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Lawsuit Against Mayor and City of Albuquerque Over Catch and Release of Feral Cats Dismissed

Law Office of Matthew Vance, P.C.

A recent ruling by the U.S. District Court for the District of New Mexico reflects some of the challenges plaintiffs can encounter when naming a city and its mayor as defendants in a federal complaint seeking recourse for allegedly injurious conditions.

Last November a person filed a federal complaint against the City of Albuquerque and its Mayor, asserting claims for unlawful taking under the U.S. and New Mexico Constitutions and related claims for trespass and nuisance. The plaintiff’s lawsuit arose from the city’s alleged catch and release of feral cats and kittens as part of a trap, neuter and release (“TNR”) program. Under the TNR program, the plaintiff alleged, cats and kittens are trapped, sterilized, vaccinated and released. The plaintiff alleged that, as a result, she and her neighbors and children are exposed to an extreme nuisance, disease, property damage and a reduction in property values, and that the problem is continuing because the TNR program is continuing. The complaint attracted the attention of local news outlet KRQE, which ran a story reporting that, as of September 2019, 2,100 cats had been picked up of which 1,700 had been re-released.

The defendants responded to the complaint by filing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Under this rule a federal court is to review a complaint to assess whether its factual allegations state a claim for relief that is plausible on its face.

In its analysis the court explained that the Fifth Amendment of the U.S. Constitution prohibits the taking of private property for public use without just compensation. Further the court explained that a regulatory action need not deprive a property owner of rights entirely to amount to a taking. Rather, a regulatory action can amount to a taking when it goes too far. Based on cases decided in other contexts including cases concerning grazing by feral horses, the court reasoned that that colonies of cats did not constitute government occupation of the plaintiff’s property. The court went on to reason that the TNR policy of the City of Albuquerque, pursuant to which cats and kittens were being caught and released, ought to be considered an exercise of police powers and not an exercise of eminent domain powers. Using this approach, the court reasoned that the injuries to the plaintiff and her property were “incidental” to the TNR program, thereby precluding recourse under the U.S. Constitution’s protections against the taking of private property.

In the alternative, the court conducted a takings analysis. The court considered the “character” of the TNR program, and assessed the character as not regulating the plaintiff’s property specifically. The court also was not satisfied that the value of the property had been diminished based on the plaintiff’s allegations she had told a prospective buyer about the cats and then the prospective buyer backed out of purchasing the property because he did not want to live close to the cat colony.

The court provided other reasons for dismissing the complaint against the City and Mayor of Albuquerque, including that alleged continuation of the policy instituted by the prior mayor was not a sufficient basis for imposing liability on parties enjoying the protections of qualified immunity under federal law. After reviewing the state law claims for a taking under New Mexico law, and trespass and nuisance under New Mexico law, the court decided to decline to exercise its supplemental jurisdiction over the plaintiff’s state law claims. Ultimately, the court granted the motion to dismiss with prejudice, concluding that it was appropriate to dismiss the plaintiff’s claims based on federal law with prejudice and dismiss the state law claims without prejudice to reasserting them in state court.

If you or a loved one has been injured by the actions of a third party, there may be grounds for a recovery of monetary damages. Collecting damages can help people who have been injured and their families cover out-of-pocket costs, including medical bills, and costs of repairing property damage. To understand more about your case and how it can be pursued to maximize your financial recovery, call New Mexico personal injury lawyer Matthew Vance at the Law Office of Matthew Vance, P.C. We provide a free consultation and can be reached at (505) 242-6267 or contact attorney Matthew Vance online.

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