property, and it has
  posted signs to that effect according to the requirements applicable to
  private property owners under 10 V.S.A. § 5201.  Prior to the commencement
  of this action, the District's signs prohibiting hunting also included a
  ban on the possession of firearms.
   
       ¶  3.  In February 2003, HAT filed a complaint seeking an injunction
  to prevent the District from regulating hunting and trapping.  HAT also
  sought to enjoin the District from banning the possession of firearms on
  its lands.  The complaint alleged that the District's ban on hunting,
  trapping, and firearm possession violated both the Vermont Constitution's
  protection of the right to hunt and 24 V.S.A. § 2295, which prohibits
  municipalities from directly regulating hunting or trapping.  During the
  course of the ensuing litigation, the District changed its policy to
  eliminate its ban on the possession of firearms, and began changing the
  wording of its signs accordingly.  HAT and the District filed cross-motions
  for summary judgment regarding the hunting and trapping ban.  HAT also
  filed a "conditional" motion to amend its complaint, seeking to add further
  claims in the event that the court ruled in favor of the District on the
  original claims.  These additional claims alleged that the District's
  actions violated due process and the Vermont Consumer Fraud Act, and
  requested declaratory relief stating that the District did not have the
  right to ban possession of firearms on its lands.  

       ¶  4.  In July 2003, the superior court ruled that the District's
  elimination of its ban on the possession of firearms would render that part
  of the litigation moot, assuming the District followed through by changing
  the wording of its signs.  In October 2003, following further submissions
  related to the District's progress toward changing its signs, the court
  ruled that the firearm possession claim was moot.  In the same order, the
  court ruled that the District possessed legal authority to prohibit hunting
  and trapping on its own lands.  The court did not rule on HAT's motion to
  amend its complaint.  Instead, it gave HAT until the end of October 2003 to
  show cause why the action should not be dismissed, given its rulings in
  favor of the District.  Within that period, HAT submitted affidavits from
  hunters attesting that it was safe to hunt on the District's lands.  HAT's
  submission sought to contradict any assertion that hunting was necessarily
  unsafe on the District's lands, and stated that "good cause exists to allow
  the requested amendment of its Complaint and that this case should not be
  dismissed."  In January 2005, the court entered final judgment in favor of
  the District.  This appeal followed.
   
                                     I.

       ¶  5.   HAT's principal claim on appeal is that the court erred by
  concluding that the District has the legal authority to prohibit hunting
  and trapping on its own lands.  We review this question of law de novo. 
  Charbonneau v. Gorczyk, 2003 VT 105, ¶ 2, 176 Vt. 140, 828 A.2d 117.  HAT's
  assertion rests on the Vermont Constitution, general principles of local
  government law, and a statutory provision that specifically prohibits
  municipalities from regulating hunting and trapping. 

       ¶  6.  First, HAT argues that Chapter II, § 67 of the Vermont
  Constitution guarantees the right to hunt and trap.  Section 67 provides:

    The inhabitants of this State shall have liberty in seasonable
    times, to hunt and fowl on the lands they hold, and on other lands
    not inclosed, and in like manner to fish in all boatable and other
    waters (not private property) under proper regulations, to be made
    and provided by the General Assembly.

  Vt. Const. ch. II, § 67.  We agree with HAT that this provision provides
  constitutional hunting rights, but those rights are not necessarily
  implicated in this case.  Section 67 vests the Legislature with the power
  to regulate hunting and trapping even on privately held lands, and we have
  previously held that the Legislature may delegate this power to some other
  "body or person."  Elliott v. Fish & Game Comm'n, 117 Vt. 61, 69, 84 A.2d
  588, 593 (1951).  Thus, provided that the Legislature has properly
  delegated its authority to the District, the District's regulation of
  hunting and trapping will not violate any constitutional right.   
   
       ¶  7.  HAT next relies on the general principle that municipalities
  may not act without explicit authorization from the state.  HAT is correct
  that "[w]e have consistently adhered to the so-called Dillon's Rule that 'a
  municipality has only those powers and functions specifically authorized by
  the legislature, and such additional functions as may be incident,
  subordinate or necessary to the exercise thereof.' "  In re Ball Mountain
  Dam Hydroelectric Project, 154 Vt. 189, 192, 576 A.2d 124, 126 (1990)
  (quoting Hinesburg Sand & Gravel Co. v. Town of Hinesburg, 135 Vt. 484,
  486, 380 A.2d 64, 66 (1977)).  The limitations imposed by Dillon's Rule are
  not dispositive here, however.  If the Legislature has delegated sufficient
  authority to the District to satisfy the demands of the Vermont
  Constitution, it follows that the District needs no further legislative
  approval under Dillon's Rule.  Moreover, Dillon's Rule is subject to the
  exception that when the character of the municipality's actions is
  "proprietary" and not "governmental," the municipality's power is not so
  limited.  See 1 J. Dillon, Municipal Corporations § 109, at 182 (5th ed.
  1911) (stating that "[o]ver all [a municipal corporation's] civil,
  political, or governmental powers, the authority of the legislature is, in
  the nature of things, supreme and without limitation," but that "in its
  proprietary or private character . . . the [municipal] corporation is to be
  regarded . . . as a private corporation, or at least not public in the
  sense that the power of the legislature over it or the rights represented
  by it, is omnipotent" (emphasis in original)).  While the proprietary
  functions of a municipality are often difficult to distinguish from its
  governmental powers, id. § 110, at 183, the distinction is especially clear
  with respect to the municipality's ownership of property.  See id. § 109,
  at 181 (stating that the distinction between governmental and proprietary
  functions "is highly important, and is frequently referred to, particularly
  in the cases relating to the property . . . of municipal corporations"). 
  Since the District owns or leases all of the lands in question, Dillon's
  Rule places no limitation on the District's ability to restrict hunting and
  trapping.
   
       ¶  8.  HAT's final assertion as to the District's authority relies
  on 24 V.S.A. § 2295, which states, in relevant part, "Except as otherwise
  provided by law, no town, city or incorporated village, by ordinance,
  resolution or other enactment, shall directly regulate hunting, fishing and
  trapping or the possession . . . of traps, firearms, ammunition, or
  components of firearms or ammunition."  There is no question that this
  statute, standing alone, would prohibit any municipality from enacting
  regulations limiting hunting and trapping within its boundaries.  The
  District, however, points out that § 2295 does not apply where "otherwise
  provided by law," and cites two sources of legal authority to implement a
  hunting and trapping ban despite the restrictions of § 2295.  First, it
  relies on 24 V.S.A. § 2291(8), which states that municipalities have the
  authority "[t]o regulate or prohibit the use or discharge, but not
  possession of, firearms within the municipality or specified portions
  thereof."  Section 2295 explicitly provides that it is not intended to
  limit this power.  See 24 V.S.A. § 2295 ("This section shall not limit the
  powers conferred upon a town, city or incorporated village under section
  2291(8) of this title.").  Second, the District argues that it possesses
  the power to post signs prohibiting hunting and trapping on its own lands. 
  10 V.S.A. § 5201(a) ("An owner . . . who desires to protect his land or
  waters over which he has exclusive control, may maintain notices stating,
  if he wishes to prohibit the taking of game and wild animals, that shooting
  and trapping are prohibited . . . .").
   
       ¶  9.  While 24 V.S.A. § 2291(8) undoubtedly gives the District the
  power to regulate or prohibit the discharge of firearms, it does not appear
  to allow the District to regulate other means of hunting besides shooting. 
  We must therefore determine whether 24 V.S.A. § 2295, by making it
  impermissible for a municipality to "directly regulate" hunting and
  trapping, also prohibits the District from posting its land pursuant to 10
  V.S.A. § 5201.  We conclude that the District is within its authority to
  post its land against hunting and trapping.  Our conclusion is based on a
  combination of several statutory provisions authorizing the District to
  manage its own land in the interest of conservation.  These provisions have
  two key effects.  First, they establish that the Legislature has
  affirmatively delegated sufficient authority to the District that it may
  ban hunting and trapping on its own lands without violating the Vermont
  Constitution or Dillon's Rule.  Second, they establish that 24 V.S.A. §
  2295 does not prohibit the District from taking such action.

       ¶  10.  The Legislature has authorized municipalities to acquire
  interests in land, 10 V.S.A. § 6302, including fee simple and leasehold
  interests.  Id. § 6303(a)(1), (6).  The right to acquire land in fee simple
  was thus among the rights of the District upon its formation.  See 24
  V.S.A. § 4865 (stating that upon approval by the participating
  municipalities, a "union municipal district shall become a body politic and
  corporate with the powers incident to a public corporation").  Section 6307
  of Title 10 also provides that a municipality that owns land, and thus, the
  District, "may institute injunction proceedings to enforce the rights of
  the municipality, . . . and may take all other proceedings as are available
  to an owner of real property under the laws of this state to protect and
  conserve its right or interest."

       ¶  11.  The District argues that 10 V.S.A. § 6307 implicitly
  incorporates 10 V.S.A. § 5201(a), and thus, allows municipalities to post
  their land against hunting and trapping.  According to this reasoning,
  posting land against hunting and trapping is a proceeding to protect and
  conserve the District's right or interest.  HAT argues that posting is not
  among the proceedings referred to in 10 V.S.A. § 6307 because prohibiting
  hunting and trapping is not a permissible "right or interest" of the
  District.  We agree with the District that its rights and interests can
  include limitations on hunting and trapping.  First, the District's charter
  explicitly provides that it should engage in planning for "the purposes of
  conservation, recreation, the establishment of parks and the preservation
  of natural areas."  More importantly, the Legislature has stated its
  purpose in allowing municipalities to acquire interests in land: 
          
      It is the purpose of [10 V.S.A. §§ 6301-6309] to encourage
    and assist the maintenance of the present uses of Vermont's
    agricultural, forest, and other undeveloped land and to prevent
    the accelerated residential and commercial development thereof; to
    preserve and to enhance Vermont's scenic natural resources; to
    strengthen the base of the recreation industry and to increase
    employment, income, business, and investment; and to enable the
    citizens of Vermont to plan its orderly growth in the face of
    increasing development pressures in the interests of the public
    health, safety and welfare.  

  10 V.S.A. § 6301.  All of the objectives listed in § 6301 are interests
  that a municipality may pursue by enforcing its property rights under §
  6307.  The fact that the list includes the preservation and enhancement of
  Vermont's scenic natural resources, among other related interests, seems
  sufficient to justify including the posting of land against hunting and
  trapping among the permissible proceedings a municipality may take to
  protect an interest in land.  We recognize that hunting and trapping are
  often consistent with the interests of conservation and preservation, and
  there is no question that it would be within the District's discretion to
  allow hunting and trapping on its lands, but the intrinsic value of hunting
  and trapping is not at issue here.  It is just as plainly within the
  District's discretion under § 6301 to conclude that prohibiting hunting and
  trapping will best serve the interests listed in the statute, and
  therefore, it may post its land to protect those interests.
   
       ¶  12.  That the Legislature has provided the District with the
  affirmative authority to post its land, however, does not necessarily
  resolve HAT's central objection to the hunting and trapping ban.  HAT
  argues that notwithstanding any affirmative power the above-cited statutes
  may grant to the District, allowing the District to ban hunting and
  trapping on its own land would be inconsistent with the provisions of 24
  V.S.A. § 2295.  We cannot agree.  Section 2295 prohibits municipalities
  from directly regulating hunting and trapping, "except as otherwise
  provided by law."  (Emphasis added).  Here, the law "otherwise provide[s]"
  that the District may post its own lands to prohibit hunting and trapping,
  and thus, the prohibition in § 2295 does not apply.  Section 2295
  explicitly refrains from superseding contrary statutory provisions, so even
  if we were to conclude that posting land against hunting and trapping was
  "direct regulation," there would be nothing in the statute to prevent
  municipalities from posting their land.  

       ¶  13.  Allowing these two provisions to coexist seems entirely
  consistent with the purposes of § 2295.  Without question, the Legislature
  intended to prevent a town from banning hunting on private property, as
  well as from issuing hunting licenses, collecting associated fees, or
  setting rules for hunting within the town.  Such regulation would risk
  interference not only with the State's regulatory prerogatives, but also
  with the private property rights protected by Chapter II, § 67 of the
  Vermont Constitution.  Neither of these concerns is implicated when a town
  sets conditions on the use of its own land.  A town's restrictions on
  hunting in a public park do not interfere with anyone's right to hunt or
  allow hunting on his or her own property, and they fit within the State's
  regulatory regime just as well as any other property owner's posting
  pursuant to 10 V.S.A. § 5201.  It is consistent for the Legislature to
  prohibit direct regulation of hunting and trapping, as it has through 24
  V.S.A. § 2295, but also entitle municipalities to manage their own lands in
  the interests of recreation and conservation, as it has through 10 V.S.A.
  §§ 6301-6309.  Because the District owns or leases all of the land within
  its boundaries, its management practices have the effect of banning hunting
  and trapping throughout those boundaries, but the Legislature has not
  prohibited the District from managing its land in that way.  Thus, we
  conclude that the District's actions in posting its own land to ban hunting
  and trapping are not only affirmatively authorized by the Legislature, but
  also free of any statutory or constitutional prohibition.
          
                                     II.

       ¶  14.  Our conclusion above makes it unnecessary to address HAT's
  assertion that the superior court relied on evidence outside the record and
  failed to order necessary discovery.  HAT contends that the court drew
  conclusions with respect to the safety of hunting and trapping within the
  District that were not supported by the undisputed facts.  While this may
  be true, the court did  not rely on those conclusions in reaching its
  ultimate decision.  The court made certain statements indicating that
  hunting on the District's lands would be unsafe, but it based its legal
  conclusion on the fact that the District owns the lands in question, and
  possesses the same right to post against hunting and trapping as does a
  private landowner.  This conclusion did not require any consideration of
  whether it would be safe to hunt on the District's lands.  The District
  could consider that question in determining whether to post its lands
  against hunting, as could any other landowner.  We are not concerned here,
  however, with the District's balancing of the often competing interests of
  recreation, conservation, and safety.  Instead, we are concerned only with
  the District's legal authority to engage in such balancing when doing so
  implicates the interests of Vermont's hunters.  We agree with the superior
  court that the District possesses such authority with respect to its own
  lands, and thus, we need not determine whether the court erred in its
  consideration of evidence.   

                                    III.
   
       ¶  15.  We next address HAT's contention that the superior court
  should not have dismissed its challenge to the District's firearm
  possession ban as moot.  During the pendency of the action, the District
  began altering its signs and publications to reflect its policy of
  allowing, instead of prohibiting, the possession of firearms on its
  property.  HAT argues that its claim is still live because the District
  continues to assert the right to ban possession of firearms, as opposed to
  regulating only the discharge of firearms.  "[A] case becomes moot when the
  issues presented are no longer live or the parties lack a legally
  cognizable interest in the outcome."  Doria v. Univ. of Vt., 156 Vt. 114,
  117, 589 A.2d 317, 319 (1991) (quotations omitted).  An actual controversy
  must exist at all stages of the case, "not merely at the time the plaintiff
  originally filed the complaint."  Id.  HAT's claim is moot because the
  policy the claim challenges no longer exists.  

       ¶  16.  HAT argues that despite its mootness, its claim should survive
  because it fits within the narrow exception allowing review of moot claims
  that are "capable of repetition, yet evading review."  Id. at 118, 589 A.2d
  at 319 (quotations omitted).  The test for this exception requires, first,
  that " 'the challenged action [must be] in its duration too short to be
  fully litigated prior to its cessation or expiration,' " and second, that "
  'there [must be] a reasonable expectation that the same complaining party
  [will] be subjected to the same action again.' "  State v. Tallman, 148 Vt.
  465, 469, 537 A.2d 422, 424 (1987) (quoting Weinstein v. Bradford, 423 U.S.
  147, 149 (1975)).  HAT's claim meets neither requirement.  In the event the
  District chooses to reinstate its policy following the completion of this
  action, HAT provides no reason why it would not be able to challenge the
  policy effectively.  More importantly, HAT fails to demonstrate any
  expectation that the District will reinstate the policy.  HAT ignores the
  District's repeated statements that it does not intend to regulate the
  carrying of firearms on its lands.  Instead, it focuses on a single
  statement by the District that despite its decision to change the policy,
  it does not concede that it lacks authority to regulate the possession of
  firearms on its lands.  We agree with the superior court that this
  statement alone does not provide cause to allow HAT to continue pursuing
  its moot claim. 
          
                                     IV.

       ¶  17.  As a final matter, we must address HAT's contention that the
  court erred by failing to rule on its motion to amend its complaint to add
  further claims against the District.  We review this issue according to an
  abuse of discretion standard.  Bevins v. King, 143 Vt. 252, 254-55, 465
  A.2d 282, 283 (1983).  The superior court did not explicitly deny HAT's
  motion, and it did not offer any reasoning supporting such a denial, but we
  assume that the court intended to deny HAT's motion, since it entered final
  judgment dismissing the entire action.  Vermont Rule of Civil Procedure
  15(a) provides that a party may amend its pleadings by leave of the court,
  and that "leave shall be freely given when justice so requires."  The
  court's decision whether to grant permission to amend is discretionary, but
  "[w]hen there is no prejudice to the objecting party, and when the proposed
  amendment is not obviously frivolous nor made as a dilatory maneuver in bad
  faith, it is an abuse of discretion to deny the motion."  Bevins, 143 Vt.
  at 254-55, 465 A.2d at 283.  As the three additional causes of action
  raised by the proposed amended complaint were all either without merit or
  disposed of by the court's summary judgment ruling, it would have been
  within the court's discretion to deny HAT's motion to amend.
   
       ¶  18.  First, HAT's amended complaint attempts to convert the moot
  claim based on the District's prohibition of firearm possession from a
  request for injunctive relief to a declaratory judgment action. 
  Declaratory relief is available only when there is an actual or justiciable
  underlying controversy; otherwise, "a declaratory judgment is merely an
  advisory opinion which we lack the constitutional authority to render." 
  Doria, 156 Vt. at 117, 589 A.2d at 318.  As we have concluded above, there
  was no longer a justiciable controversy once the District changed its
  policy, and HAT provided no basis for concluding that there was a "threat
  of actual injury to a protected legal interest."  Town of Cavendish v. Vt.
  Pub. Power Supply Auth., 141 Vt. 144, 147, 446 A.2d 792, 794 (1982)
  (stating that declaratory relief is available only if there is a threat of
  injury).  The superior court's initial ruling that there was no justiciable
  controversy regarding the firearm possession ban was sufficient to dispose
  of this count of the amended complaint.

       ¶  19.  Second, HAT's amended complaint adds a claim that the
  District, by exercising the authority of its member municipalities to
  regulate hunting and trapping, "circumvent[ed] the requirements of the due
  process of law by either: 1) enacting regulations the municipalities
  standing alone could not legitimately promulgate; or 2) assigning the
  limited legislative rights granted to these municipalities by the
  Legislature to unelected boards and administrative appointees."  The
  superior court concluded, in its summary judgment ruling, that the District
  was acting pursuant to its statutory authority to act as a landowner in
  posting its land against hunting and trapping.  This conclusion precludes
  any claim that the District's actions were an attempt to "circumvent" due
  process.  The municipalities participating in the District's formation had
  the authority to take the actions the District took, as well as the
  authority to form the District as they did.  HAT's new claim simply
  rephrases, using the terminology of due process, its principal claim that
  the District lacked legal authority to regulate hunting.  The superior
  court would have been within its discretion to deny HAT's motion to amend
  its complaint by adding this claim.  
   
       ¶  20.  Finally, HAT included a claim that the District, by using
  public funds for "private, exclusionary purposes," violated Vermont's
  Consumer Fraud Act.  AB 17  This claim lacks merit on its face.  The
  District's rules certainly exclude hunting as a permissible use of the
  land, but the same rules apply to every member of the public, and the
  District continues to allow any member of the public to use the land.  HAT
  alleges that the District's hunting ban was implemented for some private
  purpose, but it does not identify any purpose for the District's hunting
  ban that is not among the permissible objectives of public land management. 
  We have held that the District was within its rights to place conditions on
  the use of its lands, which the Legislature has explicitly authorized the
  District to manage in the interest of conservation, among other interests. 
  Whether or not HAT agrees with the District's policies, the District's
  exclusion of one possible use of publicly owned land is not inherently
  fraudulent or discriminatory.  It would not have been an abuse of the
  superior court's discretion to deny HAT's motion to amend its complaint to
  add this claim.  The court was therefore correct to enter final judgment
  against HAT after having granted summary judgment to the District on the
  claims in HAT's original complaint.

       Affirmed.     


                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice


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                                 Concurring


       ¶  21.  BURGESS, J., concurring in result.  I agree that a municipal
  park district, like any landowner, may post its land against hunting and
  trapping pursuant to 10 V.S.A. § 5201.  I do not agree, however, with the
  majority's proposition that the Legislature has delegated its pervasive
  regulation of hunting and trapping to the District for conservation
  purposes.  Even if it were apparent how a total ban on hunting and trapping
  serves a rational wildlife conservation interest, absent a more explicit
  delegation to the District, that topic seems entirely preempted by the
  Legislature's comprehensive regulatory scheme in that regard.  See 10
  V.S.A. Chapters 101-123; App. §§ 2-48. (FN1)  The majority characterizes
  the posting of land under 10 V.S.A. § 5201(a) as an enforcement
  "proceeding" available to the District by virtue of its landowner status
  pursuant to 10 V.S.A. § 6307, ante ¶ 11, but there is no "proceeding"
  necessary to post lands except, perhaps, a trip to the hardware store.  Nor
  does it appear how posting a ban on hunting and trapping serves the
  statutory purpose of 10 V.S.A. § 6301 "to preserve and to enhance Vermont's
  scenic natural resources," as understood by the majority, unless it is to
  enhance the observation of such scenic resources by preserving the
  observers from hunting and trapping mishaps.  Such interpretive efforts are
  strained, at best, and appear unnecessary when there is a more direct route
  to the same common sense end.
   
       ¶  22.  Defendant District is a "union municipal district" that "may
  hold and convey real  . . .  property for the use of the district," 24
  V.S.A. § 4865, and, in pertinent part, is possessed of all powers enjoyed
  "by any of its participating municipalities."  24 V.S.A. § 4866(8)
  (emphasis added).  Most of the municipal members are expressly authorized
  by their legislative charters to establish parks, (FN2) and plaintiff's
  complaint alleges, without challenging its validity, that the declared
  purpose of the District's charter under 24 V.S.A. § 4865 includes
  "recreation, [and] establishment of parks."  All Vermont municipalities are
  authorized to acquire and preserve undeveloped land.  10 V.S.A. §§ 6301 and
  6302(a). 

       ¶  23.  Dillon's Rule not only limits municipalities to "those powers
  and functions specifically authorized by the legislature" as argued by
  plaintiffs in this instance, but is also authority for the implied
  "additional functions as may be incident, subordinate or necessary to the
  exercise" of such express powers by the municipality.  Hinesburg Sand &
  Gravel v. Town of Hinesburg, 135 Vt. 484, 486, 380 A.2d 64, 66 (1977). 
  Having established the recreation or park area in this case, the District
  must then have at least implied authority to ban hunting and trapping
  within as incident and necessary to its management of the area.  Owning and
  controlling the same land, and absent legislative command to the contrary,
  the District should also be independently able to post its land under 10
  V.S.A. § 5201.  The statutory proscription that no municipality "shall
  directly regulate hunting . . . and trapping" is expressly preconditioned
  by the phrase "[e]xcept as otherwise authorized by law."  24 V.S.A. § 2295
  (emphasis added).  By its own terms, the prohibition is subordinate to the
  law of Dillon's Rule and the posting statute, and presents no impediment to
  the District's ban on hunting and trapping within the park. (FN3)      
   
       ¶  24.  Plaintiff's argument that a landowner's right to post land
  under 10 V.S.A. § 5201 can never extend to a municipal landowner, because
  municipalities are foreclosed from regulating hunting and trapping on
  public lands by 24 V.S.A. § 2295, is not persuasive.  It is not disputed
  that the District owns most, and leases small amounts, of the land at
  issue.  The right to post lands is statutorily granted to any "owner" of
  land, or "person" enjoying "exclusive control" over lands, 10 V.S.A. § 5201
  (a), and the statutory term "person" is expressly defined to include a
  "municipality."  1 V.S.A. § 128. (FN4)  Applying § 2295 to bar posting, as
  proposed by plaintiff, ignores that statute's express excepting clause,
  Dillon's Rule and 10 V.S.A. § 5201(a).  Plaintiff's construction of the
  statute would preclude cities, towns and villages from prohibiting trapping
  and non-firearm hunting within public parks, commons, swimming pools and
  the like, leaving citizens (and their dogs and children) to wear bright
  orange, to duck and to watch their step when walking, biking, snowshoeing,
  skiing, feeding pigeons, swimming or playing sports within municipal parks
  and recreation fields.  This kind of overbroad statutory construction "that
  leads to absurd consequences must always be avoided if possible."  Riley v.
  Riley's Estate, 114 Vt. 297, 300, 44 A.2d 153, 155 (1945).

       ¶  25.  Accordingly, plaintiff's construction should be rejected and
  the judgement below should be affirmed.



                                       _______________________________
                                       
  Associate Justice



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                                  Footnotes


FN1.  The majority's citation of 10 V.S.A. § 6307, ante ¶ 10, enabling
  municipalities to "institute injunction proceedings . . . and take all
  other proceedings as are available to an owner of real property under the
  laws of this state to protect and conserve its right or interest," reflects
  a clear legislative intent that a municipality may seek legal redress or
  enforcement of its rights as a landowner, but is no delegation of
  legislative authority over wildlife conservation.

FN2.  24 V.S.A. App. Ch. 3, § 48(36) (Burlington); Ch. 113, §103(c)
  (Colchester); Ch 117, §103(b) (Essex); Ch. 13 § 103(b) (South Burlington)
  and Ch 17, § 2.4 (b)(1) (Winooski).  There is no charter for Jericho
  Village, Ch. 231 reserved; while the Williston charter is silent about
  parks, but provides that Williston "may acquire real property."  Ch.156 §
  9(b).

FN3.  The statute continues to prohibit a municipality's direct regulation of
  hunting and trapping upon private lands within municipal boundaries.

FN4.  "In the construction of statutes," this definition "shall be observed,
  unless such construction is inconsistent with the manifest intent of the
  general assembly or repugnant to the context of the same statute."  1
  V.S.A. § 101.  Nothing in 10 V.S.A. § 5201 is repugnant to the inclusion of
  municipalities as persons owning or controlling lands.  Given the excepting
  clause in 24 V.S.A. § 2295, and the absurd result otherwise, see infra,
  nothing in that statute is manifestly contrary to following the statutory
  definition including a municipality as a "person" entitled to post land
  under 10 V.S.A. § 5201.


