Feral Cats and Wild Bird Controversy

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Summary of Feral Cats and Wild Bird Controversy
Ariahna Sanchez (2018)

The domestic cat is an extremely popular companion among Americans. Over the years domestic cats have roamed the streets, creating a feral cat population. This has become a problem since high rates of reproduction and lack of owner spay and neuter have allowed the feral cat population to increase dramatically. Studies have shown that this overpopulation directly affects wildlife. This has created conflicts among animal advocates because community cats and endangered bird species are on opposing sides.

For decades now, the feral cats versus the wild birds controversy has existed. Recently, communities have begun to categorize colonies of feral cats as “community cats,” with the focus on management of the existing colonies rather than eradication. This illustrates the battle between the extermination of feral cats and more humane management methods, such as sterilization and vaccination.

One important aspect of the Community Cat Program is Trap-Neuter-Vaccinate-Return (“TNVR”), which is labeled by cat advocates as the most humane method of dealing with cat colonies. One of the biggest concerns for the proponents of TNVR and broader Community Cat Programs is individual animal welfare. In addition to individual animal welfare, proponents argue that lethal methods are not the most effective method to reduce cat populations and is more expensive since lethal methods are accomplished at the expense of the government. Opponents of TNVR argue that the presence of TNVR programs that include ongoing caregiving may encourage owners to abandon their cats because they know they will be cared for.

Currently, there is no applicable federal law that controls the feral cat issue and for some time there were no laws at all. Volunteers would do what they could to implement their local TNVR programs. 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.

In addition to local and state laws, there have been federal responses to the feral cat crisis. The Endangered Species Act and the Migratory Bird Treaty Act, two federal laws, have played a role in setting forth policy on feral cats. Moreover, one federal case, American Bird Conservancy v. Harvey, puts the challenge of bird advocates under these federal laws in response to cat programs front and center. The merits of this case have not been decided but have the potential to impact both sides of the issue.

Overview of Feral Cats and Wild Bird Controversy
Ariahna Sanchez (2018)

 

Cats have become a beloved companion for many. Over seventy-four million cats are owned by thirty percent of American households combined. However, over the years, a feral cat population has erupted and has grown exponentially. This overpopulation has created conflict among animal advocates because feral cats and endangered bird species are on opposing sides, creating the feral cat versus the wild birds controversy.

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. These factors allow domestic cats to exist at much higher densities than native predators. For example, 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.

Because feral cat populations have been an issue in the United States, several approaches are taken to manage those populations. One approach has been the transition to categorize these colonies as “community cats,” with a focus on managing the existing colonies rather than eradicating them. These ‘Community Cat Programs’ began as a way to move away from the negative connotation the term “feral” carries and into a direction towards treating cats as part of our community, encouraging more humane management of the overpopulation crisis. This movement towards more humane treatment of community cats began as a response to the traditional method of managing community cats, which is to trap and remove them, often meaning to kill. Additionally, studies began showing that lethal methods were not as successful as was believed.

This prompted one important aspect of the Community Cat Program, Trap-Neuter-Vaccinate-Return (“TNVR”). Here, cats are trapped (T), evaluated by a veterinarian and, after determining they are healthy, sterilized (N), vaccinated (V), and ear-tipped to signal to caretakers that they have been sterilized.

Despite the long-time use of TNVR in communities, the system has its 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.

Prior to legally-recognized TNVR programs, volunteers did what they could to control feral cat populations. While, there is no applicable federal law, there are now local and state laws that control the feral cat issue. 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. The focus of the California code is more on the actions that prevent unwanted cats from ending up in feral cat colonies, rather than regulating the management of existing colonies, which is the focus of the Utah and Connecticut laws.

The success of these community cat programs over time has not gone unnoticed by wildlife and bird advocates. In fact, this has led to research showing the effects of free-roaming cat populations on native and even endangered species. Not only does wildlife face direct threats from cat predation, which is 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. For some time, as a solution, wildlife advocates have attempted to bring feral cat predation under both the Endangered Species Act and Migratory Bird Treaty Act. 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. 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.

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 (E.D.N.Y. 2017). 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.

Although there is plenty of data on both sides, there is no certainty that there is one correct answer to dealing with the feral cat overpopulation crisis. Both sides are advocating for the protection of animals and have almost become enemies advocating for different species. However, there are many different methods already implemented in different areas that, if taken together, may produce a significant effect in managing the problem.

 

Related articles

Community Cats: Changing the Legal Paradigm for the Management of So-Called “Pests”,  Joan E. Schaffner, 67 Syracuse L. Rev. 71 (2017).

Detailed Discussion of Feral Cat Legal Issues, David Fry, Animal Legal & Historical Center (2010).

Animals v. Animals: A False Choice, Wendy Anderson and Amy Vaniotis, ABA Animal Law Committee Newsletter (2008).

Detailed Discussion of Feral Cat Population Control, Anthony E. LaCroix, Animal Legal & Historical Center (2006).

A Public Policy Toward the Management of Feral Cats, Shawn Gorman and Julie Levy, 2 Pierce L. Rev. 157 (June 2004).

Feral Cat Colonies in Florida: The Fur and Feathers are Flying, Pamela Jo Hatley, 18 J. Land Use & Envtl. L. 441 (2003).

 

Related cases

American Bird Conservancy v. Harvey, 232 F. Supp. 3d 292 (E.D.N.Y. 2017). Plaintiff, American Bird Conservancy, is a non-profit organization that was dedicated to the conservation of the Piping Plover (a threatened species) in this case. The individual Plaintiffs, David A. Krauss and Susan Scioli were also members of the organization, who observed Piping Plovers at Jones Beach, in New York State for many years. The Plaintiffs brought an action against Defendant Rose Harvey, the Commissioner of the New York State “Parks Office”. The Plaintiffs asserted that the Commissioner failed to act while members of the public routinely fed, built shelters, and cared for the feral cats on Jones Beach. As the cat colonies flourished, the Piping Plover population decreased due to attacks by the cats. The Plaintiffs contended that by failing to take measures to decrease the feral cat population, the Commissioner was allowing the cats to prey on the Piping Plover, in violation of the federal Endangered Species Act (ESA). The Commissioner moved to dismiss the complaint. The District Court, held that: (1) the affidavit and documentary evidence provided by the Alley Cat Allies (ACA) organization was outside the scope of permissible supporting materials for the motion to dismiss. (2)The Plaintiffs had standing to bring action alleging violation of the Endangered Species Act. The Commissioners motion to dismiss was denied.

Related laws

Federal Laws

Endangered Species Act: Title 16. Conservation. Chapter 35. Endangered Species. 16 USC 1531 - 1544

Migratory Bird Treaty Act: Title 16. Conservation. Chapter 7. Protection of Migratory Game and Insectivorous Birds. Subchapter II. Migratory Bird Treaty. 16 USC 703 - 712

State Laws

California:

Food and Agricultural Code. Division 14.5. Regulation of Cats. West's Ann. Cal. Food & Agric. Code. § 31750 - 31766

Fish and Game Code. Division 4. Birds and Mammals. Part 3. Mammals. Chapter 3. Nongame Mammals and Depredators. Article 1. Nongame Mammals. West's Ann. Cal. Fish & G. Code § 4150 - 4151

Connecticut:

Section 22-339d. Municipal Control of Feral Cats. C.G.S.A. § 22-339d

Rhode Island

Title 4. Animals and Animal Husbandry. Chapter 22. Cat Identification Program; Chapter 24. Permit Program for Cats. Gen.Laws 1956, § 4-22-1 - 10; § 4-24-1 - 13

Utah:

Title 11. Cities, Counties, and Local Taxing Units. Chapter 46. Animal Welfare Act. Part 3. Community Cat Act. U.C.A. 1953 § 11-46-301 to 304

 

Related Links

Web Center Links:

Feral Cat Population Issues, Tony LaCroix (2006)

Feral Cat Legal Issues, David Fry (2009)

External Links:

Alley Cat Allies, U.S. Public Opinion on Humane Treatment of Stray Cats, available at https://www.alleycat.org/resources/public-opinion-on-humane-treatment-of-cats/

Alley Cat Allies, Why Trap-Neuter-Return Feral Cats? The Case for TNR, available at https://www.alleycat.org/resources/why-trap-neuter-return-feral-cats-the-case-for-tnr/

American Bird Conservancy page on Trap, Neuter, Release (TNR): "Trap, Neuter, Release (TNR) is advertised as a tool to reduce feral cat numbers. Unfortunately, TNR programs have been shown to fail to reduce feral cat populations while simultaneously maintaining feral cats on the landscape, where they contribute to wildlife and public health risks." See https://abcbirds.org/program/cats-indoors/trap-neuter-release/

Audubon Society of Portland, Cats and Wildlife Guide, available at https://audubonportland.org/issues/hazards/cats/guide

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