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

I. Introduction

Imagine being chained to a tree in a backyard for three months, with little food or water, and no hope for someone to find you … or imagine weighing half the size of your normal body weight, suffering from severe malnutrition and anemia, calcium deficiency and numerous stress fractures … or worse yet, being beaten repeatedly with a stick until your hide bleeds.
[teaserbreak] This is obviously not one’s ideal living situation — in a civilized society humans are not tied-up, unable to move freely about, deprived of necessary food and sustenance, nor do we live in cages while being forced to learn unnatural tricks to entertain the general public. The sad reality is that this is the life for thousands of captive wild animals in the United States.

In this article, I will give a brief overview of where captive wild animals are in the United States, how they are proliferating, and who owns them. In addition, I will review major federal, state and local laws that cover captive wild animals in the United States. This discussion will be broad based and outline the general federal laws that extend some type of protection to captive wild animals and then discuss specifically the state and local laws that govern private possession, roadside menageries, circuses and traveling shows. Lastly, this article will discuss the lack of enforcement of the current laws and the future trends to help captive wild animals in the United States.

II. Fascination with Captive Wild Animal Possession

Fascination with captive wild animals is not a new phenomenon, it dates back centuries. As far as you can go in history, people have possessed wild animals as pets and exhibited them for entertainment purposes. For example, the circus is presumed to have started in ancient Rome in 329 BC, when building began on the Circus Maximus situated in the long narrow valley between the Palatine and Aventine hills, which prided itself on killing animals as blood sport. Over the course of the next hundreds of years, large cats, bears, elephants, hippopotami, and the largest exotic species that could be found were all slaughtered for the sake of entertainment, being cheered on by large audiences at Circus Maximus.¹

After the fall of the Roman Empire, people longed for the Roman circus, which prompted some to begin traveling from town to town with bears, monkeys and other exotic animals.² Thus began the trend for captive wild animals to be used to entertain the masses and be privately held as people’s pets.

Possession and display of captive wild animals has long been a symbol of prosperity in a growing and developing society.³ Individuals having enough money could attend the Roman blood sports or could afford to pay for the capture and upkeep of a wild animal as a pet. But only the wealthiest could collect enough animals to have a menagerie where the general public could come pay a fee to view the animals. Thus, from early on the trend was established where only the socially elite owned wild and exotic animals. Yet, as time passed, captive wild animals became easier to obtain and were bred so rampantly that the general public was eventually able to afford them. Indeed, these days, captive wild animals are merely viewed as “alternative” pets to the traditional companion animals kept in homes, such as dogs and cats.

Clearly, the attitudes of humans toward wild animals are at odds with one another. On the one hand people profess to adore them, they donate money for conservation efforts in the wild, and work to protect them by passing new stronger laws, but on the other hand wild animals are exploited for profit, used to entertain the masses, and coddled around in human clothing. There is a clear inconsistency about how we view animals and how easily we overlook their needs. Wild animals belong in the wild. They are not ours to breed, commercialize, or treat like children.

III. Where Are the Animals Coming From: The Captive Wild Animal Trade

The trade in exotic animals is a multi-billion dollar industry. People are breeding captive wild animals in large numbers. Every year, thousands of animals enter the captive wild animal trade from a variety of sources. These animals are either “surplus” from various roadside menageries and other zoos, captured from their native habitat, are sold at auctions, pet stores or over the Internet, or come from backyard breeders.

A. Surplus Animals

Many animals enter the pet trade once they stop attracting audiences at roadside menageries or other zoos. When animals age and are no longer cute and cuddly, the facility disposes of the surplus animals in order to make room for younger animals. A “surplus” animal is generally defined as an animal that is no longer compatible with its social group for various behavioral and health reasons, are over-bred, fail to “wow” visitors, or become excess to the collection of animals housed at the facility. Surplus animals may bounce around to many buyers before finally ending up in another roadside menagerie, zoo, as a personal pet, or at the receiving end of a gun on an exotic game ranch.

B. Auctions

At dozens of exotic animal auctions across the United States, tigers, lions, bears, non-human primates, birds, reptiles, and other exotic animals are offered for sale to the highest bidder. Auctions are not the most pleasant activities to be witness to. The sounds of squawks, squeals, screeches, screams, and roars are ever present and almost deafening. The conditions that the animals endure during the auction are dismal. Hundreds of people gather from all across the country to buy, sell, or trade almost every animal you can imagine. Purchasers of these animals are not questioned about their knowledge and expertise about possessing these animals, nor are the buyers required to verify that they and their new “pet” will reside in a state that permits the ownership of the purchased animal.

There are very few state laws regulating exotic animal auctions. In fact, only ten states have laws that pertain to auctioning exotic animals and the majority of these laws only require a license or permit to operate.⁴ On the federal level, all auction markets that sell exotic animals must be licensed pursuant to the Animal Welfare Act. The auction operator is responsible for compliance with all regulations and standards, including transportation, sanitation, cleaning, and general health and well-being of the animals.⁵

C. Backyard Breeders

Animals are also being captive-bred in people’s backyards and then sold to whomever will purchase them. These animals are sold to local buyers, are advertised over the Internet, and in magazines. One of the most popular magazines is the Animal Finders’ Guide, which carries ads from dealers, private parties, breeders, ranchers, and zoos offering large cats, monkeys, and other exotic animals for sale. Numerous other periodicals, such as Animal Marketplace Magazine, Animals Exotic and Small Magazine, and Exotic DVM Veterinary Magazine also carry advertisements for the sale of exotic animals to private hands.

Backyard breeding is a very lucrative business and is now a multi-million dollar industry, which actually began in the 1960s and 1970s. Very little protection exists for these captive-bred animals whose offspring contribute to the abundance of exotic animals entering the pet trade. The majority of state laws only require the breeder to obtain a permit.⁶ On the federal level, all persons breeding these animals are required to obtain a breeder’s license pursuant to the federal Animal Welfare Act. However, these regulations only require that minimum standards of care and treatment be provided for certain animals bred.⁷

D. Internet

The Internet has emerged as one of the primary places where people can buy unusual, rare, or exotic animals. Indeed, animals can be purchased as easily as a best-selling book. Log on to any number of sites (currently well into the 100s) that boast their living wares and you too can become the new “owner” of anything from a baby lion cub to a hairless rat. Unfortunately this type of Internet trafficking of live animals is growing steadily. With nothing more than a credit card and a ship-to address, people can easily purchase a Bengal tiger for $1,000, a baboon for $5,000, or a baby giraffe for a whopping $22,000 from an Internet site, and have a new “pet” within a few days.

E. Illegal Trade/Black Market

Trafficking in rare and exotic wildlife is a global business, worth between $10-$20 billion annually. And while the breeding, selling and transporting of exotic wildlife is legal on a federal level, as well as in many states, many of the animals bred and sold within the United States arrived here illegally. Nevertheless, because the chances of getting caught are so slim and the financial gains are so huge, exotic animal traffickers and breeders gladly take the risks associated with breaking the law — especially since the penalties exacted are little more than a monetary fine, or in extreme cases, a short jail stay.

The only way to stop the proliferation of the exotic animal trade and the suffering it causes is to stop the breeding, bartering, trading, and selling of exotic animals for personal profit and amusement and by educating the public to understand that wild animals belong in the wild, not in our homes.

IV. Where the Animals End Up

Many people might be surprised to learn that wild animals are being kept in horrendous situations throughout the country. Perhaps a neighbor breeds tigers and cougars for use in circuses or as “pets.” Maybe a co-worker travels to shopping malls on the weekends, charging customers for having their photo taken with his captive baboon. Across the nation, lions, tigers, wolves, bears, elephants, alligators, non-human primates, and other wild animals are possessed by private individuals, displayed in roadside zoos and menageries, used in traveling shows and circuses, and turn up in various venues across the nation.

Because the majority of states do not keep accurate records of exotic animals in their jurisdictions or have no laws governing captive wild animals, it is nearly impossible to determine exactly how many wild animals are in the United States. The records kept pursuant to federal, state, and local laws merely lay out the individuals who possess the animals. In general the laws do not require an inventory to be kept as to how many animals each person possesses. What we do know, however, is that the number is likely in the millions as evidenced by the amount of people who have licenses under the Animal Welfare Act (see below) and licenses pursuant to state law.

A. Private Possession

Wild animals may be kept captive in private homes as someone’s “pet.” Common animals kept as pets include lions, tigers, cougars, ocelots, servals, wolves, bears, alligators, snakes, and nonhuman primates. Their very nature makes these animals incapable of being domesticated or tamed.

They are inherently dangerous. Across the country many privately held captive wild animals have attacked humans and other animals, or have escaped from their enclosures to freely roam the community. Throughout the country, children and adults have been mauled by tigers, bitten by monkeys, and asphyxiated by snakes. For example, monkeys are the most common non-human primates privately held. After the age of two, monkeys tend to exhibit unpredictable behavior. Males tend to become aggressive, and both males and females bite to defend themselves and to establish dominance. There have been numerous reported monkey bites since 1990 resulting in serious injury to the individual involved who was either the possessor, a neighbor, or a stranger on the street.

Further, many exotic animals are carriers of zoonotic disease, such as rabies, Herpes B, and salmonella, all of which are communicable to humans. For example, ninety percent of all reptiles carry and shed salmonella in their feces. Iguanas, snakes, lizards, and turtles are common carriers of the bacteria. Reptiles that carry salmonella do not show any symptoms, thus there is no simple way to tell which reptiles play host to the microbe and which do not, because even those that have it do not constantly shed the bacteria. The CDC recommends that children, people with compromised immune systems, and the elderly avoid all contact with reptiles and not possess them as pets.⁸ Salmonellosis associated with exotic pets has been described as one of the most important public health diseases affecting more people and animals than any other single disease. The CDC estimates that 93,000 salmonella cases caused by exposure to reptiles are reported each year in the United States.

Moreover, the average person cannot provide the special care, housing, diet, and maintenance these wild animals require. As a result, wild animal “owners” often attempt to change the nature of the animal rather than the nature of the care provided. Tactics used include: confinement in small, barren enclosures; chaining; beating “into submission”; or painfully removing the animals claws or teeth.

B. Roadside Zoos and Menageries

Thousands of exploitative wildlife attractions exist throughout the United States, ranging from backyard menageries to so-called “sanctuaries,” to drive-through parks — most of which display various species of captive wildlife for a fee. Disguised as conservation, educational, or rescue facilities, roadside zoos and menageries are among the worst abusers of captive wildlife. Among the more benign discoveries, inspectors frequently documented animals being kept in cramped, dirty cages, often surrounded by trash.

Non-domesticated felines, such as lions and tigers are commonly housed at roadside zoos and menageries. These exotic animals are cute and cuddly when they are young but have the potential to kill or seriously injure people and other animals as they mature. Adult exotic felines weigh anywhere between 300 to 500 pounds depending on the species, and are incapable of being “domesticated.” Even an animal that appears to be friendly and loving can attack unsuspecting individuals. For example, in April 2003, a tiger fatally attacked a handler at Safari Joe’s Rock Creek Exotic Animal Park. The woman’s arm was severed by the tiger after she came too close the tiger’s cage. She had six years of experience as a large cat trainer.⁹

Facility managers frequently fail to provide animals with suitable social groupings, appropriate climate, or adequate veterinary care. With little opportunity for mental stimulation or physical exercise, these animals often become despondent, developing abnormal and self-destructive behaviors that include pacing, rocking, swaying, bar biting, pulling out hair and feathers, and self mutilation.

C. Circuses and Traveling Shows

Performing animals such as elephants, lions, tigers, bears, camels, and llamas endure years of physical and psychological suffering in traveling acts — all for the “entertainment” of audiences who remain ignorant of the animals’ natural behavior. Animals used in the circus and performing acts travel thousands of miles each year, often without water, in railroad cars or trucks that lack air-conditioning or heat. Elephants may be forced to stand in their own excrement, chained to a post for hours at a time, while being transported from one performance to another. As in roadside zoos, these performing animals do not receive the proper care, nutrition, nor environmental enrichment required for their well-being.

Since 1990, captive felines in circuses and traveling shows have been responsible for 65 documented human attacks — one-third of which resulted in fatal injuries. During that same time period, elephants in performance situations were responsible for 30 human deaths and more than 100 injuries worldwide. In February 2003, in Florida, Chad, a 450-pound Bengal tiger with UniverSoul Circus, squeezed through an opening in his cage and escaped. Climbing over a car and fence, Chad startled a police officer and a worker at a nearby restaurant before circus workers could coax him back inside a cage.¹⁰

D. Other Venues

Captive wild animals may also be carted to venues such as shopping malls and elementary schools for public display. Under the guise of public education, they are forced to amuse groups of people, while their “owners” earn a profit by selling photos and charging presentation fees. Not surprisingly, the countless hours of travel and the poking and prodding of curious children increases the likelihood of animal attacks.

Of course, one can find captive wild animals in other places besides those listed above. Some captive wild animals are displayed at zoos accredited by the American Zoo and Aquarium Association (AZA), others are shot and killed at canned hunts or hunting ranches, and still more are found in a variety of other “creative” places where people can make a profit by exploiting them.

The life of a captive wild animal is one of great suffering. Unfortunately, our laws provide them minimum protection on the whole. The real problem is that these animals are being freely bred and sold on the open market and are readily available to individuals who lack the expertise to properly care for them.

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.

VI. State Laws

State legislation has been the most popular tool for helping captive wild animals in the United States. In fact, state governments have taken the lead in regulating the sale, possession, and use of captive wild animals in the United States. The majority of states have laws regulating the private possession, or general exhibition of such animals. Laws vary in the type of regulation imposed; some states require licenses, others have statutory prohibitions, still others remain essentially unregulated. In addition, laws differ in what specific animals they cover.

A. Private Possession

State governments have taken the lead in regulating the private possession of captive wild and exotic animals in the United States. The laws vary from state to state on the type of regulation imposed, which is either a prohibition, a license, or no regulation at all. In addition they vary on the specific animals regulated. In general, Thirty-four (34) states have some form of law governing the issue and sixteen (16) states have nothing.²¹ Please see Appendix 1.

1. States with a Prohibition:

Thirteen (13) states prohibit the private possession of at least large cats; wolves; bears; dangerous reptiles, such as alligators and crocodiles; and most non-human primates:

• Alaska
• California
• Colorado
• Georgia
• Hawaii
• Massachusetts
• New Hampshire
• New Jersey
• New Mexico
• Tennessee
• Utah
• Vermont
• Wyoming

2. States with a Partial Prohibition:

Seven (7) states have partial prohibitions on the private possession of wild and exotic animals (i.e., prohibits possession of some of the species listed above and allows possession of others):

• Connecticut
• Florida
• Illinois
• Maryland
• Michigan
• Nebraska
• Virginia

3. States with a Regulation:

Fourteen (14) states require the possessor of the wild and exotic animal to obtain a license or permit from the relevant state agency to privately possess the animal:

• Arizona
• Delaware
• Indiana
• Maine
• Mississippi
• Montana
• New York
• North Dakota
• Oklahoma
• Oregon
• Pennsylvania
• Rhode Island
• South Dakota
• Texas

4. No State Law:

Sixteen (16) states have no license or permit requirements, but may regulate some aspect thereof (i.e., may require a one-time entry permit or veterinary certificate):

• Alabama
• Arkansas
• Iowa
• Idaho
• Kansas
• Kentucky
• Louisiana
• Minnesota
• Missouri
• Nevada
• North Carolina
• Ohio
• South Carolina
• Washington
• West Virginia
• Wisconsin

B. Roadside Zoos and Menageries

Thirty-nine states and the District of Columbia have enacted regulations pertaining to roadside zoos and menageries. These rules differ from state to state, but the majority of them establish a licensing system and require licensees to comply with specific care, treatment, and housing standards when exhibiting an animal. Many of these state laws exempt accredited zoos and circuses.

The laws governing animals in roadside zoos and menageries are not as concise and easily analyzed as those for private possession and traveling shows and circuses. The inherent difficulty lies in the broad range of animals covered and the type of regulations imposed on individuals. For example, in Florida a person operating a roadside menagerie or displaying any wildlife, specifically birds, mammals, and reptiles, whether indigenous to Florida or not, must obtain a license from the Florida Fish and Wildlife Conservation Commission and comply with specific caging requirements. However, no permit is required if you are a traveling zoo or circus.²² Whereas in Indiana, a person operating a zoo, carnival or menagerie is exempt from state permitting requirements as long as they have a license under the federal Animal Welfare Act.²³

C. Traveling Shows and Circuses

To date, no state has passed legislation prohibiting animal circuses or specific species from performing within its borders. There have been several legislative attempts in recent years to prohibit specific animals, such as lions, tigers, elephants, and bears, from performing within a state.

Eleven (11) states do regulate some uses of captive wild animals in traveling shows, such as photo opportunities, public contact with certain animals, or prior notification before displaying in a town. For example, Delaware prohibits direct contact with mammals or reptiles (excluding elephants), including photo opportunities. And some unique provisions are found in South Carolina, which bans the public display of dolphins and whales.

There is a trend in introducing legislation that would prohibit the display of certain species that are commonly utilized in circuses and traveling shows. However, the circus industry has consistently opposed legislation and regulations to improve the conditions of captive wildlife. In California, for example, it opposed legislation to limit the time an elephant may be confined in chains in a 24-hour period and opposed a bill that would require circuses to disclose to local animal control circus trainers and handlers credentials, a recapture plan, and the name(s) of all animals exhibited and any known history of each animal relating to incidents where the animal has escaped, injured or killed any person. But, it is only a matter of time before one state passes such a law and it is the hope that other states would follow suit.

Table 1: Legislative Attempts to Prohibit Display of Animals in Circuses

VII. Local Laws

Many cities and counties have adopted ordinances more restrictive than state law. Typically, a local body will enact regulations in response to public safety and health concerns or community-based advocacy. Numerous local laws have been enacted in this manner, and they too can successfully address private possession, roadside zoos, and traveling shows and circuses.

Often times approaching the local level is the quickest and most direct route in helping protect captive wild animals. This is evidenced by the hundreds of cities and counties that have passed ordinance prohibiting private possession of exotic animals as “pets”²⁴ and the 24 cities²⁵ in the U.S. which prohibit animal circuses. To date there has not been an accurate account of local laws relating to roadside zoos and menageries.

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.

IX. Future Trends to Help Captive Wild Animals

The only way to stop the proliferation of captive wild animals is to stop the breeding, bartering, sale, and possession of captive wild animals for personal profit and amusement and by educating the public to understand that wild animals belong in the wild, not in our homes. Thus, we need stronger laws on all levels that address these issues.

Obviously, there are numerous laws that exist to help captive wild animals on the federal, state and local levels, but they are not consistent with each other. We need to set into place uniform laws that will provide these animals with the protection they deserve.

Numerous states and cities are introducing legislation relating to private possession, roadside zoos, menageries and circuses. For the past three legislative sessions (2000, 2001, 2002), we have seen an increase in introduced legislation relating to captive wild animals. The legislatures all across the country are realizing that this is an issue that needs to be debated in a public forum and are passing laws. Many bills seek to prohibit and regulate private possession of captive wild animals and roadside zoos. Many cities and states have introduced legislation prohibiting certain captive wild animals from being exhibited and regulating the circus industry.

Table 2: Recent Victories for Captive Wild Animals

2000

• The state of Michigan passed a law prohibiting the private possession of large cats, bears, and wolf-hybrids.
• Chesterfield, MI; St. Paul Park, MN; Rochester, NY; Battle Ground, WA; and Spokane WA all banned private possession of certain captive wild animals.
• Corona, CA and Pompano Beach, FL banned animal acts in traveling shows and circuses.

2001

• The state of Indiana amended its law regulating certain captive wild animals as “pets,” thereby providing more protection for these animals.
• The state of Texas passed a law regulating certain captive wild animals as “pets,” which ultimately had the effect of many counties prohibiting the possession altogether.
• Boulder, CO; South Whitehall Township, PA; Fannin County, TX; and Port Townsend, WA all banned private possession of certain captive wild animals.
• Pasadena, CA; Boulder, CO; Braintree, MA; Orange County, NC; and Port Townsend, WA all banned animal acts in traveling shows and circuses.

2002

• In Ohio, Austintown and Cleveland both banned private possession of certain captive wild animals.
• Encinitas, CA; Rohnert Park, CA; Provincetown, MA; Richmond, MO; and Greenburg, NY all banned animal acts in traveling shows and circuses.

Legislation has a powerful effect on the various industries and we are making headway. Weekly these issues are in the newspapers and the public is starting to realize the inherent cruelty in all of these practices.

The current legislative session (2003) has also seen an increase in the number of bills regulating or restricting possession of captive wild animals in all venues. On the Federal level, Congress is currently considering H.R. 1006 and S. 269, which would amend the Lacey Act to prohibit the interstate transport and shipment large cats for use as “pets,” although it would not actually ban all private possession of these animals.

On the state level, there are several introduced bills that are attempting to prohibit private possession of exotic animals as “pets,” the display of these animals at roadside menageries, and the display of elephants, lions, tigers, and bears at circuses or traveling shows.

Table 3: 2003 Legislative Attempts to Prohibit Private Possession and Display at Roadside Menageries

The Animal Protection Institute actively writes and introduces legislation in states that do not currently have any prohibitions on the private possession of captive wild animals as “pets,” roadside menageries, and circuses and traveling shows. API also works with cities on passing ordinances in these areas. In fact, we are helping with the majority of the 2003 legislative attempts and API has model legislation and ordinances to help captive wild animals in all areas.³¹

X. Conclusion

Imagine yourself in a wide-open field, seeking food, water, and a place to rest. Imagine having the freedom to roam as your nature and instinct guide. Imagine living in a complex family and community structure, free from human interference and exploitation. This is the life wild animals need, but that captivity denies them.

Through a national effort of passing legislation to prohibit the possession and use of captive wild animals for entertainment, helping to enforce current laws, and a concerted public education campaign, we can stop the surplus trade and one day have wild animals where they belong — in the wild!

Nicole Paquette, J.D., Vermont Law School, is General Counsel for the Animal Protection Institute

Footnotes:

1. William M Johnson, The Rose-Tinted Menagerie: A History of Animals in Entertainment, from Ancient Rome to the 20th Century (2002).
2. Id.
3. David Hancocks, A Different Nature: The Paradoxical World of Zoos and Their Uncertain Future (2001).
4. Laws Relating to Exotic Animal Auctions.
5. 7 USC Section 2131 et seq.; 9 CFR §2.1 et seq.; Policy #5 – Exotic Animal Auctions under the Animal Welfare Act.
6. Summary of State Laws Relating to Breeding Wild and/or Exotic Animals.
7. 7 USC § 2131-2156 (1996 and as amended, 1970, 1976, 1985. 1990, and 2002).
8. Centers For Disease Control.
9. Team Tulsa News.
10. Exhibited Animal Incidents.
11. 7 USC § 2131-2156 (1969 and as amended, 1970, 1976, 1985, 1990, and 2002).
12. 9 CFR §3.1 et seq.
13. 27 U.S.T. 1087 (Mar. 3, 1973).
14. Resolution Conf. 5.10.
15. 50 CFR § 23.15(d).
16. 16 USC § 1538 et seq.
17. 50 CFR § 17.22.
18. 50 CFT § 17.21 (g).
19. 16 USC § 701; 16 USC §§ 3371-3378.
20. Detroit Free Press.
21. See Appendix 2.
22. FLA. STAT. ANN. 372-921 and FLA. ADMIN. CODE ANN r. 68A-6.0023.
23. IND. ADMIN. CODE tit 312, r. 9-10-20 and r. 9-11-14.
24. Ordinances Regulating Private Possession of Exotic Animals.
25. Local Restrictions Governing Traveling Shows and Circuses in the U.S. and Canada.
26. Cal. Fish & Game Code §2020(c).
27. See Cal. Fish & Game Code §2150.4.
28. See Cal. Fish & Game Code § 2150.3 (a).
29. See CAL. CODE REGS. Tit. 14, §§671 et al.
30. CAL. CODE REGS. Tit. 14, §671.1(c)(6)(B).