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Articles:

Keeping Fish & Game Honest

Published 03/15/02
Source: Animal Issues, Volume 33 Number 1, Spring 2002

In October 2001, the Animal Protection Institute and the Fund for Animals sued the California Department of Fish and Game (CF&G) for its failure to enforce and comply with state laws governing captive wild animals.

The lawsuit stemmed from a 1999 API investigation into inconsistencies of then-new CF&G regulations with existing statutes and actions of CF&G which were inconsistent with its own regulations. As API delved into the issue, we discovered that California’s captive wild animal program offers no protection to the animals of this state. The program, as applied to exhibitors, is merely a paperwork system that offers no protection to the actual animals.

Background of the Law

One of the more progressive of state statutes regulating captive wild animals, California’s 1985 law requires that all facilities and persons possessing captive wild animals obtain a permit from CF&G. Permits are granted for animal care (exotic “pets” first possessed pre-1992), exhibitors, breeding for exhibition, breeding in general, certified zoos, research, brokers and dealers, and shelters and sanctuaries. A permit is issued after the facility has been inspected by CF&G or an eligible local entity and the requisite fee submitted. “Eligible local entity” is defined as “a county, local animal control officer, local humane society, official, an education institution, or trained private individual which enters into a memorandum of understanding [MOU] with the director [of Fish and Game] ...” See Cal. Fish & Game Code §2020(c).

Once a permit is granted the facility must comply with humane care and treatment standards, minimum housing and caging standards (applies to in-state permittees only), and transportation standards, which cover care in transit, handling provisions, and transport caging provisions. The department or an eligible local entity may inspect at any time a captive wild animal facility to ensure compliance. See Cal. Fish & Game Code §2150.4.

California law also mandates that the CF&G director appoints an Advisory Committee to recommend regulations for standards of performance of the permit program and frequency of inspections; and advise and assist the director in entering into MOUs with eligible local entities to enforce the regulations.

API’s Investigation

Beginning in 1985, the Advisory Committee convened and met several times during the next 6 years. The committee recommended captive wild animal regulations which now make up most of the current applicable regulations in California. See Cal. Code Regs. tit. 14, §§671 et al. In 1991, the committee disbanded.

In 1998, CF&G proposed and approved changes to its captive wild animal regulations, without advice from any advisory committee. The 1998 regulation was inconsistent with the California Fish and Game Code in that it allows for veterinarians accredited by the U.S. Department of Agriculture (USDA) to conduct inspections. State law allows an eligible local entity to conduct these inspections only if they have entered into a MOU with CF&G, conditions not met by USDA veterinarians. See Cal. Code Regs. tit. 14, §671.1(c)(6)(B).

API then became suspicious as to whether or not other provisions relating to captive wild animals were adopted in violation of state law. API submitted several California Public Records Act requests to determine CF&G compliance. What we discovered was quite alarming.

Since the adoption of the law in 1985 the director had not entered into MOUs with any eligible local entity or any USDA veterinarians to conduct the inspections. In theory, CF&G should have conducted all initial inspections for granting permits to the captive wild animal facilities. In truth, from June 1996 to May 1998, only 7% of the initial inspections were conducted by CF&G and 93% were conducted by veterinarians who, lacking a MOU with CF&G, were in violation of a clear state mandate.

Many eligible groups — including the Santa Clara Humane Society, the Los Angeles SPCA, and the Marin Humane Society — wanted to obtain MOUs with CF&G, yet CF&G failed to enter into any discussion with them.

Illegal Permits

Between 1993 and July 15, 1998 CF&G issued citations to only 17 individuals for captive wild animal violations. This seems surprisingly low for a 5-1/2-year period. Indeed, CF&G policy for captive wild animal permits states in part that a permit application will not be processed if the applicant is currently charged with or under investigation for a violation pertaining to the care and possession of prohibited animals at the local, state, or federal level; or if the applicant has been convicted under federal, state, or local statutes for humane treatment of animals within a two-year period immediately prior to the date of application.

API discovered that several permit holders were under investigation, charged, and/or convicted for violations of the Animal Welfare Act while they were licensed by CF&G. These include Hawthorne Corporation, Paul Kenis, Lamont & Anna Cox, Ringling Bros. and Barnum & Bailey Circus, Carson and Barnes Circus, and Sterling and Reid Circus.

Since 1999, API has been in constant contact with CF&G concerning the issues discovered in our investigation. When API’s then-counsel brought the problem to the attention of the CF&G Commission, CF&G claimed compliance with the law and the Commission did not demand further action. In early 2000, API submitted a proposal to CF&G to resolve the clear violations of the law and the issues raised in our investigation. The proposal included specific measures that CF&G could take to conform to the state law. CF&G rejected the proposal. We were left with no other recourse but to file a lawsuit.

Victory

Only three months after the lawsuit was filed, API and the Fund for Animals entered into a settlement agreement by way of a Stipulated
Judgment:

  1. CF&G will establish an Advisory Committee pursuant to the Fish and Game Code §2150.3. The Committee will meet as often as needed, but not less than once per year. API Director of Legal and Government Affairs Nicole Paquette will be appointed to the Advisory Committee along with Virginia Handley of the Fund for Animals.
  2. The Advisory Committee shall offer advice and assistance to the director on the process of entering into MOUs with eligible local entities.
  3. The director shall not enter into a MOU with an eligible local entity to conduct inspections of captive wild animal facilities of an exhibitor if that eligible local entity is employed by or receives compensation from that exhibitor.
  4. The Advisory Committee, once convened, shall recommend a working definition of the phrase “trained private individual” to qualify a person as an eligible local entity. (This is the phrase under which the USDA veterinarian and other veterinarians have fallen.)
  5. CF&G will provide for inspection, copies of all inspection reports created by CF&G and all eligible local entities, all permit applications received by CF&G, written records of all violations found and/or citations issued by CF&G and all eligible local entities, and written records of the number of permits accepted and rejected by CF&G.
  6. CF&G states that the regulation that allows the USDA veterinarians to inspect captive wild animal facilities does not conform to Fish and Game Code sections 2020(c), 2150.3(d), and 2150.4. Once the Advisory Committee is established, the director will consult with the Advisory Committee regarding how to make the regulations consistent with applicable code sections.

After all our efforts, API and the Fund for Animals were rewarded with a settlement that basically satisfied all of our complaints and which we see as a victory for all captive wild animals permanently housed in California and traveling through the state.

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