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Overview of the Laws Affecting Zoos

Kali S. Grech


Michigan State University College of Law
Publish Date:
2004
Place of Publication: Animal Legal & Historical Center
Printable Version

Overview of the Laws Affecting Zoos

 

Zoos and similar facilities that publicly exhibit wild animals have existed throughout history, beginning as far back as Ancient Egypt. In the past, animals were kept in small cages and used by rulers to display their wealth and satisfy the curiosity and fascination surrounding wild creatures. Society’s views about zoos have changed. No longer are people willing to view animals pacing nervously back and forth behind bars. Instead, the public has begun to express concern for the welfare of the animals within zoos, preferring aesthetically pleasing and more natural habitats for zoo enclosures. Zoo proponents now claim the exhibitions exist for education, conservation, science, and recreational purposes. The imprisoned animals are the property of the zoo and laws are in place to regulate and protect them. Unfortunately, the current mandates lack effective protections and enforcement to ensure the welfare of animals kept in captivity. This paper will examine current laws pertaining to zoo animals, exposing their benefits and downfalls, and illustrating that more protection is needed.

Laws pertaining to zoo animals exist on international, federal, and state and local levels. On the international level, the Convention on International Trade of Endangered Species of Wild Flora and Fauna (CITES) regulates the trade and movement of roughly 5,000 types of endangered animal species. Membership of nation states is completely voluntary. CITES covers both live animals and their products. The act works by employing restrictions on trade, both import and export, through licensing and permitting systems. The species are listed in three appendices, which determine how much protection they are afforded. Trade in species listed on Appendix I is almost never permitted, while trade in species listed on Appendix III is much less regulated. Additionally, all animals housed in zoos prior to the signing of the treaty in 1973 are exempt from its  provisions. And animals born in captivity are afforded much less protection their free-roaming counterparts.

In addition to CITES, on the international level, the International Air Transport Association (hereinafter “IATA”) regulates the majority of airlines. Membership is voluntary, but highly regarded within the industry. Member airlines must meet the IATA industry standards for shipping live animals, whether pets or zoo animals, to ensure their safe transport.

On the federal level, the Animal Welfare Act (AWA) is the only statute that protects the welfare of individual zoo animals. Under the AWA, animals that meet the definition set forth in the statute, in the custody of a dealer or exhibitor, are protected by the statute. The definition of an animal, however, greatly limits the scope of the act. All cold-blooded animals, constituting a great number of the animals housed in zoos, are excluded from protection. Dealers and exhibitors must be licensed and participate in record-keeping and marking requirements. Additional protections exist governing their care, handling, and transport. The Act gives power to the Secretary of Agriculture and the US Department of Agriculture, whose power is further delegated to the Animal Plant and Health Inspection Service (APHIS), to administer and enforce the Act’s requirements. APHIS enforces the Act through conducting inspections and instituting rules and regulations for facilities. APHIS is required to conduct a yearly inspection and investigate facilities whenever a complaint is filed; however, there are only 104 inspectors and over 2,000 facilities to inspect. The resources of APHIS, and enforcement of the Animal Welfare Act have proved inadequate. Additionally, the standards are very broad and set forth only basic minimal requirements for food, water, housing, and sanitation. Except for primates, the mental health of the animals is not protected or even considered. The ensuing question arises -- is the Act is sufficient to ensure the welfare of animals? Another problem with the AWA, is that it lacks a citizen suit provision, which would allow a concerned citizen to sue on behalf of the welfare of a zoo animal. Only in very limited circumstances are people allowed to sue on behalf of a zoo animal.

The Endangered Species Act (ESA) applies only to specifically listed animals, and even then it only regulates the import or export of species being bought or sold in foreign commerce. There are currently over 1,050 animal species designated as “endangered” or “threatened” by the Secretary of the Interior. The US Fish and Wildlife Service is in charge of administering and enforcing the Act. The ESA applies to both public and private actors; prohibiting the “take” of listed animals by anyone. “Take” is further defined within the Act as harming or harassing; however, the Secretary’s regulations exempt normal animal husbandry, which includes exhibition of endangered species. Therefore, exhibiting an endangered species alone is not a violation of the Act. Additionally, the Secretary may grant specific exemptions allowing for the take of an endangered species. One benefit of this Act is that it contains a citizen suit provision, which allows a concerned citizen to bring suit to enforce the Act, subject to some limitations.

Also at the federal level, there are statutes that purport to protect specific species including the African elephant, Asian elephant, great apes, tigers and rhinoceros. The most important part of these statutes is the money allocated toward conservation of the protected species. They also affirm the endangered status of these animals, under CITES provisions, and employ moratoriums on the products of such animals. Besides allocating funding for such species’ conservation efforts, these statutes do little more than affirm CITES findings and provisions.

Although states are subject to the AWA, every state has enacted its own anti-cruelty laws. Forty-one states sanction felony-level penalties for certain types of cruelty violations. Six states, however, wholly exempt exhibited animals from their scope. State laws vary greatly both in the scope of coverage and sentencing provisions. One problem with state laws is lack of enforcement. In most areas only local law enforcement is in charge of enforcing anti-cruelty laws. Most city and county agencies lack resources, especially in high crime areas. Where there are inadequate resources to enforce the laws and prosecute violators, the welfare protections purported in the statutes are rendered ineffective for zoo animals.

In addition to the international, federal, state and local laws, additional voluntary standards are also in place for zoos that choose to implement them. The American Zoo and Aquarium Association (hereinafter “AZA”), an organization of zoos and related facilities, regulates the zoo industry through voluntary standards. To become a member, zoos must be accredited and related facilities must be certified, according to the guidelines the AZA sets forth. Related facilities are those that house wild animals, but are not open to the public on a regular basis. The AZA Code of Professional Ethics, a heightened standard for the care and welfare of zoo animals, governs AZA members. AZA Membership is highly regarded within the industry. The standards regulate everything from the movement of zoo animals to the image the zoo must set forth to the public. 

Several findings seem apparent after reviewing existing laws to protect zoo animals. First, zoo animal welfare protections are only found in state and federal anti-cruelty statues. The majority of existing statutes and regulations govern only the transport or trade of animals or animal products, ensuring their status in the world market without wiping the species out entirely. These laws purport to protect the well-being of the species as a whole, rather than a specific animal. Secondly, well-known charismatic animals are afforded much more protection under existing laws, with regard to specific statutes and the Animal Welfare Act, which exempts all cold-blooded animals. Additionally, certain species are afforded much more protection than others depending on the specific statutes and funding in place to help conservation efforts. Thirdly, there is a lack of adequate enforcement mechanisms within the statutes. Adding to the problem, most state and federal governing agencies are over-worked and under-funded leading, to less than optimal enforcement of the statutes that exist. An increase in funding and/or public concern would put pressures on such agencies to ensure that at the very least, minimal standards are upheld. Lastly, only minimal standards currently exist. Tighter controls and stricter regulations would lead to an overall improved quality of life for zoo animals.

One result of the scarcity of laws and insufficient enforcement of existing laws, is the existence of a prospering black market in the trade of rare and exotic species. Surplus zoo animals from breeding programs and retired zoo animals are easily sold off to dealers for canned hunts, shoddy roadside attractions, or slaughterhouses to be sold for their parts. This trade is a thriving industry, as exotic species can be worth a great deal of money. There are countless documented cases of zoos selling animals to dealers in the black market disguised as conservationists, despite the AZA being aware of the imposter’s true identity. For more information on this subject, see Alan Green, “Animal Underworld: Inside America’s Black Market for Rare and Exotic Species.”

In light of the commendable goals the AZA sets forth in education, conservation, recreation and science, the question remains: is it okay to keep wild animals in captivity? Recently, there have been several incidents of zoos nationwide deciding to release their elephants to sanctuaries, acknowledging that their facilities were inadequate to properly care for them. Elephants are highly intelligent creatures, capable of being trained in captivity. They are also very emotional creatures, known to mourn their dead in the wild and nurture their young into their teens.  In the wild, elephants usually live past 65 years-old and roam up to 60 miles a day in social groups comprised of eight to ten animals. They are capable of communicating through infrasound and vocalizations. In captivity, elephants are confined to small enclosures, kept with only a few other elephants, if any. Imprisoned elephants die at a much younger age than wild elephants. Additionally, in captivity, elephants are plagued with diseases such as Tuberculosis, Arthritis, and mental illness, in addition to suffering to feet and joint ailments – a direct result of not being allowed to roam. In the last few months, the Detroit Zoo, the San Francisco Zoo, and the L.A. Zoo have all decided to close their elephant exhibits and release the animals to one of the two sanctuaries nationwide. Hopefully, this is a trend that more zoos will follow in the future, evaluating the welfare of their animals as the top priority, above the selfish human desire to observe wild animals in captivity.

For more, click here to read Detailed Discussion.

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