I. INTRODUCTION
In Arkansas, gorillas, chimpanzees, bonobos, orangutans, and gibbons are protected because of their status as “endangered species” under state law. The Arkansas Game and Fish Commission (GFC) prohibits the importation, transportation, sale, purchase, and possession of endangered species unless the animals were legally acquired and are held under a permit. GFC issues permits to possess wildlife for legitimate scientific, education, and conservation purposes; commercial breeding and sale; and for the temporary importation and possession of wildlife for exhibition. There are no state or federal permits authorizing the keeping of endangered/threatened apes as pets. Both GFC and the state’s Livestock and Poultry Commission closely regulate the importation of wildlife, including apes, and anyone wishing to import apes must comply with a variety of administrative requirements, including import permits, health certificates, and disease testing.
The following discussion begins with a general overview of the various state statutes and regulations affecting Great Apes. It then analyzes the applicability of those laws to the possession and use of apes for specific purposes, including their possession as pets, for scientific research, for commercial purposes, and in sanctuaries.
II. STATE STATUTES AND REGULATIONS
Arkansas has a variety of laws affecting the importation, possession, breeding, and sale of apes. The Game and Fish Commission’s regulations establish certain restrictions and permit requirements for activities involving endangered species and wildlife generally. The Livestock and Poultry Commission regulates the importation of animals in order to prevent the spread of communicable diseases within the state. That agency has a number of animal health rules governing the entry of apes and other zoo or wild/exotic animals. Finally, the state’s general anti-cruelty laws prohibit the physical abuse and neglect of apes and other animals.
A. GAME AND FISH REGULATIONS
Amendment 35 of Arkansas’s Constitution[1] vests the power to regulate the state’s wildlife in the Game and Fish Commission (GFC),[2] rather than in the state’s legislature.[3]GFC’s authority extends to the management of captive apes and other exotic wildlife[4] in Arkansas. Under Section 19.12 of GFC’s regulations, it is illegal to import, transport, sell, purchase, or possess[5] any “endangered species” of wildlife, except those animals that were lawfully acquired and are held under a permit.[6] All species of apes are considered “endangered species” under this rule (which defines “endangered species” as all species “endangered or threatened with extinction listed by the U.S. Department of Interior”). This rule does not specify the type of permit that is required; however, the agency does issue the following permits for wildlife generally:
1. Special Permit to Possess and Hold Captive Wildlife: This permit is issued to individuals and organizations that are engaged in bona fide scientific research, education, or conservation efforts.[7]
2. Special Permit to Import Wildlife Temporarily for Exhibition: This permit is issued to circuses and other U.S. Department of Agriculture-licensed exhibitors, authorizing those facilities to import wildlife temporarily for performances or display.[8]
3. Wildlife Breeder/Dealer Permit: This permit authorizes the holder to breed and sell wildlife in the state of Arkansas. In order to qualify for this permit, an applicant must be at least 18 years of age and may not have been convicted of any federal, state, or local law governing captive wildlife, illegal commercialization of wildlife, or cruelty to animals within five years of the date of application.[9] Wildlife Breeder/Dealer Permit holders must comply with the following requirements:
(a) Permittees must maintain records of all wildlife acquisitions, births, deaths, sales, and transport, including evidence of legal possession of all animals held under the permit;[10]
(b) Monthly reports including current animal inventory, and births, deaths, sales, and purchases must be submitted to GFC;[11]
(c) Permittees must comply with all GFC and Livestock and Poultry Commission disease testing and control requirements for captive wildlife, including: examination, testing, quarantine, and destruction of diseased animals;[12] and
(d) All wildlife must be housed in a permanent enclosure or pen that is maintained in good repair and is sufficient to prevent escape and to protect the animals from injury. Gates must be securely fastened with latches or locks.[13]
4. Wildlife Importation Permit: This permit authorizes the importation of wildlife and is required whether the animal(s) final destination is in Arkansas or another state. In order to qualify for this permit, an applicant must be at least 18 years of age and may not have been convicted of any federal, state, or local law governing captive wildlife, illegal commercialization of wildlife, or cruelty to animals within five years of the date of application.[14] Wildlife Importation Permit holders must comply with the following requirements:
(a) Permittees must have written proof of the origin and destination of each animal;
(b) All animals must be certified disease-free by an accredited veterinarian; and
(c) All animals must be imported under humane and healthy conditions.[15]
GFC’s wildlife officers and all state and local law enforcement agents (peace officers) may enforce the state’s wildlife laws.[16] Any person who imports, transports, sells, purchases, or possesses an ape in violation of GFC’s Endangered Species regulation may be assessed a maximum $2,000 dollar fine[17] and/or imprisoned up to one year.[18] In addition, each of the separate wildlife permits discussed above carry their own penalties for non-compliance, including fines, imprisonment, permit suspension or revocation, forfeiture of illegal wildlife, and liability for costs associated with caring for, testing, and relocating (or destroying) seized wildlife.[19]
B. ANIMAL HEALTH RULES
The Arkansas Livestock and Poultry Commission (LPC) regulates the importation of animals, including apes, in order to protect humans and animals from communicable diseases. Under Section 125.00.12 of the Commission’s regulations, it is illegal to import any animal that is affected with, or has been recently exposed to, any infectious or communicable disease.[20] An LPC entry permit and certificate of veterinary health is required to import all zoo, wild, and/or exotic animals.[21] Also, prior to entry the agency requires certain disease tests appropriate to the species at issue.[22]
C. STATE GENERAL ANTI-CRUELTY LAWS
The state’s anti-cruelty laws,[23] which prohibit the neglect or mistreatment of animals,[24] generally apply to Great Apes in Arkansas. Because all captive apes are necessarily dependent on their keepers, the provision requiring owners to provide their animals with wholesome food and water and adequate shelter is particularly relevant.[25] In addition, apes are sometimes trained or induced to perform for public entertainment by chemical, electrical, mechanical, and manual devices that inflict physical or psychological injuries. Accordingly, the section that prohibits any person[26] from cruelly mistreating[27] an animal may protect apes from being physically abused in the course of training, to induce performances, or for any other reason.
The following activities are not prohibited under the state’s anti-cruelty laws:
(1) Generally accepted animal husbandry practices;[28]
(2) Activities undertaken by research facilities that are regulated by the U.S. Department of Agriculture under the Federal Animal Welfare Act;[29] and
(3) Zoological activities or exhibitions that are otherwise permitted under Arkansas laws.[30]
Any state or local law enforcement officer[31] may enforce the state’s anti-cruelty laws.[32] A violation of the state’s anti-cruelty laws is either an unclassified misdemeanor or a Class D felony, depending on the defendant’s past history of similar convictions.[33]
D. LOCAL LAWS
While the importation and possession of apes are regulated under both federal and state laws, county and municipal governments may also regulate animals within their jurisdictions.[34] Typically, those local ordinances either restrict the possession of animals, regulate activities involving animals, or set minimum standards for the housing and care of animals. The following examples demonstrate how some towns, cities, and counties in Arkansas have addressed the possession of apes (and other wild or exotic animals) within their communities:
Booneville Ordinance 789-9: It is illegal to own, possess, or harbor a “wild” or “exotic” animal within the city limits.[35]
Cabot 91.01, 91.05: Apes are classified as “innately wild animals” that are “wild by nature,” and “dangerous to human beings.” It is illegal for any person, household, or residence to own, possess, keep, or harbor any ape within the city limits. The ban does not apply to certain zoos, circuses, and sanctuaries. Any person who harbors an ape that causes harm or fear to another person is guilty of a violation; 91.99: A person convicted of violating Section 91.05 will forfeit ownership of the innately wild animal(s). (Ord. 14, passed 10-19-09)
Little Rock 6-42: It is illegal to sell, possess, maintain, or keep apes and other nonhuman primates within the city limits. The ban does not apply to the following:
- The Little Rock Zoo;
- The Museum of Science and History;
- Bona fide circuses and carnivals; and
- Research or educational institutions complying with applicable laws and regulations.
(Ord. No. 18,668, § 3, 4-2-02; Ord. No. 18,959, § 4, 10-7-03)
III. POSSESSORS OF GREAT APES
In the U.S., captive apes are generally possessed for use as pets, scientific research subjects, for exhibition or other commercial purposes, or they are retired and live in sanctuaries. The remainder of this section discusses how the state’s laws affect apes that are possessed for each of those purposes.
A. PETS
There are no state laws specifically prohibiting or permitting the keeping of apes as pets. However, under Section 19.12 of GFC’s regulations, it is illegal to import, transport, sell, purchase, or possess any “endangered species” of wildlife (including all species of apes[36]), except those animals that were lawfully acquired and are held under a permit.[37]There are no state or federal permits that authorize the keeping of apes (or other endangered or threatened species) as pets. Therefore, there is no way to legally keep a pet ape in Arkansas.
The following list outlines what pet owners can and can’t do under the law:
Importation: Prohibited without a permit.
Transportation: Prohibited without a permit.
Possession: Prohibited without a permit. No Arkansas state or federal permits exist authorizing the possession of apes as pets.
Sale: Prohibited without a permit.
Breeding: Apes held under a commercial Wildlife Breeder/Dealer Permit may be bred and sold. Apes may not be purchased from wildlife breeders or dealers without a permit. No state or federal permits authorize the purchase of apes as pets.
B. ZOOS
Under Section 19.12 of GFC’s regulations, it is illegal to import, transport, sell, purchase, or possess any “endangered species” of wildlife (including all species of apes[38]) except those animals that were lawfully acquired and are held under a permit.[39] All public zoos and museums are exempt from the permit requirement for endangered species, but private zoos must have a permit. While that regulation does not specify what type of permit is required, GFC issues special permits authorizing the possession of captive wildlife for bona fide education and conservation efforts. See Section II(A)(1), above. In addition, public and private zoos wishing to import apes are required to obtain a GFC Wildlife Importation Permit and must comply with the animal health rules discussed in Section II(B), above. Finally, under Section 15.34 of the agency’s regulations, public or private zoos wishing to breed any wildlife, including apes, must have a Wildlife Breeder/Dealer Permit.[40] AZA accredited zoos are exempt from the Wildlife Import Permit and Wildlife Breeder/Dealer permit requirements.[41] There is currently one accredited facility in the state, the Little Rock Zoo.[42]
Arkansas has no specific minimum standards for the care of apes kept by zoos. However, GFC may impose special permit conditions governing the care of wildlife held under a permit.[43] Also, all zoos are regulated by the U.S. Department of Agriculture under the Federal Animal Welfare Act[44] and those facilities must comply with the federal minimum standards of care for primates.
C. EXHIBITORS (USDA CLASS C LICENSEES)
There are various types of exhibitors that display apes, including: circuses, wild animal parks, sanctuaries, and performing animal acts. Under Section 19.12 of GFC’s regulations, it is illegal for exhibitors to import, transport, sell, purchase, or possess any “endangered species” of wildlife (including all species of apes[45]) except those animals that were lawfully acquired and are held under a permit.[46] Although that regulation does not specify the type of permit that is required, GFC issues two permits that authorize the possession of wildlife generally. See Section II(A)(1) and (2), above. A “special permit to possess and hold wildlife” may be issued to exhibitors that are engaged in bona fide education or conservation activities. Alternatively, circuses and other U.S. Department of Agriculture-licensed exhibitors wishing to import and possess wildlife in the state for a limited period of time, may obtain a “special permit to import wildlife temporarily for exhibition.”[47]
Exhibitors wishing to import an ape must obtain a Wildlife Importation Permit from GFC. Facilities importing animals under a “special permit to import wildlife temporarily for exhibition” (discussed above) do not need to obtain a second GFC Wildlife Importation Permit. In addition to a GFC permit, all exhibitors are also required to obtain a second import permit from the Arkansas Livestock and Poultry Commission and must comply with that agency’s animal health rules. See Section II(B), above.
Arkansas has no specific minimum standards for the care of apes kept by exhibitors. However, GFC may impose special permit conditions governing the care of animals held under a permit.[48] Also, all exotic animal exhibitors are regulated by the U.S. Department of Agriculture under the Federal Animal Welfare Act[49] and those facilities must comply with the federal minimum standards of care for primates.
D. SANCTUARIES
Arkansas’s Public Health and Welfare Code provides the state’s only definition of a “wildlife sanctuary.” According to Section 20-19-501 of that Code, a “wildlife sanctuary” means a nonprofit organization under Section 501(c)(3) of the Internal Revenue Code as it existed on January 1, 2005, that operates a place of refuge where abused, neglected, unwanted, impounded, abandoned, orphaned, or displaced large carnivores are provided care for their lifetimes.
Under this law, only those facilities housing large carnivores (lions, tiger, and bears) are considered “wildlife sanctuaries.” There are no laws addressing the establishment of sanctuaries for apes or other types of exotic wildlife, nor are there any special rules governing the keeping of apes by those facilities. Sanctuaries housing apes are subject to the same state laws as exhibitors (see Section III(C), above).
E. RESEARCH FACILITIES
Apes may be possessed for bona fide scientific research with a GFC “special permit to possess and hold captive wildlife” and any necessary federal permits.[50] In addition, research facilities that wish to import apes must obtain a GFC Wildlife Importation Permit, a Livestock and Poultry Commission (LPC) import permit, and a certificate of veterinary health for each animal. Under Section 125.00.12 of LPC’s regulations, it is illegal to import any animal that is affected with, or has been recently exposed to, any infectious or communicable disease.[51] There is no exception for research facilities. Arkansas does not regulate the use of apes in scientific research. However, all research facilities with primates are regulated by the U.S. Department of Agriculture under the Federal Animal Welfare Act[52] and those facilities must comply with the federal minimum standards of care for laboratory apes.
IV. CONCLUSION
In general, Arkansas’s Game and Fish Commission (GFC) closely regulates the possession of apes and other endangered species of wildlife. They cannot be possessed in the state without a permit and the purposes for which GFC issues captive wildlife permits are limited to legitimate scientific, education, and conservation purposes; commercial breeding and sale; and temporary in-state commercial exhibition. Anyone wishing to import an ape for those purposes must obtain import permits from GFC and the Livestock and Poultry Commission and ensure that the animals have not been infected with, or exposed to communicable diseases. Even with all appropriate federal and state permits, the possession and use of apes may be further restricted by local laws.
[1] Initiative petition approved at Nov. 7, 1944 election.
[2] http://www.agfc.com/Pages/default.aspx.
[3] See also, Fowler v. State, 676 S.W.2d 725 (1984) (legislature is divested of powers to regulate fish and wildlife except for making appropriations and to increase annual resident hunting and fishing licenses).
[4] “Wildlife” means all wild animals, regardless of classification, whether resident, migratory, or imported, protected or unprotected, dead or alive … including animals living in a captive state and which lack a genetic distinction from the same species living in the wild. Ark. Admin. Code § 002.00.1-01.00-C.
[5] Interestingly, GFC’s definition of “possession” includes both actual and constructive possession. Under Ark. Admin. Code § 002.00.1-01.00-C, “possess” or “possession” means “having or holding wildlife, or any property in one’s power; the exercise of dominion over property. Possession includes actual possession, which means physical occupancy or control over property, and constructive possession, which means control or dominion over property without actual possession or custody of the property.”
[6] Ark. Admin. Code § 002.00.1-19.12. Public zoos and museums are exempt from the permit requirement for endangered species. However, those facilities may still be required to comply with GFC’s permit requirements for the importation, possession, breeding, and sale of captive wildlife.
[7] Ark. Admin. Code § 002.00.1-15.01(7).
[8] Ark. Admin. Code § 002.00.1-15.37 (Exceptions: 6) The regulation actually refers to those facilities “possessing U.S. Department of Agriculture Exhibition Permits; ” however, that agency does not actually issue “Exhibition Permits” rather, it issues Class C licenses to exhibitors.
[9] Ark. Admin. Code § 002.00.1-15.34. Permits applications will be denied if GFC finds that the issuance of the permit may be potentially harmful to the wildlife resources of the state. Ark. Admin. Code § 002.00.1-15.34(A)(2)(c).
[10] Ark. Admin. Code § 002.00.1-15.34(C).
[11] Ark. Admin. Code § 002.00.1-15.34(C).
[12] Ark. Admin. Code § 002.00.1-15.34(D).
[13] Ark. Admin. Code § 002.00.1-15.34(E); Enclosures, pens, or cages considered unsafe by Commission personnel must be repaired or reconstructed within sixty days or as specified by the Commission. Id.
[14] Ark. Admin. Code § 002.00.1-15.37; Permits applications will be denied if GFC finds that the issuance of the permit may be potentially harmful to the wildlife resources of the state. Ark. Admin. Code § 002.00.1-15.37(A)(2)(c).
[15] Ark. Admin. Code § 002.00.1-15.37(B).
[16] Ark. Admin. Code § 002.00.1-01.00-B.
[17] Ark. Admin. Code § 002.00.1-19.12.
[18] Ark. Admin. Code § 002.00.1-01.00-H.
[19] Ark. Admin. Code § 002.00.1-15.01; Ark. Admin. Code § 002.00.1-15.34; Ark. Admin. Code § 002.00.1-15.37.
[20] Ark. Admin. Code § 125.00.12.
[21] Ark. Admin. Code § 125.00.12(1); See also, Ark. Admin. Code § 125.00.12(2,3, and 4) (outlining permit requirements).
[22] Ark. Admin. Code § 125.00.12 (specific requirements for zoo, fur-bearing, & other wild animals). Any person, firm, or corporation that imports “livestock” in violation of LPC’s regulations is guilty of a Class A misdemeanor.
[23] Ark. Code Ann. § 5-62-102 et seq.
[24] For purposes of the anti-cruelty laws, “animal” means any living vertebrate creature, except human beings and fish. Ark. Code Ann. § 5-62-102(2).
[25] Ark. Code Ann. § 5-62-103(a)(4,5).
[26] “Person” means an individual, company, partnership, limited liability company, joint venture, joint agreement, mutual association or other, corporation, estate, trust, business trust, receiver, trustee, syndicate, or any other private entity. Ark. Code Ann. § 5-62-102(18).
[27] Ark. Code Ann. § 5-62-103(a)(1); “Cruel mistreatment” means any act that causes or permits the continuation of unjustifiable pain or suffering. Ark. Code Ann. § 5-62-102(8).
[28] “Animal husbandry practices” means the breeding, raising, production, and management of animals. Ark. Code Ann. § 5-62-102(4)(A).
[29] 7 U.S.C.A. § 2131 et seq.
[30] Ark. Code Ann. § 5-62-105.
[31] “Law enforcement officer” means any public servant vested by law with a duty to maintain public order or to make an arrest for an offense. Ark. Code Ann. § 5-62-102(13).
[32] Ark. Code Ann. § 5-62-113; In addition, “any person” may lawfully interfere to prevent the imminent or ongoing perpetration of any offense of cruelty to animals. Ark. Code Ann. § 5-62-111.
[33] Ark. Code Ann. § 5-62-103; In addition to penalties including fines, imprisonment, and/or community service, convicted defendants must undergo a psychiatric evaluation and may be required to undergo psychiatric treatment or counseling at the defendant’s expense. Id; Also, upon conviction a defendant forfeits ownership of the animal victim(s). Ark. Code Ann. § 5-62-106(d).
[34] Ark. Code Ann. § 14-14-501; Ark. Code Ann. § 14-14-801; Ark. Code Ann. § 14-43-602; Ark. Code Ann. § 14-54-103; Ark. Code Ann. § 14-54-104; Ark. Code Ann. § 14-54-105.
[35] http://www.booneville.com/B&I-BnvlOrd.htm (last visited June 18, 2011).
[36] Under GFC’s regulations, the term “endangered species” includes all species that are listed as endangered or threatened with extinction by the U.S. Department of Interior. Ark. Admin. Code § 002.00.1-01.00-C.
[37] Ark. Admin. Code § 002.00.1-19.12.
[38] Under GFC’s regulations, the term “endangered species” includes all species that are listed as endangered or threatened with extinction by the U.S. Department of Interior. Ark. Admin. Code § 002.00.1-01.00-C.
[39] Ark. Admin. Code § 002.00.1-19.12.
[40] Ark. Admin. Code § 002.00.1-15.34.
[41] Ark. Admin. Code § 002.00.1-15.37; Ark. Admin. Code § 002.00.1-15.34.
[42] http://www.aza.org/findzooaquarium/ (last visited June 19, 2011).
[43] Ark. Admin. Code § 002.00.1-15.01(7).
[44] 7 U.S.C.A. § 2131 et seq.
[45] Under GFC’s regulations, the term “endangered species” includes all species that are listed as endangered or threatened with extinction by the U.S. Department of Interior. Ark. Admin. Code § 002.00.1-01.00-C.
[46] Ark. Admin. Code § 002.00.1-19.12.
[47] Ark. Admin. Code § 002.00.1-15.37(Exceptions: 6) The regulation actually refers to those facilities “possessing U.S. Department of Agriculture Exhibition Permits; ” however, that agency does not actually issue “Exhibition Permits” rather, it issues Class C licenses to exhibitors.
[48] Ark. Admin. Code § 002.00.1-15.01(7).
[49] 7 U.S.C.A. § 2131 et seq.
[50] Ark. Admin. Code § 002.00.1-15.01(7).
[51] Ark. Admin. Code § 125.00.12.
[52] 7 U.S.C.A. § 2131 et seq.