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Detailed Discussion of Utah 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

Utah does not have a law dealing with great apes, but addresses use and possession through regulations issued under the authority of the state’s Wildlife Resources Code. These regulations classify all great apes as “prohibited” species, which limits the ability of individuals to possess, collect, or import great apes in Utah. UT Admin Code R657-3-24(p)(x). There is a process through which a person can obtain a certificate of registration to possess prohibited species for personal, scientific, or exhibition use. However, the actual procedure to obtain this certificate effectively eliminates private possession since an applicant must first possess a federal permit and then seek a variance to possess the prohibited species. Interestingly, the easiest process to obtain a certificate of registration appears to be for commercial use. If a person has the requisite federal permits and can establish by “a clear demonstration that the criteria established in this section have been met,” exhibition, scientific, and educational use of apes are allowed once a certificate is issued. UT Admin Code R657-3-14(5).

It should be noted only some great apes are protected under Utah’s anti-cruelty laws. The law prohibits both affirmative acts of cruelty such as torture or unjustified killing, and the failure to provide necessary food, water, care, or shelter for an animal in the person's custody. Exceptions to the definition of “animal” exclude those animals owned or kept by a AZAA accredited zoological park or temporarily in the state as part of a circus or traveling exhibitor licensed by the USDA. U.C.A. 1953 § 76-9-301(1)(b)(ii)(Aa), (Cc).

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

While Utah’s law prohibit most uses of great apes unless a certificate of registration is obtained, certain activities are treated differently under the law. 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 great apes for hobby or pet use is only possible in Utah if the possessor has a federal permit and follows state requirements to obtain a certificate of registration. It is unlikely that a person could obtain a federal permit (e.g., an endangered species permit or USDA license under the AWA) for pet usage.

All great apes are classified as “prohibited” for collection, importation and possession. UT Admin Code R657-3-24(p)(x). Under the Section R657-3-17, “Collection, Importation or Possession for Personal Use,” the state does not issue certificates of registration for the “collection, importation or possession of any live or dead animals or their parts classified as prohibited, except as provided in R657-3-36 or the rules and guidebooks of the Wildlife Board.” UT Admin Code R657-3-17. Personal use is defined as:

. . . the possession and use of an animal for a hobby or for its intrinsic pleasure and where no consideration for the possession or use of the animal is received by selling, bartering, trading, exchanging, breeding, hunting or any other use.

UT Admin Code R657-3-4(25). Thus, a person seeking to possess an ape as pet must apply for a variance that is then reviewed by both the Certification Review Committee and the state Wildlife Board.

R657-36 outlines this variance procedure. A person may request a variance to this rule for the collection, importation, propagation, or possession of an animal classified as prohibited under this rule by submitting a variance request to the Certification Review Committee. The person seeking the variance must provide identification information as well as “a statement of the facts and reasons forming the basis for the variance.” UT Admin Code R657-3-36(2)(iii). The Committee then considers the application for variance in a reasonable time and then submits its recommendation to the Wildlife Board who then “shall approve or deny the request based on the issuance criteria provided in Section R657-3-14.” UT Admin Code R657-3-36(5)(a).

Section 14 lists factors for general possession that must be met to the Department before it may issue or renew a certificate of registration for the collection, importation, transportation, possession or propagation of an animal:

(a) the health, welfare, and safety of the public;

(b) the health, welfare, safety, and genetic integrity of wildlife, domestic livestock, poultry, and other animals;

(c) ecological and environmental impacts;

(d) the suitability of the applicant's holding facilities;

(e) the experience of the applicant for the activity requested; and

(f) ecological or environmental impact on other states.

UT Admin Code R657-3-14(1).

Another section dealing with endangered species implies that a certificate of registration must also be accompanied by necessary federal permits. If a person is importing any species which have been determined by the U.S. Fish and Wildlife Service to be endangered or threatened pursuant to the federal Endangered Species Act, then he or she must also obtain a certificate of registration from the state division, a federal permit from the U.S. Fish and Wildlife Service, and an entry permit number from the Department of Agriculture and Food. UT Admin Code R657-3-8(1). It is anticipated that a person would not be able to obtain a certificate of registration if he or she did not first obtain a federal permit.

In essence, the necessity of first obtaining a federal permit would disallow personal use of any endangered or threatened great ape in Utah. The stringent variance process would make it unusual for such certificates to be issued.

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

Again, all great apes are classified as “prohibited” for collection, importation and possession. UT Admin Code R657-3-24(p)(x). Despite this, the regulations outline a process whereby a person can obtain a certificate of registration from the Department for uses including commercial use. Commercial use is defined as:

any activity through which a person in possession of an animal:

(a) receives any consideration for that animal or for a use of that animal, including nuisance control and roadkill removal; or

(b) expects to recover all or any part of the cost of keeping the animal through selling, bartering, trading, exchanging, breeding, or other use, including displaying the animal for entertainment, advertisement, or business promotion.

UT Admin Code R657-3-3(12)(a), (b).

Under the Section R657-18, “Collection, Importation or Possession of a Live Animal for a Commercial Use,” a certificate of registration will not be issued for importing or possessing a prohibited animal for a commercial use or commercial venture, except as provided in Subsection (b) or R657-3-36. UT Admin Code  R657-3-18(4)(a). Subsection (b) provides:

(b) The division may issue a certificate of registration to a zoo, circus, amusement park, aviary, aquarium, or film company to import, collect or possess live species of animals classified as prohibited if, in the opinion of the division, the importation for a commercial use is beneficial to wildlife or significantly benefits the general public without material detriment to wildlife.

UT Admin Code R657-3-18(4)(b). The Division then limits the issuance of certificates to those described places that keep the prohibited species in a park, building, cage, enclosure or other structure for the primary purpose of public exhibition, viewing, or filming. UT Admin Code R657-3-18(4)(c). The issuance of the certificate is then discretionary based on the general standards of subsection (b) above.

If an exhibitor is unable to meet those criteria, R657-36 outlines the variance procedure. A person may request a variance to this rule for the collection, importation, propagation, or possession of an animal classified as prohibited under this rule by submitting a variance request to the Certification Review Committee. The person seeking the variance must provide identification information as well as “a statement of the facts and reasons forming the basis for the variance.” UT Admin Code R657-3-36(2)(iii). The Committee then considers the application for variance in a reasonable time and then submits its recommendation to the Wildlife Board who then “shall approve or deny the request based on the issuance criteria provided in Section R657-3-14.” UT Admin Code R657-3-36(5)(a).

Section 14 lists factors for general possession that must be met to the Department before it may issue or renew a certificate of registration for the collection, importation, transportation, possession or propagation of an animal.:

(a) the health, welfare, and safety of the public;

(b) the health, welfare, safety, and genetic integrity of wildlife, domestic livestock, poultry, and other animals;

(c) ecological and environmental impacts;

(d) the suitability of the applicant's holding facilities;

(e) the experience of the applicant for the activity requested; and

(f) ecological or environmental impact on other states.

UT Admin Code R657-3-14(1).

Another section dealing with endangered species implies that a certificate of registration must also be accompanied by necessary federal permits. If a person is importing any species which have been determined by the U.S. Fish and Wildlife Service to be endangered or threatened pursuant to the federal Endangered Species Act, then he or she must also obtain a certificate of registration, from the division, a federal permit from the U.S. Fish and Wildlife Service, and an entry permit number from the Department of Agriculture and Food. UT Admin Code R657-3-8(1). It is then anticipated that a person would not be able to obtain a certificate of registration if he or she did not first obtain a federal permit. In the case of commercial exhibitors in Utah, it would then be necessary to be USDA-licensed prior to seeking a certificate of registration.

C. Sanctuaries

Utah does not describe the process for a sanctuary obtaining a certificate of registration to possess prohibited ape species. It is unclear whether the scientific or educational use process would apply to sanctuaries since sanctuaries do not engage in exhibition of wildlife. Since certificates of registration are not issued for collecting, importing or possessing prohibited animals, a sanctuary would have to fall under this exception:

(b) The division may issue a certificate of registration to a university, college, governmental agency, bona fide nonprofit institution, or a person involved in wildlife research to collect, import or possess live or dead animals classified as prohibited if, in the opinion of the division, the scientific or educational use is beneficial to wildlife or significantly benefits the general public without material detriment to wildlife.

UT Admin Code R657-3-20(b).

If that failed, the variance process for personal use (see Section A above) may come into play. Additionally, the sanctuary would have to obtain federal permits to possess the endangered species. If a person is importing any species which have been determined by the U.S. Fish and Wildlife Service to be endangered or threatened pursuant to the federal Endangered Species Act, then he or she must also obtain a certificate of registration, from the division, a federal permit from the U.S. Fish and Wildlife Service, and an entry permit number from the Department of Agriculture and Food. UT Admin Code R657-3-8(1).

D. Scientific Testing and Research Facilities

Generally, Utah restricts the possession and importation of all apes, defining them as “prohibited species.” Under the promulgated rules, all great apes are prohibited for collection, importation and possession. UT Admin Code R657-3-24(p)(x). Despite this, the regulations outline a process whereby a person can obtain a certificate of registration from the Division of Wildlife Resources that allows possession for scientific or educational use. This procedure appears discretionary, and may be a lengthy process if a variance needs to be issued by the Wildlife Board.

“Scientific use” is defined in Rule R657-3 as “the possession and use of an animal for conducting scientific research that is directly or indirectly beneficial to wildlife or the general public.”  UT Admin Code R657-3-4(30). R657-3-20, “Collection, Importation or Possession for Scientific or Educational Use” states that Certificates of registration are not issued for collecting, importing or possessing live or dead animals classified as prohibited, except as provided in Subsection (b), or R657-3-36.

Subsection (b) states:

The division may issue a certificate of registration to a university, college, governmental agency, bona fide nonprofit institution, or a person involved in wildlife research to collect, import or possess live or dead animals classified as prohibited if, in the opinion of the division, the scientific or educational use is beneficial to wildlife or significantly benefits the general public without material detriment to wildlife.

UT Admin Code R657-3-20(b).

If a person is unable to meet those criteria, R657-36 outlines the variance procedure. A person may request a variance to this rule for the collection, importation, propagation, or possession of an animal classified as prohibited under this rule by submitting a variance request to the Certification Review Committee. The person seeking the variance must provide identification information as well as “a statement of the facts and reasons forming the basis for the variance.” UT Admin Code R657-3-36(2)(iii). The Committee then considers the application for variance in a reasonable time and then submits its recommendation to the Wildlife Board who then “shall approve or deny the request based on the issuance criteria provided in Section R657-3-14.” UT Admin Code R657-3-36(5)(a).

Section 14 lists factors for general possession that must be met to the Department before it may issue or renew a certificate of registration for the collection, importation, transportation, possession or propagation of an animal.:

(a) the health, welfare, and safety of the public;

(b) the health, welfare, safety, and genetic integrity of wildlife, domestic livestock, poultry, and other animals;

(c) ecological and environmental impacts;

(d) the suitability of the applicant's holding facilities;

(e) the experience of the applicant for the activity requested; and

(f) ecological or environmental impact on other states.

UT Admin Code R657-3-14(1). Additionally, the Wildlife Board would then consider the following additional factors for scientific use of a controlled species:

(a) the validity of the objectives and design;

(b) the likelihood the project will fulfill the stated objectives;

(c) the applicant's qualifications to conduct the research, including education or experience;

(d) the adequacy of the applicant's resources to conduct the study; and

(e) whether the scientific use is in the best interest of the animal, wildlife management, education, or the advancement of science without unnecessarily duplicating previously documented scientific research.

UT Admin Code R657-3-14(2).

While the scientific use section does not specify the procedure for scientific use of an endangered species, another section implies that a certificate of registration must be accompanied by necessary federal permits. If a person is importing any species which have been determined by the U.S. Fish and Wildlife Service to be endangered or threatened pursuant to the federal Endangered Species Act, then he or she must also obtain a certificate of registration, from the division, a federal permit from the U.S. Fish and Wildlife Service, and an entry permit number from the Department of Agriculture and Food. UT Admin Code R657-3-8(1). It is then anticipated that a person would not be able to obtain a certificate of registration if he or she did not first obtain a federal permit.

While Great Apes are not normally used in chemical testing, in a few states they are still part of scientific research that would be exempt under some anti-cruelty laws. While Utah exempts certain entities such as zoos and rodeos under its cruelty laws, it does not appear to exempt bona fide scientific research.

III. State Laws Affecting Great Apes in Utah

Utah  addresses the use and possession of great apes through several avenues in its laws. Utah Wildlife Resources Code prohibits any person from holding in captivity any protected wildlife. U.C.A. 1953 § 23-13-4. In the administrative rules for this chapter, all species of great apes are specifically prohibited for collection, importation and possession.  A person can seek a certificate of registration to possession or use an ape if he or she meets the stated criteria. Some great apes are also protected from intentional cruelty and neglect under the state’s anti-cruelty provision.

A. Wildlife Resources Code and Protected Wildlife Rules

Utah’s Title 23 of the wildlife code, gives authority for the state to regulate all manner of things relating to wildlife such as the importing, possessing, keeping, and utilizing as a commercial venture. U.C.A. 1953 § 23-13-2(g), (j), (m), and (n). Great apes are included in the general definition of “vertebrate animals living in nature.” U.C.A. 1953 § 23-13-2(49). Section § 23-13-4 further provides that it is unlawful for any person to hold in captivity at any time any protected wildlife except as provided by this code or rules and regulations of the Wildlife Board. The Division of Wildlife Resources has an extensive regulation dealing with the use and possession of both native and exotic species, including great apes.

1. Which Great Apes Are Covered

Under the promulgated rules, all great apes are prohibited for collection, importation and possession:

(x) Great apes (All species) , which include gorillas, chimpanzees and orangutans, family Hominidae are prohibited for collection, importation and possession;

UT Admin Code R657-3-24(p)(x).

2. What is prohibited

Great apes are defined as “prohibited species.” The regulation defines “prohibited species” as:

. . . a species or subspecies of animal that if taken from the wild, introduced into the wild, or held in captivity, poses a significant detrimental impact to wild populations, the environment, or human health or safety, and for which a certificate of registration shall only be issued in accordance with this rule and any applicable federal laws.

UT Admin Code R657-3-4(27).

The rule then outlines the procedure to obtain a certificate of registration for all types of species identified in the rule. A person may possess an animal classified as prohibited or controlled only after applying for and obtaining a certificate of registration from the division or Wildlife Board as provided in this rule. UT Admin Code R657-3-28(1). The division may issue a certificate of registration granting the transfer and possession of that animal only if the applicant meets the issuance criteria provided in Section R657-3-14. UT Admin Code R657-3-28(3). Section 14 lists factors for general possession (there are additional ones for scientific use) that must by the Department before it may issue or renew a certificate of registration for the collection, importation, transportation, possession or propagation of an animal:

(a) the health, welfare, and safety of the public;

(b) the health, welfare, safety, and genetic integrity of wildlife, domestic livestock, poultry, and other animals;

(c) ecological and environmental impacts;

(d) the suitability of the applicant's holding facilities;

(e) the experience of the applicant for the activity requested; and

(f) ecological or environmental impact on other states.

UT Admin Code R657-3-14(2). The application may be denied for misrepresentation of material information, violation of a Utah wildlife resources law or rule, or if holding the animal at the proposed location violates federal, state, or local laws. UT Admin Code R657-3-14(4). The collection or importation and subsequent possession of an animal may be granted only upon a clear demonstration that the criteria established in this section have been met by the applicant. UT Admin Code R657-3-14(5).

Different uses of prohibited species may also have additional requirements under separate sections of the rule. See Section II for more on these requirements.

3. Standards for Great Apes kept under R657-3, “Collection, Importation, Transportation, and Possession of Zoological Animals”

There are no Utah standards geared toward the specific needs of apes or any other primates. Section R657-3-6 requires that any animal possessed under the authority of a certificate of registration:

. . . must be maintained under humane and healthy conditions, including the humane handling, care, confinement, transportation, and feeding, as provided in:

(a) 9 CFR Section 3 Subpart F, 2002 ed., which is adopted and incorporated by reference;

(b) Section 76-9-301; and

(c) Section 7 CFR 2.17, 2.51, and 371.2(g), 2002 ed., which are incorporated by reference.

UT Admin Code R657-3-6(1). The section also has anti-cruelty provision built into it. If a person intentionally, knowingly, or with criminal negligence tortures or seriously overworks an animal or fails to provide necessary food, care, or shelter, he or she commits animal cruelty. UT Admin Code R657-3-6(2).

4. Penalties

The Wildlife Resources Code provides the penalty for both violation of law and the promulgated rules. A violation of any provision of this title is a class B misdemeanor  while a violation of any rule or proclamation of the Wildlife Board is an infraction. U.C.A. 1953 § 23-13-11.

B. Cruelty Law

Utah’s cruelty provisions do not actually cover great apes in all circumstances. The law defines “animal” as “any live, vertebrate nonhuman creature.” U.C.A. 1953 § 76-9-301(1)(b)(i). Both affirmative acts of cruelty such as torture or unjustified killing, and conduct such as failing to provide necessary food, water, care, or shelter for an animal in the person's custody are included. However, exceptions to the definition of “animal” exclude those animals “owned or kept by a zoological park that is accredited by, or a member of, the American Zoo and Aquarium Association or temporarily in the state as part of a circus or traveling exhibitor licensed by the United States Department of Agriculture under 7 U.S.C. 2133. U.C.A. 1953 § 76-9-301(1)(b)(ii)(Aa), (Cc).” Thus, apes kept in zoos or in certain animal exhibitions would not be protected from cruelty under Utah law.

IV. Conclusion

Utah's regulation issued under the Wildlife Resources Code prohibits the possession and importation of great apes. A person may not possess any prohibited species in the state without a certificate of registration. This can only be obtained by a variance for personal use, and other uses such as exhibition and scientific use require further review by the Utah Wildlife Board. Moreover, the regulation seems to suggest that any possession of an endangered species first requires federal permits. Thus, only those with licenses issued by the U.S. Fish and Wildlife Service or the USDA may obtain a certificate of registration in Utah. While the state mandates humane care and handling of all animals in captivity by adopting federal standards, there are no regulations specific to the needs of apes.

 

 

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