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Detailed Discussion of South Dakota Great Ape Laws



Rebecca F. Wisch


Animal Legal & Historical Center
Publish Date:
2013
Place of Publication: Michigan State University College of Law

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I. Introduction

South Dakota does not have a specific law that addresses the possession of great apes or an exotic pet ban.  However, there are laws that address the importation and possession of federally-listed endangered and threatened species. Generally, it is unlawful to possess a great ape in the state of South Dakota under the state’s endangered species law. Violation of that chapter is a misdemeanor.

In the event that the endangered species law is bridged, South Dakota requires possessors of “captive nondomestic mammals” to obtain a permit. The regulations under the chapter specifically mention primates as mammals requiring a permit.

Additionally, great apes are generally protected from intentional abuse and neglect under the state’s anti-cruelty law. The law excludes properly conducted scientific experiments or investigations performed by personnel following guidelines established by the National Institute of Health and the United States Department of Agriculture. Violation of the law, whether the offense involves protracted torture or simple abandonment, is a misdemeanor.

II. How Different Use of Great Apes are Affected by Law

While South Dakota’s law appears to prohibit most uses of great apes, different activities are addressed by various state laws. The law regulates the possession of great apes depending on whether a person possesses an ape privately (e.g., as a “pet”), at a traditional or roadside zoo, as a sanctuary, or for scientific research purposes. This section examines the laws by those uses.

A. Private Possession of Great Apes

Possession of a great ape as a pet in South Dakota is prohibited under the state’s endangered species law. As listed species on the federal list of endangered and threatened species, great apes are protected under South Dakota’s Endangered and Threatened Species Law. This act prohibits possession, transport, and sale of both endangered and threatened species, which then covers captive-born chimpanzees. S D C L § 34A-8-9. There is no exception under the law to possess an endangered or threatened species as a pet.

In the event that the state endangered species law is somehow circumvented, it is likely a possessor would have to meet the permit requirements under Chapter 40-3 for “captive nondomestic mammals.” For more on this, see Section IIIB.

B. Possession by Roadside and Traditional Zoos (Class C USDA Licensees)

South Dakota does not have a specific law that addresses possession of great apes by roadside or traditional zoos.  There is general authority under both S D C L § 34A-8-6 and S D C L § 34A-8-7 for the department of game, fish and parks and the department of agriculture to perform acts and enter into cooperative agreements for the conservation and propagation of endangered and threatened species. This may give the department authority to allow accredited zoos to possess apes as a conversation measure. Interestingly, the specific statutory exception for zoological taking and possession for propagation in captivity applies only to species of plants or wildlife that appear on the state list of endangered or threatened species. S D C L § 34A-8-8.

C. Possession by Commercial Exhibitors

Possession of a great ape for commercial exhibition in South Dakota is prohibited under the state’s endangered species law. As listed species on the federal list of endangered and threatened species, great apes are protected under South Dakota’s Endangered and Threatened Species Law. This act prohibits possession, transport, and sale of both endangered and threatened species, which then covers captive-born chimpanzees. S D C L § 34A-8-9. There is no exception under the law to possess an endangered or threatened species for commercial purposes.

In the event that the state endangered species law is somehow circumvented, it is likely a possessor would have to meet the permit requirements under Chapter 40-3 for “captive nondomestic mammals.” For more on this, see Section IIIB.

D. Sanctuaries

South Dakota state law does not address “sanctuaries” for native or exotic animals. If a person seeking to provide sanctuary to apes was able to possess them, despite the state’s ban on possessing endangered species, it is possible that he or she would have to comply with the state’s wildlife rehabilitation regulations. The regulations, implemented under the general state law granting authority to the Game, Fish and Parks Commission (S D C L § 41-2-18), does not define the animals or wildlife that are subject to rehabilitation (see definition section at ARSD 41:09:18:01). A rehabilitator must first possess a wildlife rehabilitator permit pursuant to S.D. Admin. R. 41:09:18:02. However, “[o]nly those wildlife species allowed by the department listed on a permit are approved for temporary care." ARSD 41:09:18:06. These species are not described in the regulations and are likely subject to administrative discretion. There is no exclusion in the regulations for endangered species, though possession might be prohibited by the state’s endangered species law (see Section IIIB).

If the state does not allow apes or other exotic species to be rehabilitated, then lawfully possessed apes would likely fall under the captive nondomestic  mammal chapter. This chapter and associated regulations require permits for possession (see Section IIIB).

E. Scientific Testing and Research Facilities

No state laws directly address the issue of animal testing or experimentation. The state does have an exception in its cruelty law for properly conducted scientific experiments or investigations, performed by personnel following guidelines established by the National Institute of Health and the United States Department of Agriculture. The law further states that any experiments or scientific investigation and facilities used under this section shall be open to inspection by the South Dakota Animal Industry Board. S D C L § 40-1-16.

All applicable federal laws and regulations for research facilities apply in the state.  Great apes are not normally used in chemical testing, but in a few states they are still part of scientific research.  In those states, activity related to scientific research would be exempt from punishment under state anti-cruelty laws.

III. State Laws Affecting Great Apes in South Dakota

South Dakota requires a permit for “captive nondomestic animals,” which include all primates. However, the state’s endangered species law prohibits the possession of federally listed endangered and threatened species. Finally, great apes are protected from intentional cruelty and neglect under the state’s anti-cruelty provision.

A. Chapter 34A-8: Endangered and Threatened Species

As listed species on the federal list of endangered and threatened species, most great apes are protected under South Dakota’s Endangered and Threatened Species Law. This act prohibits possession, transport, and sale of such species.

1. Which Great Apes are Covered?

Chapter 34A-8 defines an "endangered species" as "any species of wildlife or plants which is in danger of extinction throughout all or a significant part of its range other than a species of insects determined by the game, fish and parks commission or the secretary of the United States department of interior. . . ." S D C L § 34A-8-1. While the definition for "threatened species" does not incorporate federally listed species, subsequent sections of the South Dakota law cover both federally-listed endangered and threatened species. Thus, it can be assumed that all great apes, including captive-born chimpanzees, would be covered under South Dakota law.

2. What is Prohibited?

Under the chapter, no person may take, possess, transport, import, export, process, sell or offer for sale, buy or offer to buy, transport or ship any species of wildlife that appear on the United States list of endangered or threatened native wildlife effective on January 1, 1977, as well as those endangered or threatened foreign wildlife. S D C L § 34A-8-9.

The exception for scientific or educational taking apply only to species of plants or wildlife that appear on the state list of endangered or threatened species. S D C L § 34A-8-8.

3. Standards for Endangered or Threatened Species

South Dakota prohibits the possession and importation of federally protected endangered and threatened species. Thus, there are no standards of care for keeping these species in a captive setting.

4. Penalties

A violation of this section is a Class 2 misdemeanor. S D C L § 34A-8-9.

B. Animal Industry Board Laws Concerning Captive Nondomestic Mammals

All primates are classified as captive nondomestic animals in South Dakota. Apes are both primates and endangered and/or threatened species. While the state endangered species law prohibits their possession, this section examines the laws and regulations that mandate a permit to import primates.

1. Which Great Apes are Covered?

Under Chapter 40-3, apes would be categorized as “captive nondomestic animal,” defined in the law as “any nondomestic animal or hybrid thereof held in man-made confinement or physically altered to limit movement and facilitate capture. . ." S D C L § 40-3-23. In the accompanying regulations, the Board specifically identified all nondomestic members of the order Primate as species  that require an importation permit. ARSD 12:68:18:03(5). Both of these definitions therefore include all species of great apes.

2. What is Required?

The chapter gives the State Animal Industry Board the authority to prohibit the possession of any nondomestic mammal or to require a permit to import them. S D C L § 40-3-26. All nondomestic members of the order Primate require an importation permit. ARSD 12:68:18:03(5). Per the regulation, a permit is required to import primates.  Permits range from no cost for an entry fee permit to $100 for a dealer auction permit. The relevant permits include:

  • Entry permit
  • Temporary permit
  • Grandfather permit
  • Dealer auction permit
  • Possession permit
  • Zoo permit

A permit is required before an applicant may possess the animals. The permit fee must be paid and the board must determine that the facilities and procedures described in the application comply with the chapter and to provide for the safety of other animals and humans.  ARSD 12:68:18:03.04. An annual application for a permit is required, which must include a legal address where the animals are housed as well as an inventory of the animals kept at the location. ARSD 12:68:18:06. Permit holders must also comply with reporting requirements, escape notification, and inspection at the board’s request.  ARSD 12:68:18:07, ARSD 12:68:18:08.

3. Standards for Keeping of Exotic Wildlife under the Law

No standards are provided in the law or regulations for any captive nondomestic wildlife.

4. Penalties

The law itself only provides penalties for bringing into the state restricted nondomestic captive wildlife, which does not include any primates. The regulations do allow the board to deny importation permits for a number of reasons.  ARSD 12:68:18:09.

C. Chapter 40-1: Cruelty, Abuse and Injury to Animals

South Dakota law states that no person who owns or is responsible for an animal may "inhumanely treat" that animal. S D C L § 40-1-27. Violation of this law is a class 1 misdemeanor. Notably, South Dakota is just one of two states without a felony animal cruelty law.

"Animal" is defined broadly to include all great apes ("any mammal, bird, reptile, amphibian, or fish, except human"). S D C L § 40-1-1. "Inhumane treatment" is spelled out in the chapter to include such things as mistreatment, torture, cruelty, neglect, abandonment, or mutilation, but excludes such things as generally accepted training, use and husbandry procedures for the species, breed, physical condition, and type of animal. S D C L § 40-1-2.4.

One particular exception under the chapter may apply to great apes. The state does have an exception for properly conducted scientific experiments or investigations, performed by personnel following guidelines established by the National Institute of Health and the United States Department of Agriculture. The law further states that any experiments or scientific investigation and facilities used under this section shall be open to inspection by the South Dakota Animal Industry Board. S D C L § 40-1-16.

IV. Conclusion

South Dakota requires a permit to keep nondomestic captive mammals, which includes all primates, but that law may be limited by the state’s endangered species act. The endangered species chapter covers all federally-listed endangered and threatened species and prohibits possession, importation, selling and buying.  There are no exceptions listed in the chapter.  While the state’s cruelty law is one of the weakest in the nation, it provides apes with some nominal protection against intentional cruelty and neglect.

 

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