Download E Gardner Feral Cat legal analysis071213

Legal Issues Associated with Kauai County’s Feral Cat Population
Prepared by Emily A. Gardner, M.S., J.D., LL.M.
I.
Introduction
This paper is intended to provide an objective analysis of legal issues that may come into play in
managing Kauai County’s feral cat populations. Feral cat colonies have become the focus of increased
attention in recent years as bird and wildlife proponents, cat proponents and state and local governments
attempt to grapple with the problems they create in the environments where they are found. These
problems stem largely from the cats’ well-developed skills as hunters, their drive to hunt and kill-- even
when they are well-fed-- and their high fecundity. Feral cat populations are known to have decimated
species of wildlife, including endangered and threatened species as well as migratory birds in locations
with island ecologies, including Kauai.
In addition to wildlife predation, feral cats also pose a threat to humans and wildlife through their ability
to carry and spread disease. Feral cats generally live short lives and succumb to disease more so than
their domestic counterparts. Feral cats are known to transmit rabies, ringworm, parasitic worms, feline
immunodeficiency virus, feline leukemia, cat scratch fever, as well as the parasitic disease,
toxoplasmosis, which can be particularly harmful to pregnant women and babies and is known to have
been transmitted to endangered Hawaiian monk seals on Kauai, resulting in the death of several seals.1 In
addition, feral cats can easily transmit disease to pet cats, and should pose a concern to pet owners.
Lastly, not only do feral cats impact wildlife through predation and disease transmission, but they can
outnumber and compete with native predators for food resources. Because feral cats often benefit from
human feeding and vaccination, they are protected from many of the dangers facing native wildlife
predators. In this way, feral cat populations in the wild often reach artificially high numbers and may
present a serious threat to native predators’ ability to feed themselves and their young.
Kauai’s feral cat population is growing exponentially. Despite the dangers feral cats pose to wildlife and
humans (e.g., predation, competition for resources, and disease transmission), they are still viewed by
many as falling within the realm of a companion animal, like domestic cats that are maintained as pets.
This leads many well-meaning people to advocate heavily for their comfort, care, feeding and protection
from harm. The truth of the matter is that neither pet cats or feral cats are indigenous to Hawaii—both are
non-indigenous or invasive species. Pet cats enjoy certain legal protections by virtue of their status as
private property or chattel of a person. As discussed below, it is unclear whether many of the same legal
protections (e.g., protection from certain types of animal cruelty and abandonment) afforded to pet cats
under Hawaii law can be extended for the protection of feral cats, or, whether feral cats should be subject
to the same type of legal regulations Hawaii currently applies to other invasive mammal species that are
known to damage native Hawaiian wildlife, such as mongoose and rabbits. As discussed in detail below,
1
Teresa Dawson, A new threat to Hawaiian monk seals: Cat parasite carried by runoff, sewage, ENVIRONMENTAL
HEALTH NEWS, December 7, 2010, available at http://www.environmentalhealthnews.org/ehs/news/hawaiianmonk-seals.
1
Hawaii law expressly permits the killing and destruction of both these animals by methods not otherwise
prohibited by animal cruelty laws.
Trap-neuter-release programs (TNR) provide an alternative and arguably more humane way of managing
feral cats than eradication. In a well-managed TNR program, feral cats are humanely trapped, medically
evaluated, vaccinated against disease, spayed or neutered and returned to the location where they were
found. Volunteer caretakers monitor, feed and provide shelter for the feral cat colonies, often with the
support of the county humane society. Feral cats in TNR programs are generally microchipped and
registered in the name of the caretaker who brought them in to be evaluated and also have one of their
ears docked so they are recognizable in the field. Healthy kittens, which may be socialized, are removed
from the colony and put up for adoption. Because the adult cats can no longer reproduce and the kittens
have been removed, the number of cats in the colony eventually stabilizes and naturally declines through
attrition. Reports indicate that over time, TNR programs lead to a meaningful decline in feral cat
populations.2 Researchers at the University of Florida have developed a cat sterilization vaccine that may
also be helpful in controlling feral cat populations and reduce costs and resources associated with
neutering.3 As discussed below, participating in or sponsoring a TNR program may not come without
risk. Caretakers could plausibly be deemed liable for harms to persons, property or wildlife caused by
feral cats under their charge. Feral cat caretakers should be fully informed of the potential liabilities
involved in managing a feral cat colony.
The following sections review laws at the federal, state and county level that may be relevant to the
management of Kauai’s feral cat population.
II.
Federal Laws
A. Migratory Bird Treaty ActThe Migratory Bird Treaty Act (MBTA), 16 U.S.C. §703-712, implements various treaties and
conventions between the U.S., Great Britain, Canada, Japan, Mexico and Russia for the protection of
migratory birds. Under the Act, the taking, killing or possessing migratory birds is unlawful unless
permitted by regulations. More specifically, the MBTA provides that “unless and except as provided by
regulations made as hereafter provided in this subchapter, it shall be unlawful at any time, by any means
or in any manner, to pursue, hunt, take capture, kill, attempt to take capture, kill, possess, offer for sale…
any migratory bird, any part, nest, or egg of such bird…” The prohibited conduct is subject to especially
broad interpretation through inclusion of the language “by any means or in any manner.”
To make matters worse, under the violations and penalty section of the MBTA, intent is not needed to
find one in violation of the law as “any person, association, partnership, or corporation who shall violate
any provisions of the MBTA shall be deemed guilty of a misdemeanor and upon conviction shall not be
fined more than $15,000 or be imprisoned not more than six months, or, both.”
2
Julie Levy, Evaluation of the effect of a long-term trap-neuter-return and adoption program on a free roaming cat
population, 222 JOURNAL AMERICAN VETERINARY MEDICAL ASSOCIATION, 42 (2003)
3
Jacqui Janetzko, UF researchers: Vaccine might curb feral cat population, October 5, 2011, available at
http://www.gainesville.com/article/20111005/ARTICLES/111009740?p=1&tc+pg.
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Enforcement of the MBTA may be imposed by any employee of the Department of the Interior, who shall
have the power to arrest any person committing a violation in his presence or view without a warrant,
execute any warrant and search any place.
Kauai County has already had some direct experience with the MBTA as it pled guilty to violating the
Act in 2010, by virtue of its killing or wounding more than 18 Newell’s shearwaters, a migratory bird
included under the Act’s protection.4 The County failed to alter lighting at several of its football facilities
after being informed that bright lighting causes the shearwaters to fly into the lights or other obstacles and
become killed or injured, or, to fly around the lights until they fall to the ground exhausted. The County
was cited by the U.S. Fish and Wildlife Service on two occasions in 2005, and again thereafter, and told
that its use of the bright lights was taking shearwaters in violation of the MBTA and Endangered Species
Act (ESA). The County’s plea required it to take measures to minimize dangers to shearwaters, including
shielding the lights and agreeing to play football games at night in the event that more than four birds are
taken, as well as pay a fine in the amount of $180,000 to repair past harms and $30,000 to reduce the
harm from anticipated takings. In its press release announcing the plea deal, the Department of Justice
stated that it “views the taking of protected wildlife as a serious violation of the law…”
To date, corporations have been found guilty of violating the MBTA due to the accidental release of toxic
chemicals which subsequently resulted in the death of several MBTA-protected birds. In U.S. v. FMC
Corporation, 572 F.2d 902, 907 (2nd Cir. 1978) the court found that the corporation engaged in the
production of a highly toxic pesticide, and that it failed to prevent the pesticide from escaping into a pond
where it was dangerous to birds. Although the corporation stated it had no intent to harm the birds, the
court applied the strict liability standard in the MBTA. In U.S. v. Moon Lake Electric, 45 F. Supp. 2d
1070 (Co. Dist. 1999) several MBTA-protected birds were killed when roosting on an electric
association’s power lines on which the association had failed to install protective equipment that would
have prevented the birds from becoming electrocuted. The court found that Congress, by prohibiting the
act of “killing” intended to prohibit conduct that went beyond that normally exhibited by hunters and
poachers and did not seem overly concerned with how captivity, injury or death occurred.
The language of the MBTA, together with court opinions applying its use so broadly, raise the question of
whether a person could be found in violation of the MBTA if he/she released a cat into the wild and it
killed an MBTA-protected bird. The court in Moon Lake recognized that in order to obtain a guilty
verdict, while the government need not prove intent, it must establish proximate causation-- that a natural
and continuous series of events occurred, without any intervening causes, which produced the death of a
migratory bird, without which the death could not have reasonably happened and which was reasonably
forseeable. Because it is common knowledge that cats prey upon birds, if the death of a migratory bird
can be traced to specific cat or cat colony, the owner of the cat or manager of the cat colony could
plausibly be cited with violating the MBTA. Thus, in order to limit its exposure to future MBTA
violations, Kauai County may want to refrain from sponsoring the maintenance of feral cat colonies in
areas where MBTA-protected birds are found.
4
Department of Justice, Office of Public Affairs, Kauai Island Utility Pleads Guilty to Endangered Species Act and
Migratory Bird Treaty Act Violation, Agrees to Help Protect Threatened Seabirds, December 2, 2010, available at
http://www.justice.gov/opa/pr/2010/December/10-enrd-1375.html.
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B. Endangered Species Act
The purpose of the Endangered Species Act (ESA), 16 U.S.C. §§1531-1544, is to protect and recover
imperiled wildlife species and the ecosystems upon which they depend. Under the ESA species may be
listed as either endangered or threatened. “Endangered” means a species in danger of extinction
throughout all or a significant portion of its range. “Threatened” means a species is likely to become
endangered within the forseeable future. An early case interpreting the ESA, Tennessee Valley Authority
v. Hill, 437 U.S. 153, 194 (1978), determined that Congress clearly intended that the “balance has been
struck in favor of affording endangered species the highest of priorities.” Along these lines, the Act is
often regarded as the “pit bull” of environmental laws due to its inflexible nature and the fact that its
language has largely been interpreted strictly and literally.
Section 9 of the ESA prohibits any person from “taking” any endangered or threatened species within the
United States, or, from violating any regulation pertaining to any endangered or threatened species. The
term “take” is defined as “to harass, harm, pursue, hunt, shoot, would, kill trap, capture or collect, or to
attempt to engage in any such conduct.” Rules promulgated by the U.S. Fish and Wildlife Service
(USF&W) pursuant to the ESA define “harm” as an act which “actually kills or injures wildlife.” Such an
act may include significant habitat modification or degradation, where it actually kills or injures wildlife
by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.” Thus,
again, owing to the fact that it is common knowledge that feral cats prey upon endangered birds, the ESA
could plausibly be applied to the maintenance of feral cat colonies or failure to control feral cats, where
ESA-listed species are known to live.
Liability under section 9 of the ESA has been found in cases based on the issuance of permits or licenses
by a governmental body to a private party in which the authorized activity caused the taking of listed
species. For example, in Strahan v. Coxe, 127 F.3d 155, 163 (1st Cir. 1997) the Massachusetts Executive
Office of Environmental Affairs was found liable for a take based on evidence showing that Northern
Right whales were becoming entangled in fishing gear permitted by the State. The court determined that
the State of Massachusetts allowed commercial fishing to be conducted in a manner likely to cause a take
under the ESA. The court held that “a governmental third party, pursuant to whose authority an actor
directly exacts a taking of an endangered species, may be deemed to have violated provisions of the
ESA.”
Similarly, in Loggerhead Turtle v. Volusia City, 896 F. Supp. 1170, 1180 (M.D. FL. 1995), Volusia
County Florida was found in violation of section 9 of the ESA by allowing vehicular driving on its
beaches which was causing the taking of endangered sea turtles. The court enjoined the County from
allowing vehicles on its beaches during nighttime hours. However, in a more recent case, Loggerhead
Turtle v. Volusia County, 92 F. Supp. 2d 1296 (M.D. FL 2000). in which the same court was presented
with the issue of whether Volusia County’s beachfront lighting ordinance harmed the sea turtles, the court
reached a different conclusion. Although the court found that the turtles were being taken in violation of
the ESA and that the takes resulted from artificial beachfront lighting, the court held that because the
County’s beachfront lighting ordinance was designed to prohibit, restrict and limit artificial beachfront
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lighting, the County could not be held liable for takes caused by the non-compliance of its citizens. This
suggests that Kauai County could reduce its exposure to liability under section 9 of the ESA for potential
takes of wildlife by members of feral cat colonies sanctioned by the County or County Humane Society
by promulgating ordinances for the maintenance of such colonies which clearly state that the County only
allows feral cat colonies when they are maintained in such a way that they seek to actively reduce the
population of the cats in a humane, and non-lethal manner, such as through the use of TRN strategies; that
the feeding of feral cats without TRN or some other form of sterilization is strictly prohibited—especially
on property where endangered wildlife is known to occur.
In addition to finding government liability for the issuance of a permit or license, governmental bodies
have also been found in violation of ESA section 9 where the governmental body maintained animals on
public lands that were degrading critical habitat of listed species. In Palia v. Hawaii Department of Land
and Natural Resources, 639 F.2d 495 (9th Cir., 1980), environmental groups brought an action against the
State of Hawaii, alleging its practice of maintaining feral goats and sheep for sport hunting purposes
threatened the extinction of the endangered Palia. Facts established that the feral sheep and goats were
eating and destroying the mamane tree, which provided critical food and habitat for the Palia. The Ninth
Circuit held that the Hawaii Department of Land and Natural Resources’ practice of maintaining feral
goats and sheep in the critical habitat of an endangered species constituted a taking under section 9 of the
ESA because it was shown that the Palia was harmed by the activity. This case suggests that the County
could plausibly be found liable under section 9 of the ESA if it, or, the County Humane Society
sanctioned or supported the maintenance of feral cat colonies on public lands and the cats encroached on
the critical habitat of endangered wildlife species and either degraded the critical habitat, out-competed
with listed species for food and habitat resources, or, directly preyed upon listed species. The County
could avoid any potential liability by prohibiting the maintenance of feral cat colonies on public lands.
III.
Hawaii State Law
A. Wildlife Protection Laws Providing Authority to Manage and Control Feral Cats
As noted above, feral cats are not native to Hawaii and efforts should be considered to designate them as
non-indigenous invasive species. Hawaii has numerous laws that authorize the management and control
of invasive species, many of which are addressed below.
Hawaii Revised Statutes § 183D-65(a)- authorizes the Department of Land and Natural Resources to
destroy “by any means deemed necessary” “predators” deemed harmful to wildlife that occur on any
game management area, public hunting area, or forest reserve or other lands under the jurisdiction of the
Department. § 183D-65(b) authorizes the destruction of any predator, including dogs, in a posted area,
whether or not the predator is the property of some person. The County could enlist the assistance of the
DLNR in managing feral cats on publicly managed lands under this law.
Hawaii Revised Statutes § 194-2 establishes an Invasive Species Council for the special purpose of
providing policy level direction, coordination, and planning among state departments, federal agencies
and international and local initiatives for the control and eradication of harmful invasive species
infestations throughout the State and for preventing the introduction of other invasive species that may be
potentially harmful. The Council is to “advise, consult, and coordinate invasive species-related efforts
with and between the departments of agriculture, land and natural resources, health, and transportation, as
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well as state, federal, international, and privately organized programs and policies.” After consulting with
appropriate state agencies, the Council is to create and implement a plan that includes prevention, early
detection, rapid response, control, enforcement and education of the public with respect to invasive
species. H.R.S. §194-4 authorizes the Department of Land and Natural Resources to “examine, control
and eradicate all instances of invasive species identified by the council for control or eradication and
found on any public or private premises…” Collaboration with the State Invasive Species Council for the
management of feral cats would seem to reduce the County’s exposure to liability for any harm(s) caused
by the cats, as it would demonstrate the County’s commitment to resolving the problem as opposed to
allowing the status quo to continue.
It is noteworthy that the Council and state agencies are required to collaborate with the counties to
develop and implement a systematic approach to reduce and control the coqui frog infestations on public
lands—perhaps this law could be amended to also address feral cats, given that they undoubtedly pose a
significant danger to wildlife in all Hawaii counties. Nonetheless, even if it were not mandatory to
collaborate with the counties for the control of feral cats, this law strongly supports such collaborative
efforts. It may be advisable for Kauai County to initiate efforts to collaborate with the Invasive Species
Council and appropriate state agencies for the control of its feral cat populations so that scarce resources
can be best allocated and efforts taken in the management of feral cats are consistent and not
contradictory or repeated. Perhaps a public education campaign about the issues surrounding feral cats,
endangered wildlife and migratory birds could be developed with Council resources to enlist public
support for any management efforts that may be undertaken. Designating feral cats as invasive species is
admittedly a bold move and is likely to encounter some resistance from cat advocacy groups who may
argue that feral cats originated from domestic cats and have been associated with humans for centuries,
thereby rendering such a classification improper.
Hawaii Revised Statutes § 142-91, Destruction of animals ferae naturae, Section (a) provides that no
person shall shoot or otherwise destroy any animal ferae naturae or its progeny within ten years of the
introduction of the species into the State. This law would not apply to feral cats because they were
introduced into the State well over ten years ago. Section (b) would allow the destruction of feral cats, if
desired, given the cats’ damaging effects on the native ecosystem and wildlife populations, as it provides
“[n]othing in this section shall be construed to prohibit the destruction of such animals as shall be proved
to be common nuisances.”
Hawaii Revised Statutes §§ 142-92 – 142-93.5, apply specifically to the State’s ability to manage and
destroy mongooses—another invasive mammal species known to have damaging effects on Hawaii’s
wildlife species. These laws prohibit the keeping, breeding, or harboring of mongooses (HRS §§ 142-92
and 93), and, HRS § 142-93.5 provides that no person shall be prohibited from killing a mongoose in a
manner not prohibited by law, including by trapping.
Hawaii Revised Statutes §§ 142-94 and 142-95, authorize “any police officer or other person to destroy
any rabbit or Belgian hare found unconfined,” without liability, and require that rabbits be “kept off the
ground,” or be subject to a fine of not more than $100. Rabbits—like cats—are also often maintained as
pets. This law requires owners of rabbits to confine them, or be subject to the possibility of destruction
when unconfined. A similar state law for pet cats, feral cats and free-roaming cats could also be
established. Perhaps such a law could define the three types of cats, include a provision that pet cats must
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wear collars and be licensed or microchipped by the County, create penalties for pet cats that become
free-roaming and become a nuisance or injurious to protected wildlife, and enhanced penalties for those
pet cats that have not been neutered, and authorize the destruction of feral cats deemed to be a nuisance or
injurious to protected wildlife. This law would help to promote responsible pet cat ownership, just as
HRS § 142-95 promotes responsible ownership of rabbits while at the same time protecting wildlife. The
law would prohibit the destruction of pet cats, which would be recognized by virtue of their wearing a
collar and license or microchip as required by the law. Such a law would be partially consistent with
HRS § 183D-65(a), which permits the destruction of feral cats found on public lands, and, HRS § 194-4
which authorizes the Department of Land and Natural Resources to “examine, control and eradicate all
instances of invasive species identified by the council for control or eradication and found on any public
or private premises…”
B. General Liability and Ownership of Feral Cats
Hawaii Revised Statutes § 663-9(a) provides that the “owner or harborer of an animal, if the animal
proximately causes either personal or property damage to any person, shall be liable in damages to the
person injured regardless of the animal owner’s or harborer’s lack of scienter of the vicious or dangerous
propensities of the animal” while (b) provides that the “owner or harborer of an animal which is known
by its species or nature to be dangerous, wild, or vicious, if the animal proximately causes either personal
or property damage to any person shall be absolutely liable for such damage. Because feral cats are
known to be “wild” (e.g., non-domesticated) section (b) of the law would seem to apply, rendering
“owners” of feral cats strictly liable for personal or property damage that they proximately cause. It is the
practice of most county humane societies to microchip feral cats involved in TNR programs, and the
microchip certificate generally lists the person who brought the feral cat in for TNR as the registered
owner of the animal. Thus, persons who maintain feral cat colonies and participate in TNR programs
may be deemed liable for personal or property damage that the cats cause. In the past, Homeowner
Associations have attempted to hold feral cat colony keepers liable under this theory of liability. Thus,
individuals should be aware when they agree to participate in a TNR program that they could plausibly be
found liable for personal or property damage caused by their cats, or, subject to animal nuisance
complaints.
That being said, the Restatement (Second) of Torts may lend support to the theory that feral cat caretakers
are not liable under tort law for damage caused by trespass of feral cats. Comment (j) to § 518 of the
Restatement—pertaining to animals running at large—states as follows:
There are certain domestic animals so unlikely to do harm if left to themselves and so incapable
of constant control if the purpose for which it is proper to keep them is to be satisfied, that they
have traditionally been permitted to run at large. This class includes dogs, cats, bees, pigeons and
similar birds.
To avoid liability, feral cat owners/caretakers could argue that because humans have permitted domestic
cats to roam and become feral because the cats are not likely to cause harm, individuals should not be
liable in tort for any harm the cats cause. This argument may not hold in jurisdictions that prevent cats
from running at large. An important factor in assessing potential liability will hinge on how counties
define “ownership” of animals, and what is required of cat owners and/or caretakers.
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Hawaii has no other laws defining “ownership” of animals, and Kauai County has no laws regarding
ownership of animals. As discussed in the following section, Kauai County may want to promulgate an
ordinance addressing cat ownership, which includes pet, free-roaming and feral cats, and required conduct
for cat owners and/or caretakers. If the State Invasive Species Council were to undertake a program to
control and manage the State’s feral cat populations, the State should also consider passing a law which
clearly defines cat ownership, different types of cats (e.g., pet, free roaming, feral), and required conduct
and potential liability for each type of cat owner/caretaker.
Hawaii Revised Statutes § 142-13- This law requires any person knowing or having reason to believe
that any animal on or about that person’s premises or the premises of another is affected with any
infectious or contagious disease who fails to promptly report the same to the department of agriculture,
shall be fined not less than $24 nor more than $500. Because feral cats are known to serve as host to a
variety of diseases that can be harmful to humans and other animals and wildlife, this law may be
relevant, and impose liability on caretakers of feral cat colonies, if they fail to report obvious signs of
disease in the cat population they manage.
C. Animal Cruelty and Abandonment Issues
Hawaii Revised Statutes § 711-1108.5 - Cruelty to animals in the first degree. A person commits the
offense of cruelty to animals in the first degree if the person intentionally or knowingly tortures,
mutilates, or poisons or causes the torture, mutilation or poisoning of any pet animal or equine animal
resulting in serious bodily injury or death of the pet animal or equine animal. This offense does not
appear to apply to feral cats, as it is limited to “pet animals or equine animals.” It would, however, apply
to pet cats. Thus, would seem important to define the terms “pet cat,” “feral cat,” and “free-roaming cat”
somewhere in the Hawaii Revised Statutes. Nonetheless, cruelty to feral cats should not be tolerated or
encouraged, and any efforts to eradicate feral cat populations should be done in a humane a manner as
possible.
Hawaii Revised Statutes § 711-1109 – Cruelty to animals in the second degree. This law provides in
relevant part: A person commits the offense of cruelty to animals in the second degree if the person
intentionally, knowingly or recklessly: (a) overdrives, overloads, tortures, torments, beats, causes
substantial bodily injury or starves any animal, or causes the overdriving, overloading, torture, torment,
beating or starving of any animal; (b) deprives a pet animal of necessary sustenance or causes such
deprivation; and (c) mutilates, poisons, or kills without need any animal other than insects, vermin or
other pests. Section (a) of the law which prohibits torturing, tormenting, beating, causing substantial
bodily injury or starving any animal would apply to feral cats and pet cats, and section (b) which prohibits
deprivation of sustenance would apply only to pet cats. Nonetheless, both sections (a) and (b) prohibit the
starving of feral and pet cats. This language suggests that the discontinuation of a feral cat feeding station
in which the cats have become dependent on humans for food, could be deemed a violation of this law, as
could starving a pet cat. To limit its exposure to potential animal cruelty charges, Kauai County may
wish to phase out feeding of any feral cat colonies it wishes to disband gradually, or ensure that members
of the colony are relocated, collected for adoption (if possible) or euthanized humanely. Again, because
pet animals receive different treatment under the statute than any animals, efforts should be made to
include definitions of what constitutes a “pet cat,” “feral cat” and “free-roaming cat” somewhere in the
Hawaii Revised Statutes to provide notice of violations. Moreover, this statute also prohibits the harming
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or destruction of feral cats by any means that could be deemed torture, tormenting or causing substantial
bodily injury.
Hawaii Revised Statutes § 143-2.6 – Animal desertion. This law prohibits the desertion of any animal
without the intention of returning to it. Violation of this law is a petty misdemeanor. Again, this law
could be applied in instances where caretakers seek to abandon feral cat colonies—especially those that
have been part of a TNR program—where the caretaker is deemed to be an owner of the cats by virtue of
their name on the micro-chip certificate. As with animal cruelty statutes, this law promotes the gradual
and responsible disbandment of existing feral cat colonies, if disbandment is a component of the
management strategy.
IV.
Kauai County Ordinances
While Kauai County currently has laws regarding stray dogs, dog licenses, dangerous dogs and dog parks,
it has no laws specific to pet cats or feral cats, or other types of animals. There is no ordinance specifying
what constitutes ownership of an animal, or a feral cat.
Hawaii Revised Statutes § 143-2.5 – Regulation of other animals, authorizes the counties to regulate,
including by licensure, animals other than dogs. Kauai County should promulgate ordinances addressing
the care and maintenance of feral cat colonies under the authority provided by this statute. Such
ordinances should include provisions defining the term feral cat (e.g., recognizing a feral cat as a nondomesticated invasive species) and distinguishing it from a pet cat or free-roaming cat, establishing what
constitutes ownership of a feral cat (e.g., serving as caretaker of a colony; sponsoring humane society),
goals of feral cat colonies to actively reduce the population through TNR or other population control
methods, restrictions on the locations of feral cat colonies (e.g., may want to prohibit them on public
lands, allow to a limited extent on private lands), restrictions on activities permitted in association with
feral cat colonies, and limitations of liability for feral cat colony caretakers. To help better distinguish
between feral cats and pet cats, Kauai County may also want to promulgate an ordinance requiring pet
cats to be licensed and wear a collar. Fees (modest) generated by licenses for pet cats could be used to
fund the County’s feral cat control efforts. If the County is interested in collaborating with the Invasive
Species Council for the management of its feral cat population, it should consult the Council with regard
to drafting its feral cat management and control ordinance.
V.
Conclusion
Based on the aforementioned laws and analysis, the following actions are recommended in order to
reduce Kauai County’s exposure to liability.
-
Similar to HRS §§ 142-94 and 95, which apply to rabbits, Kauai County should advocate for the
creation of a state law for pet cats, feral cats and free-roaming cats. Such a law could define the
three types of cats, include a provision that pet cats must wear collars and be licensed or
microchipped by the County, create penalties for pet cats that become free-roaming and become a
nuisance or injurious to protected wildlife, enhanced penalties for non-neutered pet cats that
become free roaming, and authorize the destruction of feral cats deemed to be a nuisance or
injurious to protected wildlife. This law would help to promote responsible pet cat ownership,
just as HRS § 142-95 promotes responsible ownership of rabbits while at the same time
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protecting wildlife. The law would prohibit the destruction of pet cats, which would be
recognized by virtue of their wearing a collar and license or microchip as required by the law.
-
Promulgate County ordinances addressing feral cat management and control as well as pet cat
management and control. Such ordinances should include provisions defining the term feral cat
(e.g., recognizing a feral cat as a non-domesticated invasive species) and distinguishing it from a
pet cat or free-roaming cat, establishing what constitutes ownership of a feral cat (e.g., serving as
caretaker of a colony; sponsoring humane society), goals of feral cat colonies to actively reduce
the population through TNR or other population control methods, restrictions on the locations of
feral cat colonies (e.g., may want to prohibit them on public lands, allow to a limited extent on
private lands), restrictions on activities permitted in association with feral cat colonies, and
limitations of liability for feral cat colony caretakers. To help better distinguish between feral
cats and pet cats, Kauai County should also promulgate an ordinance for pet cats, which defines
the term, requires pet cats to be licensed and wear a collar, and levy fines for allowing nonneutered pet cats to roam freely.
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Designate feral cats as invasive species and collaborate and share resources with the Hawaii
Invasive Species Council in managing the issue.
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Prohibit the feeding of feral cats and maintenance of feral cat colonies on public lands. Allow for
a gradual phasing out of existing feral cat colonies on public lands.
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Permit the maintenance of feral cat colonies on private lands, but educate colony caretakers about
potential liabilities they may face.
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