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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

VIII. Enforcement of Laws

In the states that have laws regulating the possession of captive wild animals, we find that they are often inconsistently, rarely, or not at all enforced. Clearly, as evidenced from above, there are numerous laws on the federal, state, and local level that protect captive wild animals from possession, use, and exploitation. However, like many other animal laws, the federal, state, and local laws outlined above suffer from lack of enforcement. This is one of the biggest problems in helping captive wild animals — what do you do when you have a strong and powerful law on the books and it is not being implemented?

The animal advocacy community struggles with this issue constantly and there is no one solution to this problem. Is it the responsibility of the humane communities to ensure that the federal, state and local governments are doing their jobs in protecting captive wild animals? Obviously, the answer to this should be no, but often times it does fall to the animal protection groups and concerned individuals to ensure compliance with the law by placing political pressure on the governing entities or by filing a lawsuit to ensure protections are provided for the animals.

One such example of animal protection groups ensuring enforcement of a state law is The Animal Protection Institute, et al., vs. The California Department of Fish and Game, Civil Action No. 01CS01521. In 1999, the Animal Protection Institute (API) began looking into California’s law relating to exhibited animals. 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 California Department of Fish and Game (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] ...”26

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.27 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.28

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.29 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.30

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. It was discovered that 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.

Moreover, between 1993 and July 15, 1998, CF&G issued citations to only 17 individuals for captive wild animal violations. This was 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.

After two years of meeting with the CF&G, API and the Fund for Animals filed a lawsuit to mandate that the CF&G enforce its law. Only three months after the lawsuit was filed, API and the Fund entered into a settlement agreement by way of a Stipulated Judgment. The CF&G admitted that they never implemented and enforced the law and have stated that they will be setting up an Advisory Committee to which I have been appointed. The Committee will meet as often as needed, but not less than once per year. The Advisory Committee shall offer advice and assistance to the director on the process of entering into MOUs with eligible local entities. In addition, 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 an exhibitor. CF&G stated 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. API sees this settlement as a victory for all captive wild animals permanently housed in California and traveling through the state.

Although this was a time consuming process to ensure that the California law was enforced, we as the animal protection movement must continue to take these measures to help the captive wild animals benefit from the laws of the various states.

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