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Detailed Discussion of Great Apes under the Endangered Species Act



Hanna Coate


Animal Legal & Historical Center
Publish Date:
2011
Place of Publication: Michigan State University College of Law

Printable Version

 

I. Introduction to Great Apes Under the Endangered Species Act

The Endangered Species Act (ESA)[1] was enacted in 1973 to protect wildlife from extinction,[2] whether they are found in the United States or abroad, and to fulfill our treaty obligations as a signatory to the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES).[3] Much of the ESA is devoted to restricting the capture, killing, and habitat use of native species, and is not relevant to Great Apes, as their natural habitats are all outside of the United States. However, the ESA does provide some valuable protections to both wild and captive populations of apes. Wild and foreign captive populations of apes are protected primarily through international trade restrictions. Captive apes in the United States, of which there are currently about 3,000,[4] are protected not only through commercial trade and export restrictions, but also through the ESA’s “take” prohibition, which makes it illegal to harm, harass, wound, or kill those animals.

The ESA does not apply to all species of Great Apes equally; as a starting point, the level of protection that a species is afforded depends primarily on whether it is listed as “endangered,” or “threatened.”  While most apes are listed as “endangered” under the ESA, chimpanzees are listed as both “threatened” and “endangered,” depending on whether they are in captivity or in the wild, respectively. In addition to regulating whole species of apes differently based upon whether they are “endangered” or “threatened,” the ESA actually regulates individual animals of the same species differently. Certain rules apply to particular individuals differently depending on whether they are captive or wild, or located in the United States or abroad. Not only do the rules apply to entire species and individual animals differently, but they also apply to specific activities differently, depending on the purpose of the activity. For example, it may be generally illegal to import a particular ape, but that prohibition may not apply if the importation is for specific authorized purposes.

This paper first examines the historical listing of Great Apes under the ESA, including the “split listing” of chimpanzees. It then analyzes how the listing status of Great Apes limits their use in various situations such as private possession, scientific research, and entertainment. Finally, the paper discusses the applicable provisions of CITES that restrict the international trade in Great Apes.

 

II. Listing of Foreign Species Under the Endangered Species Act

Generally, the ESA directs the Secretary of the Interior[5] (who delegated implementation authority to the U.S. Fish and Wildlife Service)[6] to establish, by regulation,[7] a list of animals that are either “endangered,”[8] or “threatened,”[9] based upon “the best scientific and commercial data available to him [or her].”[10] Once added to ESA’s List of Endangered and Threatened Wildlife, each species is afforded varying degrees of protection against commercial exploitation and extirpation. As discussed below, the Act bans certain listed activities involving all “endangered” species, but permits otherwise prohibited activities for specific purposes. However, there is no list of prohibited activities for “threatened” species. Instead, the Fish and Wildlife Service (FWS) is required to determine whether and to what extent such activities should be allowed for each individual “threatened” species.  

 

A. Classification of Great Apes Under the Endangered Species Act

Gorillas,[11] orangutans,[12] and gibbons[13] have been listed as endangered since the enactment of the ESA on December 28, 1973.[14] Bonobos and chimpanzees were initially listed as threatened on October 19, 1976; however, when they were listed, FWS promulgated a special rule to exempt all captive populations of both species, and their progeny, from all ESA protections.[15] According to the Fish and Wildlife Service (FWS), “[t]his exemption was intended to facilitate legitimate activities of U.S. research institutions, zoos, and entertainment operations.”[16] Essentially, this meant that all captive chimpanzees and bonobos (whether in the United States or abroad) could be freely imported, exported, bought, sold, and “taken,” without restriction, under the ESA.

In 1990, because of the increasing risk of extinction faced by bonobos and chimpanzees, a listing of endangered was justified and their status was changed.[17]  However, the wholesale reclassification of all chimpanzees as endangered would inevitably impose restrictions on U.S. research institutions, zoos, and entertainment operations, which collectively had a “substantial commercial demand” for such animals.[18] Therefore the Secretary took the unusual approach of creating a “split listing.” Essentially, captive chimpanzees retained their “threatened” status and all wild populations were listed as endangered. For more on this, see Section 3 on the split-listing of chimpanzees.

 

B. Consequences of “Endangered” Status for Great Apes

The ESA generally makes it illegal for any “person”[19] to import,[20] export, “take,”[21]  or conduct any interstate or foreign commercial transactions[22] involving the transfer of ownership of “endangered” Great Apes.[23] How these prohibitions apply to a particular animal depends largely upon whether he is located within the United States or abroad. If the animal is in a foreign country, it is illegal for any person to import him into the United States for any reason. Likewise, it is illegal for a person that is either within the United States, or that is abroad but subject to the laws of the United States, to participate in a transaction involving the sale of that animal (meaning: buy, sell, broker a sale, or transport the animal to facilitate a sale).

If, on the other hand, an ape is already within the United States, it is illegal to export him out of the United States for any reason,[24] or for the resident of one state to participate in a transaction involving the sale of that animal to a person in another state or in another country.[25] Although entirely unrelated to the commercial trade in Great Apes, the ESA actually regulates the treatment of endangered apes within this country by making it illegal to “take” such animals.[26] Although the traditional notion of “taking,” usually refers to the killing of wild animals, the definition of “taking” within the ESA includes any activity that harasses, harms, wounds, or kills any captive or wild animal.[27] As a result, it is illegal to maintain captive Great Apes in inadequate, unsafe or unsanitary conditions, or to physically mistreat, injure, or kill them.[28] Not only is it illegal to engage in any activity that constitutes the illegal “take” of a Great Ape, but it is also illegal to possess or transport any animal that has been the victim of such conduct. [29] 

 

C. Exceptions to “Endangered” Species Protections

At first blush, the ESA would appear to provide substantial protections for all endangered Great Apes. However, as mentioned previously, the act applies to individual animals of the same species differently. Some animals may be exempt from the regulations entirely, depending on whether they were: (1) held in captivity on the date of listing;[30] or (2) bred in captivity in the United States since the date of listing.[31] Also, any of the otherwise prohibited activities may be authorized by FWS for certain purposes, pursuant to an endangered species permit.

1. Exemptions for Certain Captive Apes

a. Pre-Act Wildlife Exemption:[32]

If a particular ape was held in captivity for noncommercial[33] purposes at the time of listing, he is considered “pre-act wildlife.” It is legal to import or export such an animal for any “noncommercial” purpose, including activities that will result in financial gain for the holder (e.g. circus exhibition of an ape), as long as the animal is not purchased or sold for compensation (as this would be considered a “commercial” activity).[34] On the other hand, it is legal to transfer ownership of the animal as long as the transaction does not involve payment of any kind (e.g. the ape is a gift or donation). [35] Also, it is legal to temporarily transfer physical possession of such animals (e.g. loan of an ape from one zoo to another for exhibition or breeding).[36] It is important to note that the pre-act wildlife designation applies only to those animals that were alive and in captivity at the time of listing; it does not extend to their offspring, who are fully protected as endangered species under the Act. Although this exemption applies to gorillas, orangutans, and gibbons that were alive in 1973, and to bonobos that were alive in 1990, certain species of Great Apes can live up to 60 years in captivity, so this exemption will remain relevant for those animals for several more decades.

b. Captive-Bred Wildlife Exemption:

This exemption was created to facilitate the breeding of wildlife that are born and held in captivity in the United States. Essentially, it creates a registration system whereby registrants can lawfully: (1) “take,” (including euthanize or “cull”); (2) export and re-import; and (3) sell their captive-bred apes, as long as such activities are to “enhance the propagation or survival of the affected species.”[37] Whether a particular activity enhances the survival or propagation of the species is ultimately determined by FWS on a case-by-case basis. However, certain activities including public exhibition and holding and maintenance of “surplus” apes (meaning those not immediately needed for scientific research or breeding) are generally acceptable uses. On the other hand, the registration may not be issued or used to sell endangered Great Apes as pets. Any person that wishes to become registered may do so by submitting a written application to FWS.[38] Applications are evaluated based upon standardized issuance criteria[39] and a consideration of whether the expertise, facilities, or other resources available to the applicant appear adequate to enhance the propagation or survival of the affected wildlife.[40] Each registrant must submit an annual report of activities involving each registered species, including all births, deaths, and transfers of any type.

2. Endangered Species Permits

FWS’s International Affairs Division of Management Authority[41] may issue “endangered species permits” which authorize a permittee to import, export, sell in interstate or foreign commerce, or “take” either captive or wild-caught Great Apes for the following purposes:[42] (1) scientific research; or (2) to enhance the “propagation or survival”[43] of the species.[44] All permit applications must be published in the Federal Register, and FWS must invite and consider all public comments prior to the issuance of any such permit. [45]

Whether an otherwise prohibited activity may be permitted, pursuant to either an exemption or an endangered species permit, depends largely upon: (1) the person or entity seeking to engage in the activity; and (2) the purpose for the activity. In the U.S., the most common “consumers” of Great Apes have historically been private individuals that keep exotic pets, entertainment companies and zoos that exhibit exotic animals, and scientific research facilities that use them for experiments. Section 4 discusses the general ESA rules and exemptions as applied to those various “consumers.”

 

III. “Threatened” Chimpanzees: How the Split-Listing Affects Chimpanzees

While the ESA expressly prohibits certain activities involving “endangered” species,[46] it does not do the same for “threatened” species, which includes all captive populations of chimpanzees. When a species is listed as “threatened” by the FWS, it triggers a statutory duty of the Secretary to issue regulations that promote the conservation of the species. In most cases, those regulations prohibit the same activities as the endangered species rules, but expand the list of purposes for which a permit may be issued to conduct those activities.[47] In the case of captive chimpanzees, FWS promulgated a special rule that extends different levels of legal protection to captive chimpanzees according to the animal’s country of origin since the implementation of the rule.

Group A:  Country of Origin, United States:  There are no restrictions on the import, export, take, or interstate or foreign sales of: (1) chimpanzees that were already in the United States as of October 19, 1976; and (2) all chimpanzees born in the United States since then, regardless of whether their parents were captive-bred or wild-caught.[48] For example, a chimpanzee that was born in the United States in 1993 to parents that were imported from Sierra Leone in 1989 would be unregulated by the ESA, while his parents would continue to be regulated under the ESA for the remainder of their lives (see their legal status in Group C, below).

Group B: Country of Origin, Historic Range: Because of the difficulty in determining whether a captive chimpanzee that comes from his or her historic range was actually born in captivity or was taken from the wild, and to discourage the latter, this group is afforded the highest level of protection available under the ESA.[49] Therefore, it is illegal to import, export, “take,” or sell in interstate or foreign commerce any chimpanzee that either: (1) is currently in captivity in any of the following historic range countries: Angola, Benin, Burkina Faso, Burundi, Cameroon, Central African Republic, Congo, Cote d'Ivoire, Equatorial Guinea, Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Nigeria, Rwanda, Senegal, Sierra Leone, Sudan, Tanzania, Togo, Uganda, and Zaire; (2) originated from any of those countries after March 12, 1990, regardless of his or her present location; or (3) is the foreign-born progeny of any chimpanzee described in (1) or (2). As with their wild (and “endangered”) counterparts, FWS may issue a permit to import, export, “take,” or conduct an international or interstate sale involving any Group B chimpanzee, for the following purposes: (1) scientific research; or (2) enhancement of propagation or survival of the species.[50]

Group C: Country of Origin, Other Foreign Country (Either Not Historic Range Country, or from Historic Range Country Prior to Regulations): This last group includes all captive chimpanzees in the United States that were imported from any foreign country between October 19, 1976 and March 12, 1990, as well as chimpanzees that have been imported since then but that that were not imported from, and did not originate from, a home range country since 1990. Also included within this group are all chimpanzees that are currently residing in any foreign country that is outside of their home range, and that were either removed from their home range prior to March 12, 1990, or are the progeny of such animals. As with all chimpanzees of foreign origin, it is illegal to import, export, take, sell, or conduct an international or interstate sale of such animals. However, FWS may issue a permit to conduct any of those activities for the following purposes: (1) scientific research; (2) enhancement of propagation or survival of the species; (3) zoological exhibition; (4) educational purposes; or (5) special purposes consistent with the purposes of the Act.[51]

While the rules governing captive chimps can be a somewhat confusing as applied, it may help to consider those rules more generally. Chimpanzees in Group A are not regulated by FWS at all. No permits are required by FWS to breed, sell, or transport those animals; however, other federal, state, and local laws govern the import, possession, use, and treatment of those animals. Although the chimpanzees in Group B are listed as “threatened” under the ESA, they are regulated the same as endangered animals because FWS wants to ensure that chimpanzees are not taken from the wild and labeled as captive bred. So, a permit is required to import, export, “take,” and sell those animals both interstate and internationally, and such permits are issued for very limited purposes only. Finally, the chimpanzees in Group C are regulated according to the standard regulations for threatened species; a permit is required to import, export, “take,” and sell those animals both interstate and internationally, but permits are issued for a wider variety of purposes than those for endangered animals. The attached chart provides a visual guide for determining the rules that apply to captive chimpanzees based upon their present location and country of origin.

 

IV. Private Possession of Great Apes

 From the plain language of the ESA, certain activities involving Great Apes are closely regulated. However, it is not always clear whether, and to what extent, the Act prohibits or allows certain activities involving specific animals, for a particular purpose. It is generally a three-part analysis to determine: (1) the general prohibitions that apply to the species as a whole; (2) whether individual animals are exempt from those prohibitions; and (3) whether an otherwise prohibited activity may be permitted pursuant to a permit. This section analyzes how the Act regulates the ownership of Great Apes as pets, and their use in scientific research and for entertainment purposes.

 

A. Private Possession of Great Apes as Pets  

According to FWS “[u]sing protected species as pets is not consistent with the purposes of the Act;”[52]  however, the agency allows the exotic pet trade in certain captive-bred chimpanzees to continue entirely unregulated. Pursuant to agency regulations, any person can buy, sell, or breed any “threatened” captive chimpanzee that originated in the United States for use as a pet, or for any other purpose. Otherwise, to the extent that it can, the ESA prohibits the possession, sale, or breeding of all other Great Apes (including “threatened” chimpanzees of foreign origin) for use as pets. In fact, there is almost no way for a private individual to legally procure such an animal as a pet, unless: (1) the animal was held in captivity on the date of listing under the ESA, and the transfer of ownership does not involve compensation, monetary or otherwise; or (2) the transaction is purely “intrastate”[53] (meaning it takes place entirely in one state by residents of that state), and is not otherwise proscribed by the ESA.

Based on the Act, a person who had a gorilla, orangutan, or gibbon in 1973 (or a bonobo in 1990) could keep the animal as a pet. That same person could either give the animal away to anyone in the United States or abroad, or could sell the animal to anyone within his or her state of residence. The same rules apply to all successive owners. On the other hand, it would not be legal for a seller to import a protected ape or even transport him across state lines for the purpose of selling him as a pet because a permit would be required for such activities and FWS does not issue permits for the use of Great Apes as pets. Also, it would not be legal for a person who is registered with FWS, pursuant to the captive-bred wildlife exemption, to breed and sell endangered Great Apes as pets.

 

B. Possession by Scientific or Biomedical Research Facilities

 Scientific Research (Biomedical Research): Pursuant to agency regulations, any person can buy, sell, or breed any “threatened” captive chimpanzee that originated in the United States for use in biomedical research, or for any other purpose. Activities involving such animals are entirely unregulated by the ESA.  Otherwise, biomedical research facilities may obtain, maintain, breed, and “take” other endangered Great Apes pursuant to the captive-bred wildlife exemption, as long as the research “enhances the propagation or survival of the species.” In terms of biomedical research, this stipulation has been satisfied where, for example, the apes are used in experiments involving diseases that affect both humans and apes or that are transmissible from ape to human or vice versa.  Alternatively, FWS may issue “scientific research” permits, which authorize the importation, international or interstate sale, and/or “take” of captive or wild Great Apes for “scientific research.” However, legal, social, political, and scientific pressure generally discourage the issuance of such permits to import or “take” whole live animals for biomedical research (such permits are routinely issued for the acquisition of cell cultures and other biological samples from endangered animals). Applications for scientific research permits are heavily scrutinized, both by FWS and by the public.[54] To qualify for such a permit, the applicant must show, among other things, that: (1) the research would directly benefit the species involved; and (2) the purpose of the research is adequate to justify removing an animal from the wild (if applicable).[55] 

As a practical matter, the ESA has not hindered the availability of biomedical research subjects within the U.S. Most institutions use the unregulated captive chimpanzees or other apes that qualify for the “captive-bred wildlife” exemption. The availability of captive-bred research subjects has not historically been a problem, in fact in the mid-1980’s chimpanzees were extensively bred for research, which led to a surplus of those animals.[56] By the mid-1990’s, it had become evident that the chimpanzees that are bred for and used in scientific research are extremely expensive and difficult to maintain.[57] A 1995 report published by the Institute for Laboratory Animal Research (ILAR) estimated that at the time there were 1,447 captive chimpanzees in biomedical research facilities throughout the U.S., and that it would cost $3.14 billion dollars to maintain those animals in captivity for the remainder of their lives.[58] Because of the high cost of maintaining chimpanzees and relative lack of suitable retirement facilities, the National Institutes of Health has stopped breeding chimpanzees for research purposes.[59] As a result of the now-permanent NIH breeding moratorium and the release of some chimpanzees to retirement sanctuaries, the number of available research subjects had dropped to 1133 by 2006.[60] As the population of available biomedical research chimpanzees continues to decline, and without federal funds to breed and maintain new animals, it is unclear how the biomedical research industry intends to meet its own demand for research subjects in the coming years. 

 

C. Possession of Great Apes for Entertainment Purposes 

Zoos, circuses, amusement parks, and other exhibitors or entertainers that use animal acts and animal actors have a variety of options for legally obtaining, transporting, and exhibiting Great Apes pursuant to the ESA. First, any person can buy, sell, breed and exhibit any “threatened” captive chimpanzee that originated in the United States, such activities are entirely unregulated under the ESA. Also, FWS may issue a permit allowing such entities to import, export, purchase, and transport captive chimpanzees that did not originate in the United States or a historic range country (for more information on this distinction, see Section 3 on the split listing of captive chimpanzees). In addition, many circuses and zoos are registered with FWS pursuant to the captive-bred wildlife exemption which allows them to breed, buy, sell, transfer, and transport captive bred Great Apes. Another source of apes for these entities are unwanted pets; many people that acquire baby and juvenile apes as pets are unable or unwilling to care for them as they age. The ESA allows the interstate transfer of ownership those animals to such entities, as long as such transfer is a gift, donation, or even a temporary loan, not involving compensation.[61] Finally, FWS may issue a permit authorizing such entities to acquire, import, export, transport, and “take” captive or wild endangered Great Apes, to enhance the “propagation or survival” of the species.[62] As with the “scientific research” permits, applications for these permits are subject to a great deal of scrutiny by FWS and the public, and are not issued very often, particularly where the applicant intends to remove an animal from the wild.[63]

 

V. Implementation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora Through the Endangered Species Act

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)[64] is a multilateral treaty to protect endangered animals from over-exploitation through international trade.[65] There are currently 175 member countries (or “Parties”) that collectively regulate and monitor the global trade in wildlife, largely through a permit system. Each Party to the treaty must enact legislation governing the import and export of protected species, develop a CITES permitting system, enforce CITES-related laws and regulations, impose penalties for noncompliance, and submit periodic reports to the CITES Secretariat. The ESA is the statutory mechanism by which Congress fulfills its legislative obligations under CITES,[66] and FWS is responsible for implementing and enforcing those treaty provisions.[67] The agency issues permits to import, export, and re-export CITES-listed animals, including Great Apes; inspects international shipments; and investigates allegations of illegal wildlife trade.[68] According to the CITES Secretariat, “[t]he amount of legal trade in great apes is very limited and it is the illicit trade for the purposes of bushmeat, the exotic pet trade and the unlawful acquisition by ‘zoos’ or places of entertainment that poses the greatest threat.”[69]

All gorillas, chimpanzees, orangutans, bonobos, and gibbons[70] are listed as Appendix I species[71] under CITES, which means that all Parties agree that they are endangered, and are further threatened by international trade. As a result, Great Apes receive the highest level of international protection available under the treaty.[72] It is illegal to import, export, or engage in the international trade of such animals, except under “exceptional circumstances” (meaning pursuant to a CITES permit or an exemption).[73] Generally, when a Great Ape is imported or exported, he must be accompanied by an export permit issued by the exporting country[74] (or a re-export certificate, if applicable[75]) and an import permit[76] issued by the importing country. The permits are meant to ensure that the ape was not obtained illegally in the exporting country, and that once imported, he will not be used for purposes that are (1) primarily commercial,[77] or (2) detrimental to the survival of the species.[78] Each import permit application is evaluated by FWS to ensure that it the proposed use of the ape meets those requirements[79] and to ensure that the applicant is suitably equipped to house and care for a live ape.[80] As a condition of the permit, all permittees must comply with all federal, state, local and foreign wildlife laws. In addition, CITES imposes minimum requirements for the humane transport of apes. All permittees must comply with the CITES' Guidelines for transport and preparation for shipment of live wild animals or the International Air Transport Association Live Animals Regulations, depending on whether the apes are shipped by “surface” (land or sea) or by air, respectively.  

CITES permits are not always required to import or export Great Apes. In fact, FWS issues a variety of certificates that authorize the holder to import and export listed animals without permits. A “pre-Convention” certificate exempts animals that were held in captivity at the time of listing from the CITES permit requirements.[81] Gorillas, chimpanzees, bonobos, orangutans, and gibbons were all listed on January 7, 1975,[82] so the pre-Convention exception applies to all Great Apes that were alive and in captivity on that date. Also, apes that are bred in captivity for non-commercial purposes or that are part of a traveling exhibition qualify for a “bred-in-captivity” certificate.[83] Finally, traveling exhibitions that use bred-in-captivity or pre-Convention apes may freely import and export those animals pursuant to a “traveling-exhibition” certificate.[84]

Although all Great Apes are listed under Appendix I of CITES as being among the most vulnerable species, and the international trade in such animals is limited to “exceptional circumstances,” they still may be imported, exported, and internationally traded for limited purposes. However, CITES allows all Parties to enact stricter domestic restrictions on such activities, which the U.S. has done under the ESA. So, although a person may be allowed to import an ape pursuant to a CITES permit or exemption, he or she must additionally qualify for and receive an endangered species permit (or qualify for an exemption), which may not always be possible because certain provisions of the ESA are more restrictive than the CITES regulations.

 

VI. Conclusion 

While the ESA is one of many federal laws that protect Great Apes in the United States, it is the only one that addresses the impact that the import, possession, and use of those animals has on their severely depleted wild populations. As a historically large “consumer” of apes, the U.S. demand for those animals has the potential to significantly impact their ultimate survival or extinction.[85] The ESA has been quite successful in restricting the import, export, “take,” and international and interstate sales of wild-caught Great Apes. Unfortunately, it has not abated the domestic demand for those animals. The people and industries that are determined to use Great Apes as pets, scientific research subjects, or for commercial purposes continue to do so, both legally (through permits or exemptions) and illegally.[86] However, since the passage of the ESA most of the Great Apes that are legally used for such purposes are captive bred. So, although the question of whether they should be possessed and used for such purposes remains a matter of public and political debate, the ESA helps to ensure that the lingering domestic demand for those animals no longer threatens their survival in the wild.



[2] Many people feel that we must protect other species because they have an intrinsic right to exist on our planet, whether or not they provide economic benefits or are beautiful to look at. This perspective has been argued eloquently by the conservative former New York Senator James Buckley, who said the act, “represents a quantum jump in man’s acknowledgment of his moral responsibility for the integrity of the natural world.” Citizens’ Guide to the Endangered Species Act (Sarah Matsumoto et al. eds., 2003), available at http://www.earthjustice.org/sites/default/files/library/reports/Citizens_Guide_ESA.pdf (last visited Oct. 26, 2010).

[3] 16 U.S.C.A. § 1531; 16 U.S.C.A. § 1537a; The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) met in February 1973, with 80 countries in attendance. Under its provisions, a centralized international body would regulate the commercial trade of listed species among the member-states. The United States had signed (March 3, 1973), but had not yet ratified the Convention when the ESA was enacted; however, one of the express objectives of the ESA was to provide a means for the implementation of CITES when the treaty was ratified. S. Rep. No. 93-307 (1973). The United States is a party to a variety of other treaties for the regional and global preservation of endangered and threatened species, which are also addressed by certain provisions of the ESA. 16 U.S.C.A. § 1531.

[4] http://www.personhood.org; According to one source, there are currently 300 western lowland gorillas, 350 chimpanzees, 250 orangutans, and 71 bonobos in U.S. zoos. http://williamcalvin.com/teaching/bonobo.htm.

[5] Hereinafter, “Secretary.”

[6] The Secretary of Commerce shares regulatory authority with the Secretary of the Interior; that responsibility has been delegated to the National Marine Fisheries Service. However, the role of the Secretary of Commerce is not discussed herein, as it is not relevant to the protection of Great Apes.

[7] A species is eligible for listing if its continued existence is jeopardized by at least one of the following factors: (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) over-utilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or man-made factors affecting its continued existence. 16 U.S.C.A. § 1533. Pursuant to 5 U.S.C.A. § 533, any interested person may submit a petition to add a species to, or remove a species from, either the “endangered” or “threatened” species list. 16 U.S.C.A. § 1533. According to FWS, the majority of listed species originated through the petition process. U.S. Government Accountability Office. Endangered Species Act: Types and Numbers of Implementing Actions, GAO/RCED-92-131BR. Washington, DC: Government Accountability Office, 1992, available at http://archive.gao.gov/d32t10/146775.pdf (last visited October 23, 2010); See e.g., 53 Fed. Reg. 9460 (discussing the November 4, 1987 petition submitted by the Humane Society of the United States, the World Wildlife Fund, and the Jane Goodall Institute requesting that the classification of the chimpanzee (Pan troglodytes) on the List of Endangered and Threatened Wildlife be changed from threatened to endangered).

[8] The term “endangered species” means any species which is in danger of extinction throughout all or a significant portion of its range. 16 U.S.C.A. § 1532.

[9] The term “threatened species” means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. 16 U.S.C.A. § 1532.

[10] 16 U.S.C.A. § 1533.  In developing the list of “endangered” and “threatened” species, the Secretary shall give consideration to species which have been (i) designated as requiring protection from unrestricted commerce by any foreign nation, or pursuant to any international agreement (i.e. CITES); or (ii) identified as being in danger of extinction, or likely to become so within the foreseeable future, by any state agency or by any agency of a foreign nation that is responsible for the conservation of fish or wildlife or plants. Id.

[11] 50 C.F.R. § 17.11; 35 Fed. Reg. 8491; See infra note 14 (discussing the predecessor to the ESA, which listed gorillas, orangutans, and gibbons as “endangered”).

[12] Id.

[13] Id.

[14] Prior to the enactment of the Endangered Species Act, the 91st Congress enacted Public Law 91-135 (83 Stat. 275), known as the Endangered Species Conservation Act of 1969 (ESCA). This law authorized the Secretary of the Interior (Secretary) to develop a list of species of animals that faced extinction globally, and to prohibit the importation of such animals or their body parts. Gorillas, orangutans, and Bonobos had all been listed as “endangered” under the ESCA and their listing status carried over to the ESA upon its implementation.

[17] The most reliable population estimates indicated that only about 15,000 individual bonobos remained in the wild, and chimpanzees had been entirely extirpated from 5 of the 25 countries in which they originally occurred, and were facing an increasing risk of extinction in the remainder of their range. There were fewer than 1,000 individuals in 10 other countries, fewer than 5,000 in 6 others, and fewer than 10,000 in 2 of the remaining 4 countries. 55 Fed. Reg. 9129-01.

[18] Id. At that time, FWS estimated that at least 200 captive chimpanzees were kept as pets and for commercial purposes, and that 1,100 to 1,450 chimpanzees were held by biomedical facilities in the U.S. Id.

[19] The term “person” means an individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision of a State, or of any foreign government; any State, municipality, or political subdivision of a State; or any other entity subject to the jurisdiction of the United States. 16 U.S.C.A. § 1532.

[20] The term “import” means to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of the United States, whether or not such acts constitute an importation within the meaning of the customs laws of the United States. 16 U.S.C.A. § 1532.

[21] The term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. 16 U.S.C.A. § 1532.

[22] The ESA does not prohibit strictly intrastate sales (meaning “commercial activities” that “take place entirely within one State by State residents”)  of “endangered” Great Apes, as long as such sales do not involve other prohibited activities. U.S. Fish & Wildlife Service, Endangered Species Act: Permits for Non-native Species or Import and Export of Non-native and Native Species, available at http://www.fws.gov/international/DMA_DSA/pdf/esa.pdf (last visited Oct. 17, 2010); See also, United States v. Kepler, 531 F.2d 796, 797 (6th Cir. 1976).

[24] See e.g., U.S. v. Bernal, 90 F.3d 465 (11th Cir. 1996) (defendants were convicted of multiple violations of the ESA and the Lacey Act for attempting to export two endangered Great Apes, a gorilla and an orangutan, from the United States to Mexico).

[25] U.S. v. Kepler, 531 F.2d 796 (6th Cir. 1976) (defendant violated the ESA where he illegally transported an endangered leopard from Florida to Kentucky for commercial purposes without a permit).

[26] See e.g., U.S. v. Kapp, 419 F.3d 666 (7th Cir. 2005) (defendant was convicted of multiple ESA violations for shooting captive endangered tigers and leopards while they were trapped in cages, and then selling their meat, skins, and other parts).

[27] See e.g., Am. Soc. for Prevention of Cruelty to Animals v. Feld Entm't, Inc., 677 F. Supp. 2d 55 (D.D.C. 2009) (citizen-suit alleging violation of the ESA’s prohibition on “taking” of endangered species by a circus that used bullhooks and chained endangered elephants for prolonged periods).

[28] 63 Fed. Reg. 48634 (September 11, 1998); 50 C.F.R. § 17.3; See e.g., 71 Fed. Reg. 28881 (notice of receipt of application by Yerkes National Primate Research Center to amend an endangered species permit to authorize the lethal “take” of endangered monkeys through scientific experiments and euthanasia for the purpose of “enhancement of survival of the species”).

[30] The time of listing is either December 28, 1973 (if the animals were included on the original endangered species list), or on the date of publication in the Federal Register of a final regulation designating a species as “endangered.” 16 U.S.C.A. § 1538.

[32] 16 U.S.C.A. § 1538; The terms of 16 U.S.C.A. § 1538 and FWS’s regulation implementing the pre-act wildlife exemption, 50 C.F.R. § 17.4, are contradictory in that the former limits the exemption to certain otherwise prohibited activities, while the latter extends the exemption to all otherwise prohibited noncommercial activities. This inconsistency exists because the ESA, as originally enacted in 1973, included a blanket “pre-act wildlife” exemption, which the regulation is based upon. However in 1982, Congress amended 16 U.S.C. § 1538(b)(1), to remove the exemption for prohibitions described in 16 U.S.C. §§ 1538(a)(1)(B) – (a)(1)(F), namely, the prohibitions on “taking” endangered species; possessing, selling, delivering, carrying, transporting, or shipping illegally taken species; and the prohibitions on interstate and foreign commercial activity involving such animals. The regulation was never amended to reflect the 1982 statutory changes. At least one court has held that as a result, 50 C.F.R. § 17.4 is unlawful to the extent that it conflicts with the plain language of 16 U.S.C. § 1538(b)(1). ASPCA v. Ringling Brothers and Barnum & Bailey, 502 F.Supp.2d 103 (D.D.C.2007); In interpreting the pre-act wildlife exemption, the author relies on the language of 16 U.S.C.A. § 1538.

[33] The term “commercial activity” means all activities of industry and trade, including, but not limited to, the buying or selling of commodities and activities conducted for the purpose of facilitating such buying and selling; provided, however, that it does not include exhibition of commodities by museums or similar cultural or historical organizations. 16 U.S.C.A. § 1532; In promulgating regulations under the ESA, FWS has defined the phrase “[i]ndustry or trade” in the definition of “commercial activity” as, “the actual or intended transfer of wildlife or plants from one person to another person in the pursuit of gain or profit.” 50 C.F.R. § 17.3.

[34] 16 U.S.C.A. § 1538; See also, United States v. Clark, 986 F.2d 65 (4th Cir. 1983) (affirming a conviction for violations of 16 U.S.C. § 1538(a)(1)(F), despite defendants contention that the sale of endangered tiger skins was exempt under the “pre-act” wildlife exemption; the sale of the tiger skins was a “commercial activity,” and so not exempt, pursuant to the express terms of 16 U.S.C.A. § 1538(b)(1)).

[35] 16 U.S.C.A. § 1538; The ESA specifically states that the exemption applies to wildlife that is not used or held for any “commercial activity,” as defined in note 33.

[36] U.S. Fish & Wildlife Service, Permits for Native Species Under the Endangered Species Act, available at http://library.fws.gov/Pubs9/esa_permits_nativespecies02.pdf (last visited Oct. 17, 2010).

[37] The following activities, as applied to captive wildlife, “enhance the propagation or survival of the affected species:” (a) provision of health care, management of populations by culling, contraception, euthanasia, grouping or handling of wildlife to control survivorship and reproduction, and similar normal practices of animal husbandry needed to maintain captive populations that are self-sustaining and that possess as much genetic vitality as possible; (b) accumulation and holding of living wildlife that is not immediately needed or suitable for propagative or scientific purposes, and the transfer of such wildlife between persons in order to relieve crowding or other problems hindering the propagation or survival of the captive population at the location from which the wildlife would be removed; and (c) exhibition of living wildlife in a manner designed to educate the public about the ecological role and conservation needs of the affected species. 50 C.F.R. § 17.3; 50 C.F.R. § 17.21; 16 U.S.C.A. § 1539; U.S. Fish & Wildlife Service, Endangered Species Act: Permits for Non-native Species or Import and Export of Non-native and Native Species, available at http://www.fws.gov/international/DMA_DSA/pdf/esa.pdf (last visited Oct. 17, 2010).

[38] The captive wildlife registration application form is available online, at http://www.fws.gov/forms/3-200-41.pdf (last visited Oct. 17, 2010). Applications must include the following information: (i) the types of wildlife sought to be covered by the registration; (ii) a description of the applicant's experience in maintaining and propagating the types of wildlife sought to be covered by the registration, and when appropriate, in conducting research directly related to maintaining and propagating such wildlife; (iii) photograph(s) or other evidence clearly depicting the facilities where such wildlife will be maintained; and (iv) a copy of the applicant's license or registration, if any, under the animal welfare regulations of the U.S. Department of Agriculture (9 CFR part 2).

[39] 50 C.F.R. § 13.21(b).

[40] Public education activities may not be the sole basis to justify issuance of a registration or to otherwise establish eligibility for the captive-bred wildlife exception. 50 C.F.R. § 17.21(g).

[41] U.S. Fish & Wildlife Service International Affairs Division of Management Authority: 4401 N. Fairfax Drive, Room 700, Arlington, VA 22203. Phone: 703-358-2104 or 1-800-358-2104. Fax 703-358-2281. E-mail: managementauthority@fws.gov. URL: http://international.fws.gov, http://permits.fws.gov.

[42] Issuance of permits must be based upon a finding that: (1) exceptions were applied for in good faith; (2) the excepted conduct will not operate to the disadvantage of the affected species; and (3) issuance of a permit is consistent with the ESA’s purpose of conservation of endangered and threatened species and the policy of Congress to promote such conservation, as declared in 16 U.S.C.A. § 1531; 16 U.S.C.A. § 1539.

[43] See supra note 37 (list of activities that “enhance the propagation or survival” of endangered species).

[45] 16 U.S.C.A. § 1539; 50 C.F.R. § 17.22; The U.S. Fish and Wildlife Service Federal Register documents are available online, at http://www.fws.gov/policy/frsystem/default.cfm. Unfortunately, there is no database for the public to access information about specific permittees, to verify whether an individual or facility has an endangered species permit, or to research the scope of activities that are considered either “scientific research” or enhancement of “propagation or survival of the species.” Although permit information is a matter of public record, any person wishing to investigate either a particular endangered species permit or data trends relating to the permits and permittees would have to submit a Freedom of Information Act request to FWS.

[47] For threatened species, a permit may be issued to import, export, “take,” or conduct any interstate or foreign commercial transactions involving the transfer of ownership of listed animals for the following purposes: (1) scientific research; (2) enhance the propagation or survival of the species; (3) zoological exhibition; (4) educational purposes; or (5) special purposes consistent with the purposes of the Act. 50 C.F.R. § 17.40; 50 C.F.R. § 17.31; 50 C.F.R. § 17.32.

[52] U.S. Fish & Wildlife Service, Endangered Species Act: Permits for Non-native Species or Import and Export of Non-native and Native Species, available at http://www.fws.gov/international/DMA_DSA/pdf/esa.pdf (last visited Oct. 17, 2010).

[53] The ESA does not prohibit strictly intrastate sales (meaning “commercial activities” that “take place entirely within one State by State residents”)  of “endangered” Great Apes, as long as such sales do not involve other prohibited activities. U.S. Fish & Wildlife Service, Endangered Species Act: Permits for Non-native Species or Import and Export of Non-native and Native Species, available at http://www.fws.gov/international/DMA_DSA/pdf/esa.pdf (last visited Oct. 17, 2010); See also, U. S. v. Kepler, 531 F.2d 796, 797 (6th Cir. 1976).

[54] 16 U.S.C.A. § 1539; 50 C.F.R. § 17.22; FWS must publish each application for a permit in the Federal Register, and must invite the submission of views, written data, or arguments relevant to the application. All information received pursuant to permit applications is a matter of public record. The U.S. Fish and Wildlife Service Federal Register documents are available online, at http://www.fws.gov/policy/frsystem/default.cfm.

[57] Since many of the living captive chimpanzees have been used in infectious disease experiments (such as AIDS and hepatitis), they must live out the remainder of their lives in secure facilities under highly specialized caretakers. There are few facilities that are equipped to handle those high-needs animals as well as the other, less-infectious chimpanzees once they are no longer used in research. Over-crowding has become a problem in the existing facilities, which increases the risk of disease transmission among the resident apes (thereby increasing medical expenses). Captive chimpanzees cannot be returned to the wild because “they are unlikely to survive and could introduce new strains of disease to chimpanzees in the wild.” http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=5843 (last visited Nov. 16, 2010).

[58] House Committee on Appropriations Subcommittee on Labor, Health and Human Services, Education and Related Agencies, Testimony by Project Release and Restitution for Chimpanzees in U.S. Laboratories on the FY 2008 Budget (Mar. 30, 2007), available at http://www.releasechimps.org/pdfs/SenateAppropriationsMarch07.pdf (last visited Nov. 16, 2010).

[59] Id. When the ILAR report was published, the National Institutes of Health (NIH) declared a 5-year moratorium on the breeding of chimpanzees that are owned and supported by NIH’s National Center for Research Resources. Thereafter, NIH continued to extend the moratorium until 2007 when the agency announced that because of the high cost of maintaining captive chimpanzees, it would permanently cease breeding chimpanzees for biomedical experiments. http://www.ncrr.nih.gov/comparative_medicine/chimpanzee_management_program/index.asp (last visited Nov. 18, 2010).

[60] Jon Cohen, The Endangered Lab Chimp, 315 Science Magazine 450 (Jan. 26, 2007), available at http://www.primaterescue.org/info/science_chimps.pdf (last visited Nov. 16, 2010).

[63] In 2003, FWS issued a draft policy for “Enhancement of Survival” permits for foreign species that would have expanded the agency’s issuance of such permits to authorize the purchase and import of wild-caught endangered animals as a means to fund species survival programs in the animals’ native range. This proposal generated controversy, and was ultimately not adopted. 68 Fed. Reg. 49512.

[64] Convention on International Trade in Endangered Species of Wild Fauna and Flora, March 3, 1973, 27 U.S.T. 1087.

[65] Id. at 1090.

[66] Although CITES and the ESA share a common goal of protecting at-risk species from extirpation, they are not identical in purpose or application. While CITES exclusively restricts trade, the ESA restricts trade, and prohibits or restricts activities that kill or otherwise harm listed species or that adversely affect the critical habitats of listed species. U.S. Government Accountability Office. Protected Species: International Convention and U.S. Laws Protect Wildlife Differently. GAO-04-964. Washington, DC: Government Accountability Office, 2004, available at, http://www.gao.gov/new.items/d04964.pdf (last visited November 1, 2010); See also, Fifty-third Meeting of the Standing Committee: Conservation of and Trade in Great Apes, SC 53 Doc. 18 (2005), available at http://www.cites.org/eng/com/SC/53/E53-18.pdf (last visited Nov. 1, 2010) (“Whilst clearly of greater importance for the long-term conservation of [Great Apes], other issues such as habitat loss or disturbance from humans are not issues to be addressed by CITES.”).

[69] Fifty-third Meeting of the Standing Committee: Conservation of and Trade in Great Apes, SC 53 Doc. 18 (2005), available at http://www.cites.org/eng/com/SC/53/E53-18.pdf (last visited Nov. 1, 2010).

[70] CITES does list one species of “gibbon,” the “Potto Gibbon,” as an Appendix II species, however, this species known as the “Perodicticus potto,” belongs to a different family (Loridae) than all other gibbons (Hylobatidae), and it is unclear why this seemingly dissimilar species of primate shares the common name of “gibbon” with other gibbons.

[72] Convention on International Trade in Endangered Species of Wild Fauna and Flora, March 3, 1973, 27 U.S.T. 1087.

[74]An export permit shall only be granted when the following conditions have been met: (a) a Scientific Authority of the State of export has determined that such export will not be detrimental to the survival of that species; and (b) a Management Authority of the State of export has determined that: (1) the specimen was not obtained in contravention of the laws of that country; (2) any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment; and (3) an import permit has been granted by the country of import. Convention on International Trade in Endangered Species of Wild Fauna and Flora, March 3, 1973, 27 U.S.T. 1087.

[75]A re-export certificate is required for the export of Great Apes that were previously imported, including items subsequently converted to manufactured goods. A certificate may be issued when evidence of legal import has been provided. The original importer of the animal must provide a copy of the canceled CITES permit that accompanied the shipment into the United States and the cleared Declaration for Importation (Form 3-177) for that shipment. If the re-exporter is not the original importer, documents evidencing the purchase of the animal from the original importer, or a record of sequential transactions, must be provided as well. U.S. Fish & Wildlife Service, CITES Permits and Certificates, available at http://www.fws.gov/international/dma_dsa/cites/pdf/cpc.pdf (last visited Nov. 1, 2010).  

[76] An import permit shall only be granted when the following conditions have been met: (a) a Scientific Authority of the State of import has determined that: (i) the import will be for purposes which are not detrimental to the survival of the species involved; and (ii) the proposed recipient of a living specimen is suitably equipped to house and care for the animal; and (b) a Management Authority of the State of import is satisfied that the specimen is not to be used for primarily commercial purposes. Convention on International Trade in Endangered Species of Wild Fauna and Flora, March 3, 1973, 27 U.S.T. 1087.

[77] 50 C.F.R. § 23.62 (factors that are considered by FWS in determining whether a proposed purpose is “primarily commercial,” or not); Convention on International Trade in Endangered Species of Wild Fauna and Flora, March 3, 1973, 27 U.S.T. 1087.

[78] 50 C.F.R. § 23.61 (factors that are used by FWS in determining whether a proposed use will be detrimental to the survival of the species).

[80] 50 C.F.R. § 23.65 (factors that FWS considers in determining whether an applicant is suitably equipped to house and care for a live ape).

[84] 50 C.F.R. § 23.49; Convention on International Trade in Endangered Species of Wild Fauna and Flora, March 3, 1973, 27 U.S.T. 1087; U.S. Fish & Wildlife Service, CITES Permits and Certificates, available at http://www.fws.gov/international/dma_dsa/cites/pdf/cpc.pdf (last visited Nov. 1, 2010).

[85] See e.g., http://www1.american.edu/ted/chimp.htm (last visited Nov. 19, 2010) (the U.S. contains 80 percent of the world’s captive chimpanzees).

[86] See e.g., The Last Great Ape Organization, January 2010 Report, available at http://www.laga-enforcement.org/Portals/0/Documents/Activity%20reports%202010/LAGA%20Activity%20Report%20-%20Jan%2010.pdf (reporting the recent conviction and sentencing by the Court of First Instance of Bamenda – North West Region of two internet wildlife dealers who attempted to sell a chimpanzee over the internet to a client in the United States using falsified government documents and CITES permits).

 

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