The Endangered Species Act (ESA), which was enacted in 1973, identifies and protects animals that are threatened with extinction throughout the world. The level of protection that a species is afforded depends primarily on whether it is listed as “threatened” or “endangered” by the U.S. Fish and Wildlife Service (FWS). Gorillas, bonobos, orangutans, gibbons, and wild populations of chimpanzees are listed as “endangered,” meaning they have the highest level of federal protection under the ESA. Captive populations of chimpanzees are listed as “threatened” because FWS did not want to interfere with the ability of research facilities, zoos, and entertainment operations to obtain and use captive chimpanzees in their commercial enterprises.
For domestic endangered species the ESA contains significant and complex provisions that deal with protection of habitat, but since none of the Great Apes have natural habitats within the US these provisions do not come into play for apes.
The ESA generally makes it illegal to import, export, take, or participate in an interstate or foreign sale of any “endangered” Great Ape. Although the Act primarily aims to protect those species from extinction by restricting the national and international commercial trade in apes, it also regulates the treatment of “endangered” apes in the U.S. by making it illegal to “take” (meaning harass, harm, wound, or kill) captive apes. At first glance, the ESA appears to provide substantial protection to all “endangered” apes; however, there are several exemptions within the Act that limit the level of legal protection for those animals. Certain individual apes that were held in captivity (for noncommercial purposes) at the time that their species was listed as “endangered” (known as “pre-act wildlife”) may be freely imported, exported, and transferred for non-commercial purposes. For example, a person that has kept an orangutan as a pet since 1972, may give that animal away to another person or to an animal sanctuary, as long as the ape is not used for commercial purposes by the new owner. Also, under the Act’s “captive-bred wildlife” exemption, people who register with FWS can legally export, re-import, sell, and “take” (including euthanize) their captive-bred apes as long as those activities enhance the survival of the species. Certain activities including public exhibition or holding and maintenance of “surplus” apes (meaning those not immediately needed for scientific research or breeding) are generally accepted as enhancing the survival of the species, while selling apes for use as pets is not. Finally, FWS issues 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 scientific research or to enhance the “propagation or survival” of the species. As with the captive-bred wildlife registration, FWS does not issue endangered species permits to transport, take, buy, or sell apes for use as pets. While the ESA expressly prohibits certain activities involving “endangered” species, it does not do the same for “threatened” species, which includes all captive populations of chimpanzees. When a species is listed as “threatened” by FWS, the agency is required 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 import, export, sell in interstate or foreign commerce, or “take” the “threatened” species. In the case of captive chimpanzees, FWS made a special rule that regulates captive chimpanzees differently according to each animal’s country of origin. There are no restrictions on the import, export, take, or interstate or foreign sales of chimpanzees that originated in the U.S., and FWS does not issue permits for those animals. This complete lack of restrictions is extremely rare under the ESA. On the other hand, captive chimpanzees that originated in any of their native countries are regulated as though they were “endangered species” (meaning that it is illegal to import, export, take, or engage in an interstate or international sale of those animals, except pursuant to an exemption or a FWS permit authorizing those activities for scientific research or to enhance the propagation or survival of the species). Finally, it is illegal to import, export, take, or engage in an interstate or international sale of captive chimpanzees that originated from a foreign country outside of their home range, except with a FWS permit authorizing those activities for: (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.
The ESA also contains provisions for the implementation of the United States’ responsibilities under the international treaty called the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). For purposes of import or export of an endangered species both a CITES permit and an ESA permit may be required.