Articles

ANIMALS IN CIRCUSES AND THE LAWS GOVERNING THEM

  • Anastasia Niedrich
  • Animal Legal & Historical Center
  • Publish Date: 2010
  • Place of Publication: Michigan State University College of Law

I. INTRODUCTION

In a circus somewhere right now, an endangered tiger is leaping through a ring of fire as circus patrons gasp, and then cheer.  Elsewhere, a majestic elephant, the world’s largest land mammal, is carefully balancing on a tiny pedestal and performing for the crowd.  Many have visited circuses and enjoyed animal entertainment without much thought behind the animals’ treatment or the laws regulating them.  This article seeks to present the lesser-known side of circuses–the threats this form of amusement poses to many animals and humans involved—and how the law addresses circus animals.

Circuses are exhibitions, usually put on by the exhibitors for profit, and viewed by the public for entertainment, which offer amusements and display “[a]n array of clowns, acrobats, daredevils, and animals.” [2]  Not all circuses use animals in their exhibitions, but where circuses do use animals, controversy and concerns abound. [3]  Many threats exist to both the circus-going public and the animals in circuses including: wild animal escapes; mistreatment; the sale of circus animals to “canned hunt” facilities and other unlawful animal trafficking; and more. 

Circuses have existed in one form or another since Roman and medieval times. [4]  Since their arrival in the United States, circuses have been governed by federal and state authorities, at the demand of circus-goers and “leisure reformers,” often chiefly concerned with animal issues surrounding the circus. [5]  Despite the enactment of legislation aimed to ensure the welfare of some animals in circuses and elsewhere, federal and state-level legislation often fails to protect circus animals, and sometimes even purposefully excludes them. 

This paper provides an in-depth analysis of applicable laws, case precedents and issues concerning animals used in circuses.  This paper will first examine the physical mistreatment and oft-neglectful living conditions that circus animals experience.  The paper will then highlight the threats that circus animals face when their terms of service are done.  The paper then briefly discusses economic threats to circus animals and specific issues regarding the use of primates, elephants and big cats in the circus.  Next, the paper addresses risks of using circus animals for circus staff and circus patrons, including animal “activism.”  The paper will then discuss federal, U.S. state and international laws governing animals used in circuses. 

 

II. CIRCUS ANIMAL TREATMENT AND ASSOCIATED ISSUES

 

A. Generally

Generally, circuses allege that they treat animals well, and that they train them to perform unnatural acts such as jumping through rings of fire or balancing on small pedestals, with positive reinforcement or “guiding acts” only. [6]  However, other sources such as Animal Defenders International [7] and the Humane Society of the United States state that “[a]lthough positive reinforcement is indeed part of a trainer’s repertoire, it is by no means his or her only tool, and its is not enough to guarantee control [of the animal] in the ring.” [8]  While some circuses undoubtedly treat animals well, it is a well-documented fact that many animals in circuses experience physical abuse to compel them to perform for the circus staff, and ultimately for circus patrons. [9]  Many issues surround the treatment of animals used in the circus such as concerns for their health and overall well-being, their training and treatment, the endangered nature of many such animals, the disposal of animals that circuses decide not to use anymore, activist opposition to the use of animals in circuses, animal escapes, provoked attacks, and more.  These issues are discussed in further detail below.

 

B. Living Conditions and Threats to the “Animal Side” of Circuses

1. Mistreatment and Abuse

Circus animals do not naturally jump through rings of fire, balance on stools or perform the various acts that circuses require them to do.  Those animals must be trained to perform, and circus animal training usually transpires as a result of negative reinforcement (e.g. physical abuse).  However, some circuses claim training can also be accomplished with positive reinforcement (e.g. rewarding the animal with food). [10]  Despite this claim, abuse in circuses takes many forms. [11]  In some cases, this mistreatment can be attributed to violations of the Animal Welfare Act, where a circus will have hired an unlicensed, untrained person who mistreats the animals. [12]  In other cases, a lack of training is not the reason for mistreatment.  In one unfortunate instance, a circus trainer was convicted for twelve counts of animal cruelty to an 18-month-old chimpanzee who was kicked and whipped and spent fifteen hours a day in a darkened box. [13]  In other instances, elephants and other animals in the circus are subjected to beatings all across their bodies with sticks, metal rods, hooks and other brutal implements to compel them to do as the circus staff demands. [14]  Also, sometimes circus animals are deprived of exercise time and room, food, warmth, shelter or other basic necessities when they fail to perform as required.  It is because of this that one of the leading animal welfare organizations, HSUS, opposes the use of wild animals in circuses entirely, citing as their reason for opposition “because [such] cruelty to animals is inherent in such displays.” [15] 

 

2. Confinement

The traveling nature of the circus means that animals in the circus “are routinely subjected to months on the road confined in small, barren cages.” [16]  Additionally, “[t]hese animals often live in filthy and dilapidated enclosures or are chained in one position for the majority of the day.” [17]  These confined spaces are also subject to the easy spread of sickness and wild temperature fluctuations often far different and greater than an animal would be accustomed to or subjected to in the wild.  For instance, “[i]n the summer of 1997, an eight-year-old elephant named Heather died from heat prostration after the King Royal Circus parked her in a trailer in a New Mexico parking lot. . . . [t]he temperature inside the trailer was” estimated as high as 120 degrees. [18]  In another tragic instance, in July 2004, a two-year-old male lion named Clyde died after being contained for six hours in a Ringling Bros. Circus boxcar traveling from Arizona through the Mojave Desert to California. [19]  The temperatures in the cars were recorded at 109 degrees Fahrenheit, but Clyde and the other animals were not provided with water or adequate ventilation. [20]  “A trainer who complained that Clyde was looking ill was ignored by the conductor and Ringling Bros. employees.” [21]  Clyde died in Arizona as a result. [22] 

Although circus personnel maintain that circuses take good care of their animals, [23] some experts assert that the way in which circus animals are constantly confined, often for the entire day except when they are performing, results in an environment that denies animals essential physical needs such as sunshine and exercise, as well as social and ecological freedoms. [24]  Many find it difficult to believe circuses’ claims that they treat animals well, especially in light of the fact that “every major circus using wild animals as part of the circus has been cited for a violation of the AWA [Animal Welfare Act].” [25] An even more distressing fact is that when circuses do violate the Animal Welfare Act and “a violation is found, the animals are not removed, rather, a fine is imposed upon the circus.”

 

3.  “Canned Hunts”

After their servitude comes to an end, either because a circus deems the animal no longer useful or profitable or for other reasons, many circuses sell their castaway circus animals to “canned hunt” facilities.  These facilities “offer[ ] the illusion of hunting a dangerous [or wild]” former circus animal. [26]  In actuality, “canned hunt” enterprises offer patrons the opportunity to kill a tame former zoo or circus animal at close range, “all from the safety and comfort of a tree stand or an off-road vehicle.” [27]  These animals, formerly living in captivity, continue to depend on humans for food, and are easy targets at feeding stations.  Also, these animals usually “have no fear of humans, and would not even try to escape.  Even if such an animal did attempt to escape, there is nowhere to run.” [28]  Thus, the often unfortunate existence of some circus animals sometimes comes to an end in an even more painful and inhumane manner when they are killed in “like fish in a barrel” at a “canned hunt.”  Circus animal victims of “canned hunts” fall within the legal protections of only five states (Iowa, [29] New Hampshire, [30] New Mexico, [31] Oklahoma [32] and Texas), [33] which “specifically include captive wild animals under their anti-cruelty statutes.” [34]  Even within these states that do protect some animals from canned hunts, not all circus animals are protected. [35]  Further, if a circus animal is listed as threatened or endangered under the Endangered Species Act (ESA), then the animal is protected by ESA’s provisions and cannot legally be the victim of a “canned hunt.” [36] Despite these limited legal protections, canned hunt facilities often become the last stop on many circus animals’ careers.

 

4. Economics

Economics, at first glance, seem an unlikely threat to animals in the circus.  However, some scholars argue that under-enforcement of animal protection laws such as the Animal Welfare Act (AWA), discussed infra at Section III.A, results in great costs to animal welfare law-compliant entities.  The logic of this argument is that under-enforcement of animal welfare laws often makes compliant businesses unprofitable when they cannot economically compete with businesses that cut corners and costs by treating animals poorly while escaping enforcement. [37]  This concern seems especially salient considering how Ringling Bros. and Barnum & Bailey Circus has held a monopoly of the circus business in America at least as far back as 1907. [38]  Although an entity that is competitively injured can sue against the agency or the competitor, “the entity must first satisfy Article III standing requirements,” which can be difficult or daunting for any claimant, especially a small business attempting to run a circus emphasizing animal welfare at the same time as it competes with the country’s largest business in its industry. [39]  For further discussion of standing issues, please see Section IIIA, infra, below.

 

5. Specific Animal Issues

There are a multitude of animals used by circuses.  Significant, recurring issues exist in relation to three types of circus animals in particular: primates, elephants and big cats.  These animal-specific issues are discussed below.

 

Primates

Primates, or animals such as lemurs and chimpanzees, have been used in circuses all across the globe for hundreds of years.  The keeping of primates in captivity and using them in circuses is “rationalized under the wide net of ‘education’ [and entertainment].” [40]  Because primates do not naturally inhabit or derive from North America, [41] they are usually relocated here solely for the purposes of human “education” and entertainment.  One specie of primates, chimpanzees, “are humans’ closest living relatives, sharing more than 98 percent of our genetic blueprint.” [42]  Chimpanzees in particular are uniquely intelligent among primates, being capable of fashioning tools, walking upright and even learning sign language. [43]  “Although chimps and humans are closely related, the apes have endured much at human hands.” [44]  As renowned primatologist Dame Jane Goodall has noted, “[s]ometimes chimps [and other circus primates] are well cared-for [but] [v]ery often, they are exploited . . . [and] the training of circus chimps and other exotic animals very often involves great cruelty, like beating them over the head with an iron bar and deforming their feet by pushing the feet day after day into shoes. . . . No life for our closest living relative.” [45]  “Almost half (48 percent) of the world’s 634 primate species are [currently endangered or] classified as threatened with extinction.” [46]  Thus, the mistreatment chimpanzees sometime endure, along with their endangered status, their high level of intelligence and numerous similarities to humans, are reasons why Jane Goodall strongly opposes the use of chimpanzees in circuses.

 

Elephants

The keeping of elephants in captivity and using them in circuses has been justified for hundreds of years for the sake of human entertainment and education.” [47]  Like primates and big cats, Elephants also do not naturally inhabit North America, [48] they are usually relocated here solely for circus entertainment.  These uniquely intelligent, social, friendly, cognizant and caring creatures have been known to mourn and specially take care of their injured dead. [49]  Although many elephants are well-cared for while in confinement, many more elephants “are routinely tortured with bull hooks by handlers” [50] and even die at the hands of their captors.  In one case, “California Humane Society workers charged Mark Gebel, a Ringling elephant trainer, with cruelty after he used his bull hook to inflict a large wound to the shoulder of an elephant.” [51]  In another tragic case, a baby elephant had to be euthanized after falling from a circus pedestal, breaking its legs and not receiving adequate care. [52]  Unfortunately, all too frequently, these endangered, big and gentle giants die as a result of conditions in circuses; which do not usually provide sufficient space and roaming room.  Circus elephant care practices are outlined in the “Elephant Husbandry Resource Guide” published by the International Elephant Foundation (IEF), Association of Zoos & Aquariums (AZA) and the Elephant Managers Association (EMA).  Even though Ringling Bros. Circus, a founding member of the IEF, helped develop the guide, Ringling Bros. Circus does not provide its elephants with the AZA’s minimum space requirements, and subjects them to prolonged periods of chaining. [53] 

 

Big Cats

"Big cats,” or animals such as lions and tigers, have been used in circuses worldwide from the inception of the circus.  Many big cats, especially tigers, are endangered and located in remote regions of the world.  Big cats are usually relocated to the United States solely by circuses for circus use.  In modern times, “wild populations of big cats continue to decline precipitously,” raising ethical and environmental concerns about keeping cats in confinement and also maintaining and growing wild populations. [54]  Although many big cats are well-cared for while kept in confinement, with some sources claiming that confinement may even increase a big cat’s lifespan up to five years over its expected lifespan in the wild, [55] there are many examples of big cats suffering and even dying in confinement.  Some big cats kept by circuses have died due to lack of necessary medical care.  In one example, in 2001, an endangered Bengal tiger named Jasmine had to be euthanized after Ringling Bros. circus failed to treat her for her kidney condition. [56]  Another endangered Bengal tiger died in Ringling Bros. circus when the circus failed to treat its facial and ear tumors. [57]  There are only an estimated 1,300-1,500 endangered Bengal tigers remaining in the wild as of 2010; the World Wildlife Fund estimates that there are more than 5,000 tigers held in captivity in the U.S. alone, far exceeding those numbers in the wild. [58]  Many of these endangered animals held in captivity may be mistreated or die while being held by circuses. Circuses then present a unique threat to the continuation of the species. [59]

 

C. Issues and Threats Involving the “Human Side” of Circuses

1. Escaped and Provoked Animals

Not only do circuses pose a threat to the animal performers, but the circus staff members and circus patrons also face danger.  Occasionally, animals escape from confinement at the circus and cause damage to property or persons.  These escapes or “rampages” can sometimes be deadly for circus staff, circus-goers and the public.  For instance, in 1994, Tyke the elephant escaped from her confines, killing one of her Circus International handlers and injuring a dozen spectators while running amok.  Eventually, Tyke was shot by police over 100 times, and died. [60]  In another incident, a chimpanzee in a circus tent bit a four-year-old boy, causing him great harm. [61]  Additionally, spectators and trainers often provoke the animals to act or move, [62] resulting in harm to those persons, and yet only the wild animals are usually punished, or are even killed, for acting on their instincts or the provocation.  Some scholars attribute these animal killings, “at least in part, upon a simple primal [human] desire for revenge.” [63]  For example, “in 1997, a 350-pound tiger named Arnie hit and seriously injured”  [64] his circus trainer during a publicity photo shoot for Ringling Bros. and Barnum & Bailey Circus.  “Nearby trainers were able to come to the man’s aid and returned the tiger to his cage.  Nevertheless, in an act of vengeance after the attack, . . . the trainer’s brother, fired a shotgun multiple times into the tiger’s cage, killing Arnie.” [65]  These incidents stand in sharp contrast to the way in which dog attacks are handled in many jurisdictions, where the provoking person, not the provoked dog, will often be held responsible and the dog will not be harmed for acting on its instincts or the provocation. [66]  Unfortunate on all accounts, such incidents usually result in monetary loss for the property owners, costs to municipalities for animal control and police services, injury to persons and usually, physical harm and death for the escaped animal. [67]

Some modern-day critics take issue not only with the way in which escaped animals are treated, but also with the manner in which circus animal escapes are documented, calling them at minimum ineffectual.  One scholar said that the USDA’s response to “study the issue” instead of promulgating regulations or guidelines for circus animal escapes:

focuses more on subduing exotic animals and enshrining customary current handling standards for exotic animals instead of seeking information on whether there is an underlying problem with the way animals in zoos and circuses are handled, which in turn, causes them to go on rampages.” [68] 

The modern-day treatment of escaped or provoked circus animals – usually killing them for causing harm or for fear that they will cause damage or disruption – would likely be deemed unjust by some.  Inexplicably, escaped and provoked animals historically received better treatment and greater equity in medieval times than in current times.  “Today, it would seem peculiar for a community to prosecute and punish an animal for a criminal or other offense.” [69]  However, in medieval times, at least as far back as year 824 A.D., [70] escaped or provoked animals that caused damage were afforded a trial for their actions, either in secular or ecclesiastical court, depending on the type of animal and offense. [71]  The medieval animal courts “took these proceedings very seriously and strictly adhered to the legal customs and formal procedural rules that had been established,” affording animals the same rights and procedures as human criminal defendants. [72]  Modern and historical treatment of escaped or provoked animals has been known to differ widely depending on the culture and time period. [73]  Currently, in some states, exotic animal escape provisions exist, which allow for tort liability for damages caused by exotic animals kept as pets.  In most states, circus animals are exempt from such provisions. [74]

           

2. Animal Activists or “Terrorists”

Some humans’ concern for animal welfare seems to permeate nearly all aspects of animal-related culture.  Some circuses claim that animal welfare “activists” risk economic and other harm to circus businesses and sometimes, [75] even the animals themselves (e.g. when well-meaning animal “activists” attempt to free a wild animal from substandard conditions or harm in captivity, resulting in subsequent harm or death to that animal).  Within the animal rights community, there is a wide spectrum of beliefs held and actions taken, ranging from non-violent, lawful protest to violent, unlawful action taken on behalf of animals.  Even children have been known to engage in protests against the mistreatment of animals in circuses.  For example, in the case of Walker-Serrano v. Leonard, Amanda Walker-Serrano, “a nine-year-old third grader in Pennsylvania used recess . . . to collect her classmates’ signatures on a petition protesting an upcoming voluntary field trip to the circus because of alleged cruelty to circus animals.” [76]  In the case, Walker-Serrano made several attempts to collect petition signatures against the circus, which school officials attempted to stop her, alleging that her efforts disrupted the learning environment.  The court weighed Walker-Serrano’s First Amendment rights using a Tinker analysis, but found that the school acted within its rights and did not impermissibly discriminate against Walker-Serrano because of her viewpoint, so there was no constitutional violation. [77]

On the more violent side of the animal activist spectrum exist organizations such as the Animal Liberation Front (ALF) and Earth Liberation Front (ELF).  In 2002, the head of the FBI domestic terrorism section ranked the ALF and ELF as the top domestic terrorism threat after finding that the groups had collectively “committed more than 600 criminal acts in the United States since 1996, resulting in damages topping $43 million.” [78]  Such violent and extreme acts on behalf of animals spawned the passage of the Animal Enterprise Terrorism Act of 2006 (AETA). [79]  Under the AETA, anyone who engages in “force, violence, and threats” that would interfere with or damage businesses connected with an animal-use enterprise (including circuses) could be charged with a felony.  [80]  Some states have statutes prohibiting activism with such effects, such as Florida, which defines circuses as “animal enterprises” and protects them from disruption, injury or damage. [81]  Arizona has a similar law, A.R.S. § 13-2301 (2010), which defines circuses as a type of “animal facility” and § 13-2312 protects circuses and other “animal facilities” against “animal or ecological terrorism.”  Although this concern has not really been thoroughly addressed by scholars or courts, it is relatively easy to see how the AETA raises concerns of chilling legitimate free speech on animal issues.

 

III. DOMESTIC LAWS CONCERNING CIRCUSES

A.  Federal Laws

1. The Animal Welfare Act

The singular and primary piece of U.S. federal legislation regulating the use of animals in circuses is the Animal Welfare Act (AWA), 7 U.S.C. §§ 2131-2159, originally passed in 1966 and subsequently amended six times, most recently in 2007.  The AWA is the only federal law that directly regulates circus animals, also known within the act as animals used in “transport” or “exhibition.”  The AWA “is not a broadly stated anti-cruelty law.  It does not deal with all species of animals, as do most state anti-cruelty laws.  Instead, the law focuses upon several very specific activities that have been shown . . . to be potential areas of animal abuse, and that have a nationwide aspect to them.” [82]  The AWA requires circuses to be licensed and subjects them to periodic inspections by the USDA’s Animal and Plant Health Inspection Service (APHIS). [83]  The AWA covers all animal circuses defined as exhibitors under the Act (see below), regardless of the number or type of animals in the circus.  However, the AWA’s provisions “provide only vague, very minimal standards for keeping animals for exhibitions” (e.g. the AWA prohibits subjecting animals to “trauma, overheating, excessive cooling, behavioral stress, physical harm and unnecessary discomfort” of animals in circuses and elsewhere, but never defines the terms). [84]  Although well-intentioned, the practical reality when it comes to enforcement of the AWA is that the federal government has allotted insufficient personnel and resources to adequately protect circus animals under the AWA.  There are only a few APHIS inspectors for the thousands of animal exhibitors, circuses and other non-circus businesses using animals that APHIS must inspect. [85]  The AWA stands alone in terms of federal legislation on circus animals, as other federal animal anti-cruelty provisions “are virtually useless against . . . circuses” because the other pieces of federal legislation may protect a type of animal, but usually exempt circuses as an activity. [86]  The AWA is really the only federal law directly regulating circuses in most cases.

An examination of some pertinent sections of the AWA is instructive:

7 U.S.C. § 2132(c)(2)(h) (Definitions):

The term "exhibitor" means any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary, and such term includes . . . circuses, . . . whether operated for profit or not.

7 U.S.C. § 2133 (Licensing of dealers and exhibitors):

The Secretary shall issue licenses to . . . exhibitors upon application therefore in such form and manner as he may prescribe and upon payment of such fee established pursuant to section 23 of this Act: Provided, That no such license shall be issued until the dealer or exhibitor shall have demonstrated that his facilities comply with the standards promulgated by the Secretary pursuant to section 13 of this Act. . . . The Secretary is further authorized to license, as dealers or exhibitors, persons who do not qualify as dealers or exhibitors within the meaning of this Act upon such persons' complying with the requirements specified above and agreeing, in writing, to comply with all the requirements of this Act and the regulations promulgated by the Secretary hereunder.

7 U.S.C. § 2134 (Valid license for dealers and exhibitors required):

No . . . exhibitor shall sell or offer to sell or transport or offer for transportation, in commerce, to any research facility or for exhibition . . . any animal, or buy, sell, offer to buy or sell, transport or offer for transportation, in commerce, to or from another dealer or exhibitor under this Act any animal, unless and until such dealer or exhibitor shall have obtained a license from the Secretary and such license shall not have been suspended or revoked.

7 U.S.C. § 2136 (Registration of research facilities, handlers, carriers and unlicensed exhibitors):

Every research facility, every intermediate handler, every carrier, and every exhibitor not licensed under section 3 of this Act shall register with the Secretary in accordance with such rules and regulations as he may prescribe.

7 U.S.C. § 2140 (Recordkeeping by dealers, exhibitors, research facilities, intermediate handlers, and carriers):

Dealers and exhibitors shall make and retain for such reasonable period of time as the Secretary may prescribe, such records with respect to the purchase, sale, transportation, identification, and previous ownership of animals as the Secretary may prescribe. . . . At the request of the Secretary, any regulatory agency of the Federal Government which requires records to be maintained by intermediate handlers and carriers with respect to the transportation, receiving, handling, and delivery of animals on forms prescribed by the agency, shall require there to be included in such forms, and intermediate handlers and carriers shall include in such forms, such information as the Secretary may require for the effective administration of this Act. Such information shall be retained for such reasonable period of time as the Secretary may prescribe. If regulatory agencies of the Federal Government do not prescribe requirements for any such forms, intermediate handlers and carriers shall make and retain for such reasonable period as the Secretary may prescribe such records with respect to the transportation, receiving, handling, and delivery of animals as the Secretary may prescribe. Such records shall be made available at all reasonable times for inspection and copying by the Secretary.

While the language of the AWA seems to mandate strict caretaking and recordkeeping requirements, it becomes ineffective without enforcement.  As stated, currently the only enforceable penalty under the AWA is monetary fines.  Due to overworked inspectors and enforcers, and with only small monetary fines to deter conduct that is far more profitable to continue than not, the AWA is as ineffectual as it is idealistic.  Unfortunately for circus animals, as of right now, the AWA seems to speak softly and carry a small stick. 

 

2. Endangered Species Act (ESA)

The cast of circus animals in large circuses may include one or more species of endangered animals, such as elephants or tigers.  Thus, the issue arises as to when the overarching federal law on the taking of endangered species, the ESA, comes into play. [87]  Recently, in American Society for Prevention of Cruelty to Animals v. Feld Entertainment, Inc., [88] the ASPCA and other animal advocacy organizations brought suit against the operator of Ringling Bros. Circus on behalf of a former Ringling Bros. Circus elephant trainer.  Plaintiffs alleged that defendants’ use of bull hooks on, and prolonged periods of chaining, circus elephants violates the Endangered Species Act (ESA), 16 U.S.C. § 1531, et seq.  The plaintiffs alleged that Feld Entertainment’s routine beating and chaining of endangered elephants unlawfully violated the “take” provision of the ESA by harming and adversely affecting the species. [89]  Defendants countered that their elephants were subject to a captive-bred wildlife permit, [90] allowing the defendants to make such a “taking,” and that defendants were therefore exempted from certain ESA exemptions.  If the defendants did have a valid captive-bred wildlife permit, they would be permitted to “take” an endangered elephant if they could show that doing so would enhance the propagation or survival of the species. [91]  While the court found that the defendant’s permit did not insulate them from taking claims under the ESA, the court did hold that the permit did not provide for a challenge under the citizen-suit provision.  Basically, the plaintiffs may have been correct, but could not procedurally bring their claim because of deficiencies with their case. [92]  Additionally, the court stated that standing was not established because the court found the witness was paid too much to offer his testimony, rendering it non-credible.  Since the court found that the plaintiffs lacked standing, it did not reach a decision on the merits of the case – the mistreatment and ESA claims.  This case stands for the important proposition that the barrier to bringing a claim on behalf of animals is a high one, and that some circuses propagate and “take” endangered animals, sometimes lawfully and other times unlawfully, in spite of the fact that many circus animals are endangered and covered under one of the toughest federal animal laws (the ESA).

 

3. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)

CITES is an international convention (legal agreement) that subjects international trade in specimens of certain species of animals to certain controls.  All import, export and other introduction of a species covered by CITES has to be authorized through a licensing system.  CITES requires each party to the Convention to designate one or more authorities to administer the licensing system, and one or more scientific authorities to advise on the effects of trade on the species. [93]  The practical effect of CITES is to regulate the international transport, import and export of listed endangered species.  However, Article VII, section 7, permits a management authority to waive the requirements of the Convention “and allow the movement without permits or certificates of specimens which form part of a traveling zoo, circus, menagerie . . . or other traveling exhibition.” [94]

 

4. The Lacey Act

The Lacey Act [95] prohibits the import, export, transportation, sale, receipt, acquisition, or purchase in interstate or foreign commerce of any live animal of any prohibited wildlife species.  However, the Lacey Act specifically exempts circuses from regulation and defers to their regulation under the AWA.

 

B.  State Laws

Despite the mistreatment of animals in many circuses, state anti-cruelty laws do not always cover these animals.  In 23 states, [96] circuses are specifically exempted from these provisions. However, where states do have such laws on the books, the laws vary widely from state to state.  Some state laws only mention circuses or circus animals just to say that they are excluded from animal anti-cruelty laws that would otherwise protect those animals. [97]  An overview of state laws, including a couple municipal codes, addressing circus animals is provided below (alphabetically by state).

1.      Alaska

Alaska has a law that requires circuses to obtain a permit to possess, import or export an elephant for use in a circus and requires that elephants in circuses be maintained in humane conditions.  Alaska Stat. Ann. § 16.40.060.

2.      Arizona

Arizona statute A.R.S. § 13-2301 (2010) defines circuses as a type of “animal facility” and § 13-2312 protects circuses and other “animal facilities” against “animal or ecological terrorism.”

3.      California

California requires circuses to provide municipal authorities at least two weeks’ advance notice of the first show when they seek to perform, and meet other conditions as determined by the municipality, to operate.  Cal. Health & Safety § 25989.1 (1999).  Also, California prohibits the taking of certain animals for use in the circus.  Cal. Fish & Game §§ 3000-3012.

4.      Colorado

Colorado exempts circuses from routine inspection provisions applicable to other possessors of wild animals.  C.R.S. § 35-80-103 (2009).

5.      Connecticut

Connecticut holds that individuals can be held liable for cruelty to animals if they use them for pecuniary gain or harm them, but specifically exempts circuses from this provision.  Conn. Gen. Stat. Ann. § 53-250 (1949).

6.      Delaware

Delaware requires licenses for circuses, but exempts certain not-for-profit circuses or where religious groups are affiliated with or benefit from circus proceeds.  30 Del. C. § 2301.  Delaware also states that the Department of Agriculture can issue permits for circuses or other exhibitions when “in the public interest.”  3 Del. Code Ann. § 702 (2009).

7.      Florida

Florida defines circuses as “animal enterprises” and protects them from disruption, injury or damage.  Fla. Stat. Ann. §§ 828.40-43 (2009).  Florida also prohibits the display of a deformed or injured animal in a circus.  Fla. Stat. Ann. § 877.16 (2007).

8.      Idaho

Idaho requires those who hold wildlife captive to obtain a permit and meet other requirements, but circuses are exempted.  Idaho Code Ann. § 36-701 (2004).

9.      Illinois

Illinois specifies that no one may keep dangerous or wild animals except circuses and similar entities.  720 Ill. Comp. Stat. 585/1 (2009).

10.  Iowa

Iowa exempts circuses from registration and other requirements, and defines circuses narrowly so as not to include persons who show animals under certain conditions.  Iowa Code Ann. § 717F.1-7 (2008).

11.  Kansas

Kansas exempts circuses from transportation and other requirements if USDA licensed.  Kan. Stat. Ann. § 32-1308 (2006).

12.  Kentucky

Georgetown, Kentucky requires circuses to be licensed, keeps and exercises the option to inspect them and charges nominal fees for a permit to operate.  Georgetown – Secs. 3-1-3-34 (2004).  Lexington-Fayette, Kentucky also exempts circuses from cruelty laws and prohibitions on keeping dangerous wild animals.  Lexington-Fayette – Sec. 4.11.

13.  Louisiana

Louisiana prohibits the sale, donation or otherwise disposal of an animal from a circus to any business that might kill them for sport (i.e. a “canned hunt” facility).  La. Rev. Stat. Ann. § 14:102.20 (2004).

14.  Massachusetts

Massachusetts states that only circuses and like entities may display wild or dangerous animals.  Mass. Gen. Laws Ann. 272 § 77B (2009).

15.  Michigan

Michigan exempts circuses in regard to the limits on the display of large carnivores, but does not specify about other animals such as elephants.  Mich. Comp. Laws §§ 287.1102, 287.1122 (2000).

16.  Minnesota

Minnesota exempts circuses from regulations on licensure, care and disposal of circus animals.  Minn. Stat. Ann. § 346.155 (2007).  Strangely, Minnesota also specifically prohibits circuses from trafficking skunks.  Minn. Stat. Ann. § 145.365 (2007).

17.  Missouri

Missouri permits circuses, almost exclusively, to keep wild or dangerous animals.  Mo. Ann. St. § 578.023 (2010).

18.  Montana

Montana places restrictions on circuses from within the state, but exempts circuses based outside of the state.  Non-exempt circuses are subject to licensure and inspection requirements, with many requirements on the information that must be provided in a permit application, and a limit of 10 animals per circus.  Mont. Code Ann. §§ 87-4-801-806; Mont. Code Ann. § 87-5-709.

19.  Nebraska

Nebraska requires circuses to obtain permits in some instances, but largely exempts them from most requirements except that they must keep their animals disease-free.  Neb. Rev. Stat. Ann. § 54-2305 (2009).

20.  New York

New York protects endangered animals who may be in circuses as it does other endangered animals.  N.Y. Envtl. Conserv. Law § 11-0103 (2009).

21.  North Carolina

North Carolina prohibits circuses from using the word “fair” in connection with promotional advertising unless they meet certain conditions.  N.C. Gen. Stat. Ann. § 106-520.2 (2007).

22.  North Dakota

Minot, North Dakota exempts circuses from provisions on animal cruelty and prohibitions on the keeping, breeding or use of wild animals.  Minot – Sec. 7.5b(2).

23.  Ohio

Ohio prohibits the use of certain devices on circus animals, including hooks and rods.  Ohio Rev. Code. Ann. § 959.20 (1986).

24.  Oklahoma

Oklahoma City and Sallisaw, Oklahoma exempts circuses in the city less than 30 days from all of its usual cruelty, possession and other animal provisions.  Oklahoma City – Secs. 8-380, Sallisaw – Ch. 1, Art. 1, Sec. 10.5.

25.  Pennsylvania

Pennsylvania requires that certain permit fees be paid by the circus for each animal brought into the state, and a circus must obtain a general permit and pay a fee for it.  Circuses and menageries are also liable for any harm to the public from wild attacks or danger.  34 PA. Cons. Stat. Ann. §§ 2094, 2694.

26.  Rhode Island

Rhode Island states that it is a misdemeanor violation for someone to release a circus animal, but not to confine one.  RI Gen. Laws Ann. § 4-1-29 (2008).

27.  Tennessee

Tennessee defines and exempts circuses from most regulations applicable to other holders of wild animals.  Tenn. Code Ann. § 70-4-402 (2009).

28.  Texas

Texas has laws governing standards for the humane treatment of circus animals but specifically exempts circuses from regulation if they are licensed by the USDA and if the circus provides proof of (mandatory) inspection at least once a year.  Tex. Health & Safety Code Ann. § 822.102; Tex. Occ. Code. Ann. §§ 2152.001, 2152.002, 2152.052.  Also, circus animals cannot enter the state unless they have been certified tick- and disease-free and obtain a certificate of such status.  Tex. Agric. Code Ann. § 167.026.

29.  Utah

Utah exempts circus animals from animal cruelty laws, Utah Code Ann. § 76-9-301, and increases criminal penalties for animal “activists” who interfere with the operation of a circus, Utah Code Ann. § 76-6-110.

30.  Vermont

Vermont assesses a $2,000 fine against a circus exhibitor if they show circus animals without a permit.   31 VT. Stat. Ann. § 406 (2007).

31.  Washington (State of)

The State of Washington grants cities the power to license circuses.  Wash. Rev. Code. Ann. § 35.23.440.

32.  Washington (D.C.)

In Washington, D.C., circuses are exempted from a law stating that no one may keep more than four animals larger than a guinea pig without a permit, and requires that circuses obtain permits to operate and adhere to the required standards for animal care.  D.C. Code §§ 8-1808-1809 (2009).

33.  Wisconsin

Wisconsin exempts a specific state-level circus from provisions prohibiting the ownership, sale, purchase or propagation of wild animals, Wis. Stat. Ann. §§ 169.01-.10 (2010), and also prohibits the use of sharp tools on circus animals, Wis. Stat. Ann. § 951.07 (2010).

34.  Wyoming

Wyoming requires that circuses obtain a license to operate and reserves the right to inspect circuses before issuing said license.  Wyo. Stat. Ann. § 33-6-101 (2009).

 

C.  Issues of Standing to Sue

Even where violations of other state and federal laws occur in circuses, litigants face other obstacles in bringing lawsuits against circuses at the federal and state levels.  Most notably among the challenges is standing to sue, or who is injured and can bring suit for redress of their injuries.  Since the United States considers animals property, and does not grant them rights or status as sentient beings, standing can be a tricky and often disappointing barrier to animal advocates’ attempts to improve conditions and treatment for circus animals.

In addition to standing challenges in bringing claims on behalf of animals for harm done by circuses to those animals, some plaintiffs have met challenges seeking standing even to protest or exercise their free speech rights on behalf of circus animals.  In Utah Animal Rights Coalition v. Salt Lake County, 566 F.3d 1236 (10th Cir. 2009), plaintiff-appellants filed a 42 U.S.C. § 1983 claim for alleged violations of their First Amendment rights to free speech and assembly after the plaintiffs attempted to protest a circus taking place in South Jordan, Utah. [98]  The Tenth Circuit Court of Appeals held that the individuals did not have standing to seek an injunction against the county from prohibiting small demonstrations, could not prove injury in fact and did not suffer a violation of their First Amendment rights. [99]

As discussed, “[s]tanding doctrine has been one of the chief impediments to using the courts to vindicate animal interests.” [100]  Even in the rare instances when a plaintiff surpasses the standing obstacle as most fail to do, [101] they often lose on the merits in these difficult and burgeoning cases. [102]  Even so, there have been a few instances of plaintiffs bringing and winning cases on an aesthetic harm theory, or on an intentional infliction of emotional distress theory.  These claims are based on the theories that viewing circus animals or circus patrons being harmed harms the plaintiff, warranting redress and damages from the defendant.  In one case, Eyrich v. Earl, 495 A.2d 1375 (N.J. Super. A.D. 1985), the neighbors of a five-year-old child watched as the child was mauled to death by a circus leopard.  The plaintiffs sued for emotional damages and the court found that the plaintiffs had standing to sue based on their aesthetic injuries, and held the defendants liable on principles of products liability (by analogy) and public policy.

 

IV. INTERNATIONAL LAWS

Much can be learned by comparing and contrasting the laws of the United States and the laws of other countries regarding animals in circuses.  The United States’ laws on animals in circuses are discussed infra, above, and a diverse array of other countries’ laws are discussed and analyzed in this section (organized alphabetically by country, below).  Overall, while the United States could definitely stand to improve the effectiveness, inclusivity and comprehensiveness of its laws, domestic laws are far from the worst of the world’s countries’ laws on circus animals. [103]

A. Laws of Individual Countries

1.  Australia

Similar to the United States and Canada (infra, below), the laws on animals in circuses vary from state to state in Australia.  Queensland recently adopted The Queensland Code of Practice for the Welfare of Animals in Circuses as a regulation under the Animal Care and Protection Act of 2001.  “The code details minimum animal welfare standards and compliance with the code is mandatory.  These standards encompass all areas of circus animal care including transportation, housing, exhibition, husbandry and training and are endorsed by the Circus Federation of Australasia.” [104]

2.  Austria

Since 2003 (effective date 2005), Austria has had a law on the books banning the use of any animals in circuses. [105]

3.  Bolivia

Bolivia recently enacted a law that “animal rights are calling the world’s first ban on all animals in circuses.” [106]  The law outright states that the use of animals in circuses “constitutes an act of cruelty.” [107]  The law was proposed and passed after the non-profit London-based group Animal Defenders International conducted an undercover investigation and “found widespread abuse in circuses operating in Bolivia.” [108]  The group found that if a circus worker “wanted an animal to move, their immediate reaction was a kick or a punch or a shove.” [109]  The Bolivian government, recognizing these awful living conditions of circus animals, took the groundbreaking move of passing the law, “which sets fines for infractions and allows for animals to be confiscated by authorities.” [110]

4.  Brazil

Brazil does not have a concrete body of law on animals in circuses.  However, Brazil does have two tools that can be used to benefit animals in circuses: a brief constitutional provision (Chapter VI, Paragraph 1, Section VII) and a presidential decree, the Brazil Federal Decree on Anti-Cruelty No. 24,645 (July 10, 1934) which prohibits the maltreatment of animals in circuses and elsewhere.  Some of the decree’s provisions include proscriptions on making an animal work more than six continuous hours, injuring an animal, training an animal with physical punishments and other similar acts. [111]

5.     Canada

As with the states within the United States, laws on circus animals range widely between the provinces in Canada.  “British Columbia, Saskatchewan and Manitoba each set requirements by species or group.” [112]  Saskatchewan also forbids tethering any captive animal and requires the local municipality’s approval and assessment of the animals before a circus may obtain a license to operate. [113]  Manitoba requires periodic inspections. [114]  Newfoundland sets minimum standards for enclosures for space, volume, height, exercise equipment and water. [115]  Nova Scotia is by far the most progressive and comprehensive of the Canadian provinces when it comes to laws on animals in circuses and elsewhere:

Two months prior to arriving in Nova Scotia, all traveling animal acts must submit an application to the Director of Wildlife at the Nova Scotia Department of Natural Resources.  Included within this plan must be lists of all tricks an animal must perform if its is employed within entertainment, health certificates, lists of construction materials, sizes of animal containment facilities, and documentation that trainers understand the level of animal care required within the province.

Additionally, “[m]any animals are excluded from use in circuses and traveling menageries in Nova Scotia.” [116]  Animals that are prohibited from use in circuses in Nova Scotia include: hybrid animals such as ligers, reptiles (except for large snakes), bears, seals and similar animals, whales, dolphins and non-human primates. [117]  Additionally, all animals that a circus seeks to use “must be seen by a vet within six months of entering the province.” [118]  When traveling, Nova Scotia requires stops every two hours to check the health and well-being of animals in the convoy.” [119]  Additionally, “[c]onvoys must stop at least 12 out of every 24 hours so the animals may rest.” [120]  In addition to even more requirements designed to ensure animal welfare, Nova Scotia states that an animal may not be forced to perform, and if it exhibits any “[u]nwillingness to perform,” defined as initially refusing to perform, attempting to escape the proximity of the trainer or do something else, the circus must desist in its efforts to get the animal to perform. [121]  Also, “[i]n the interest of dignity, no animal may be dressed in any costume that ‘belittles the animal.’” [122]  Thus, while laws vary greatly from province to province, at least with respect to Nova Scotia, it may be said that Canada has some of the strongest, most detailed and comprehensive laws aimed at protecting circus animals in the world.

6.  China

“The concept of rule of law is new to China, which has traditionally relied upon cultural and social pressure as well as executive order from the national government to govern the conduct of its citizens.  Concern for the well-being of animals has not historically been part of Chinese culture.” [123]  As a result, the lone law on the protection of animals in circuses is really only in existence as the by-product of an international treaty that China signed (the Convention for the Protection of Endangered Species of 2002).  Therefore, only endangered animals used in circuses have any (i.e. minimal) protections against illegal hunting or destruction in China. [124]

7.  European Union

The European Union has recognized the concept of animal sentience and rights since its Inception, counseling member states to “pay full regard to the welfare requirements of animals” in circuses and elsewhere.  Currently, the European Union has formulated an action plan describing measures that the organization “intends to implement between 2006 and 2010 with the aim of developing and guaranteeing animal welfare and protection within the European Union and other parts of the world.” [125]  The final results and implications of this plan remain to be seen, although there has been a great deal of discussion and many ideas proposed to benefit animals, even including an animal bill of rights.

8.  India

Although there is a great deal of admirable legislation on zoos in India, there is comparably little legislation on circuses. [126]  Indian animal welfare laws that do exist are based primarily on religious precepts, known as “the five freedoms: 1) Freedom from thirst, hunger and malnutrition; 2) Freedom from thermal and physical discomfort; 3) Freedom from pain, injury and disease; 4) Freedom to express normal behavior; [and] 5) Freedom from fear and distress.” [127]

As for circuses, the Indian high court in Delhi recently banned the use of some animals in circuses and the government is taking steps toward ensuring better treatment for circus animals, even including the proposed creation of retirement rescue centers for former circus animals. [128] 

9.  Ireland

The Republic of Ireland does not currently have any country-wide laws on its books regarding licensure or ownership of exotic or other circus animals.  However, at least two municipalities, Fingal [129] and Cork Counties, [130] have passed ordinances banning circuses and several municipalities are now or have also considered passing outright bans on circuses, or at least laws on circus animal treatment.  Currently in Ireland, there is no inspection system to monitor and ensure the proper treatment of circus animals. [131]

10.  New Zealand

New Zealand derives much of its economic income from agricultural products, and “[a]s a result of raised public consciousness, animal welfare is increasingly viewed as an important facet of product quality, directly influencing consumer purchasing preferences.” [132] Recently, changing purchasing demands, pressure from animal welfare organizations and a government report finding the animal protection laws insufficient all influenced the New Zealand government to revise its then-forty-year-old Animal Protection Act. [133]  The new Animal Welfare Act 1999 came into effect on January 1, 2000, [134] and governs “research, testing or teaching” on or with animals, and other standards of care. [135]  Now, New Zealand now has some of the most comprehensive animal welfare legislation in the world, taking into account the behavioral requirements of individual and groups of animals and their physical, psychological, reproductive and other requirements. [136]  Unfortunately, as with many pieces of animal welfare legislation, the Act’s provisions “have almost no substantial effect, only a limited policy value.” [137]

11.  Norway

The interests of animals are not covered in the Norwegian Constitution, so acts of the Norwegian Parliament are the highest sources of law on animal welfare in Norway. [138]  One such act, the Animal Welfare Act, establishes a general ban on all animal exhibitions, such as zoos and circuses, unless special permission is granted. [139]  Special permission is generally granted to 3-8 touring circuses every summer. [140] 

12.  Poland

Poland exempts circuses from prohibitions on breeding or keeping wild animals. [141]

13.  South Africa

The Performing Animals Protection Act No. 24 of 1935 governs performing animals and, strangely, guard dogs, in South Africa.  The act regulates the exhibition and training of performing animals and the use of guard dogs, requiring the owner to obtain licenses for, pass inspections of, performing animals and meet other basic requirements before they are allowed to perform in a circus or elsewhere in South Africa. [142]

14.  Switzerland

One section of Switzerland’s Federal Act on Animal Protection leaves the law on circus or other wild animals up to the discretion of the cantons (member states), with exceptions, stating that “[i]ndividuals must apply for cantonal authorization if they keep wild animals . . . [and] the Federal Council shall decide to which species of animal this provision shall apply. [143]  The Swiss Act also delineates many noble but unspecific principles, such as those found in Article 2: “Animals shall be treated in the manner which best complies with their needs.  Anyone who is concerned with animals shall, insofar as circumstances permit, safeguard their welfare.  No one shall unjustifiably expose animals to pain, suffering, physical injury or fear.” [144]

15.  United Kingdom

In the United Kingdom, animals in circuses are protected by general laws, but there are currently no specific laws on the books that govern the treatment of circus animals specifically. [145]  Circus animals are currently protected by the Animal Welfare Act of 2006, but in a step in the right direction for animals, “the need for greater protection has been recognised by the UK government” and attempts to pass more specific legislation are underway. [146]  In March 2006, Ben Bradshaw, the minister then responsible for animal welfare, “announced in the House of Commons that the government intends to introduce Regulations under the Animal Welfare Act of 2006 to ban the use of certain non-domesticated species in traveling circuses, whose welfare needs cannot be satisfactorily met in that environment.” [147]  As of 2010, the proposed regulations are coming out of a study period. [148]  The impact of the study period and the final regulation provisions, if passed, remain to be seen.

16.  Other Countries

Costa Rica, Finland and Denmark each have laws the prohibit the use of some, but not all, species of animals in the circuses. [149]           

 

V. CONCLUSION

Unfortunate stories about mistreated, neglected and abused circus animals such as Tyke the elephant, [150] and Arnie the tiger, [151] evidence a larger scope of issues surrounding the use of animals in the circus.  Circuses are regulated in the United States at the state level, and at the federal level by one main, very ineffective law (the AWA).  However, many states exempt circuses from cruelty and other provisions that would otherwise improve conditions for circus animals.  Circuses are also regulated at multiple levels in countries across the globe.  Not all circus animals are mistreated, but unfortunately, a multitude of them are mistreated, and many even die often brutal deaths.  While many strides have been made toward bettering the conditions for animals in the circus, even with the passage of laws at the state, federal and international levels, many loopholes and exemptions exist, and are exploited by those seeking to make a profit off of these animals.  This article has provided information designed to educated readers about the current state of the law on circus animals, in the hope that further strides toward effective legislation will result in better treatment of animals in circuses across the world.  As Albert Schweitzer once counseled, and as it applies to circuses, readers may want to “think occasionally of the suffering of which you spare yourself the sight.”     



[1] The author sincerely thanks David Favre and Rebecca Wisch for their invaluable feedback and assistance with writing this piece.

[2] Tina Loo & Carolyn Strange, The Traveling Show Menace: Contested Regulation in Turn-of-the-Century Ontario, 29 Law & Soc'y Rev. 639, 639 (1995).

[3] Not all circuses utilize animals in their exhibitions.  For one list of animal-free circuses, see People for the Ethical Treatment of Animals (PETA), Animal-Free Circuses factsheet,http://www.circuses.com/pdfs/AnimalFreeCircuses.pdf (last visited May 29, 2010).

[4] Loo & Strange, 29 Law & Soc'y Rev. at 640 (“Contemporary circuses . . . are rooted both in the Roman circus and in medieval fairs, where buskers entertained crowds with bawdy spectacles and the local peasantry caroused, flouting civic and religious authorities”).

[5] Id.; see also Angela P. Harris, Should People of Color Support Animal Rights?, 5 J. Animal L. 15, 20 (2009) (citing PETA, NY Giants' Michael Strahan Tackles Animal Abuse, http://www.peta.org/feat/coldog/ (last visited May 27, 2010); Circuses.com, Montel Williams Talks Tough on Circuses, http://www.circuses.com/montel.asp (last visited May 27, 2010); Circuses.com, Pryor Asks Maximum Sentence for Elephant Abusers, http://www.circuses.com/pryor.asp (last visited May 27, 2010)).

[6] See L.A.TIMES.COM, L.A. Unleashed: Ringling Bros. circus goes on trial for alleged elephant abuse, http://latimesblogs.latimes.com/unleashed/2009/02/ringling-bros-c.html (Feb. 4, 2009, 12:35 p.m. PST).

[7] Associated Press, Guardian.co.uk, Bolivia bans all circus animals, http://www.guardian.co.uk/world/2009/jul/31/bolivia-bans-circus-animals (July 31, 2009, 12:24 GMT) (last visited May 31, 2010).

[8] Humane Society of the United States, Circuses, http://www.hsus.org/wildlife/issues_facing_wildlife/circuses/ (last visited May 30, 2010).

[9] See id.

[10] See L.A.TIMES.COM, L.A. Unleashed: Ringling Bros. circus goes on trial for alleged elephant abuse, http://latimesblogs.latimes.com/unleashed/2009/02/ringling-bros-c.html (Feb. 4, 2009, 12:35 p.m. PST).

[11] See Gary L. Francione, Animals, Property and Legal Welfarism: “Unnecessary” Suffering and the “Humane” Treatment of Animals, 46 Rutgers L. Rev. 721, 763 (1994).

[12] See, e.g., In re Vergis, 55 Agric. Dec. 148 (1996) (holding that respondent engaged in business as a circus exhibitor, without a license, and failed to handle the animal so that there was minimal risk of harm to the animal and to the public, in violation of 9 C.F.R. § 2.131(b)(1)). 

[13] Lee Hall & Anthony Jon Waters, From Property to Person: The Case of Evelyn Hart, 11 Seton Hall Const. L.J. 1, 54 n.240 (2000) (citing Helen Johnstone, Chipperfield Admits She was Wrong to Whip Chimp, THE TIMES (London), Home News (Feb. 8, 1999)).

[14] See, e.g., Elephants.com, Elephant New Around the World, http://www.elephants.com/globalnews_circus_03.htm#feds (last visited May 30, 2010) (providing approximately fifty examples of documented physical abuse on circus elephants alone); Humane Society of the United States, Circuses, http://www.hsus.org/wildlife/issues_facing_wildlife/circuses/ (last visited May 30, 2010).

[15] Humane Society of the United States, Circuses, http://www.hsus.org/wildlife/issues_facing_wildlife/circuses/ (last visited May 30, 2010).

[16] See Gary L. Francione, Animals, Property and Legal Welfarism: “Unnecessary” Suffering and the “Humane” Treatment of Animals, 46 Rutgers L. Rev. 721, 763 (1994); Humane Society of the United States, Circuses, http://www.hsus.org/wildlife/issues_facing_wildlife/circuses/ (last visited May 30, 2010).

[17] Humane Society of the United States, Circuses, http://www.hsus.org/wildlife/issues_facing_wildlife/circuses/ (last visited May 30, 2010).

[18] Jaqueline Tresl, The Broken Window: Laying Down the Law for Animals, 26 S. Ill. U. L.J. 277, 291-92 (2002) (citing Valerie Stanley, The Animal Welfare Act and USDA: Time for an Overhaul, 16 Pace Envtl. L. Rev. 103, 108 (1998)).

[20] See id.

[21] See id.

[22] See id.

[23] See Ringling Brothers Barnum & Bailey, Amazing Animals, http://www.ringling.com/TopLanding.aspx?id=11586 (last visited May 30, 2010); Mariann Sullivan, The Animal Welfare Act – What’s That?, 79-Aug. N.Y. St. B.J. 17, 19 (2007) (citing Tom Jackman, Ringling Circus Hired Private Eye to Infiltrate PETA, Fairfax Jury Told, WASH. POST, Feb. 28, 2006, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/02/27/AR2006022701436.html).

[25] Joan S. Epstein, Law Surrounding the Treatment of Animals in the Entertainment World, 40-OCT Md. B.J. 34, 36 (2007) (noting circuses’ consistent violations of the Animal Welfare Act).

[27] Ireland, 8 Animal L. at 224.

[28] Id.

[34] Ireland, 8 Animal L. at 224.

[35] Id.

[36] Elizabeth A. Moore, Note, “I’ll Take Two Endangered Species, Please”: Is the Commercialization of Endangered Species a Valid Activity that Should be Permitted Under the Endangered Species Act to Enhance the Survival of the Species?, 75 Geo. Wash. L. Rev. 627, 635 (2007).

[37] See Samantha Mortlock, Standing on New Ground: Underenforcement of Animal Protection Laws Causes Competitive Injury to Complying Entities, 32 Vt. L. Rev. 273, 273-74 (2007).

[38] See Mortlock, 32 Vt. L. Rev. at 274 (citing Ringlings Buy Out Barnum & Bailey, N.Y. TIMES, Oct. 23, 1907 (“The purchase of the Barnum & Bailey Show gives the Ringling brothers practically a monopoly of the circus business in America.”).

[39] See Mortlock, 32 Vt. L. Rev. at 279.

[41] See World Wildlife Federation, World’s Largest Terrestrial Mammal Still Under Threat, available at http://wwf.panda.org/what_we_do/endangered_species/elephants/african_elephants/.

[42] See National Geographic, Chimpanzee, available at http://animals.nationalgeographic.com/animals/mammals/chimpanzee.html (last visited June 6, 2010).

[43] See id.

[44] See id.

[45] Jane Goodall and Steven M. Wise, Are Chimpanzees Entitled to Fundamental Legal Rights?, 3 Animal L. 61, 65 (1997).

[46] See National Geographic, Half of all primates threatened with extinction, available at http://blogs.nationalgeographic.com/blogs/news/chiefeditor/2010/02/primates-face-extinction.html (last visited June 6, 2010).

[48] See World Wildlife Federation, World’s Largest Terrestrial Mammal Still Under Threat, available at http://wwf.panda.org/what_we_do/endangered_species/elephants/african_elephants/.

[49] See Outtoafrica.com, Elephant, available at http://www.outtoafrica.nl/animals/engelephant.html.

[52] See id. at 144.

[53] See PETA, Ringling vs. reality, http://www.circuses.com/ringling.asp (last visited June 5, 2010).

[55] Vanishing Species, Tigers, http:// www.vanishingspecies.net/animals/details.php/000008/Tiger/Panthera/Tigris (last visited May 31, 2010).

[56] Tilden, 2 J. Animal L. at 143 (citing PETA, Factsheet: Ringling Brothers and Barnum & Bailey, available at www.circuses.com/pdfs/RinglingFactsheet.pdf).

[58] Compare Tilden, 2 J. Animal L. at 143 (providing an estimated population of 3,000 endangered Bengal tigers as of 2006), with Animal Corner, Bengal Tigers, available at http://www.animalcorner.co.uk/rainforests/bengaltiger_about.html (providing updated statistics evidencing a sharp decrease of up to 50% in the endangered tiger population as of 2010). A 2008 press release from WWF indicates that the captive population may be as high as 5,000 tigers in the U.S. alone (see Flawed U.S. Regulations Make Tigers in Captivity Vulnerable, New Report Shows, available at  http://www.worldwildlife.org/who/media/press/2008/WWFPresitem9758.html) (last visited June 17, 2010).

[59] See CBS News World, Rare Tigers Die in Russian Circus, available at http://www.cbsnews.com/stories/2009/12/24/world/main6018251.shtml (last visited June 5, 2010) (discussing deaths of seven endangered tigers who suffocated to death from exhaust fumes and died from cold-related ailments in temperatures below -30 degrees Fahrenheit after being left in circus trailer for 20 hours straight).

[62] Canadian Federation of Humane Societies, Wild Animals in Entertainment, http://cfhs.ca/wild/wild_animals_in_entertainment/ (last visited May 30, 2010).

[64] See id. at 129-30.

[65] See id. at 129-30.

[66] See, e.g., Animal Legal and Historical Center, District of Columbia consolidated dog laws, http://www.animallaw.info/statutes/stusdc8_1801_13.htm (last visited May 30, 2010).

[67] See, e.g., L.A.TIMES.COM, L.A. Unleashed: Lima, zebra that escaped Ringling Bros. circus in Atlanta, is euthanized, http://latimesblogs.latimes.com/unleashed/2010/03/lima-zebra-ringling-bros-circus-escape-euthanized.html (Mar. 19, 2010, 6:10 p.m. PST).

[68] Valerie Stanley, The Animal Welfare Act and USDA: Time for an Overhaul, 16 Pace Envtl. L. Rev. 103, 108 (1998).

[70] See id. at 100.

[71] See id. at 99.

[72] See id. at 99.

[73] See, e.g., Girgen, 9 Animal L. at 109 (discussing the history and differences of such customs among the peoples of India, Mexico, Malaysia, New Zealand and elsewhere, which resemble Biblical lex talionis (“eye-for-an-eye”) or modern day principles).

[74] See, e.g., R.C.W. § 16.30.020(i) (Washington State exemption from such provisions for circus animals).

[75] See, e.g., Matthew Liebman, Book Review, I Fought the Law: A Review of Terrorists or Freedom Fighters?: Reflections on the Liberation of Animals, Edited by Steven Best & Anthony J. Nocella II, 1 J. Animal L. 151, 167 (2005) (providing examples of some types of activism, including animal “activists” buying circus passes and destroying them to prevent others from attending).

[76] See 325 F.3d 412 (3d Cir. 2003).

[77] See 325 F.3d at 419.

[78] See Lee Hall, Examining Our Priorities: The Relationship Between National Security and Other Fundamental Values, 33 Vt. L. Rev. 689, 689-90 (2009).

[79] See Hall, 33 Vt. L. Rev. at 697.

[80] See id. at 697.

[82] See David Favre, Overview of U.S. Animal Welfare Act.

[83] See Animal Law Coalition, Bolivia Bans Use of Animals in Circuses, available at http://www.animallawcoalition.com/wildlife/article/1002 (last visited May 31, 2010) (citing 9 C.F.R. §§ 1.1, 2.4, 2.131, 3.128).

[84] See Animal Law Coalition, Bolivia Bans Use of Animals in Circuses, available at http://www.animallawcoalition.com/wildlife/article/1002 (last visited May 31, 2010).

[85] See id.  For an excellent, highly detailed and comprehensive overview of the Animal Welfare Act and its provisions on circus and other animals that cannot be appropriately done justice here, please see Professor David Favre’s article entitled Overview of U.S. Animal Welfare Act.

[86] See Gary L. Francione, Animals, Property and Legal Welfarism: “Unnecessary” Suffering and the “Humane” Treatment of Animals, 46 Rutgers L. Rev. 721, 767 (1994).

[87] For an excellent and more detailed overview of the U.S. Endangered Species Act, see David S. Favre, Overview of the U.S. Endangered Species Act.

[89] To “take” an animal under the ESA means to act in a way that adversely affects an endangered species, including to harass, harm or otherwise mistreat a listed endangered animal.  See 16 U.S.C. § 1538(a)(1)(B).

[90] “The captive-bred wildlife registration system was implemented by the U.S. Fish and Wildlife Service to decrease Federal permit requirements for captive-born, exotic, endangered and threatened wildlife.  Under the system, otherwise prohibited activities can occur when the prohibited activities can be shown to enhance propagation or survival of the affected species, provided the principal purposes is to facilitate captive breeding.”  U.S. Fish & Wildlife Service, Captive-bred Wildlife Registration under the U.S. Endangered Species Act, available at http://www.fws.gov/international/pdf/reg.pdf (last visited June 13, 2010).

[91] See id.  However, this showing could be difficult to make, since harming, killing or otherwise “taking” an endangered species seems to counter propagation and survival.  Fortunately for the defendants, plaintiffs’ claims dismissed before a determination on the merits could be made.

[93] See Convention on International Trade in Endangered Species of Wild Fauna and Flora, How CITES works, http://www.cites.org/eng/disc/how.shtml (last visited June 6, 2010).

[94] See id.

[96] States exempting circus animals from their state laws or regulations, are: Alabama, Code of Ala. § 9-11-328; Arizona, A.A.C. § R12-4-407Arkansas, 002 00 CARR 001; Florida, Fla. Stat. § 379.3761; Minnesota, Minn. Stat. § 346.155; Texas, Tex. Health & Safety Code §822.102 (except circus animals involved in a quarantine for ticks in which case a permit indicating they have been inspected and treated must accompany them throughout the state, Tex. Agric. Code §§ 167.026, .027); KansasK.S.A. § 32-1308; K.A.R. § 115-20-4; Indiana, Ind. Code § 14-22-26-1;-3; 12 IAC 9-10-20; Maine, 12 M.R.S. § 10001 ; Michigan, MCLS § 287.1122; Maryland, Md. HEALTH-GENERAL Code  § 18-219;  Md. CRIMINAL LAW Code § 10-621; Minnesota, Minn. Stat. § 97A.041; Minn. R. 1715.0020, 6244.2200, 6244.2400; Mississippi, Miss. Code § 49-8-7; CMSR 19-000(circus must apply for exemption from permitting requirements); Missouri, V.A.M.S. §578.023; Nebraska, R.R.S. Neb. §54-2305; Nevada, NAC 504.486; Illinois,720 ILCS 585/1 (though escape proof enclosures are required); Oklahoma, 29 Okl. St. §4-107.1; Iowa, Iowa Code §§717F.1, 717F.7 (as long as the circus obtains a permit from the city where the performance is held); Wisconsin, Wis. Stat. §169.04; Pennsylvania, 34 Pa. Const. Stat. 2965(nationally recognized circus); South Carolina, S.C. Code §50-16-40; Virginia, 4 Va. Admin. Code §15-30-40 (as long as Dept. of Game and Inland Fisheries is notified of the circus); Washington, WA Rev. Code §16.30.020. 

[97] See Animal Law Coalition, Bolivia Bans Use of Animals in Circuses, available at http://www.animallawcoalition.com/wildlife/article/1002 (last visited May 31, 2010).

[99] Id.

[100] Ellen P. Goodman, Book Review, A Review of Animal Rights: Current Debates and New Directions (Cass R. Sunstein & Marth C. Nussbaum eds., Oxford University Press 2004), 79 Temp. L. Rev. 1291, 1313 (2006).

[101] See, e.g., Animal Legal Defense Fund v. Quigg, 932 F.2d 920, 925 (Fed. Cir. 1991) (denying standing to animal advocates bringing claims of animal cruelty) (cited in Goodman, 79 Temp. L. Rev. at 1311, n. 139).

[102] See, e.g., Animal Legal Defense Fund v. Glickman, 204 F.3d 299 (D.C. Cir. 2000) (case in which an animal relief worker litigated for nine years to establish standing, succeeding only to lose on the merits) (cited in Goodman, 79 Temp. L. Rev. at 1313, n. 149).

[104] Queensland Government, Queensland code of practice for the welfare of animals in circuses, available at http://www.dpi.qld.gov.au/4790_6218.htm (last visited May 31, 2010). 

[105] See Association Against Animal Factories, Animal Law: What VGT has Achieved in Austria!, available at http://www.vgt.at/publikationen/texte/artikel/20071211AustrianLaw/index_en.php#circus.

[106] Associated Press, Guardian.co.uk, Bolivia bans all circus animals, http://www.guardian.co.uk/world/2009/jul/31/bolivia-bans-circus-animals (July 31, 2009, 12:24 GMT) (last visited May 31, 2010).

[107] Id.

[108] Id.

[109] Id.

[110] Id.

[111] See Brazil Federal Decree on Anti-Cruelty No. 24,645 (July 10, 1934), available at http://www.animallaw.info/nonus/administrative/adbrfeddec_24_645.htm.

[112] See Tilden, 2 J. Animal L. at 151 (citing Leslie Bisgould, Wildlife in Captivity: An Examination of Legal Requirements in Canada and Around the World, ZOOCHECK CANADA, Feb. 2000).

[113] See id.

[114] See id.

[115] See id.

[116] Id.

[117] See id.

[118] Id. at 152.

[119] Id.

[120] Id.

[121] See Tilden, 2 Animal L. J. at 152-53 (citing Standards for Exhibiting Circus Animals in Nova Scotia, cl. §§ 1-17).

[122] Id. at 153.

[123] See Animal Legal and Historical Center, Animal Law in China.

[124] See id.

[125] Europa, Action plan on animal welfare 2006-2010, available at http://europa.eu/legislation_summaries/food_safety/animal_welfare/f82003_en.htm (last visited May 31, 2010).

[126] See Tilden, 2 J. Animal L. at 148-49 (discussing the exotic animal legislation scheme in India).

[127] See id. (citing THE INDIAN ZOO INQUIRY: A REVIEW OF CONDITIONS IN THE ZOOS OF INDIA 14 (Compassionate Crusaders Trust & Zoocheck eds., 2004), available at http:// www.zoocheck.com/programs/zoocheck/Indianreport1.pdf (last visited June 6, 2010).

[129] See Alliance for Animal Rights, Circuses, available at http://allianceforanimalrights.webs.com/circus.htm.

[130] See The Irish Society for the Prevention of Cruelty to Animals, Exotic Animals, available at http://www.ispca.ie/Exotic-Animals.aspx.

[131] See Tilden, 2 J. Animal L. at 148 (citing European Council Directive 1999/22/EC on the Keeping of Animals in Zoos, available at http://www.consultationni.gov.uk/zoo.pdf).

[132] Paula Brosnahan, Essay, New Zealand’s Animal Welfare Act: What is its Value Regarding Non-Human Hominids?, 6 Animal L. 185, 186 (2000).

[133] Brosnahan, 6 Animal L. at 186 (citing Animal Protection Act, 1960 (N.Z.)).

[134] Id.  “For more information on the Animal Welfare Act 1999, see New Zealand Ministry of Agriculture and Forestry, The Animal Welfare Act--What Every Animal Owner Should Know http://www.maf.govt.nz/MAFnet/press/140200act.html (last visited Mar. 21, 2000).”  Brosnahan, 6 Animal L. at 189.

[135] Brosnahan, 6 Animal L. at 190 (citing Animal Welfare Act 1999 § 5 (N.Z.)).

[137] Brosnahan, 6 Animal L. at 191.

[138] See Live Kleveland Karlsrud, Norweyian Animal Law – on its way to rightfulness for animals?, available at http://www.animallaw.info/nonus/articles/arnokarlsrud2004.htm (last visited May 31, 2010).

[139] Id.

[140] Id.

[141] See Polish Animal Protection Act, Ch. 4, Art. 18 and Ch. 5, Art. 20 of OJ No. 111, Item 724 (1997); No. 106, Item 668 (1998).

[144] See id. at Art. 2.

[145] See Royal Society for the Prevention of Cruelty to Animals (RSPCA), Animals in circuses, available at http://www.rspca.org.uk/allaboutanimals/wildlife/captivity/circuses (last visited May 31, 2010).

[146] See id.

[147] See Department for Food and Rural Affairs, Wild animals in circuses, available at http://www.defra.gov.uk/foodfarm/farmanimal/welfare/act/secondary-legis/circus.htm (last visited May 31, 2010).

[148] Id.

[149] See Animal Law Coalition, Bolivia Bans Use of Animals in Circuses, available at http://www.animallawcoalition.com/wildlife/article/1002 (last visited May 31, 2010).

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