Freedom of Information Act , Endangered Species Act & Abandonment Laws
- Freedom of Information Act
Every state, the District of Columbia and the federal government has their own Freedom of Information Act (FOIA). Each FOIA makes it mandatory for government agencies in that jurisdiction to disclose information within their possession to members of the public upon request. Only if a certain type of information is specifically exempted by the statute (such as law enforcement files) can an agency refuse what is known as a FOIA request. A list of states and links to their FOIAs, along with other resources, can be found at the National Freedom of Information Coalition.
FOIA is an important law to know for any TNR group involved with a municipal government. It is possible in some states that if the extent of involvement with the local government goes too far, the TNR group can be considered a kind of quasi-government agency under the relevant FOIA. This would make the group's records, including any colony registration system or list of colonies and caretakers, subject to public disclosure.
For example, several years ago, there was a TNR group in Florida which was named in a county ordinance as the administrator of the county's TNR program and which received funding from the county. A court ruled the group was acting as a public agency and therefore had to disclosure colony locations under Florida's FOIA (aka "Sunshine Laws.")
Every state's FOIA is different and so, in the same circumstances, disclosure would not have been required in every state. The point is if you're working with the local government or receiving funding from them, you need to know your state's FOIA. If you're aware of what the law is, you can likely structure your relationship with the municipality to prevent being classified as an agency subject to FOIA disclosure. The advice of an experienced attorney would be helpful in most cases.
FOIA also makes TNR programs fully administered by municipalities somewhat problematic as no state's FOIA exempts TNR records from disclosure. This is why we recommend partnerships between municipalities and private agencies when it comes to a community TNR program. The private group can hold confidential information and, if it's careful in how it structures its relationship with the municipality, not be subject to FOIA requests.
- Endangered Species Act
The Endangered Species Act of 1973 (ESA) is a federal statute that applies throughout the United States. It lists wildlife species which are endangered and provides both civil and criminal penalties for acts or omissions which cause harm to these animals. Technically, the ESA prohibits the "take" of a listed species. According to the ESA, the term "take" means, "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." (Sec. 3, subd. (18).)
In addition, most states have their own endangered species act as well. The state laws add species which are not already on the federal ESA's protected list. The reason states have their own acts is because a species may not be endangered on a national level (and thus not listed in the federal ESA), but may be threatened within the territory of a particular state. The state ESAs also prohibit the "take" of a listed species. For a chart of state ESAs and links to the statutes, go to the Animal Legal & Historical Center.
When it comes to feral cats, the ESA is important because some wildlife advocates and agencies contend TNR can be a violation of the act. Their logic is that if someone releases a feral cat who then harms a member of a protected species, that person has committed a "take." They also argue municipalities which promote or encourage TNR can also be held responsible if a TNR'ed cat negatively impacts a protected species.
The truth is, the issue of whether TNR violates the ESA has never been settled by a court. From the wildlife side, there is the evidentiary problem of proving a connection between harm to a protected species, action by a particular cat and then the release of that particular cat by a specific person. There is also the strong counter-argument that a person performing TNR has only improved the situation for a protected species by neutering a cat who was already in the critical habitat to begin with. Taking all this into account, it is unknown how a court would rule on the issue if presented.
Neighborhood Cats believes the best approach is to stay out of court and work with wildlife advocates and agencies to promote the twin goals of humanely and effectively reducing feral cat populations while, at the same time, protecting members of endangered species. Collaboration is not easy, but it has been done, as shown by these examples which we encourage you to review:
- New Jersey Feral Cat & Wildlife Coalition - Pilot Ordinance & Protocols (doc)
- Stone Harbor, New Jersey - TNR Ordinance (doc)
- Project Bay Cat (Foster City, California) - Project Overview & Toolkit
- Abandonment Laws
Many states and municipalities make the abandonment of a cat a crime. The question is often raised, especially by animal control personnel, whether the release of a feral cat in the course of a TNR project can be considered an act of abandonment and thus illegal. The short answer, in our opinion, is no, but for a full analysis, please read the article on this issue authored by Bryan Kortis, an attorney, by clicking here (doc).
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