A legal analysis of the new state Animal Population Control Act, which recognizes public responsibility for the feral cat problem, and assists feral cat caretakers.
By W.M. Anderson, Alley Cat Allies General Counsel Although stray dogs were the species of concern for much of the last century, cats have taken over the top spot. Cats have become the most numerous companion animal in the United States today, numbering 90.5 million.1 Some scientists estimate that the stray cat population equals the pet cat population.2 Any serious attempt to control the stray animal population today must focus on cats, because the vast majority of this population is cats and a significant proportion is feral.
Feral cats are cats unsocialized to humans because they are at least second-generation lost or abandoned pets. Because they are not capable of living the life of a house cat, these animals are
not adoption candidates if they enter a shelter; indeed the majority of cats, whether socialized or not, that enter shelters are killed.3
This change in the demographics of the stray animal population creates a legal crisis. Animal control laws exist to address damage caused by animals: economic loss, property destruction, and bodily injuries. Current laws, many written over a century ago to address the stray dog population, remedy such damage primarily by making the owners of animals liable to compensate injured parties for damage their animals cause. At one time such laws focused on owner liability for damages after the fact. Now many focus on prevention, and have become a list of owner duties to prevent damage: duties to leash, to muzzle, to fence, to vaccinate. The dutyto license is to generate revenue for the municipality.
Of what value are laws based on owner liability to control damage caused by an unowned population of possibly 90 million stray cats? A growing number of jurisdictions are concluding that they are largely worthless, and these jurisdictions are developing a new legal paradigm. The most recent and arguably most thorough law is the Illinois Public Health & Safety Animal Population Control Act (the Act), enacted in August 2005.
I. Feral Cat Caregivers Are Not Owners [b]
The Act clarifies that feral cat caregivers doing Trap-Neuter-Return (TNR) are not “owners” who are subject to animal control laws: “‘Owner’ does not include a feral cat caretaker participating in a trap, spay/neuter, return or release program.”4 The Act also clarifies that a feral cat caregiver is not a “keeper” or a “harborer”—terms that appear in Illinois’ definition of “owner.” This is consistent with Illinois’ existing animal control law, which makes it clear that feral cats are
not “owned” animals.
These clarifications are important for two reasons. First, the distinctions reject the notion that feral cat caregivers created this population. Rather, it places caregivers participating in TNR programs firmly on the side of the solution. Second, it precludes any argument that these feral cats have a place in the existing control system that makes owner redemption or adoption the only positive outcomes.
[b] II. The Pet Population Control Fund Having defined caregivers, the Act then makes them eligible to participate in the Pet Population Control Fund, the core feature of Illinois’ new Animal Population Control Act. Participants receive vouchers to cover sterilization and vaccination costs, subject to a $15 co-payment. By making caregivers eligible for these public funds, the Act imposes the costs of damage control on the community.
The principal of the Fund is projected to be a minimum of $2 million in funding a year for spaying dogs and cats. The Act dedicates four sources of revenue to the Fund and allows voluntary contributions.
1. Public safety fines. Newly imposed public safety fines are projected to generate $2 to $2.5 million for the Fund. The fines are surcharges imposed on owners for offenses such as dogs deemed dangerous ($50), dogs deemed vicious ($100), biting animals ($25), and dogs at large ($25). The county or municipality collecting these fines keeps a portion of the monies. (Notably, state law does not require the apprehension and impoundment of cats running at large.)
2. Pet-friendly license plates. Illinois’ three-year-old pet license plate program generates some $75,000 annually. The bulk of these funds will now be deposited into the new Pet Population Control Fund.
3. Income tax check-off. The Fund now appears as a check-off on Illinois individual income tax forms. Taxpayers may elect to contribute some or all of their refunds or to increase their tax payments by an amount they choose. How much money the check-off will generate is as yet unknown. If the check-off fails to gross more than $100,000 in the first year, it will be removed from the tax form.
4. Registration fee differential for intact animals. The Act authorizes counties to charge a minimum of $10 extra for owners to register intact dogs or cats. The $10 may be placed in the county’s own population control fund or in the state fund. Given this choice, registration differentials are unlikely to be a significant source of revenue for the Fund. Only owners must register their animals; feral cat caregivers are expressly exempted from these registration requirements.
Fund Protection A critical element of the Act was the inclusion of an anti-piracy clause to safeguard the Fund. In other states, such funds have been created, only to be raided to cover unrelated government activities. The clause is a simple statement inserted into the state revenue code: “No transfers may be made…from the Pet Population Control Fund.”
III. Liability Exclusions Liability is an issue that municipalities and veterinarians frequently raise when approached to participate in TNR programs. The Act addresses this concern by clarifying that both groups are exempt from liability. In part, Illinois’ Act now provides:
Section 35. Liability.
(a) Any municipality or political subdivision allowing feral cat colonies and trap, sterilize, and return programs to help control cat overpopulation shall be immune from criminal liability and shall not be civilly liable, except for willful and wanton misconduct, for damages that may result from a feral cat…;
(c) Any veterinarian who sterilizes feral cats and any feral cat caretaker who traps cats for a trap, sterilize, and return program shall be immune from criminal liability and shall not, as a result of his or her acts or omissions, except for willful and wanton misconduct, be liable for civil damages.
Blueprint for Other States? Should other jurisdictions copy this Act? Yes and no. Nationwide the stray and feral companion animal population comprises predominately cats, and a significant portion of that population is feral. Thus all jurisdictions should follow Illinois’ lead and realign their laws to reflect current demographics.
The Illinois law, however, is flawed. It allows local jurisdictions to decide whether they will participate in feral cat management programs and thereby access the state’s Pet Population Control Fund for feral cats. This position is legally untenable. The state has recognized—accurately—that the feral cat population is neither an owned population nor one capable of being owned within the meaning of existing law. Why then give local governments the opportunity to decide to the contrary? Why provide that feral cats aren’t owned, except when a municipality says they are?
The Illinois Department of Public Health is now drafting the agency rules that implement the new Illinois Public Health & Safety Animal Population Control Act. Once drafted, they will be posted for public comment. Alley Cat Allies will submit comments urging rules that implement the spirit of the law: effectively reducing and controlling the new stray animal population. Alley Cat Allies will also ask Illinois residents who are concerned about the legal status and treatment of stray and feral cats to weigh in on the draft rules. Check the
Alley Cat Allies website for details.
Endnotes 1. American Pet Products Manufacturers Association, Inc., Industry Statistics & Trends, found at www.appma.org/press_industrytrends.asp.
2. See Julie Levy, D.V.M., Feral Cat Management, Shelter Medicine for Veterinarians and Staff 377 (Lila Miller & Stephen Zawistowski, eds., 2004).
3. See, e.g., National Council on Pet Population Study & Policy, The Shelter Statistics Survey, 1994–97, found at www.petpopulation.org/statsurvey.html.
4.This clarification does not affect the applicability of Illinois anti-cruelty law, the Humane Animal Care Act, Illinois. 510 Ill. Comp. Stat. 70, which generally applies to all persons. The exception is those
provisions of the anti-cruelty law that expressly punish owners for breaches of duties they owe to their own animals. E.g., 510 Ill. Comp. Stat. 70/3.01 (“no owner may abandon any animal where it may become a public charge or may suffer injury, hungeror exposure.”)
Reprinted from the Feral Cat Activist, with the permission of Alley Cat Allies.
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