Full Title Name:  Detailed Discussion of Delaware Great Ape Laws

I. INTRODUCTION

In Delaware, the importation, possession, and sale of apes are governed by the state’s Endangered Species laws and the Exotic Animal laws. Because of their status as federally listed endangered species, it is illegal to import, possess, or sell gorillas, bonobos, orangutans, gibbons, and wild populations of chimpanzees without a Division of Fish and Wildlife permit. Also, because all species of apes are considered exotic animals, anyone wishing to possess an ape (or other primate) must obtain a Delaware Department of Agriculture (DDA) exotic animal permit (research facilities may be exempt). Unlike many states, Delaware does not prohibit the possession of apes as pets (assuming the owner has obtained all necessary permits). However, anyone wishing to legally acquire a pet ape in Delaware may find the prospect challenging. Under the state’s Endangered Species laws, it is illegal to import endangered apes for use as pets, and DDA’s Exotic Animal regulations make it illegal for private individuals to breed all species of apes. As a result, even if a potential pet ape owner is able to secure the necessary state permits, the supply of legally attainable pet apes may be limited by Delaware’s importation and breeding restrictions. In addition to the various permit requirements, all possessors of apes are required to comply with DDA’s Exotic Animal rules(governing the housing, possession, and display of exotic animals), the state’s general anti-cruelty laws, applicable federal laws, and local laws.

The following discussion begins with a general overview of the various state statutes and regulations affecting Great Apes. It then analyzes the applicability of those laws to the possession and use of apes for specific purposes, including their possession as pets, for scientific research, for commercial purposes, and in sanctuaries.

II. STATE STATUTES AND REGULATIONS

Delaware has a variety of laws affecting the importation, possession, breeding, and sale of apes. The state’s Endangered Species Laws restrict and regulate “endangered species” of wildlife, including most apes. The Exotic Animal Laws restrict and regulate exotic animals, including all primates. The Delaware Department of Agriculture’s Animal Health Rules establish import requirements for all wild animals, including apes. Finally, the state’s general anti-cruelty laws prohibit the neglect and physical abuse of apes and other animals.

A. ENDANGERED SPECIES LAWS

Section 601 of Delaware’s Conservation Code makes it illegal to import, transport, possess, or sell any “endangered species” of wildlife except under a permit from the Division of Fish and Wildlife (DFW).[1] This law applies to all species of wildlife[2] that are designated as “endangered” by the U.S. Department of Interior, including gorillas, bonobos, orangutans, gibbons, and wild (not captive bred) chimpanzees.[3] Section 604 of the Conservation Code authorizes DFW to permit the importation of any endangered species for zoological, educational, and scientific purposes and for the propagation of wildlife in captivity for the preservation of a species.[4] According to one DFW official, endangered species permit requests are rare and are handled on a case-by-case basis.[5] In any event, the agency would require proof that the endangered animal was captive bred and, if the agency were to issue a permit, it would include conditions governing the housing, maintenance, and care of the covered animal(s).[6]

DFW’s enforcement agents and all state and local law enforcement officers may enforce the state’s wildlife laws.[7] Any person who imports, transports, possesses, or sells an endangered ape in violation of Delaware’s Conservation Code is guilty of a class A environmental misdemeanor.[8] Upon conviction, any illegally possessed wildlife is forfeited to the state and either offered to a recognized institution for scientific or educational purposes, or destroyed.[9]

B. EXOTIC ANIMAL RESTRICTIONS AND REGULATIONS

Delaware’s Agriculture Code establishes permit requirements for the importation, possession, sale, or exhibition of exotic animals,[10] and charges the state’s Department of Agriculture (DDA) with the administration of the permit program and the regulation of exotic animals within the state.[11] All primates, including apes, are considered “exotic animals” and in addition to any necessary Delaware Division of Fish and Wildlife permits (Section IIA), above) and federal permits, a DDA exotic animal permit is required to import, possess, sell, or exhibit all species of apes.[12]

DDA issues the following types of exotic animal permits:

(1) Individual Permit: This non-transferable permit authorizes the keeping of an exotic animal as a pet.[13] Individual Permit holders may transfer an exotic animal through gift or adoption, but may not sell the animal without first obtaining a Sales Permit.[14]

(2) Accredited Zoo Permit: This non-transferable permit authorizes Association of Zoos and Aquariums (AZA) accredited zoos (all zoos in the state must be AZA accredited) to import, possess, breed, sell, and exhibit exotic animals.[15]

(3) Exhibitor Permit: This non-transferable permit authorizes an exhibitor to present exotic animals for public viewing.[16] Exhibitor Permit holders must comply with a variety of legal requirements for exhibiting animals in Delaware (discussed in Section III(C), below).

(4) Sales Permit: This non-transferable permit authorizes the holder to sell[17] exotic animals in Delaware or from Delaware to out-of-state locations.[18] A separate permit is required for each Class of Exotic[19] sold. Accredited Zoo Permit holders are not required to have a Sales Permit,[20] but Exhibitor Permit holders must also obtain a Sales Permit to sell their exotic animals. Sales Permit holders must comply with several legal requirements, including:

a. Submit to DDA an annual inventory of animal acquisitions, births, and deaths.[21]

b. Ensure that all purchasers have an appropriate DDA Exotic Animal Permit.[22]

c. Provide purchasers with information on the exotic’s enclosure and welfare requirements and inform purchasers that local laws may restrict or prohibit the possession of exotic animals.[23]

d. Maintain purchase records and submit purchase records (including purchaser’s information) to DDA.[24]

All permit holders are required to comply with DDA’s rules governing:

1. DDA and State Veterinarian access to exotic animals and animal housing facilities;[25]
2. Construction and maintenance of exotic animal enclosures;[26]
3. Exotic animal cohabitation;[27]
4. Physical Contact between exotics and the general public;[28]
5. Emergency evacuation plans and animal attack protocols;[29]
6. Transportation of exotic animals;[30]
7. DDA notification and/or maintenance of records on the following: diseased animals; permit information changes, transfer of ownership, and births and deaths.[31] 
8. Nuisance exotics;[32] and
9. Escape and loss of exotic animals.[33]

DDA may deny or revoke a permit for “good cause,” including:

1. Non-compliance with the agency’s rules;
2. A zoo losing its accreditation;
3. An escape or animal attack;
4. Breeding of exotic animals by Permit holders that are not permitted to breed (in the case of primates, only Accredited Zoo permit holders may breed those animals); and
5. Failure to meet the enclosure, proper care, nutrition, and welfare standards.[34]

Under current DDA Exotic Animal regulations, the State Veterinarian has the authority to designate agencies to enforce the state’s exotic animal laws.[35] Neither the Agriculture Code nor DDA regulations currently specify which agencies have been given enforcement authority. According to a 2010 DDA Division of Animal Health and Food Products rulemaking document, the Department of Natural Resources and Environmental Control (which houses the Division of Fish and Wildlife, see Section II(A), above) is a designated enforcement agency.[36] In early 2010, DDA declared its intent to submit legislation to the Delaware General Assembly that would clarify which state and local agencies are responsible for enforcing the exotic animal laws.[37] Anyone who possesses an ape in violation of the state’s exotic animal laws may be fined up to $500 dollars, imprisoned up to 30 days, or both.[38]

C. ANIMAL HEALTH RULES

Under the Delaware Department of Agriculture’s Animal Health rules, anyone importing a wild animal must have a valid health certificate.[39] Anyone who violates this rule may be fined up to $100 dollars, imprisoned for up to 30 days, or both.[40]

D. STATE GENERAL ANTI-CRUELTY LAWS

The state’s anti-cruelty laws,[41] which prohibit the cruel neglect or mistreatment of animals,[42] generally apply to Great Apes in Delaware.[43] Because all captive apes are necessarily dependent on their keepers, the provision requiring owners to provide their animals with proper food,[44] shelter,[45] and veterinary care[46] is particularly relevant.[47]In addition, apes are sometimes trained or induced to perform for public entertainment by chemical, electrical, mechanical, and manual devices that inflict physical or psychological injuries. Accordingly, the section that prohibits any person[48] from overworking, tormenting, and unnecessarily injuring[49] an animal may protect apes from being physically abused in the course of training, to induce performances, or for any other reason.

These anti-cruelty laws do not apply to the following:

(1) Activities carried on for scientific research; and

(2) Accepted veterinary practices.

Any state or local law police officer and agents of the Kent County Society for the Prevention of Cruelty to Animals or the Delaware Society for the Prevention of Cruelty to Animals may enforce the state’s anti-cruelty laws.[50] A violation of the state’s anti-cruelty laws is either a class A misdemeanor or a class F felony, depending on the particular offense involved.[51]

E. LOCAL LAWS

While the importation and possession of apes are regulated under both federal and state laws, county and municipal governments may also regulate animals within their jurisdictions.^[52] Typically, those local ordinances either restrict the possession of animals, regulate activities involving animals, or set minimum standards for the housing and care of animals. The following examples demonstrate how some towns, cities, and counties in Delaware have addressed the possession of apes (and other wild or exotic animals) within their communities:

Kent County 205-43.1: It is illegal to possess any “dangerous animal” within the unincorporated area of Kent County, because “[t]hese animals are incapable of adapting to human companionship and their possession by individuals as pets has proven to be a menace to emergency personnel, including firemen, police officers and utility workers, as well as the general public.” The ban does not apply to properly permitted zoos, educational or medical institutions, animal shelters, and travelling circuses. Any person possessing an exotic dangerous animal on April 11, 2000 may continue to possess that animal with a state permit (under 3 Del. C. § 7201) as long as he or she does not breed the animal. (Ord. No. 00-12, 4-11-2000)

Lewes 59-1: It is illegal to import, keep, or maintain any animal, except common household pets, within the city limits. There are no exceptions to this ban. 

Newark 5-3: It is illegal to possess, own, harbor, or care for any ape or other exotic animal within the city limits. The ban does not apply to licensed zoos or educational institutions. The Chief of Police may authorize the temporary display of apes by facilities that are licensed under the Delaware State Code. (Ord. No. 98-25, 9-28-98)

Wilmington 3-1, 3-15: It is illegal to keep any ape within the city limits, except under such conditions as shall be fixed by the Delaware Society for the Prevention of Cruelty to Animals. Apes may be kept for exhibition purposes by circuses, zoos and educational institutions in accordance with regulations established by the city or the Delaware Society for Prevention of Cruelty to Animals. (Code 1968, § 22-8; Ord. No. 03-075(sub 1), § 5, 12-4-03)

III. POSSESSORS OF GREAT APES

In the U.S., captive apes are generally possessed for use as pets, scientific research subjects, for exhibition or other commercial purposes, or they are retired and live in sanctuaries. The remainder of this section discusses how the state’s laws affect apes that are possessed for each of those purposes.

A. PETS

Delaware does not have any laws that specifically prohibit the keeping of apes as pets. DE ST TI 7 § 601 makes it illegal to possess any federally listed endangered species (including gorillas, bonobos, orangutans, gibbons, and wild populations of chimpanzees) without a permit issued by the Division of Fish and Wildlife (DFW). See Section IIA, above. In addition, DE ST TI 3 § 7201 and the Delaware Department of Agriculture’s (DDA) Exotic Animal Regulations require anyone wishing to import or possess a pet ape to obtain a DDA Individual Permit. Individuals wishing to sell pet apes must have a DDA Sales Permit. See Section IIB, above.

The following list outlines what pet owners can and can’t do under the law:

Importation: Endangered apes (gorillas, bonobos, orangutans, gibbons, and wild populations of chimpanzees): prohibited under DE ST TI 7 § 601 and DE ST TI 7 § 604 (DFW is not authorized to issue import permits for keeping endangered animals as pets); Captive-Bred Chimpanzees (federally listed as threatened): allowed with a DDA Individual Permit.

Transportation: See “Possession” below.  

Possession: Endangered apes (gorillas, bonobos, orangutans, gibbons, and wild populations of chimpanzees): require both DFW endangered species permit and DDA Individual Permit; Captive-Bred Chimpanzees (federally listed as threatened): allowed with a DDA Individual Permit.

Sale: Endangered apes (gorillas, bonobos, orangutans, gibbons, and wild populations of chimpanzees): require both DFW endangered species permit and DDA Sales Permit; Captive-bred chimpanzees (federally listed as threatened): allowed with a DDA Sales Permit.

Breeding: Prohibited under 3 Del. Admin. Code § 304-6.2.1.4.3.

Housing, Care, and Maintenance: All DFW endangered species permit holders must comply with the permit conditions governing the housing, care, and maintenance of covered animals. All DDA exotic animal permit holders must comply with DDA’s regulations governing the housing of exotic animals. See Section IIB, above.

B. ZOOS

The Delaware Department of Agriculture (DDA) defines a “zoo” as a park or institution accredited by the Association of Zoos and Aquariums (AZA) (or its designated successor organization) where:

(1) Exotics are primarily kept in cages or enclosures for people to come and see;

(2) Exotics are exhibited outside of the park to the public for educational purposes; and

(3) Exotics are bred and studied by scientists.

Under DDA’s Exotic Animal Regulations, all zoos in Delaware must obtain an Accredited Zoo Permit to import, possess, breed, sell, and exhibit all species of apes. See Section IIB, above. Accredited Zoo Permit holders are the only entities authorized to breed apes in Delaware.

In addition to DDA’s permit requirements, zoos wishing to import, possess, or sell endangered apes (gorillas, bonobos, orangutans, gibbons, and wild populations of chimpanzees) must also obtain a Division of Fish and Wildlife (DFW) endangered species permit and any necessary federal permits. See Section IIA, above. Zoos importing apes are required to comply with DDA’s importation requirements discussed in Section IIC, above.

Zoos must house, maintain, and care for their apes in compliance with any DFW and DDA permit conditions and DDA’s regulations governing exotic animals (discussed in Section IIB), above). In addition, those facilities are regulated by the U.S. Department of Agriculture under the Federal Animal Welfare Act[53] and must comply with the federal minimum standards of care for primates. Finally, all apes in zoos are protected by the state’s general anti-cruelty statutes, which prohibit the cruel neglect and mistreatment of those animals. See Section IID, above.

C. EXHIBITORS (USDA CLASS C LICENSEES)

There are various types of exhibitors that display apes, including: circuses, wild animal parks, sanctuaries, and performing animal acts. Under DE ST TI 3 § 7201 and the Delaware Department of Agriculture’s (DDA) Exotic Animal regulations, any person or entity (other than a zoo[54]) wishing to present apes or other exotic animals for public viewing must obtain a DDA Exhibitor Permit (discussed in Section IIB, above).[55] In addition, exhibitors wishing to import, possess, or sell endangered apes (gorillas, bonobos, orangutans, gibbons, and wild populations of chimpanzees) must also obtain a Division of Fish and Wildlife (DFW) endangered species permit and any necessary federal permits. See Section IIA, above. Exhibitors importing apes are required to comply with DDA’s animal importation requirements discussed in Section IIC, above. Under DDA’s Exotic Animal regulations, exhibitors are not allowed to breed their apes (or other exotic animals) and must obtain a DDA sales permit if they wish to sell those animals. Also, it is illegal for an exhibitor to allow physical contact between members of the public and the exotic animal(s).

All Exhibitor Permit holders are required to notify DDA within 60 days prior to exhibiting exotic animals in Delaware and must also provide the Department with the following information:

1. An annual inventory which includes an “accurate description” of each exotic animal to be exhibited;[56]
2. The dates of exhibition;
3. A list of exhibition activities;
4. A public health and safety plan, animal attack protocol, and animal health plan upon request;[57] and
5. Exhibitors based in Delaware must also notify the Department of any births or deaths of each exotic by the first of every month.[58]

Exhibitors must house, maintain, and care for their apes in compliance with any DFW and DDA permit conditions and DDA’s regulations governing exotic animals (discussed inSection IIB, above). In addition, all exhibitors with apes are regulated by the U.S. Department of Agriculture under the Federal Animal Welfare Act[59] and must comply with the federal minimum standards of care for primates. Finally, all apes in Delaware are protected by the state’s general anti-cruelty statutes, which prohibit the cruel neglect and mistreatment of those animals. See Section IID, above.

D. SANCTUARIES

Delaware has no laws addressing the establishment of sanctuaries for apes or other types of exotic wildlife, nor are there any special rules governing the keeping of apes by those facilities. Sanctuaries housing apes are subject to the same state laws as exhibitors (see Section IIIC, above).

E. RESEARCH FACILITIES

DE ST TI 3 § 7202 appears to exempt research facilities from the Delaware Department of Agriculture (DDA) exotic animal permit requirement. However, research facilities wishing to import, possess, or sell endangered apes (gorillas, bonobos, orangutans, gibbons, and wild populations of chimpanzees) must obtain a Division of Fish and Wildlife (DFW) endangered species permit and any necessary federal permits. In addition, research facilities importing apes must comply with DDA’s animal import rules (discussed in Section IIC, above). Finally, all owners/possessors of exotic animals are required to report to DDA and the State Veterinarian any contagious, infectious, or zoonotic disease infecting or carried by an exotic animal;[60] there is no exemption for research facilities.

Delaware does not regulate the use of apes in scientific research. However, all research facilities with primates are regulated by the U.S. Department of Agriculture under the Federal Animal Welfare Act[61] and those facilities must comply with the federal minimum standards of care for laboratory apes.

IV. CONCLUSION

Delaware is among the minority of states that do not have an outright ban on the private possession of Great Apes. However, the possession of endangered apes as pets may be precluded by the state’s Conservation Code which prohibits the importation or possession of federally listed endangered species without a Division of Fish and Wildlife (DFW) permit. While DFW cannot permit the importation of endangered apes for use as pets, it may have discretion to permit the possession of resident endangered apes as pets. Under state law, zoos, exhibitors, and research facilities may import and possess apes with the necessary state (endangered species and/or exotic animal) permits and federal permits (and in compliance with DDA’s exotic animal regulations). It is important to note that even with all appropriate federal and state permits, the possession and use of apes may be further restricted by local laws.