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Detailed Discussion of Wisconsin 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

Wisconsin does not have a specific law that prohibits the possession of apes or otherwise addresses their care. The state has a chapter on captive wildlife with a number of provisions related to the possession of captive live wild animals, which would generally include great apes.  The chapter restricts possession of any live wild animals unless a person complies with the provisions of the chapter. This mainly involves acquiring the required license for zoological, exhibition, scientific research, or rehabilitation uses. There is not a provision that allows a person to obtain a permit for a captive wild animal as a pet.

The state’s endangered species law also prohibits the taking, transport, and possession of endangered or threatened species, including federally-listed species.  It is unclear based on a reading of the law whether it requires state permits for foreign endangered species. The law specifically exempts zoological societies or municipal zoos from its reach.

Finally, apes are covered generally under the state’s anti-cruelty laws as warm-blooded, non-human animals. The law prohibits treating animals in a cruel manner, which includes causing unnecessary and excessive pain, suffering, or unjustifiable death. Additionally, all animals kept in captivity must have adequate food, water, and shelter.

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

While Wisconsin law does not provide an outright ban on the possession of apes or other primates, their status as endangered species restricts some uses. The law regulates the possession of great apes depending on whether a person possesses an ape privately (e.g., as a “pet”), at a zoo, as a commercial exhibitor, as a sanctuary, or for scientific research purposes. This section examines the laws by those uses.

A. Private Possession of Great Apes

It is unclear whether Wisconsin allows possession of great apes for personal use. While apes would clearly fall under the endangered species provisions, conflicting sections may or may not require permits for listed species from foreign countries. Despite this conflict in the endangered species law, the captive wild animal chapter would still require a license to possess any live wild animal. There is no license that would allow an individual to legally possess a great ape as a pet.

Both the endangered species law and captive wild animal chapter work together. Section 169.30 states no person may “take from the wild, introduce, stock, release into the wild, exhibit, propagate, rehabilitate, hunt, sell, purchase, transfer, or engage in any other activity related to a live wild animal that is an endangered or threatened species unless the person is in compliance with this chapter, the rules promulgated under this chapter, and s. 29.604.” W. S. A. 169.30.

Section 29.604 is Wisconsin’s relevant endangered species law. Great apes fit the state definition of listed “endangered species:”

(a) The department shall by rule establish an endangered and threatened species list. The list shall consist of 3 parts: wild animals and wild plants on the U.S. list of endangered and threatened foreign species; wild animals and wild plants on the U.S. list of endangered and threatened native species; and a list of endangered and threatened Wisconsin species.

W. S. A. 29.604(3)(a). All great apes are listed on the federal lists of endangered or threatened species. Wisconsin then prohibits the taking, transporting, possession, processing or selling of any wild animal specified by the department's endangered and threatened species list. W. S. A. 29.604(4)(a).

The issue of possession of an endangered species is complicated by conflicting provisions.  Under the subsection concerning “Permits,” subsection (a) implies that the department of natural resources may issues permits for “zoological, educational or scientific purposes.” However, in the same subsection, the following is stated:

(c) Possession, sale or transportation within this state of any endangered species on the U.S. list of endangered and threatened foreign species shall not require a state permit under par. (a).

W.S.A. 29.604(6)(c). Great apes would all be foreign listed species because they are not indigenous to the U.S. It is unclear then whether a state permit is required to possess foreign endangered species in the state, regardless of the whether the use is for preservation efforts or as a companion animal.

The chapter on captive wildlife may does require a permit for any person who possesses an ape or any other live wild animal.  Section 169.04 states that:

(a) No person may possess any live wild animal unless the wild animal is legally obtained.

(b) No person may possess any live wild animal unless the person holds a license or other approval to possess the wild animal as required under this chapter or under s. 29.319 and the person is otherwise in compliance with this chapter and the rules promulgated under this chapter.

W.S.A. 169.04. There is no provision in the chapter that allows the department to issue a permit to hold a captive wild animal as a pet. Even if no endangered species permit is required under 29.604(6), a person would have difficulty meeting the licensing standards under the captive wildlife chapter.

B. Traditional Zoos (Municipal or Public Zoos)

It appears that certain zoos would be exempt from the restrictions on the taking and possession of endangered species, including all great apes. The state endangered species law specifically exempts some zoos from its entirety:

(8) Exemptions. This section does not apply to zoological societies or municipal zoos, or to their officers or employees .

W. S. A. 29.604(8). In addition, the chapter on Captive Wildlife also contains provisions dealing with zoos. While section 169.04 requires that a live wild animal must be both legally obtained and the person seeking to possess it must hold a license or other approval, public zoos are expressly exempted. No license or other state approval is required. W.S.A. 169.04(5). It can safely be said that there are no restrictions on public or municipal zoos acquiring and possessing great apes other than any federal requirements.

C. Exhibitors and “Roadside Zoos”

Again, great apes are covered under the state’s endangered species law since they are federally-listed endangered species.  Wisconsin then prohibits the taking, transporting, possession, processing or selling of any wild animal specified by the department's endangered and threatened species list. W. S. A. 29.604(4)(a). The state will issue permits for “zoological, educational or scientific purposes, for propagation of such wild animals and wild plants in captivity for preservation purposes, unless such exportation, possession, transportation or taking is prohibited by any federal law or regulation, or any other law of this state.” W. S. A. 29.604(6)(a). However, it is unclear whether permits are actually required for foreign species on the U.S. list:

(c) Possession, sale or transportation within this state of any endangered species on the U.S. list of endangered and threatened foreign species shall not require a state permit under par. (a).

W. S. A. 29.604(6)(c). [Emphasis added]. The need for an endangered species permit to possess foreign species is unclear under state law.

In contrast, the chapter on captive wildlife is clear on the requirement for a license to hold any live wild animal:

(a) No person may possess any live wild animal unless the wild animal is legally obtained.

(b) No person may possess any live wild animal unless the person holds a license or other approval to possess the wild animal as required under this chapter or under s. 29.319 and the person is otherwise in compliance with this chapter and the rules promulgated under this chapter .

W.S.A. 169.04(1). Under the chapter, the only “exhibitors” that are totally exempted from the chapter are public zoos, circuses, or the Circus World Museum located in Baraboo, Wisconsin. W.S.A. 169.04(5)(a). Moreover, the exhibition license under 169.07 covers only “captive live native wild animal or any captive live nonnative wild animal of the family ursidae.” W.S.A. 169.07. Apes are both nonnative and members of the family hylobatidae. The only relevant state license for exhibitors of foreign species is the “Nonprofit Educational Exhibitor’s License” described in 169.26:

(1) Issuance. The department shall issue a nonprofit educational exhibiting license to any nature center, aquarium, or educational institution if the center, aquarium, or institution is a nonstock, nonprofit corporation described under section 501(c)(3) or (4) of the Internal Revenue Code and exempt from taxation under section 501(a) of the Internal Revenue Code and if the center, aquarium, or institution files a proper application and pays the applicable fee

W.S.A. 169.26.

As a result, the state does not appear to issue permits to commercially exhibit non-native species. Unless the exhibitor fell under any relevant sections, it would not be allowed to legally possess great apes.

C. Sanctuaries

Wisconsin does not have a law that addresses ape sanctuaries specifically. It appears that the law concerning wildlife rehabilitation may be broad enough to cover exotic and endangered species. This is uncertain, however, as the goal of rehabilitation is to “. . . provide care or treatment to an orphaned, sick, or injured wild animal for the purpose of releasing it back into the wild.” W.S.A. 169.01. A sanctuary is long-term care of wildlife.

The definitional section for the wildlife rehabilitation regulations, promulgated under the general authority of W.S.A. 169.24, does not limit the definition for “wildlife” to only native species. Wis. Adm. Code s NR 19.70. Additionally, under the “licenses” section, the “advanced license” provision has the following language related to endangered species:

(b) Restrictions. Advanced licensees may not possess any of the following:

* * *

2. Federal migratory birds or federal or state endangered or threatened species unless authorized by the appropriate federal and state permit.

Wis. Adm. Code s NR 19.78(4). The rules then appear to contemplate the rehabilitation of federally listed endangered or threatened species. This is echoed the next part of the rule related to federally listed mammals:

(5) Federally endangered or threatened mammals shall only be euthanized and disposed of under direction of the endangered species permit office of the United States fish and wildlife service and the department.

Wis. Adm. Code s NR 19.78(5). Wildlife rehabilitators must be licensed in accordance with the chapter. This involves obtaining a license after passing an exam, possessing a signed sponsorship statement, possessing a signed veterinary consulting agreement, and passing inspection requirements.  Wis. Adm. Code s NR 19.73.

Section 169.31(j) of the captive wildlife laws provides no fee for a “rehabilitation" license.  Possibly then apes, as federally listed endangered species could be rehabilitated in Wisconsin if the proper license was first obtained.

D. Scientific Testing and Research Facilities

While apes would clearly fall under the endangered species law in Wisconsin, it is unclear whether a permit is required for scientific research. Despite this, the chapter on captive wildlife has a section that allows licenses for scientific research.

Both the endangered species law and captive wild animal chapter work together. While there are no specific provisions dealing with apes or other primates, Section 169.30 states that individuals may “take from the wild, introduce, stock, release into the wild, exhibit, propagate, rehabilitate, hunt, sell, purchase, transfer, or engage in any other activity related to a live wild animal that is an endangered or threatened species unless the person is in compliance with this chapter, the rules promulgated under this chapter, and s. 29.604.” W. S. A. 169.30.

Section 29.604 is Wisconsin’s relevant endangered species law. W. S. A. 29.604. Great apes fit the state definition of listed “endangered species:”

(a) The department shall by rule establish an endangered and threatened species list. The list shall consist of 3 parts: wild animals and wild plants on the U.S. list of endangered and threatened foreign species; wild animals and wild plants on the U.S. list of endangered and threatened native species; and a list of endangered and threatened Wisconsin species.

W. S. A. 29.604(3)(a). All great apes are listed on the federal list of endangered and threatened species. Wisconsin then prohibits the taking, transporting, possession, processing or selling of any wild animal specified by the department's endangered and threatened species list. W. S. A. 29.604(4)(a).

The issue of possession of an endangered species is complicated by conflicting provisions.  Under subsection (a) concerning “Permits,” the law implies that the department of natural resources may issues permits for “zoological, educational or scientific purposes.” However, in the same subsection, the following is stated:

(c) Possession, sale or transportation within this state of any endangered species on the U.S. list of endangered and threatened foreign species shall not require a state permit under par. (a).

W.S.A. 29.604(6)(c). Great apes would all be foreign listed species because they are not indigenous to the U.S. It is unclear then whether a state permit is required to possess foreign endangered species in the state.

The chapter on captive wildlife does require a license for possession. W.S.A. 169.04. The use of live wild animals for scientific research is one of the listed uses for a license. This license will be issued to “. . . to any person who is engaged in a study or in research that the department determines will lead to increased, useful scientific knowledge and who files a proper application and who pays the applicable fee.” W.S.A. 169.25. Some of the provisions of this license are specific to native species, so it assumed the general provisions would allow possession of non-native species for scientific research. If so, the following conditions apply to the license:

(a) The specific purposes for which it is issued.
(b) The species of wild animals and the number of each species to be studied.
(c) The locations from where the wild animals will be taken.
(d) The locations at which the wild animals will be kept and studied.
(e) The periods of time in which the wild animals may be studied.
(f) Any other conditions or limitations that the department considers reasonable.

W.S.A. 169.25(3). The extent to which this state license would apply to non-native species is unclear.

Finally, the cruelty laws do not apply to scientific teaching, research, or experimentation "conducted pursuant to a protocol or procedure approved by an educational or research institution, and related incidental animal care activities, at facilities that are regulated under 7 USC 2131 to 2159 or 42 USC 289d." W.S.A. 951.015.

III. State Laws Affecting Great Apes in Wisconsin

Wisconsin addresses the use and possession of great apes through several avenues in its laws. The first is protection under the state endangered species law. This law restricts possession of federally listed endangered or threatened species. Next, licenses are required under Chapter 169 on “Captive Wildlife” to keep any live wild animals. Finally, great apes are protected from intentional cruelty and neglect under the state’s anti-cruelty provision. This section discusses these laws in more detail.

A. Endangered and Threatened Species Protection (W.S.A. 29.604)

Wisconsin prohibits the taking, transporting, possession, processing or selling of any wild animal specified by the department's endangered and threatened species list. W. S. A. 29.604(4)(a). Whether possession for zoological, educational or scientific purposes require a permit is unclear.

1. Which Great Apes are Covered?

Great apes meet the state definition of listed “endangered species:”

(a) The department shall by rule establish an endangered and threatened species list. The list shall consist of 3 parts: wild animals and wild plants on the U.S. list of endangered and threatened foreign species; wild animals and wild plants on the U.S. list of endangered and threatened native species; and a list of endangered and threatened Wisconsin species.

W. S. A. 29.604(3)(a). All great apes are listed on the federal lists of endangered and threatened species.

2. What is Prohibited?

Wisconsin prohibits the taking, transporting, possession, processing or selling of any wild animal specified by the department's endangered and threatened species list. W. S. A. 29.604(4)(a). Subsection 6(a) of the law provides that the department will issue permits for “zoological, educational or scientific purposes, for propagation of such wild animals and wild plants in captivity for preservation purposes, unless such exportation, possession, transportation or taking is prohibited by any federal law or regulation, or any other law of this state.” W. S. A. 29.604(6)(a). However, this subsection is complicated by the next subsection that states:

(c) Possession, sale or transportation within this state of any endangered species on the U.S. list of endangered and threatened foreign species shall not require a state permit under par. (a).

W. S. A. 29.604(6)(c). [Emphasis added]. All great apes are non-native to the U.S. and, under Wisconsin’s endangered species list definition, would be considered listed foreign species. A plain reading of the statute implies that no state permit is required under the state endangered species law to possess foreign species.

3. Standards for Great Apes Kept under Wisconsin's Endangered Species Law

This section does not deal with housing conditions, and there are no state administrative regulations concerning care and keeping of captive endangered species. In most of the cases where an animal is held under an exception to the state law, a federal permit will be required and housing issues are addressed under the federal regulations. [See 9 C.F.R. 3.75 – 3.92 (housing, feeding and related care for non-human primates); 42 C.F.R. 9.4 & 9.6 (relating to chimpanzees in sanctuaries); 64 Fed Reg 38145 (relating to psychological well-being of non-human primates held by dealers, exhibitors and research facilities)].

4. Penalties

Violation of section 4(a) concerning the taking, transporting, or possession of a listed species results in a fine of not less than $500 nor more than $2,000. W. S. A. 29.604(5)(a)(1). The intentional violation of this same section results in a fine of not less than $2,000 nor more than $5,000 or imprisonment for not more than 9 months or both. The section also allows revocation of hunting approvals issued under the chapter for violations under this section.

The department may also bring a civil action in the name of the state for the recovery of damages against any person killing, wounding, catching, taking, trapping or possessing in violation of this chapter. For any endangered species protected under s. 29.604, the civil forfeiture amount is $875. W.S.A. 29.977.

B. Chapter 169. Captive Wildlife

This chapter contains two primary limitations on keeping wildlife:  (1) no person may possess any live wild animal unless the wild animal is legally obtained; and (2) no person may possess any live wild animal unless he or she holds a license under the chapter and is in compliance with the rules. W. S. A. 169.04.  The chapter excludes certain entities from this licensing requirement applicable to great apes, including public zoos and circuses. W. S. A. 169.04(5)(a).

1. Which Great Apes are Covered?

All great apes are covered generally as "wild animals" and "nonnative wild animals." W. S. A. 169.01(22), (23). They are also covered as "endangered species:"

(9) “Endangered or threatened species” means those species of wild animals that are indigenous to the United States or Canada and are identified on the federal list of endangered and threatened species or on the Wisconsin list of endangered and threatened species.

W. S. A. 169.01(9). It should be noted that while apes are not indigenous to the U.S. or Canada, they are covered by the Wisconsin list of endangered species because that list incorporates the federal list.

2. What is Prohibited?

Possession of live wild animals is restricted in Wisconsin. Generally, no person may possess any live wild animal unless the wild animal is legally obtained. Additionally a person may not possess a live wild animal unless he or she holds a license or other approval. W. S. A. 169.04.

Further, a person is prohibited from doing the following if a species live wild animal is endangered or threatened unless the person is in compliance with this chapter, the rules promulgated under this chapter, and s. 29.604:

take from the wild, introduce, stock, release into the wild, exhibit, propagate, rehabilitate, hunt, sell, purchase, transfer, or engage in any other activity related to a live wild animal.

W. S. A. 169.30.

3. Standards for Keeping of Great Apes under the Law

There are no rules specific to either primates, apes, or endangered species in general. The chapter on captive wildlife states that the department must promulgate rules to ensure:

(a) That the wild animals receive humane treatment and enrichment.
(b) That the wild animals are held under sanitary conditions.
(c) That the wild animals receive adequate housing, care, and food.
(d) That the public is protected from injury by the wild animals.

W.S.A. 169.39.

In most of the cases where an animal is held under an exception to the state law, a federal permit will be required and housing issues are addressed under the federal regulations. [See 9 C.F.R. 3.75 – 3.92 (housing, feeding and related care for non-human primates); 42 C.F.R. 9.4 & 9.6 (relating to chimpanzees in sanctuaries); 64 Fed Reg 38145 (relating to psychological well-being of non-human primates held by dealers, exhibitors and research facilities)].

4. Penalties

For a violation of this chapter, a person is subject to a forfeiture of not more than $200. However, if a person possesses any live wild animal, or a carcass of a wild animal, in violation of this chapter, a person shall forfeit not less than $100 nor more than $500. W.S.A. 169.45. Penalties are enhanced for subsequent violations during a five-year time period.

C. Cruelty to Animals (W.S.A. ST 951.01, et seq.)

Cruelty to animals is prohibited in the state of Wisconsin. While great apes are not specifically mentioned in Wisconsin’s anti-cruelty laws, they are included in the statute’s definition of “animal.” “Animal” is defined as all warm-blooded creatures except for humans, reptiles, and amphibians. W.S.A. 951.01. Specifically, the statute outlaws treating animals in a cruel manner, which includes causing unnecessary and excessive pain, suffering, or unjustifiable death. W.S.A. 951.02. Additionally, all animals kept in captivity must have adequate food, water, and shelter. W.S.A. 951.13-.14. It is unlawful to abandon an animal. W.S.A. 951.15. Bona fide scientific research is exempted from the chapter. Specifically, the chapter does not apply to scientific teaching, research, or experimentation "conducted pursuant to a protocol or procedure approved by an educational or research institution, and related incidental animal care activities, at facilities that are regulated under 7 USC 2131 to 2159 or 42 USC 289d." W.S.A. 951.015.

IV. Conclusion

Wisconsin does not ban or otherwise regulate the ownership of great apes. While great apes are protected as endangered species, it is unclear whether a permit is required to possess them because foreign species appear to be excluded from the permit requirement. Chapter 169 on Captive Wildlife does require individuals to obtain licenses to possess captive live wild animals, including exotic species like great apes. The listed licenses do not include all possible uses of great apes as there are no provisions for personal use or commercial exhibition of nonnative species. Great apes are also protected from cruel mistreatment and abandonment under the state’s anti-cruelty law, but there are no standards that address their particularized care in the state.


 

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