The domestic cat is an extremely popular companion among Americans. Over seventy-four million cats are owned by thirty percent of American households combined. This is more than the almost seventy million dogs that are owned in the United States. U.S. Pet Ownership Statistics, Am. Veterinary Med. Found., https://www.avma.org/KB/Resources/Statistics/Pages/Market-research-statistics-US-pet-ownership.aspx (last visited Oct. 12, 2018).
Over the years, and for a variety of reasons, domestic cats have roamed the streets and a feral cat population has ensued. The exponential reproduction rates of cats and lack of owner sterilization have allowed the feral cat population to increase dramatically. This has become a problem because the overpopulation directly affects wildlife since cats are expert predators, and wildlife suffers more seriously where population densities of feral cats are higher. These effects create a conflict among animal advocates because community cats and endangered bird species are on opposing sides.
This paper begins with some of the biological factors of cats that allow them to be tenacious predators. It then analyzes the approaches used to manage feral cat populations. Additionally, both applicable state and federal laws are discussed. The discussion focuses particularly on the conflict between federal wildlife protection laws and efforts to control feral cats that allow these animals to roam freely. The paper concludes with a sampling of legislative and practical solutions implemented in communities to address the inherent conflict.
II. The Problem of Biology
Although many domestic cats hunt as effectively as wild predators, they differ from wild predators in three important ways:
(1) People protect cats from disease, predation and competition, which are factors that can control numbers of wild predators;
(2) Cats often have a dependable supply of supplemental food provided by humans and, therefore, are not influenced by changes in the populations of prey, whereas populations of native predators will decline when prey becomes scarce;
(3) Unlike several native predators, cat densities are either poorly limited or not limited by territoriality.
Coleman JS, Temple SA, Craven SR. Cats and wildlife: a conservation dilemma. Madison, Wis: University of Wisconsin Cooperative Extension Office, 1997 available at https://extension.illinois.edu/wildlife/files/cats_and_wildlife.pdf.
These factors allow domestic cats to exist at much higher densities than native predators. In some parts of rural Wisconsin in the 1990s, densities of free-ranging cats reached 114 cats per square mile. In those areas, cats are many times more abundant than all mid-sized native predators (such as foxes, raccoons, skunks) combined. With abundant food sources, densities can reach over 9 per acre, and cats often form large feeding and breeding “colonies” (81 cats were recorded in one colony, and colonies of over 20 are not uncommon). Coleman JS, Temple SA, Craven SR. Cats and wildlife: a conservation dilemma. Madison, Wis: University of Wisconsin Cooperative Extension Office, 1997 available at https://extension.illinois.edu/wildlife/files/cats_and_wildlife.pdf. Unlike many predators, a cat's desire to hunt is not suppressed by adequate supplemental food—even when fed regularly by people, a cat's motivation to hunt remains so strong that it continues hunting. Adamec, R.E. 1976. The interaction of hunger and preying in the domestic cat (Felis catus): an adaptive hierarchy. Behavioral Biology 18:263-272 available at https://www.sciencedirect.com/science/article/pii/S0091677376921660.
For all these reasons and many more, cats have been able to thrive and increase in numbers to the point of overpopulation and have become “pests” in the United States. For decades now, the feral cats versus the wild birds controversy has existed.
Something to note is that the federal government and most states classify cats as domesticated animals and not invasive species. Therefore, cats typically fall under the jurisdiction of animal control agencies. Community Cats: Changing the Legal Paradigm For The Management Of So-Called “Pests”, Joan E. Schaffner, 67 Syracuse L. Rev. 71 (2017).
III. Recent Approaches to Managing Feral Cat Populations
The “feral cat issue” has been recognized as far back as 1949 when observation of free-ranging domestic cats showed that some individuals could kill over 1000 wild animals per year. Bradt, G.W. 1949. Farm cat as predator. 18(4):23-25. Feral cats have been defined as cats which were once domesticated, but were abandoned, lost, or ran away. Detailed Discussion of Feral Cat Population Control, Anthony E. LaCroix, Animal Legal & Historical Center (2006). In the past decades, the focus was controlling the populations of feral cats by implementing spay and neuter programs for all companion animals and relocation of feral cat colonies.
A. The Transition to Community Cats
Recently, communities have begun to categorize these colonies as “community cats,” with a focus on management of the existing colonies rather than eradication. Community Cat Programs began as a way to move away from the negative connotation that the term “feral cat” carries and in a direction towards treating free-roaming cats more humanely while still managing the overpopulation crisis. This is reflected in Utah’s definition of “community cat:” “‘Community cat’ means a feral or free-roaming cat that is without visibly discernable or microchip owner identification of any kind, and has been sterilized, vaccinated, and ear-tipped.” U.C.A. 1953 § 11-46-302.
The traditional method of managing community cats is to trap and remove them, where “remove” almost always means to kill them, or hunt and/or poison them. 67 Syracuse L. Rev. 71 (2017). Due to the view that this is an inhumane and ineffective method of controlling the problem of cat overpopulation, having Community Cat Programs has been offered as a more humane and effective alternative. As Joan E. Schaffner explains, many Americans consider their pets members of the family, but unowned, free-roaming cats are often viewed as pests or nuisances by animal control, and as invasive species by conservationists. However, there is a movement by people who believe that these free-roaming cats are members of our shared community and should, therefore, be referred to as “community cats,” especially since their overpopulation is a human-created problem. 67 Syracuse L. Rev. 71 (2017).
One important aspect of the Community Cat Program is Trap-Neuter-Vaccinate-Return (“TNVR”), discussed below, which is touted by cat advocates as the most humane method of dealing with cat colonies.
B. TNVR: Trap-Neuter-Vaccinate-Return
TNVR originated in England in the 1950s and was introduced in the United States in the 1990s. Since then, it has become the focus of animalists (a term created by Professor David Favre to refer to lawyers and advocates who work to promote the interests of animals and is designed to be inclusive and not distinguish between animal welfare and animal rights advocates) nationwide and has been adopted by numerous localities worldwide as the most humane, effective, and efficient method for controlling the cat overpopulation. TNVR, like lethal methods of cat overpopulation management, is designed to reduce the cat population. TNVR involves trapping the cats (T), having them evaluated by a veterinarian and, after determining they are healthy, sterilizing (N), vaccinating (V), and ear-tipping them. Ear-tipping is the universal sign of a sterilized community cat. After the cat’s recovery, the cat is returned (R) to their original location to live out their lives. 67 Syracuse L. Rev. 71 (2017).
In some situations, the returned cats are under the care of a volunteer who takes charge of feeding, watering, and monitoring the cats for illness or injury. In addition to taking care of the cats, the volunteer keeps a look out for any new arrivals to ensure the new arrivals are TNVRed. 67 Syracuse L. Rev. 71 (2017).
According Joan E. Schaffner, public education regarding community cats and TNVR, and emphasis on the responsibility of cat owners to care for their own cats so they do not add to the cat overpopulation, are the final steps that make TNVR successful. 67 Syracuse L. Rev. 71 (2017).
C. Proponents of TNVR
One of the biggest concerns for the proponents of TNVR and broader Community Cat Programs is individual animal welfare. Essentially, proponents view every cat’s life as significant rather than viewing the cats as just part of the population. 67 Syracuse L. Rev. 71 (2017).
In addition to individual animal welfare, proponents argue that lethal methods are not the most effective method to reduce cat populations. Studies have shown that the sudden removal of several cats from any certain area may allow the remaining cats to breed up to the area’s carrying capacity and attract new cats to the area that was once populated by those trapped. This only allows the cycle to continue. With TNVR, the cats are sterilized (spayed or neutered) and released back to their homes so that there is no sudden loss in the population that would draw new cats to those areas. One TNVR case study revealed a twenty-two percent decrease in the overall number of free-roaming cats despite a twenty-one percent rate of cat immigration. Additionally, no breeding occurs because the cats have been sterilized. Neutering cats also reduces “nuisance” behaviors, which include yowling and fighting. This allows the cats to co-exist with one another and human neighbors. 67 Syracuse L. Rev. 71 (2017).
Moreover, proponents point out that lethal methods of managing the cat population must be accomplished at the expense of the government. This is relevant because it seems that the cost to handle and dispose of the cats is more expensive than to sterilize and vaccinate them. 67 Syracuse L. Rev. 71 (2017).
Furthermore, TNVR only returns cats who are healthy and vaccination helps ensure that they remain healthy and do not create a public health hazard as has been a serious concern with Trap-Neuter-Return only programs. On a more general note, one study of community cats that examined cats in spay and neuter clinics in six states found that less than one percent of those cats were euthanized due to debilitating conditions, trauma, or infectious diseases. Another study showed that TNVRed cats actually had similar or lower prevalence rates of infections than those that were published for pet cats in the United States. 67 Syracuse L. Rev. 71 (2017).
D. Opponents of TNVR
Despite the long-time use of TNVR in communities, the system is not without critics. One argument is that the presence of TNVR programs that include ongoing caregiving may encourage owners to abandon their own cats knowing that they will be cared for. Therefore, opponents argue, TNVR may actually increase the number of community cats instead of decrease it. 67 Syracuse L. Rev. 71 (2017).
It has also been brought to the attention of Paul L. Barrows that some cat owners will ask to have the ears of their own cats tipped to avoid having to comply with animal control statutes. Opponents of the program point to this as an unreliable way to tell whether a cat has been sterilized and vaccinated. However, opponents also argue that this puts veterinarians in an uncomfortable position if they refuse to perform the procedure because they may be faced with having their clients take their business elsewhere. Paul L. Barrows, Professional, Ethical, and Legal Dilemmas of Trap-Neuter-Release, 225 J. Am. Veterinary Med. Ass'n 1365, 1365, 1368 (2004), https://www.avma.org/News/Journals/Collections/Documents/javma_225_9_1365.pdf.
IV. Control of Feral Cats by State and Local Laws
Currently, there is no applicable federal law that controls the feral cat issue (though predation as it relates to feral cats will be discussed infra Section V). For some time, there were no state or local laws; volunteers were doing what they could to implement TNVR programs, which were often in violation of animal control laws. Recently, however, a few states have recognized the need to establish programs to control feral cat populations since their effects on wildlife have now been more widely studied and the efficacy of killing as a method of population management has also been criticized. These laws vary in their approaches. Currently, four states, Utah, Connecticut, California, and Rhode Island, have state laws that establish either definitions or programs associated with feral cats.
A. Utah’s Community Cat Act
The State of Utah passed its own Community Cat Act in 2011. Utah’s law is the newest of the five state laws dealing with feral cats. In fact, it is the only state law that embraces the term “community cat.” In addition, the law also defines other aspects related to community cats.
To begin, a “community cat caretaker” is any person other than an owner who provides food, water, or shelter to a community cat or community cat colony. This definition addresses the issue of ownership. (For more information on the issue of ownership, see Detailed Discussion of Feral Cat Legal Issues by David Fry, Animal Legal & Historical Center (2010)). Further, a “community cat colony” is a group of cats who congregate together. However, not every cat in a colony may be a community cat, but any cats owned by individuals who congregate with a colony are considered part of it. Finally, a “community cat program” is a program in which feral cats are sterilized, vaccinated against rabies, ear-tipped, and returned to the location where they congregate. Utah Code Ann. § 11-46-302(4).
The law also has several other unique features. A cat that is received by a shelter under the provisions of Section 11-46-303(1) may be released prior to the five-day holding period to a sponsor that operates a community cat program. Additionally, a community cat is exempt from licensing requirements and feeding bans. An important aspect of Utah’s Act is that community cat sponsors or caretakers do not have custody of any cat in a community cat colony. This is relevant because of the property disputes surrounding the ownership of feral cats. (For a more detailed discussion of the property disputes surrounding the ownership of feral cats, see Detailed Discussion of Feral Cat Legal Issues by David Fry, Animal Legal & Historical Center (2010)). Moreover, the law allows for counties and municipalities to create a permitting process for community cat colonies. Utah Code Ann. §§ 11-46-303, 11-46-304.
B. Connecticut’s Municipal Control of Feral Cats
Connecticut’s law is different from Utah’s in that it is not a starting point for the creation of community cat programs. Connecticut’s law allows municipalities to take action to control the feral cat population.
The law defines a “feral cat” as a free-roaming domestic cat which is not owned. A “keeper” is any person or organization harboring, regularly feeding or having in their possession any feral cat. The refusal to permit any animal control officer to impound a feral cat is deemed evidence of keeping. The ordinance shall require that such keepers provide for the vaccination of those cats against rabies and their sterilization. Keepers shall be considered eligible owners for purposes of the animal population control program, provided such cats are adopted from a municipal pound. Conn. Gen. Stat. § 22-339d.
Under the law, a municipality may adopt an ordinance requiring the registration of keepers of feral cats in residential or commercial areas, within one year of the adoption of that ordinance. Such an ordinance shall require that any such keeper register with the animal control officer for that municipality, who, in turn, must provide information to the registrant regarding the proper care and management of feral cats. Conn. Gen. Stat. § 22-339d.
Furthermore, the law allows a municipality to adopt an ordinance providing that no person owning or keeping any cat shall allow the cat to substantially damage property other than that of the owner or keeper or cause any unsanitary, dangerous, or unreasonably offensive conditions. Conn. Gen. Stat. § 22-339d.
In California, there are two locations in which cats are regulated: the (a) Fish and Game Code and the (b) Food and Agriculture Code.
Under California’s Fish and Game Code, a nongame mammal may not be taken or possessed. Any “house cat” that is found within the limits of any fish and game refuge is considered a nongame mammal, unless it is in the residence of its owner or on the grounds of the owner adjacent to the owner’s residence. However, nongame mammals that are injuring growing crops or other property may be taken at any time or in any manner. The department may take any mammal which, in its opinion, is unduly preying upon any bird, mammal, or fish. The department may enter into cooperative agreements with any agency of the state or the United States for the purpose of controlling harmful nongame animals. Additionally, the department may enter into cooperative contracts with the United States Fish and Wildlife Service in the Department of the Interior in relation to nongame mammals and, for that purpose, may expend any money made available to the department for expenditure on control or eradication of nongame mammals. Cal. Fish & G Code §§ 4150-4154.
Essentially, if a cat is found to be preying, it can be taken and possibly put down. This Code does not seem to provide protections for cats and is likely a protection set forth for animals who were being harmed by the cat overpopulation issue.
Under the Food and Agriculture Code, the Legislature defines a “feral cat” as a cat with a temperament that is completely unsocialized, although a frightened or injured tame pet cat may also appear to be feral. Under this Code, a feral cat can be owned. Additionally, this law finds that feral cats pose particular safety hazards for shelter employees. The law also states that it is cruel to keep them caged for long periods of times, but that it is not always easy to distinguish a feral cat from a frightened tame cat. This section of the Code defines a “feral cat” as a cat without owner identification of any kind whose usual and consistent temperament is extreme fear and resistance to contact with people. A feral cat is totally unsocialized to people. Cal. Food & Agr. Code § 31752.5(a)-(b). These findings tend to add to the “vilification” Schaffner mentions in Community Cats: Changing the Legal Paradigm for the Management of So-Called “Pests”, 67 Syracuse L. Rev. 71 (2017).
No public animal control agency or shelter, society for the prevention of cruelty to animals (SPCA) shelter, humane society shelter, or rescue group is permitted to sell or give away to a new owner any cat that has not been spayed or neutered. This provision was likely implemented as a way to not contribute to the overpopulation of cats. In addition to this provision, the Code states that any city or county that requires cat license tags, must issue them at less than the fee required for a cat if a certificate is presented from a licensed veterinarian that the cat has been sterilized. This is arguably an incentive to have an owner or guardian of a cat to have them sterilized. Moreover, the owner of a non-sterilized cat who is impounded by a city or county animal control agency or shelter, SPCA, or humane society, will be fined. The amount of the fine will increase based on the number of occurrences. Aside from incentivizing the sterilization of cats, there is also punishment if sterilization does not take place. Cal. Food & Agr. Code § 31751.
If a veterinarian licensed to practice veterinary medicine in California certifies that a cat is too sick or injured to be sterilized, or that it would otherwise be detrimental to the health of the cat to be sterilized, the adopter or purchaser shall pay the public animal control agency, shelter, or rescue group a deposit. The deposit is temporary and will be retained until the cat is healthy enough to be sterilized, as certified by a vet. There do not seem to be any medical exceptions in this provision for cats whose health would not improve enough to be sterilized. Cal. Food & Agr. Code § 31751.3(b)(1)-(3).
If an apparently feral cat ends up impounded and is not reclaimed within the first three days of the required holding period and shelter personnel who are qualified to verify the temperament of an animal determine the cat is truly feral, the cat may be euthanized or relinquished to a nonprofit, animal adoption organization that agrees to sterilize the cat if it is not already sterilized. Cal. Food & Agr. Code § 31752.5(c).
The funds collected by the provisions of this law will be expended for the purpose of humane education, programs for low-cost spaying and neutering of cats, and any additional costs incurred by the animal shelter in the administration of the requirements of this division. See the law generally at Cal. Food & Agr. Code § 31751.7(a).
The focus of the California codes is more on the actions that prevent unwanted cats from ending up in feral cat colonies, which seems to be the focus of the Utah and Connecticut laws.
D. Rhode Island
According to the General Assembly, there is an unacceptable number of healthy abandoned cats who are euthanized annually in Rhode Island. Due to the large number of those cats, euthanasia is found to not be a cost effective, acceptable or ethical solution to the threats to public health and safety these large populations pose. A permit system for breeding of cats, combined with a program for sterilization, is a reasonable and effective means of reducing the population and for eliminating the practice of euthanizing homeless cats. This comprises the Rhode Island Permit Program for Cats. R.I. Gen. Laws § 4-24-2.
Except for certain circumstances, a person is not permitted to own or harbor any cat over six months who has not been sterilized. “Intact” permits are issued for non-sterilized cats if the owner signs a written statement that the cat will not be allowed to breed unless the owner obtains a breeding permit. Individuals who hold breeding permits must comply with certain requirements, like immunizing the offspring. Interestingly, the law has a farmland exception. R.I. Gen. Laws §§ 4-24-3, 4-24-7.
Any person who violates this law will have 30 days to sterilize their cat or provide proof from a licensed veterinarian indicating that arrangements have been made to sterilize the cat. Additionally, animal control officers must inform individuals of the availability of reduced-cost programs. If any cat is abandoned by their owner or custodian, that owner or custodian will be punished. Both of these provisions seem to get at the issue of overpopulation. R.I. Gen. Laws §§ 4-24-8, 4-24-10.
Funds generated will be deposited in the spay/neuter account of the city or town where the violation occurred to be used to fund low-cost sterilization programs. R.I. Gen. Laws § 4-24-10.
Under Rhode Island’s Cat Identification Program, a “feral cat” is any wild, unsocialized or untamed cat and a “roaming cat” is any homeless socialized or stray socialized cat. Additionally, this law allows any city or town to adopt any provision of the chapter as a municipal ordinance. R.I. Gen. Laws §§ 4-22-2, 4-22-9.
The purpose of Rhode Island’s Cat Identification Program is to provide cats protection under the law, equal to that afforded to dogs, by establishing ownership which is meant to encourage cat owners to take full responsibility for their cat’s welfare. It was found that cat identification would provide a method to help distinguish between owned and unowned cat populations, which would help animal control officers and animal shelters carry out their mission. Another purpose is to reduce the number of unowned cats and increase education to owners of the need for the sterilization of cats, thereby reducing unwanted litters, eliminating cat overpopulation issues, and reducing the costs to cities and towns for euthanizing at-large or unowned cats. Any fines collected due to the violation of this law will be remitted to the town clerk or city clerk of the municipality where the violation was issued and will be used only for enforcing animal control laws or ordinances or for programs to house and care for cats. R.I. Gen. Laws §§ 4-22-1, 4-22-7.
In contrast to the above state laws that aim to provide solutions to feral cat populations or manage existing colonies without using lethal methods, one state sought to exterminate feral cats. In 2005, Wisconsin attempted to classify feral cats as “game animals.” This measure failed. “Question 62” would have allowed hunters to hunt any cat that was found free roaming (no color or other signs of domestic pet ownership). The background that led up to proposing this measure were studies indicating that free-roaming feral domestic cats kill millions of small mammals, song and game birds (47 million to 139 million songbirds each year). Wisconsin Question 62 (2005).
Beyond states, numerous municipalities have programs. (See more at Detailed Discussion of Feral Cat Legal Issues by David Fry, Animal Legal & Historical Center (2010)). The law is reflecting what has been going on for quite some time among cat caretakers. These laws exist to relieve liability and protect programs that have shown great success. However, some wildlife advocates view these programs as putting the needs of an introduced species above native wildlife.
V. Feral Cats and Impacts on Wildlife
The success of community cat programs over decades has not gone unnoticed by wildlife and bird advocates. In fact, this has led to stark research showing the effects of free-roaming cat populations on native and even endangered species. Not only does wildlife (birds and small mammals) face direct threats from cat predation, which are exacerbated by dwindling populations from other human impacts, but cats can also be disease vectors to native species. Data have also shown that cats may place competition pressures on native predators.
A. Direct Predation on Wildlife
Despite the difficulty in showing the effects most predators have on their prey, cats are known to make serious impacts on small mammals and birds. Coleman JS, Temple SA, Craven SR. Cats and wildlife: a conservation dilemma. Madison, Wis: University of Wisconsin Cooperative Extension Office, 1997 available at https://extension.illinois.edu/wildlife/files/cats_and_wildlife.pdf.
Since 1988, studies have shown that small mammals make up approximately seventy percent of a free-ranging cat’s prey and birds make up about twenty percent. The remaining ten percent of their diet is a variety of other animals. Coleman JS, Temple SA, Craven SR. Cats and wildlife: a conservation dilemma. Madison, Wis: University of Wisconsin Cooperative Extension Office, 1997 available at https://extension.illinois.edu/wildlife/files/cats_and_wildlife.pdf. An observation of feral cats shows that some individuals can kill over 1000 wild animals per year. Bradt, G.W. 1949. Farm cat as predator. Michigan Conservation 18(4):23-25. Research in 1996 suggested that cats in Wisconsin were killing between 8 and 217 million birds each year. The most reasonable estimates indicated that 39 million birds were killed each year in the state. Coleman, J.S. and S.A. Temple. 1996. On the Prowl. Wisconsin Natural Resources 20(6):4-8.
Worldwide, cats may have been involved in the extinction of more bird species than any other cause, not including habitat destruction. More specifically, cats are contributing to the endangerment of populations of birds, including Least Terns, Piping Plovers and Loggerhead Shrikes. Additionally, in Florida, marsh rabbits in Key West have been threatened by predation from domestic cats. Further, cats introduced by people living on the barrier islands of Florida's coast have depleted several unique species of mice and woodrats to near extinction. Coleman JS, Temple SA, Craven SR. Cats and wildlife: a conservation dilemma. Madison, Wis: University of Wisconsin Cooperative Extension Office, 1997 available at https://extension.illinois.edu/wildlife/files/cats_and_wildlife.pdf.
B. Competition with Native Predators
In addition to cats preying on small mammals and birds, they can outnumber and compete with native predators. This is because domestic cats eat many of the same animals that native predators do. When cats are present in large numbers, they can reduce the availability of prey for native predators, such as hawks and weasels. George, W.G. 1974. Domestic cats as predators factors into winter shortages of raptor prey. Coleman JS, Temple SA, Craven SR. Cats and wildlife: a conservation dilemma. Madison, Wis: University of Wisconsin Cooperative Extension Office, 1997 available at https://extension.illinois.edu/wildlife/files/cats_and_wildlife.pdf.
C. Transmission of Disease
Free-ranging domestic cats may also transmit diseases to wild animals. There are studies that indicate that domestic cats have spread the feline leukemia virus to mountain lions. Some cats also carry several diseases that are easily transmitted to humans, including rabies and toxoplasmosis. Coleman JS, Temple SA, Craven SR. Cats and wildlife: a conservation dilemma. Madison, Wis: University of Wisconsin Cooperative Extension Office, 1997 available at https://extension.illinois.edu/wildlife/files/cats_and_wildlife.pdf.
VI. Legal Response to Feral Cats’ Impact on Wildlife
The data are clear to some that feral cats pose a genuine risk to wildlife. This is coupled with the fact that federal and state officials may actually have a legal duty to protect wildlife against human-introduced and natural risks. In fact, two federal laws have played a recent role in setting forth policy on feral cats.
A. Endangered Species Act (“ESA”)
The Endangered Species Act provides three distinct purposes: (1) to provide a means for ecosystems upon which endangered species and threatened species depend to be conserved; (2) to provide a program for such conservation and, (3) to take steps as appropriate to achieve the purposes of the treaties and conventions set forth in the Act. 16 U.S.C.S. § 1531. To do this, the Endangered Species Act regulates the taking, possession, transportation, sale, purchase, barter, exportation, and importation of wildlife. 50 C.F.R. § 10.1.
Advocates claim feral cats pose an issue under the ESA because their overpopulation is threatening the existence of several species of endangered or threatened birds. Other species of small mammals that are listed as endangered or threatened may also be impacted.
B. Migratory Bird Treaty Act (“MBTA”)
The Migratory Bird Treaty Act was established in response to dwindling populations of migratory birds in the early twentieth century and implemented through a series of multinational treaties. While the initial aim of the law has been to deter intentional killing of listed birds by humans (and, until recently with a change in policy by the DOI under the Trump Administration, also unintentional or negligent deaths of birds – see infra) wildlife advocates suggest that it may also apply to the feral cat crisis. Section 2 of the MBTA provides that “it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, […] any migratory bird, any part, nest, or egg of any such bird[…].” 16 U.S.C. § 703 (2017).
Here, the issue may be that feral cats are being managed by humans, and therefore, the killing of birds by these cats may be considered an intentional act. This is relevant since the United States Department of the Interior issued a memorandum stating that interpreting the MBTA to apply to incidental or accidental actions would make otherwise lawful and productive actions illegal with the threat of up to six months in jail and a $15,000 penalty for each and every bird injured or killed. Therefore, the memorandum found that, consistent with the text, history and purpose of the law, the MBTA’s prohibitions apply only to affirmative actions with the purpose of taking or killing migratory birds, their nests, or their eggs.
C. Federal Policy Reponses
For some time, wildlife advocates have attempted to bring feral cat predation under both the ESA and MBTA. In April 2018, however, the U.S. Fish and Wildlife Service (“FWS”) recently released two guidance documents that may signal an end to this argument. First, FWS clarified that an incidental take permit under the ESA is only needed when a project is likely to result in injury or death of a listed species, or alleged harm to a species due to habitat modification. U.S. Fish and Wildlife Service, Guidance on Trigger for an Incidental Take Permit Under Section 10(a)(1)(B) of the Endangered Species Act (Apr. 26, 2018), available at https://www.fws.gov/endangered/esa-library/pdf/Guidance-on-When-to-Seek-an-Incidental-Take-Permit.pdf. Second, FWS clarified what constitutes prohibited take under the MBTA by explaining that the MBTA prohibits only affirmative actions with the purpose of taking or killing a migratory bird and that an incidental take is not prohibited by the MBTA. U.S. Fish and Wildlife Service, Guidance on the Recent M-Opinion Affecting the Migratory Bird Treaty Act (Apr. 11, 2018), available at http://src.bna.com/ynP.
These guidance documents have the potential to streamline project development requirements related to endangered species and migratory birds. This is relevant since both the ESA and the MBTA have been employed in the past by the FWS and project proponents to require incidental take permits where some level of modification of a listed species’ habitat or incidental harm to migratory birds exists. Now, under this new guidance, a proposed project may proceed without an incidental take permit where a listed species is not likely to be injured and the project is not intended to harm migratory birds. See King & Spaulding LLP, Fish and Wildlife Service Issues Guidance Limiting Agency Authority Under Endangered Species and Migratory Bird Acts, Client Alert: Environmental Health and Safety, May 4, 2018 (Nov. 12, 2018), https://www.kslaw.com/attachments/000/005/818/original/ca050418.pdf?1525460746. This may weaken the ‘impact on wildlife’ argument since project developments will be held to lower standards relating to harming wildlife.
D. American Bird Conservancy v. Harvey
One federal case puts the challenge of bird advocates under these federal laws in response to cat programs front and center. In American Bird Conservancy v. Harvey, a wildlife conservation group claimed that acts and omissions by the State Parks Commissioner led to a situation where feral cats at Jones Beach pose a risk to a threatened species of wild bird. The group contended that the situation violated the ESA and required remedial action to remove the cats to restore suitably protective conditions for the birds. Am. Bird Conservancy v. Harvey, 232 F. Supp. 3d 292 (E.D.N.Y. 2017).
In its opinion, the Court first discusses the standards of review for the case, then it discusses the amicus curiae brief filed by Alley Cat Allies, then focuses heavily on whether the plaintiffs have standing, and concludes by analyzing whether the complaint plausibly states a violation of the ESA.
To determine whether there was injury-in-fact, the Court proceeds into a lengthy analysis of what constitutes an injury-in-fact in the environmental context. The Court holds that the plaintiffs sufficiently alleged “a cognizable interest in the conservation of Northern hemispheric birds generally, and the preservation, protection, and recovery of the Piping Plover species in particular.” Moreover, the Court concludes that, if proven, the allegations in the plaintiffs’ complaint could support the plausible inference that Piping Plovers at Jones Beach are at imminent risk of predation by the park’s feral cat population and that the plaintiffs are at risk of suffering an injury in fact by the depletion of the species. 232 F. Supp. 3d 292, 303 (E.D.N.Y. 2017).
To determine whether causation is satisfied, the Court, again, goes into a lengthy discussion of what is needed to establish causation. The Court, reasoning that if “‘the Parks Office is the only entity authorized to remove the feral cats from Jones Beach, and the only entity authorized to control access of members of the public to the area to build shelters and/or feed feral cats,’” holds that the complaint sufficiently alleges that the plaintiffs’ injury is fairly traceable to conduct by the Commissioner. 232 F. Supp. 3d 292, 306 (E.D.N.Y. 2017).
Finally, to determine whether redressability is satisfied, the Court begins by setting out its view that the Commissioner’s argument against the plaintiffs lacks merit and then enters a discussion picking apart the Commissioner’s argument. Concluding that “it is plausible to believe that the Commissioner’s broad duty to conserve the Piping Plovers at Jones Beach may include actions to lessen the risk of predation by removing non-native feral cats and preventing members of the public from reestablishing feral cat colonies in the future,” the Court finds that the complaint sufficiently alleges that the relief sought would likely redress the plaintiffs’ injuries. 232 F. Supp. 3d 292, 309 (E.D.N.Y. 2017).
The Court’s following discussion of whether the complaint plausibly stated a violation of the ESA is short and essentially refutes the Commissioner’s two arguments as “materially indistinguishable from her arguments regarding standing,” which were found to have no merit by the Court. Since the Court had already resolved both of those arguments, the Court concluded that the motion to dismiss the complaint was denied. 232 F. Supp. 3d 292, 310 (E.D.N.Y. 2017).
At the writing of this paper, the merits of the case have not been decided by the court. The federal district court only found that the plaintiffs had sufficient standing to withstand a motion to dismiss. The implication of the ruling does suggest that the issue of feral cat programs impacting endangered or threatened wildlife is not dead, even after changes in federal policies that interpret both laws. Depending on the court’s ultimate decision at trial, the outcome could be significant to both sides of the conflict.
Since there is all this data on both sides, it is evident that there is no one correct solution to dealing with the feral cat overpopulation crisis. Both sides really are advocating for the protection of animals and have almost become enemies advocating for different species. However, there are many different methods that, if taken together, may produce a significant effect in managing the problem.
One approach is the one put forth by Joan E. Schaffner. The first step, she proposes, is to reconceptualize free-roaming cats as members of our community and reframe the debate over their management. The use of the term “community cats” allows for the inclusion of all free-roaming cats despite their socialization levels. It also characterizes the cats as individuals who share our community rather than vicious and invasive pests that are detrimental to humans and broader wildlife ecosystems. The other part of this first step is to emphasize the shared common interest of those in favor and against TNVR programs, which is to reduce the population of feral cats and protect wildlife. This would help to narrow the gap among the groups debating TNVR programs.
The second step, according to Joan E. Schaffner, would be to challenge the science that is used to vilify feral cats and TNVR and promote lethal methods of cat overpopulation management, while also critically studying and documenting the efficacy of TNVR programs.
The final step would be to implement legal reform to allow for the implementation of non-lethal methods as the primary means for managing “pest” animals. Community Cats: Changing the Legal Paradigm For The Management Of So-Called “Pests”, 67 Syracuse L. Rev. 71 (2017).
One important aspect of any movement is education. This can look differently in different states and have different levels. Ultimately, education surrounding adoption and responsible pet ownership in public schools, beginning in pre-school and kindergarten, would be effective in teaching people how to care for their pets and determine whether they have the resources to have a pet to begin with. Additionally, teaching kids at a young age about how to take care of pets, how to decide if they should get a pet and what to do if they believe they can no longer keep their pet after they have adopted one is one way to attempt to stop the problem before it gets worse.
In addition to massive and ongoing public education programs that promote responsible pet ownership, Paul L. Barrows notes that education surrounding the necessity of keeping cats properly confined is essential to combatting the problem of cat overpopulation. However, there is misconception around the outdoor nature of a cat that results in differing legal treatment of these companion animals. Paul L. Barrows, Professional, Ethical, and Legal Dilemmas of Trap-Neuter-Release, 225 J. Am. Veterinary Med. Ass'n 1365, 1365, 1368 (2004), https://www.avma.org/News/Journals/Collections/Documents/javma_225_9_1365.pdf. Barrows also contends that another method to manage cat populations is to have stronger and more effective licensing, identification, and confinement laws (including improved enforcement).
Ultimately, although there is no correct answer to this problem, incorporating a variety of methods will likely be the most successful.