Full Title Name:  Detailed Discussion of Maryland Great Ape Laws

I. Introduction

Maryland regulates possession of Great Apes both expressly via state law as well as indirectly via reference to federal law.  At the state level, it bans the importation, sale and transfer of dangerous animals through its anti-cruelty law. (MD CRIM LAW § 10-621)  Maryland does not define the term “dangerous animal,” but section (b) lists all non-human primates as one of eight categories of animal that “[a] person may not import into the State, offer for sale, trade, barter, possess, breed, or exchange….”    However, section (a) contains an even longer list of exceptions to this ban.  These include research facilities, exhibitors, dealers, animal sanctuaries, animal control officers, veterinarians, people traveling through the state, those who had the animal(s) prior to a certain date, and those with a disability needing a service animal.  Each exemption has certain limitations, but little proof is required.  There is no permitting or general registration process.  The law does detail extensive seizure and hearing provisions for animals allegedly found in violation of the general ban.  Finally, counties and municipalities are allowed to adopt stricter laws and regulations.

By contrast, Maryland’s endangered species law does not mention Great Apes expressly.  Instead, it incorporates them by reference to federal law, which does list all Great Apes as endangered.  The state's Nongame and Endangered Species Conservation Act explicitly bans the possession, transportation, exportation, processing, sale, offer, or shipment of any species listed as endangered or threatened under federal  law.  (MD NAT RES § 10-2A-05) However, it carves out several exceptions under § 10-2A-08.  Finally, the state secretary has the authority to “permit, under the terms and conditions he prescribes, any act otherwise prohibited by [under other sections] for scientific purposes or to enhance the propagation or survival of the affected species.”

Other sections of Maryland’s anti-cruelty law are also both relevant and conflicting.  The statute states that “[i]t is the intent of the General Assembly that each animal in the State be protected from intentional cruelty, including animals that are… corporately or institutionally owned… or used in privately, locally, State, or federally funded scientific or medical activities.”  (MD Code, Criminal Law, § 10-602)  The next section, however, states equally clearly that the cruelty protections “do not apply to… research conducted in accordance with… the federal Animal Welfare Act… or the Health Research Extension Act.”  (MD Code, Criminal Law, § 10-603)

Since it is a longtime rule that “the specific controls the general” when interpreting a law, researchers are clearly exempt and would be required to comply only with the Federal Animal Welfare Act and its accompanying regulations concerning humane care and handling.  Other categories of exempt users also might be permitted to keep Great Apes if they can persuade the state secretary that their usage is either scientific or increasing the species’ survival odds.  However unlike researchers, these keepers – private owners, exhibitors, dealers and others – would have to comply with Maryland’s anti-cruelty law.  That law, however,  also exempts “normal human activities in which the infliction of pain to an animal is purely incidental and unavoidable.”  It does not define what constitutes any of those terms.

II. State Statutes – Maryland

A. Ownership

Import, offer, or transfer of dangerous animal (MD CRIM LAW § 10-621)

1. Which Great Apes Are Covered

The ban covers, among other species, any nonhuman primate, including a lemur, monkey, chimpanzee, gorilla, orangutan, marmoset, loris, or tamarin.

2. What is Prohibited

A person may not import into the State, offer for sale, trade, barter, possess, breed, or exchange a live animal from the above categories.

3. What is Allowed

The ban, however, carves out numerous exceptions for research facilities and exhibitors under the Federal Animal Welfare Act, state-licensed breeders, 501(c)(3) animal charities that meet certain criteria, animal control officers and veterinarians acting within the scope of their jobs, travelers passing through the state in ten days or less, disabled persons and those who had lawful possession of a Great Ape prior to a certain date.

4. Other Special Provisions of the Law

a. Housing: This statute does not deal with housing conditions.  Housing for certain types of usage is controlled by 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)].

b. Enforcement: This statute also contains enforcement provisions for animals found allegedly in violation of the ban.

c. Other than as described above, there is no general permitting or inspection process.

d. The law also allows counties and municipalities to enact and adopt even more restrictive laws and regulations.

The state also has a regulation requiring a health certificate and rabies certificate for companion animals.  (MD Agri. 15.14.05.01) Non-human primates are both statutorily included in the definition of “companion animal” when kept for companionship (see personal use discussion above), and statutorily excluded from the definition when kept for “bona fide research.”  The regulation does not define what qualifies as “bona fide research.” (15.14.05.01C(2))

Nongame and Endangered Species Conservation Act (MD NAT RES  § 10-2a-01 - 09)

1. Which Great Apes Are Covered

Great Apes are not mentioned by name, but are incorporated by reference to the federal Endangered Species Act, which does include all Great Apes.

2. What is Prohibited

A person may not export, take, possess, process, sell, offer, deliver, carry, transport , ship, violate any conservation regulation related to any wildlife listed pursuant to this subsection and adopted by the Secretary pursuant to authority provided by this section.

3. What is Allowed

The following exceptions are permitted:

(1) Importation into the State of wildlife or plants which may be lawfully imported into the United States or lawfully taken and removed from another state; or

(2) Entry into this State or the possession, transportation, exportation, processing, sale, offer for sale, or shipment of any wildlife or plant which is designated an endangered or threatened species in this State but not in the state where originally taken, if the person engaging in the activity demonstrates by substantial evidence that the wildlife or plant was lawfully taken and lawfully removed from the state of origin.

MD Code, Natural Resources, § 10-2A-08(1), (2). The exception for entry and transport is qualified, however, by the requirement that the exemption seeker must  comply with any originating state or federal permits that might be required,  MD Code, Natural Resources, §10-2A-05(e).   It carves out a final catch-all exemption that “[t]he Secretary may permit, under the terms and conditions he prescribes, any act otherwise prohibited for scientific purposes or to enhance the propagation or survival of the affected species.” MD Code, Natural Resources, §10-2A-05(f).

4. Other Special Provisions of the Law

a. Housing: This statute does not deal with housing conditions.  Housing for certain types of usage is controlled by 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)].

b. Enforcement: This statute contains a relatively minimal enforcement provision, but does allow the secretary to implement regulations.

c. Other than as described above, there is no general permitting or inspection process.

d. Conservation programs: The law also permits the secretary to establish conservation programs for endangered (and other) species, fund and/or partner with other agencies in order to maintain such programs, and adopt regulations in order to implement the section.

MD Code, Natural Resources, § §10-2A-06. Notably, neither the criminal nor the endangered species law prohibits “ownership” of Great Apes, just “possession” and other activities.  While it might take a contrived set of circumstances, a Maryland resident could own a Great Ape and simply keep the animal – “possess” it – in a state that does not prohibit possession.

B. Keeping/Possession

See "ownership" above.

C. Prohibition Against Cruelty

Crimes relating to animals (MD CRIM LAW § 10-601 - 623)

1. Are Great Apes Covered?

Great apes are covered generally under MD Code, Criminal Law, § 10-602, and even covered specifically in various research settings (§ 10-602(6), (7)), but then are expressly carved out by a later exception for research. (See item  number 4  below)

2. Statement of Prohibited Acts

Maryland prohibits animal cruelty, which it defines as overworking, inflicting unnecessary pain or suffering, depriving an animal of sufficient nutritious food, water, air, veterinary care, space, shelter, protection from the weather, as well as allowing or causing anyone else to do the same.

Aggravated cruelty is defined as intentionally mutilating, torturing, cruelly beating or killing an animal, as well as allowing or causing anyone else to do the same.  It exempts self-defense against animals used in law enforcement.

Some prohibitions in the anti-cruelty law are limited in scope to dogs, cats, fighting birds and other animals.  Others, however, could apply to Great Apes although it is unlikely. (e.g., MD Code, Criminal Law, § 10-610 (ban against using animals as prizes); MD Code, Criminal Law, § 10-612 (ban against abandoning an animal.))

3. Statement of Duty to Provide Care

Maryland does not provide a statement of positive duties of care.  The law is only expressed as a negative, i.e., what conduct is banned.

4. List of Exceptions

Section 10-603 lists four scenarios under which the state anti-cruelty law does not apply, three of which are either definitely or possibly relevant to Great Apes:

(2) research conducted in accordance with protocols approved by an animal care and use committee, as required under the federal Animal Welfare Act or the federal Health Research Extension Act; [citations omitted]

(3) an activity that may cause unavoidable physical pain to an animal, including food processing, pest elimination, animal training, and hunting, if the person performing the activity uses the most humane method reasonably available; or

(4) normal human activities in which the infliction of pain to an animal is purely incidental and unavoidable.

5. Other Special Provisions of the Law

The statute generally lays out a scheme for seizure, notice and hearing, for animals suspected of abuse.  (MD Code, Criminal Law, § 10-615) Even here, Great Apes used in research receive fewer protections than Apes in other circumstances.  Research apes may only be seized upon investigation and recommendation by the Department of Health and Mental Hygiene, Center for Veterinary Public Health.  (MD Code, Criminal Law, § 10-615(2)).

D. Any Other Laws Concerning Great Apes?

Remarkably, Maryland is nearly bereft of any laws holding owners responsible for animals that  escape and cause injury to a third party.  Although there are several provisions requiring owners to reimburse the state for expenses it incurs, [1] the only provision mandating that an owner compensate an injured third party is limited to dangerous dogs on its face. [2]  Neither the state’s endangered species law, nor its anti-cruelty statute – which includes the general ban on importing and keeping wild animals – even mention the word “escape.”  Neither impose any penalties (beyond presumably what a victim could sue for under common law) for injury to a third party.

III. How Different Categories of Possession Impact Different Activities

A. Private Ownership (Not exhibitors)

Maryland requires health and rabies certificates for companion animals, and it defines  “companion animal” here as any animal, specifically including non-human primates, who are “kept for pleasure rather than utility and accustomed to living in or about human habitation.” [3] As a practical matter though, this tends to be an issue only for importation or exportation from a state. 

Here is a checklist summary for this state regarding whether the following activities are allowed with respect to Great Apes:

Importation:  No [4]

Transportation:  No [5]

Ownership:  Not expressly covered, although see possession.

Possession:  Yes,  if had prior to May 31, 2006. [6]  Must comply with health code [7] and have provided written notice to local animal control by Aug. 1, 2006. [8]

Sale:  No [9] 

Breeding:  No. [10]  Does not address what happens if an ape lawfully possessed prior to Mat 31, 2006 becomes pregnant thereafter.

Living Conditions:  Not covered.  (Federal regulations would apply for licensed exhibitors.)

Liability:  Not covered

B. Dealers (Federal Class B License)

Here is a checklist summary for this state regarding whether the following activities are allowed with respect to Great Apes:

Importation:  Yes [11]

Transportation:  Yes

Ownership:  Yes

Possession:  Yes

Sale:  Yes

Breeding:  Yes

Living Conditions:  Not covered (See fn3 for applicable federal regulations)

Liability:  Not covered

Must possess a valid license or permit issued by Maryland Department of Natural Resources.

The person engaging in any of the above activities must be able to demonstrate by substantial evidence that the (otherwise prohibited) animal was lawfully taken and lawfully removed from the state of origin. [12]  The statute does not specifically address the question of possession, although arguably an animal could not be lawfully removed from anywhere had it been unlawfully possessed prior to its removal.

State law does not otherwise impose any further duties or restrictions beyond what is required at the federal level.

C. Zoos and other Public Exhibitors

Must be licensed under the Federal Animal Welfare Act and display the animal(s)in a public setting as the exhibitor’s primary function.  There do not appear to be any limitations beyond those required for licenses.

Here is a checklist summary for this state regarding whether the following activities are allowed with respect to Great Apes:

Importation:  Yes [13]

Transportation:  Yes

Ownership:  Yes

Possession:  Yes

Sale:  Yes

Breeding:  Yes

Living Conditions:  Not covered (See fn3 for applicable federal regulations)

Liability:  Not covered

D. Sanctuaries

To qualify as a sanctuary, the following criteria need to be satisfied.  A facility must be able to show that it: [14]

1. is a nonprofit organization qualified under § 501(c)(3) of the Internal Revenue Code;

2. operates a place of refuge for abused, neglected, impounded, abandoned, orphaned, or displaced wildlife;

3. does not conduct commercial activity with respect to any animal of which the organization is an owner; and

4. does not buy, sell, trade, lease, or breed any animal except as an integral part of the species survival plan of the American Zoo and Aquarium Association.

Although presumably state regulators could rely upon federal regulations allowing inspections and other methods to make a sanctuary determination, the Maryland law itself does not  define a process for proving that a facility meets the above the criteria.  The statute does not provide for inspections, the issuance of permits, or any other activity to monitor compliance.

Here is a checklist summary for this state regarding whether the following activities are allowed with respect to Great Apes:

Importation:  Yes [15]

Transportation:  Yes

Ownership:  Yes

Possession:  Yes

Sale:  Yes

Breeding:  Yes

Living Conditions:  Not covered. (See fn3 for applicable federal regulations.)

Liability:  Not covered

E. Scientific Research

Must be licensed under the Federal Animal Welfare.  There do not appear to be any limitations beyond the federal licensing requirement.

Here is a checklist summary for this state regarding whether the following activities are allowed with respect to Great Apes:

Importation:  Yes [16]

Transportation:  Yes

Ownership:  Yes

Possession:  Yes

Sale:  Yes

Breeding:  Yes

Living Conditions:  Not covered (See fn3 for applicable federal regulations.)

Liability:  Not covered

F. Animal Control Officers (or equivalent private contractors)

Exclusion only applies to animal control acting under state or local authority, or private contractors of such operations hired by local governments.

However, the state does not define a  process is for proving that the criteria for exemption are  met.  It does not issue permits, or maintain any other  method to monitor compliance.

Here is a checklist summary for this state regarding whether the following activities are allowed with respect to Great Apes:

Importation:  Yes [17]

Transportation:  Yes

Ownership:  Yes

Possession:  Yes

Sale:  Yes

Breeding:  Yes

Living Conditions:  Not covered

Liability:  Not covered

G. Veterinarians

Must hold a valid license to practice veterinary medicine in the State and treat the (otherwise prohibited) animal in accordance with customary and normal veterinary practices.

Here is a checklist summary for this state regarding whether the following activities are allowed with respect to Great Apes:

Importation:  Yes [18]

Transportation:  Yes

Ownership:  Yes

Possession:  Yes

Sale:  Yes

Breeding:  Yes

Living Conditions:  Not covered

Liability:  Not covered

H. Travelers

Here is a checklist summary for this state regarding whether the following activities are allowed with respect to Great Apes:

Importation:  Yes [19]

Transportation:  Yes

Ownership:  Yes

Possession:  Yes

Sale:  Yes

Breeding:  Yes

Living Conditions:  Not covered

Liability:  Not covered      

Maryland law also carves out a specific exemption for service animals [20], but Great Apes are not used for this purpose.

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IV. Conclusion

Although Maryland does have several laws that either reference Great Apes specifically or reference federal laws meant to protect Great Apes, many exceptions have been carved out of these protections.  As such, Maryland's laws regulating possession and usage of Great Apes is mediocre compared to other states at best.  There does not appear to be any legislation regarding Great Apes pending at this time.