Cat control “trial of the century” cleared to proceed in San Diego

Preliminary ruling against “return to field” may be problematic for neuter/return feral cat control programs too

SAN DIEGO,  California––The trial of the century,  at least for cats impounded in San Diego city and county,  is tentatively set to begin on April 26,  2024.

San Diego County Superior Court Judge Blaine K. Bowman on March 28,  2024 rejected a San Diego Humane Society motion for summary judgement against a lawsuit brought against it in May 2021 by the Southern California animal rescue charities Pet Assistance Foundation and Paw Protectors.

Is “return to field” abandonment?

The lawsuit alleges that the San Diego Humane Society practice of “return-to-field” of apparently owned cats constitutes legal abandonment.

The case could establish,  for the first time,  a clear legal distinction between the “neuter/return” and “return-to-field” approaches to cat population control.

The Bowman ruling on the motion for summary judgement opened on an ominous note for the plaintiff Pet Assistance Foundation and Paw Protectors.

Judge Bowman rejected in rapid succession evidentiary objections by plaintiff’s attorney Bryan Pease to testimony from Kate Hurley, DVM,  of the Koret Shelter Medicine program at the Davis campus of the University of California,  long the leading advocate of “return-to-field”;  Julie K. Levy,  professor of Shelter Medicine Education at the University of Florida in Gainesville;  San Diego Humane Society chief financial officer Michael Lowry;  and San Diego Humane Society chief veterinarian Zarah Hedge, DVM.

Judge accepted San Diego Humane Society definition of “abandonment”

“As on the court’s ruling on Plaintiffs’ motion for a preliminary injunction,”  Bowman continued,  “the court adopts the San Diego Humane Society’s analysis of the term ‘abandonment.’

“Under this analysis,”  Bowman explained,  “the term ‘abandons’ as used in Penal Code § 597s requires a finding that the alleged acts of the San Diego Humane Society in operating its Community Cats Program are ‘reasonably likely to result in the infliction of unjustifiable pain,  or suffering,  or cruelty upon’ cats.”

Bowman acknowledged that the San Diego Humane Society Community Cat Program including “operates to improve the overall health and wellbeing of community cats,”  and accepted testimony “that when cats are brought into the San Diego Humane Society,  they are checked for indicia of ownership,  given a medical evaluation,  provided any necessary medical treatment,  vaccinated,  sterilized (i.e., spayed or neutered),  and ear-tipped for future identification.”

“Many cats with significant medical conditions are dumped”

Summarized Bowman,  “If a cat is generally healthy with a good body condition score and has no credible or verifiable evidence of ownership,  the cat is returned to its outdoor home in the community.  Cats who do not meet the Community Cat Program’s health and body condition criteria are not eligible for the Community Cats Program,  and are instead admitted into the shelter for medical treatment and adoption or transfer to another animal welfare organization.”

But Bowman went on to recognize that regardless of what the San Diego Humane Society policy is,  the Pet Assistance Foundation and Paw Protectors contend that the society “does not take adequate steps to determine if a cat is ‘generally healthy,’”  and argue that “in practice many cats with significant medical conditions are dumped back outside.

Bowman cited written declarations from plaintiff’s witnesses Amanda Vlahos,  Sherri Penaloza,  Kate Parberry,  and Anna Brown,  the latter a registered veterinary technician,  describing “incidents where ill,  injured and/or recently spayed/neutered cats were released into the community by the San Diego Humane Society.

Judge asserts seven-day hold with e-collar is “standard of humane care”

Debra Voulgaris, DVM “states,  in part,”  Bowman continued,  that “performing surgeries such as spaying or neutering and then immediately putting cats outdoors without follow up care is cruel and likely to result in suffering,  because the cats need to recover and be given appropriate analgesia and monitored for complications.

“Activity must be restricted and an e-collar kept in place at all times until the wound heals which at minimum is seven days.  This is the standard of humane and medically responsible care,”  Bowman asserted,  just before ruling against the San Diego Humane Society motion to dismiss the Pet Assistance Foundation and Paw Protectors lawsuit.

Ruling may be Pyrrhic victory for plaintiffs

Subject to whatever happens in the main part of the lawsuit on April 26,  2024,  or whenever rejoined,  this ruling may be a Pyrrhic victory for the Pet Assistance Foundation and Paw Protectors lawsuit.

Both the Pet Assistance Foundation and Paw Protectors have declared themselves to favor neuter/return feral cat control,  with the caveat in the pleadings against the San Diego Humane Society that,  “The traditional ‘Trap/Neuter/Return’ model is for feral cats who are unsocialized and who would not be able to become a pet.”

Seven-day hold standard rarely if ever met

There is probably not a neuter/return program for either cats or dogs in the world––as ANIMALS 24-7 can attest from having visited hundreds in all parts of the world––that meets this seven-day “standard of humane and medically responsible care,”  and in Beth’s case,  having been a veterinary technician for two years at a major nonprofit spay/neuter clinic.

Only one major international animal charity,  the American SPCA,  recommends anything like “the standard of humane and medically responsible care” that Bowman stipulated.

The recommendations of other major animal charities,  including the International Fund for Animal Welfare,  the Humane Society of the U.S.,  Humane Society International,  Royal SPCA of Great Britain,  and many others,  converge on the advice that after cat surgeries where there have been no complications,  a 24-hour hold is sufficient for toms,  three days for queens,  followed by up to two weeks of observation where possible as the cats go about their normal activities.

Long holds tend to be self-defeating

A longer holding time for either feral cats or street dogs tends to be self-defeating, because the greatest post-operative risk comes from cats or dogs fighting with other cats and dogs, and the longer a feral cat or street dog remains away from his/her territory,  the greater the risk of another cat or street dog moving in,  starting a territorial battle.

Also,  if a queen is nursing kittens,  who cannot be found and brought to her,  she must be returned in time to resume nursing them.

Often the queen is released early and followed,  allowing rescuers to find the kittens.

E-collars are not normally used after 24 hours––if at all––except in cases where there have been surgical complications, and are generally not recommended following spay/neuter surgery,  because if the sutures are properly done,  normal post-operative licking does not undo them.

Further,  case law in several states has previously accepted that 24-hour holds for toms and three day holds for queens are sufficient as humane standards for neuter/return programs.

Thus a final verdict in the Pet Assistance Foundation and Paw Protectors case against the San Diego Humane Society that mandates a seven-day hold for cats after spay/neuter surgery is almost certain to be reversed.

San Diego Humane Society returned to doing animal control in 2018

The Pet Assistance Foundation and Paw Protectors case originated soon after the San Diego Humane Society resumed providing shelter service for the San Diego city and county animal control agencies in 2018,  after a 43-year hiatus beginning in 1975.

Almost immediately the San Diego Humane Society announced that it would pursue a neuter/return policy in response to calls about feral cats,  a term usually meaning hostile cats who cannot be handled easily and appear to have lived outdoors,  independent of human help,  all of their lives.

Feral cats were,  and are,  to be sterilized,  vaccinated,  and released where they were found,  to live out the balance of their natural lives as the self-sufficient wild animals they had apparently always been.

Return-to-field added

Two years later,  in 2020,  the San Diego Humane Society expanded the feral cat program into a “Community Cats” program,  along lines that society president Gary Weitzman told KPBS-TV investigative reporter Claire Trageser are recommended by “Alley Cat Allies,  American Pets Alive,  the ASPCA,  Best Friends and the Humane Society of the United States.”

The “Community Cats” program differs from a neuter/return program in adding the practice of “return-to-field.”

“Return-to-field” means that any tame cats picked up by animal control,  or brought to shelters by individuals,  who are not identified by microchip,  and therefore cannot be taken directly home,  are sterilized and vaccinated if necessary,  then released where captured,  to either find their own way back home or try to survive as ferals.

“Giving them a chance”

Return-to-field as a method of reducing animal shelter intakes and killing in some ways resembles the practice of dumping cats to “give them a chance,”  as practiced by many people instead of taking cats to shelters during most of the 20th century,  when shelter killing rates for cats often ran upward of 95%.

Alleges the lawsuit brought by the Pet Assistance Foundation and Paw Protectors,  et al,  “San Diego Humane Society is engaged in the unlawful business practice of abandoning social,  adoptable,  domestic cats onto the streets.”

The lawsuit argues that the San Diego Humane Society “is obligated as stated in California Civil Code 1815(c) and 1816(c) to receive and hold for the required holding period all stray cats brought to them by the public,  but is instead advising citizens to leave stray cats where they are.”

“TNR is for feral cats”

The San Diego Humane Society,  the case charges,  “seems to use the terms ‘Return to Field,’  ‘Return to Habitat,’  ‘Shelter/Neuter/Return,’   and ‘Wild at Heart’ interchangeably.”

However,  the Pet Assistance Foundation and Paw Protectors case states,  “One of the differences between these programs and traditional ‘Trap/Neuter/Return’ (TNR) is that these new programs include any and all stray cats who are brought into the shelter,  even if they are friendly,  domesticated cats who would qualify for the adoption program.

“The traditional ‘Trap/Neuter/Return’ model is for feral cats who are unsocialized and who would not be able to become a pet,”  the lawsuit emphasizes.

“Switching around of these titles and their similarity to the term ‘Trap/Neuter/Return’ is intentional,”  the lawsuit alleges,  “in order to confuse the public.  Defendants/respondents are releasing friendly adoptable cats in the same way they would release a feral cat,  and that is not only against the law,  but not in the best interest of a social,  adoptable cat.”

(See San Diego showdown: trap-neuter-return advocates sue vs. return-to-field.)

Behavioral differences

Among the principal behavioral differences in the outdoor behavior of feral cats and fed,  socialized pet cats is that genuinely feral cats mostly sleep by day,  and efficiently hunt rodents for a living by night,  when few healthy birds are on the ground or are otherwise accessible.

Fed,  socialized cats tend to hunt by day,  when most rodents are in hiding,  but human feeders and most bird species are out and about.

Having no need of calories from hunting,  the fed,  socialized cat often hunts birds for sport,  typically with a low rate of success relative to time and energy expended.

That cat often goes home at night to sleep indoors,  while the feral cat comes out and goes to work.

The typical differences between authentic feral and roaming pet cat behavior underlie the essential differences between neuter/return and return-to-field programs.

In particular,  neuter/return work is of necessity usually done at night,  by volunteers usually operating with their own funds and contributions from a small circle of donors.

Return-to-field work can be done by animal control personnel during normal business hours.

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