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The Status of Captive Wild Animals in the U.S.: An Overview of the Problem and the Laws

By Nicole Paquette
Source: Animal Law Institute Conference - Dallas, TX

V. Federal Laws

Very few federal laws address captive wild animals. Those that do exist primarily regulate the importation of wild animals and outline minimal care and treatment standards; they do not restrict or prohibit the display or private possession of captive wild animals in the United States.

A. Animal Welfare Act

The Animal Welfare Act (AWA)11 was adopted to assure the humane care and treatment of certain species of animals that are bred for commercial sale, used in research, transported commercially, or exhibited to the public. While the AWA regulates the possession of warm-blooded animals, such as elephants, lions, tigers, bears, and non-human primates, it does not protect reptiles; birds, rats, and mice used for research purposes; nor farmed animals used for food, fiber, or other agricultural purposes.

If you exhibit your animals to the public or conduct performances featuring animals covered by the AWA you must become a licensed exhibitor. AWA also requires individuals who breed and deal in captive wild animals to obtain a license and comply with the minimum standards of care and treatment. On the federal level, this is the most comprehensive law regulating and protecting captive wild animals.

Individuals who are licensed under the AWA must provide their animals with adequate care and treatment in the areas of housing, handling, sanitation, nutrition, water, veterinary care, and protection from extreme weather and temperatures. Although Federal requirements establish minimal standards, they are far from ideal.

The AWA has established several regulations that govern the manner in which captive wild animals can be displayed to the general public. For example, all licensed exhibitors must minimize possible harmful risks to the public and to the animals during public exhibition by providing sufficient distance or barriers between the animals and the public. However, elephant rides are still permitted under the AWA. Further, during public exhibition, dangerous animals such as lions, tigers, bears, and elephants are supposed to be under the direct control of an experienced trainer. But, ironically, what constitutes an “experienced trainer” is not defined within the regulations and so it remains unclear who would meet this requirement. There are also basic requirements for the upkeep and maintenance of the transport vehicles and the indoor and outdoor facilities where the animals will be kept.

There are also a series of minimum requirements that pertain to training and exercise. For example, animals must be provided with enough space to make normal postural and social adjustments with adequate freedom of movement, each animal shall be fed at least once in a 24 hour period, and when elephants are housed in chains while not in transport, chains must be of sufficient length and arrangement so as to permit each elephant to comfortably lie down, get up, self-groom, and move about within a reasonable range.12

We cannot rely on the AWA to protect circus animals, animals at roadside zoos or the animals that are carted off to schools as ambassadors of their species. Unfortunately, this meager protection is all the animals have on the federal level. The AWA does not go far enough in providing proper protection from abuse and neglect, or to protect public health and safety.

Additional regulations must be put in place that take into consideration the needs of the animals and restrict abusive training methods. Simply put, the animals need more than the minimal protections provided by the federal regulations. And to get increased protections, individuals will need to pressure the USDA to not only enforce the current laws, but also to push for more stringent protections for the animals in the future.

B. Convention on International Trade in Endangered Species of Wild Fauna and Flora

Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)13 was first signed into law in 1973 in order to protect certain species of wild fauna and flora against over-exploitation through commercial trade. The United States adopted the treaty in 1975 and the Endangered Species Act is its enabling legislation. CITES is the only treaty that attempts to regulate wildlife trade and almost every nation is a party.

Under CITES, the trade in live or dead wildlife and their body parts is restricted or even prohibited for species listed in CITES’ three appendices, which are based on the level of endangerment of species. Trade in species threatened with extinction is prohibited under Appendix I and restricted under the other two Appendices. Specifically, CITES prohibits the import of Appendix I species for “commercial purposes” unless the animal was specifically bred in captivity for that purpose. “Commercial purposes” refers to “any transaction which is not wholly ‘non-commercial’ will be regarded as ‘commercial.’”14

In order to allow an individual or entity to import an Appendix I animal, it must be determined whether the proposed import “would be detrimental to the survival of the species;” whether the animal “was acquired lawfully;” whether the animals will be “so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment;” whether the individual or entity “is suitably equipped to house and care for such wildlife;” and whether the imported animal “is to be used for primarily commercial activities.”15 Currently, two U.S. zoos are attempting to import 11 wild-caught African elephants. One would presume that the permit to import these animals would be denied because the two zoos are commercial in nature, but, the U.S. Fish and Wildlife Service has issued a CITES permit to have these animals imported into the country. At the time this article went to print, several animal protection organizations were challenging this permit.

C. Endangered Species Act (ESA)

The Endangered Species Act (ESA)16 provides broad protection for species of fish, mammals, birds, and plants that are listed as threatened or endangered in the U.S. or elsewhere. Provisions are made for listing, as well as for recovery plans and the designation of critical habitat for listed species. The ESA outlines procedures for federal agencies to follow when taking actions that may jeopardize listed species, and contains exceptions and exemptions. The ESA is also the enabling legislation for CITES. Criminal and civil penalties are provided for violations of the ESA.

Under the ESA it is unlawful to import or export, take within the U.S. or on the seas, possess, sell, deliver, carry, transport or ship any listed species, and violate any of the implementing regulations. Thus, if an exotic animal is listed as a threatened or endangered species, in theory, it is illegal to possess, sell, or buy the species through any means.
However, there are exemptions which allow individuals to obtain a permit authorizing activities otherwise prohibited under the ESA for scientific purposes, for enhancing the propagation or survival of the species, or for the incidental taking of endangered wildlife.17 The U.S. Fish and Wildlife Service has consistently interpreted the “enhancing the propagation or survival of the species” exception to equate to a showing that said use is of some “educational value.” Thus, circuses, roadside menageries and zoos, and other entities are routinely granted permits to import, export, take, and possess listed species under the guise that the display of these animals is educational.

In addition, there is a legal loophole which allows a person to personally possess a listed species if that person obtains a captive-bred wildlife permit.18 A captive-bred wildlife permit allows an individual to possess a listed species in the course of a commercial activity, or sell or offer for sale in interstate or foreign commerce any endangered wildlife that is bred in captivity.

Clearly, the ESA allows for the importation, exportation, and possession of endangered captive wild animals by allowing for the commercial use of endangered species, provided the proper permit is obtained.

D. The Lacey Act

The Lacey Act19 was passed in 1900 to address the growing concern about interstate profiteering in illegally taken wild animals used primarily for food. It was amended in the 1930s and 1940s, and again in 1981. The Lacey Act makes it illegal to import, export, transport, sell, receive, acquire or purchase fish, reptiles, mammals, birds, or plants that were taken, possessed, transported or sold in violation of a federal law or treaty, a state law, or a tribal law. Criminal and civil penalties are provided for violations of the Act. Fines for misdemeanor violations are set at a maximum of $100,000 for individuals and $200,000 for organizations. Maximum fines for felonies are presently $250,000 for individuals and $500,000 for organizations.

In essence, the Lacey Act allows the U.S. Fish and Wildlife Service to prosecute persons in possession of an animal illegally obtained in a foreign country or another state. Captive wild animals benefit from the Lacey Act because animals that were taken illegally in their county, territory, or state may not be imported, exported, possessed or traded legally in the U.S. In fact, in 2002, at least 17 individuals were prosecuted under the Lacey Act for selling and killing endangered leopards, tigers, and other cats, selling their pelts to collectors, and the meat of the animals to a butcher. The U.S. Fish and Wildlife Service had been investigating this matter for 5 years. It stretched across 20 states from Florida to Michigan, Oklahoma, Missouri, and Illinois and ended in at least 17 dead animals.20

While the Lacey Act does work to help to curb the illegal transportation of captive wild animals across state lines, it does nothing about the illegal movement of animals within a state. Therefore, if an animal is bred and born illegally in a state, then sold and bought by residents of that state, the Lacey Act does nothing to protect that animal.

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