Detailed Discussion of Wildlife Rehabilitation Laws
- Angela Nicole Johnson
- Animal Legal & Historical Center
- Publish Date: 2012
- Place of Publication: Michigan State University College of Law
While the primary focus of rehabilitation is care for wildlife, rehabilitators must also become knowledgeable in the vast array of federal and state statutes, regulations, and department of wildlife policies which affect their ability to operate lawfully. Remaining in compliance with the law can prove difficult and non-compliance comes with consequences. This paper introduces the role of a wildlife rehabilitator, including the goals of rehabilitation. Section III discusses the permit and licensing requirements of wildlife rehabilitators, including demonstrating competency, preparedness, continuing education requirements, and permit renewals; Section IV addresses facility adequacy and standards of care. Section V discusses the types of wildlife which may be rehabilitated and procedures for non-rehabitable or non-releasable wildlife. Section VI addresses other compliance considerations which are unique to some of the nine states studied. Section VII discusses the non-permit related legal issues that affect wildlife rehabilitators, including the use of subpermittees or unlicensed assistants, the business organization of wildlife rehabilitators, minimizing legal liability, and compliance with property and trespass laws.
The purpose of this paper is to provide a broad understanding of the legal implications rehabilitators may encounter. This paper also explores the legal needs that may arise at various stages of rehabilitation, including business incorporation and achieving tax-exempt status, liability of volunteers for possible injury, observance of local zoning ordinances, ensuring permission for use of land as a release site, duty to report suspicious criminal activity, and property laws such as trespass. Moreover, by examining and comparing the licensing requirements of nine states across the country, the reader can develop an understanding of the variety of ways states have chosen to regulate wildlife rehabilitation. Although this article is not intended to be jurisdiction-specific, the state laws of Colorado, Florida, Georgia, Indiana, New York, Maine, North Dakota, Oregon, and Texas were examined to form the basis of what is typical (or unique) among various states across the nation.
II. WHAT IS WILDLIFE REHABILITATION?
A. Definition and Duties of Wildlife Rehabilitator
Wildlife rehabilitators (or “rehabbers” as they are commonly known) examine, diagnose, and prescribe the necessary course of treatment for the wildlife they care for. Treatment is provided by the rehabbers themselves but veterinary assistance is sought as needed. Rehabbers are familiar with individual species’ eating habits and when necessary, find suitable alternatives to provide adequate nutrition. Painstaking measures are followed to prevent socialization and domestication of wild animals with humans and natural enemy animals, keeping in mind the ultimate goal is to release the animal back into the wild; fear of humans is a necessary survival trait for wild animals. (What is Wildlife Rehabilitation? National Wildlife Rehabilitators Association, http://www.nwrawildlife.org/content/what-wildlife-rehabilitation). Once the animal has been treated and is ready for release, rehabilitators must determine if releasing back into the original habitat is possible. In many cases, wild animals are displaced by human’s aptitude for development and finding alternative locations becomes necessary. Release sites must be investigated to ensure the likelihood of survival, the availability of needed resources and food, and permission must be granted by the landowner. Rehabbers operate solely on monetary or food and supply donations. However, they often use their own personal funds to cover expenses.
B. What is “Wildlife”
“Wildlife” is a broad definition, tending to refer to non-domesticated animals. However, rehabbers care for many different species of wildlife (typically a rehabber specializing in care for raccoons, skunks, etc. would not also care for tigers or exotic animals). Professor David Favre articulated a legal definition for wildlife as “specific animals living in their natural habitat that are not within the possession or control of humans.” (Wildlife Jurisprudence, David Favre, 25 J. Envtl. L. & Litig. 459, 463 (2010)). For purposes of this article, this definition must include animals under the temporary care of a licensed or permit-holding wildlife rehabilitator but would otherwise remain “outside of human control.” Many states have statutorily set forth the definition of wildlife in order to define the scope of its regulations. For example, Indiana defines its law as granting the right to “temporarily possess any wild animal that is a mammal, bird, reptile, or amphibian.” (312 IAC 9-10-9). Merriam Webster’s Dictionary defines “Rehabilitate” as “To restore to a former capacity.” http://www.merriam-webster.com/dictionary/rehabilitator. In this realm, “former capacity” means returning rehabilitated wildlife to their natural habitat to again be free from possession or control of humans. In practice, “wildlife,” as defined by a rehabber would typically include those non-domestic animals receiving temporary care and are not intended to become domesticated animals or “pets.”
C. Criticism and Response of Wildlife Rehabilitation as a Practice
Critics of wildlife rehabilitation argue that rehabilitators interfere with “nature taking its course.” Others express concerns that there are too many injured, orphaned, or abandoned wildlife to be able to make any real impact to the entire population. However, orphaned and injured animals are often in their distressed state not due to natural causes, but rather as a result of man’s interference with wildlife. Modern developments for housing or commercial property uses often displace wildlife from their natural habitats. Similarly, contemporary highways built in the midst of nature impose heavy burdens on unsuspecting animals. Most of the animals received at rehabilitation centers are sick, injured or orphaned because of accidental or intentional (and frequently preventable) mischance with humans and our manipulations of the natural environment. For the injured bird, mammal or reptile that finds its way to a rehabilitator, whether it receives a new chance at life or a rapid end to its suffering, the rehabber makes a huge difference. (Florida Wildlife Rehabilitators Association, http://www.fwra.org/wildliferehab.html). Proponents therefore argue that rehabilitators attempt to ease the burdens imposed on wildlife by caring for suffering animals; man has disrupted the natural balance of wildlife and our ecosystem and rehabbers seek to mitigate the disruption. (Estimates indicate over 75% of the animals cared for are affected in some manner by human activities, see National Wildlife Rehabilitator’s Association: Facts about NWRA http://www.nwrawildlife.org/content/history-nwra).
Additionally, rehabbers devote a portion of their efforts toward educating the public about animal biology, ecological concepts, and co-habitation among humans and nature. Concerned community members who encounter injured or orphaned wildlife may turn to a licensed wildlife rehabilitator to handle the care of the wild animal. The work of rehabbers often contributes to a cost-savings of local animal shelters, police departments, and other government-funded entities. In recognizing the value of rehabbers as well as the enormous responsibilities associated with such activities, lawmakers have begun to govern who may rehabilitate wildlife, as well as where and how wildlife rehabilitation occurs. Such regulation is typically aimed at striking a balance between the care afforded to animals with the need to protect the public.
III. LICENSING/PERMITTING REQUIREMENTS FOR WILDLIFE REHABILITATORS
A. Emerging Requirements for Rehabilitators
All of the nine states studied specify some level of competency that is required to obtain a wildlife rehabilitation permit or license. It would be difficult to survey all fifty states because the rules governing the award of a license are not always statutory and are sometimes open to administrative discretion. Of the nine states studied, most did not require any specific credentials, degree, or professional title. However, some of the states recognize college-level training or professional credentials as a proxy to demonstrating competency via a written examination. For example, Georgia describes that “college-level training and experience in the fields of veterinary medicine or wildlife biology are prima facie evidence of qualification.” (emphasis added) (Ga. Code Ann., § 27-2-22(b)). Of the nine states researched (Colorado, Florida, Georgia Indiana, New York, Maine, North Dakota, Oregon, and Texas), only North Dakota required wildlife rehabilitators to be licensed veterinarians. Nevertheless, most rehabbers strive to possess extensive knowledge in the species in which they care for, mostly gained by apprenticeships and volunteer experience. Only more recently have states begun to require applicants to demonstrate a minimum level of competency, often based on a 100-question exam.
Given that many states have expressly made possession of wildlife unlawful, wildlife rehabilitation often defies existing legal and regulatory categories. A wildlife permit or license, if statutorily-provided, serves as an exception. In formulating such an exception, governments have sought to ensure that only those who are adequately capable and prepared to rehabilitate wildlife are operating under this lawful departure from the norm. Equally, governments seek to screen-out applicants whose activities are unworthy of this legal exception (for example, illegal trappers who seek to lawfully possess wildlife under this legal exception but are not legitimately carrying out wildlife rehabilitation activities). With its various exceptions and nuances, this area of law can be convoluted in its real world application. For instance, “because local, state, and federal agencies may have authority over various categories of animals, wildlife sanctuaries can fall into areas where regulations overlap or are non-existent.” (Katherine Burke, Looking for a Nexus Between Trust, Compassion, and Regulation: Colorado’s Search for Standards of Care for Private, Non-Profit Wildlife Sanctuaries, 12 Animal L. 39 (2005)).
It is difficult to ascertain when wildlife rehabilitation became popular. However, non-governmental organizations offering support to wildlife rehabilitators, such as the National Wildlife Rehabilitator’s Association, began in 1982. (http://www.nwrawildlife.org/content/history-nwra). Inherently, it can be assumed that rehabilitation started much earlier, since these non-governmental organizations were established in response to the growing number of rehabbers. Furthermore, some state statutes even pre-date these non-governmental organizations. Historically, the possession of wildlife for purposes of rehabilitation pre-dated animal rehabilitation laws and regulations. Many individuals were acting in express violation of civil and even criminal laws. For example, a 1980s Colorado statute mandated that possession of wildlife without a commercial-use license was a “criminal misdemeanor and could subject the guilty party to fines or imprisonment or both.” (Burke). Although “commercial use” was aimed at “buying, selling, propagating, brokering or trading . . . charging customers to hunt . . . or exhibiting wildlife for educational or promotional purposes” wildlife rehabilitators, whose goals directly conflict with the definition of “commercial use” sought such licenses to make lawful their temporary possession of wildlife for rehabilitation purpose. (Burke at 45).
As states began recognizing the value of wildlife rehabilitators, they sought to ensure a minimum level of competency, preparedness, and standard of care. Such regulations aim to protect not only the people engaged in rehabilitation activities, but also the public at large. Importantly, by regulating who may conduct rehabilitation activities, animals are afforded a greater degree of protection from inhumane treatment. In looking at the statutory history of many of the studied states, it appears that the first wave of regulation came in the 1970’s and 1980’s. These early regulations varied from state to state, which may indicate that no uniform codes or standards were available at that time. More recently, many states have sought guidance from the National Wildlife Rehabilitators Association (NWRA), a nonprofit organization that provides support for rehabilitators and promotes quality and professionalism in wildlife rehabilitation. (www.nwrawildlife.org). Similarly, the International Wildlife Rehabilitation Council (IWRC) is a nonprofit organization providing science-based education and resources to wildlife rehabilitators and the public to promote wildlife conservation welfare. (www.theiwrc.org). These organizations have pushed for increased regulation, and in 1984, the IWRC collaborated with the NWRA to develop and publish the “Minimum Standards for Wildlife Rehabilitation.” This pioneer publication was the first resource providing guidance on the care and treatment of wild animals for the purpose of rehabilitation and release back into the wild. (http://theiwrc.org/about-us/mission). The publication is now in its fourth edition and is commonly adopted by many states and the United States Department of Fish and Wildlife. (The fourth edition is available for $15 from the NWRA at http://www.nwrawildlife.org/content/minimum-standards-wildlife-rehabilitation-4th-edition; however, the third edition, published in 2000 is available in PDF format free of charge at http://theiwrc.org/wp-content/uploads/2010/08/MSWR.pdf). In 2007, the IWRC introduced the Certified Wildlife Rehabilitator Certificate Program as part of their mission to raise the quality of care provided to wildlife in distress. (Id.) However, only one of the studied states recognizes the certification as satisfying its licensing prerequisites. (31 TX ADC § 69.46, “Application for Permit”).
B. Demonstration of Rehabilitator Competency and Preparedness
1. Use of Written Examinations
In recent years, many states have implemented more rigorous requirements to obtain and maintain a wildlife rehabilitator permit or license. These requirements are intended to raise the level of professionalism and expertise of those caring for wildlife without becoming unduly burdensome. In doing so, many states require permit applicants to score at least an 80% on a 100-question exam as a prerequisite to obtaining a wildlife rehabilitation permit or license. Commonly, these examinations assess knowledge of proper care and treatment of wildlife, animal biology, and standards of care. Other states administer more comprehensive examinations. Georgia, for instance, tests areas such as “diagnosis and treatment of common injuries and diseases, care of orphaned wildlife, facility requirements, and recommended diets.” (Ga. Code Ann., § 27-2-22 and GA ADC 391-4-9-.03). In preparation for Georgia’s exam, the Georgia Department of Natural Resources, Wildlife Resources Division recommends permit applicants obtain “Principles of Wildlife Rehabilitation: The Essential Guide for Novice and Experienced Rehabilitators” (available for purchase here: http://www.nwrawildlife.org/content/principles-wildlife-rehabilitation-2nd-edition) and “Minimum Standards for Wildlife Rehabilitation” (http://www.nwrawildlife.org/content/minimum-standards). The Department bases many of the exam questions on these materials and they can later serve as reference books in future rehabilitation efforts. (Id.). Some states require a nominal fee for taking the exam. Requiring proof of minimum competency based on a written examination may increase the level of professionalism and preparedness applicants must attain to be awarded a permit. It may also serve as a benchmark in determining which individuals are not ready to take on the task. Notably, following the adoption of more rigorous licensing requirements (including an exam), Indiana experienced a decrease of fifty permit holders in the following licensing year (The 2010 “Notice of Public Hearing” states that as of 2010, there were 150 licensed wildlife rehabilitators in Indiana; the current list available on the Indiana DNR website lists 100: http://www.in.gov/dnr/fishwild/files/fw-RehabList.pdf). It is unknown whether these individuals were unable to meet the new requirements due to cost prohibitions, or whether these individuals were unable to demonstrate the level of competency required. However, Indiana permit holders who have retained an Indiana permit for ten years and have taken-in at least twelve animals each year are exempted from the exam. (312 IAC 9-10-9).
Of the nine states studied, only North Dakota was found to require applicants to be licensed veterinarians. Every state except Colorado required an exam as the sole method for demonstrating competency, or as one of many requirements, or as an option in lieu of demonstrating sufficient experience/training. Colorado’s requirements that applicants have adequate experience are quite extensive and are discussed in greater detail below. Uniquely, Georgia requires non-veterinarian applicants to demonstrate sufficient experience in addition to taking a competency exam. All applicants (both veterinarian and non-veterinarian) must demonstrate sufficient knowledge and experience with the wildlife sought to be rehabilitated, including identification of the species(s) and familiarity with food preferences thereof, as well as demonstrated training or experience in handling, care and treatment of wildlife sought to be rehabilitated. (Ga. Code Ann., § 27-2-22). Texas provides many options: applicants may demonstrate they have completed a training course offered by the National Wildlife Rehabilitator’s Association within the preceding three years, or have attended a department-sponsored wildlife rehabilitation conference within three years, or are a member of a state or national wildlife rehabilitation organization, or have scored 80% or above on the department-administered wildlife rehabilitation examination. (31 TX ADC § 69.46).
2. Demonstration of Adequate Experience and/or Training
Few states allow permit applicants to demonstrate competency and preparedness based solely on previous rehabilitation experience. For example, the Florida Fish and Wildlife Conservation Commission allows applicants to satisfy either an “Experience Requirement” or pass a written examination (which, like other states, applicants must achieve a score of 80% or more). The experience requirement consists of at least one-year experience (and no less than 1000 hours) and written documentation detailing the specific experience acquired; dates and location of experience must be supplied. (68 FL ADC 68A-9.006). In addition to demonstrating sufficient experience, non-test taking applicants must also submit references from at least two individuals, one of whom must be a permitted rehabilitator who can attest to the applicant’s stated experience. (Id. at subsection (c)(2)). Evidence of prior rehabilitation permits issued by other states or the United States Fish and Wildlife Service will also be considered as documentation of experience. (Id.). Colorado requires new permit applicants to gain hands-on experience via an apprenticeship; “provisional wildlife rehabilitators” learn from a sponsor wildlife rehabilitator who has been fully licensed for a minimum of three years. The provisional rehabilitator and the sponsor create and propose a “basic wildlife rehabilitation curriculum” which must be approved by the Division and must include “basic animal care concepts, zoonotic disease information, preferred euthanasia practices, wildlife rehabilitation law and ethics, and other general rehabilitation information. This learning plan must focus on the wildlife species that the applicant will be rehabilitating and must include basic identification of common native wildlife species, the natural history and behavior of common native wildlife species and more in-depth knowledge of wildlife listed on the application. (2 CO ADC 406-14:1401). The sponsor remains actively involved in the applicant’s progress by overseeing all procedures, recordkeeping, and business organization. There is also a level of accountability, in that the learning plan, permit application, and all records have to be signed-off by the sponsor even before submission to the state and the sponsor is responsible for routine inspection of the provisional applicant’s facilities. (Id.) The statute requires one full year of hands-on training so that an applicant may experience, under the guidance of the sponsor, an entire yearly-cycle of wildlife care. This hands-on requirement ensures a level of preparedness that may not adequately be tested by a 100-question exam.
Applicants in Georgia may demonstrate sufficient training or experience if they previously served as a veterinary assistant, zoo employee or pet shop employee working with animals. Typically, the level of experience required is based on the type of wildlife sought to be rehabilitated. Of the nine states studied, only Georgia imposes a heightened experience requirement for applicants seeking to rehabilitate certain species. For falcons, “two years of experience in holding, training, and caring for raptors” is required. (Ga. Code Ann., § 27-2-22). For bats, bobcats, coyotes, foxes, raccoons, and skunks, given the public health risk associated with rabies infection, only veterinarians or licensed rehabilitators who have held a license for at least two years and have taken in at least twenty individuals for care, have scored at least 85% on a “qualifying examination covering all aspects of rabies including symptoms, reporting, and other areas as determined by the Department,” and have received a “rabies pre-exposure vaccination and can demonstrate rabies antibody levels for adequate protection.” (Id.). Applicants in Maine must participate in a telephone conversation “to discuss issues that are relevant to each individual applicant, with the intent of providing [the applicant] resources and filling knowledge or informational gaps” in addition to demonstrating competency by scoring 80% or above on an exam and demonstrating knowledge of resources available to wildlife rehabilitators (12 MRSA § 12152). Indiana requires applicants to provide a list of reference books; at least one reference book must pertain to the species sought to rehabilitate and must be approved by the Department of Natural Resources. (312 IAC 9-10-9).
3. Demonstration of Veterinarian Support
States are now commonly requiring wildlife rehabilitators to provide proof of an established relationship with a licensed veterinarian who is willing to provide required care beyond the rehabilitator’s abilities. (Florida, Indiana, Maine, Oregon). This relationship is often demonstrated by a letter of recommendation from the veterinarian or by completion of a state-prescribed form. Veterinarians themselves may seek a permit or license to rehabilitate wildlife. Of the nine states studied, only Oregon specifically provides that “[v]eterinarians administering immediate medical care for injured wildlife are not required to have a Wildlife Rehabilitation Permit.” (OR ADC 635-044-0210(3)). As previously mentioned, in many states, authorization to rehabilitate wildlife is an exception to statutes prohibiting possession of wildlife (even for temporary rescue or care). For example, North Dakota prohibits possession of live wild animals native to the state and several species (such as skunks and raccoons) are additionally regulated under the state Board of Animal Health. (NDCC 36-01-08, NDCC 36-01-8.4 and Administrative Code Chapter 48) (See also, Ga. Code Ann., § 27-2-22 “It shall be unlawful for any person to keep, hold, or possess in captivity any sick or injured wildlife, except fish, without first obtaining, at no charge, a wildlife rehabilitation permit from the department”). Therefore, even veterinarians who are educated, experienced, and licensed in providing care for domestic animals must also seek a permit or license to rehabilitate wildlife. In such cases, the veterinarian applicant may have fewer requirements to obtain a permit or license. For example, Georgia does not require veterinarian applicants to pass the competency exam. (Ga. Code Ann., § 27-2-22(a)(3)). However, veterinarians in Oregon must achieve all required prerequisites (including a score above 80% on the exam). They are not, however, required to submit a letter by a veterinarian attesting to willingness to supplement knowledge in the care of wildlife as is required by non-veterinarians. (OR ADC 635-044-0210(3)(1)(e)).
Most of the states studied provide that licensed rehabilitators and veterinarians may both care for the same species. Georgia provides an exception; only licensed veterinarians may rehabilitate birds of prey (raptors). (Ga. Code Ann., § 27-2-22). North Dakota is the only state that specifically requires applicants to be licensed veterinarians. (North Dakota Game and Fish Department Agency Policy, authorized by North Dakota Century Code 20.1-01-17). Under the Veterinary Medicine Practice Act of North Dakota, certain activities and veterinary procedures are only permitted to be performed by a veterinarian licensed by the North Dakota Board of Veterinary Medicine and most of the veterinary medicine performed in the wildlife rehabilitation context falls into this category (Email correspondence with North Dakota Game and Fish Department on file with author). Only five veterinarians in the state are permitted to rehabilitate wildlife; four of which work at an accredited zoo and are either on-call or on retainer. (Id). The state is currently updating its regulations, which will continue to require a veterinarian license as a prerequisite, but the update will additionally impose an exam and a continuing education requirement. (Id). In heightening its regulations, North Dakota is following the system provided by the International Wildlife Rehabilitators Council (IWRC) Certified Wildlife Rehabilitators program.
4. Letters of Recommendation, Interviews, Character Fitness
Aside from attestations by veterinarians, some states require evidence of competency from others who have knowledge of an applicant’s preparedness. For example, Texas requires all applicants to provide letters of recommendation from two persons who have known the applicant for at least two years. Letters may be from a conservation scientist or game warden currently employed with the Department of Parks & Wildlife, a licensed veterinarian, or a permitted wildlife rehabilitator. However, an applicant who has achieved certification by the International Wildlife Rehabilitation Coalition or the National Wildlife Rehabilitator’s Association need only provide one letter of recommendation. (31 TX ADC § 69.47(a)(2) and (b)). Applicants in Maine are expected to have a telephone conversation with a Department official, although this is intended to assess any gaps in knowledge and to discuss available resources. (12 MRSA § 12152). Similarly, Florida requires references from two individuals, one of whom must be a permitted rehabilitator who can attest to the applicant’s experience (Note, however, that if a Florida applicant has chosen to seek a permit based on the “written examination” option set forth under Subsection 2 of 68 FL ADC 68A-9.006 as opposed to the “Experience Requirement” set forth in Subsection 1, then no letter is required).
Other states require evidence of character or fitness to rehabilitate wildlife. For example, New York requires, in addition to an exam, two letters of recommendation, which serve as “character references” written by persons not related to the applicant or to each other. An interview with the Regional Wildlife Office must also be conducted and applicants must not have been convicted or pleaded guilty to a violation or misdemeanor under the Environmental Conservation Laws nor have been convicted of any misdemeanor or felony within the previous three years. (6 NY ADC 184.3). Maine’s application also asks about convictions of fish or wildlife violations or felony charges. (Maine Department of Inland Fisheries and Wildlife, Application for Wildlife Rehabilitation Permit). Colorado applicants need only declare prior animal welfare or wildlife violations and whether the applicant has any prior suspensions or revocations of rehabilitation licenses. (2 CO ADC 406-14:1401).
Of the nine states studied, several explicitly impose a minimum age requirement of eighteen years. (Florida, Indiana, Oregon, Texas). New York grants permits to applicants sixteen and older. Other states did not explicitly provide an age requirement (Colorado, Georgia, Maine, North Dakota). However, Georgia and Maine applicants must list their date of birth on the application. North Dakota, by requiring applicants to be licensed veterinarians, implicitly requires a minimum age well above eighteen. Interestingly, none of the states studied required demonstration of financial viability or fundraising plans to finance the care of wildlife. Nor did any of the applications ask about other time commitments. Although most states impose a facility inspection requirement, none included statutory language or questions on applications related to property ownership or permission of landlords.
C. Continuing Education and Permit Renewal
Once a permit is obtained, steps must be taken to maintain compliance during the term of the permit. Most of the states studied grant permits for a three-year-span (although one state requires annual renewal and another state grants permits for five years). Following expiration, a permittee must seek renewal to maintain compliance. In addition to re-inspection of rehabilitator facilities, as discussed above, many of the states studied will require some sort of continuing education component or other demonstration of continued preparedness. Additionally, many states impose a record-keeping requirement. Indiana requires renewal applicants to either take another examination or to complete eight hours of continuing education as approved by the Department of Natural Resources. (312 IAC 9-10-9(e)). Indiana also requires that an annual report must accompany the renewal application, but a veterinarian is not required to re-attest to their involvement (as is required for original applications). (Id. at Subsection (m); New York and North Dakota also require continuing education but do not require an additional examination). New York similarly requires a “Log & Tally Form,” even if no wildlife were rehabilitated during the prior license period. (6 NY ADC 184.6(9)). Colorado requires its license holders to keep:
1. Species, sex, length and type of treatment, and source of wildlife (address/location to the greatest extent known, including map coordinates, if possible).
2. Reason animal was taken in for rehabilitation, date received, and attending veterinarian if applicable.
3. Disposition, disposition location (address/location to the greatest extent known, including map coordinates, if possible) and disposition date, and a written explanation if wildlife is released beyond ten miles from its place of origin, including the name of the Division employee authorizing the release location and the date such authorization was given.
Oregon requires wildlife rehabilitators to continue their work for at least 180 consecutive days, or risk revocation unless the permittee can provide proof of continuing education or continued work under a licensed wildlife rehabilitator during the time period. (OAR 635-044-0310(2)). Oregon also statutorily provides that if a permittee or subpermittee is “convicted of, or admits to a violation of, any wildlife law, or any rule, order or permit issued under the wildlife laws,” his or her permit may be revoked or declined to renew. (Id. at Subsection (3)).
D. Is there a right to rehabilitate wildlife?
The decision to issue a permit depends on many factors and is subject to agency discretion. Thus, even when applicants can demonstrate their knowledge and preparedness for wildlife rehabilitation as well as provide evidence of proper rehabilitation facilities, the regulating agency may still deny a permittee’s application. For instance, the agency may determine that no additional rehabilitators are needed to treat a given species within its jurisdiction. (See 2010 WL 1268163 (Ohio App. 12 Dist.,2010) (unpublished)): Appellant had “stellar credentials for and experience in rehabilitating wildlife [and additionally] met the minimum requirements to be considered for a permit. Nevertheless, the division chief has broad discretion in granting or denying wildlife rehabilitation permits”). Several states have expressly set forth the authority to exercise its discretion in issuing permits. For example, the issuance of a permit in Georgia is conditioned upon the Department’s determination that an applicant’s rehabilitation services “are needed or are likely to be utilized in the area he/she proposes to operate.” (Ga. Code Ann., § 27-2-22(c)). Similarly, Oregon requires that applicants have been “approved by the local Department district wildlife biologist or other local Department representative as meeting a need for rehabilitation services in the area and having a good reputation for care of wildlife.” (OAR 635-044-0210(2)(f)).
States largely retain the right to accept or deny a permit without any explanation, and unlike other administrative agencies, there is usually no way to appeal the decision. For example, an Ohio court ruled there are “fundamental distinctions between wildlife rehabilitation and zoning regulations. Specifically, zoning regulations involve infringements upon privately-owned property, while appellate possesses no private property interest in the state’s wildlife or receipt of a rehabilitation permit.” (Carrelli). Because the permit applicant was determined to possess no private property interest in the state’s wildlife or in receiving a rehabilitation permit, determinations made by the State may be discretionarily based so long as reasonably related to its legitimate governmental interest. Thus, the court held that the denial of the permit did not violate the applicant’s due process rights. (Carrelli).
IV. FACILITY REQUIREMENTS AND STANDARDS OF CARE
A. Facility Requirements
A majority of the states studied do not require specific facility or caging requirements. However, most of the reviewed permit applications provide a space for detailed discussion of the rehabilitator’s proposed facility for department consideration prior to the approval of a permit. Of the nine states studied, Colorado’s statutory section on facilities was the most detailed and specific; it importantly sets forth minimum standards that must be followed. It requires that enclosures are “designed, constructed, and maintained to provide safety and protection for wildlife and people,” meaning that “facilities and outdoor cages must be locked” and “must ensure containment for wildlife under rehabilitation and exclusion of other wild and domestic animals.” (2 CO ADC 406-14:1404(a) and (b)). There must be “sufficient space to allow normal development and physical labor as well as postural and social adjustments with freedom of movement. There must be proper lighting and ventilation.” (2 CO ADC 406-14:1404(3)). The enclosures must have ability “to conduct cleaning, sanitation, disinfecting and handling procedures considering safety, escape prevention and while minimizing stress to wildlife.” (2 CO ADC 406-14:1404(6)). The enclosures must provide “a means to gradually acclimate wildlife to external environmental conditions.”(2 CO ADC 406-14:1404(7)). Appreciating the end-goal of releasing rehabilitated animals, Colorado has specified that there must be “barriers to prevent imprinting on humans or domestic animals.” (2 CO ADC 406-14:1404(10)). The licensee must also consider quarantine capabilities and parasite and pest control. Property enclosures must also provide “shelter within enclosure as needed,” “clean water and appropriate food,” and “nesting and/or bedding materials” while of course keeping areas “clean and sanitary.” (2 CO ADC 406-14:1404(B)). Wildlife rehabilitator license applicants must also “develop a written minimum facilities standards agreement with the Division,” and the agreement is to be “in the form of an annotated checklist which explains how generally and specifically stated objectives (e.g., ‘proper ventilation’ or ‘parasite control’) are met.” (2 CO ADC 406-14:1404(D)).
These standards, when documented as part of the permit application, become a binding commitment by the licensed rehabilitator and “[a]ny facilities added between inspections shall meet the same standards. When approved, the plan shall become a part of the issued license and a failure to maintain the facilities as described in the license agreement shall be deemed a violation of this regulation.” 2 CO ADC 406-14:1404(D)). Moreover, the Colorado Department of Natural Resources, Division of Wildlife has the statutory authority to inspect the facilities at “reasonable times seven (7) days a week.” (2 CO ADC 406-14:1404(E)). Indiana expressly requires that cages are “cleaned daily using nonirritating methods.” (312 IAC 9-10-9(k)). Maine requires applicants to demonstrate their facilities are compliant with the Minimum Standards of Care published by the NWRA. Additionally, an applicant may receive follow-up visits to their facility by a department official during the term of the permit/license. These visits may be scheduled or unannounced. (Florida, Indiana, Maine, North Dakota). With regard to permit renewal, few of the nine states expressly require facility re-inspection as a prerequisite to renewal; only Georgia’s statute explicitly states that a permitee/licensee’s facility will be inspected upon application for renewal. (GA ADC 391-4-9-.03(b)).
B. Minimum Standards of Care
Many of the nine states are pointing to the National Wildlife Rehabilitators Association Standards of Care Manual as authority for permitted/licensed wildlife rehabilitators. (The third edition is available for free, here: http://theiwrc.org/wp-content/uploads/2010/08/MSWR.pdf). This may show a trend of states relying on the expertise of non-governmental entities. In doing so, department officials, who may or may not be trained in the rehabilitation of wildlife can ensure that a set of comprehensive minimum standards are followed. These standards are developed by experts in the field and are updated periodically as needed. Moreover, by pointing to an outside organization solely devoted to wildlife rehabilitation, such standards tend to be more freely evolving without restrictions from the state legislatures or other policymakers. By moving toward a comprehensive and standardized guide, states may be better equipped to evaluate whether facilities comply with current standards of care. A state like New York that uses a more general ‘humane and professional’ standard makes it difficult for inspection officials to determine whether violations have occurred. Additionally, wildlife rehabilitators engage in self-regulation based on personal opinions that may not meet organizational standards.
V. TYPES OF WILDLIFE AND RESTRICTIONS ON RELEASE
A license or permit to rehabilitate wildlife does not always grant the authority to rehabilitate all wildlife species. In fact, states may restrict the species rehabbers can possess out of disease or even public safety concerns. States may also impose limitations on the length of time a rehabber can treat and care for an animal and what steps must be followed in determining when an animal is non-rehabilitatable or non-releasable.
A. Restrictions Based on Disease Concern
Even when there are no restrictions on types of species that may be cared for, some states will impose restrictions on the number of wildlife that may be rehabilitated. For example, Indiana allows licensed rehabilitators to rehabilitate twenty white-tailed deer per year, per permit holder. (312 IAC 9-10-9). In looking at nearby Ohio, local reports suggest that limitations on the rehabilitation of deer may stem from concerns over the spread of communicable disease. An article from The Examiner in Ohio explains that beginning in 2009, the Division no longer authorized the “rehabilitation of white-tailed deer fawns in order to help reduce the possible spread of communicable diseases such as Chronic Wasting Disease.” (Sparky, an Adopted Deer’s Killing Exposes Flaws in Wildlife Laws,” Linda Beane, May 28, 2012, article accessed at http://www.examiner.com/article/sparky-an-adopted-deer-s-killing-exposes-flaws-wildlife-laws). (Note, however, that Indiana and Ohio have no reported cases of Chronic Wasting Disease http://www.in.gov/dnr/fishwild/files/fw-CWD_FAQSheet.pdf). Even prior to the change in Ohio law, Department officials began restricting the rehabilitation of deer and euthanizing deer in rehabilitator’s care that were not yet releasable. However, gaps in the Ohio law meant that deer raised and bred at “deer farms” for hunting were permitted to live (that is, until their impending deaths). (Sparky, May 28, 2012).
Concerns over the spread of disease may also prompt a state to directly regulate species subject to rehabilitation. With regard to rabies vector species (commonly, raccoons, skunks, and bats), many of the nine states have either prohibited rehabilitation altogether or have imposed heightened requirements. As one example, New York requires rehabilitators handling such species to have an “RVS certification,” which requires additional training and caging procedures in the form of an eight-hour class. The rehabilitator’s facility must be inspected by the Department of Agriculture and Markets and must include a separate, double caged setup. Rehabilitators must also show proof of being inoculated for rabies. (Email communication with Paul Stringer, NYSDEC, Division of Fish, Wildlife & Marine Resources Special Licenses Unit, June 11, 2012, on file with author). For information on rabid animals reported in the United States, see the Centers for Disease Control and Prevention and Rabies Surveillance in the United States during 2010 http://avmajournals.avma.org/doi/pdf/10.2460/javma.239.6.773).
B. Restrictions Based on Public Safety or Perceived Need
North Dakota’s current proposed change to its law, as detailed by Daniel Grove, Wildlife Veterinarian with the North Dakota Game and Fish Department, is the most restrictive of the states studied. The state has “narrowed the focus down to threatened and endangered species” because they are of the most “critical need.” (Email communication with Daniel Grove, June 12, 2012, on file with author). From the draft guidelines provided, only the Bald Eagle, Golden Eagle, Piping Plover Charadrius Melodus, Least Tern Sterna Antillarum, and the Whooping Crane would be eligible for rehabilitation and only by licensed veterinarians who have received a wildlife rehabilitation permit. “Rehabilitation permit holders may accept species not on the approved species list but animals must be humanely euthanized upon arrival.” (Draft guidelines provided by Daniel Grove, June 12, 2012, on file with the author). Oregon does not permit rehabilitation of non-native wildlife, marine mammals, coyotes, cougars, or blackbear. (OAR 635-044-0240, “Restricted Species”). Colorado does not permit the rehabilitation of striped skunks, however spotted skunks and hognosed skunks are permitted provided the rehabilitator show evidence of current pre-exposure rabies vaccination. (2 CO ADC 406-14:1407, “Restricted Species”).
C. Non-Rehabitable or Non-Releasable Wildlife
A 2007 survey by the NWRA revealed that approximately 64,000 birds, 39,000 mammals, and 2,300 herptiles (reptiles and amphibians) were treated by 343 NWRA survey respondents in 2007. The overall release rate for these animals were 60% for birds, 72% for mammals, and 69% for herptiles. (NWRA Facts: http://www.nwrawildlife.org/content/facts-about-nwra). In keeping with the goal of temporary possession for treatment and subsequent release of wildlife, most states impose a timeframe within which an animal must be treated and then either released or euthanized. The most common timeframe among the states studied was one hundred eighty days. Maine, however, allows for continued rehabilitation up to six months and the time may be extended upon request. (12 MRSA §12152). Colorado provides that “[a]ll rehabilitated wildlife shall be released as soon as it has reached physical maturity and/or has attained full recovery from injury or illness, or as soon thereafter as the time of year is ecologically appropriate. In no case shall any wildlife be held longer than one year without prior Division approval based on sound biological reasons.” (2 CO ADC 406-14:1406). Indiana requires that a veterinarian determine if an animal is nonreleasable and “nonreleasable” is defined as “inability for the animal to find food on its own or having inadequate survival skills.” (312 IAC 9-10-9(o)(6) and (7)). Oregon is a little more specific, in that it requires that “[i]f a permittee has possession of wildlife that, after medical attention, is unable to feed, move, or stand to conduct normal life support functions to survive in the wild, the permit must (unless otherwise directed by the Department) euthanize the wildlife.” (OAR 635-044-0255(5)). However, if the animal is merely incapable of surviving in the wild, the permittee may, as an alternative to euthanasia, provide the animal to an AZA Accredited institution or educational organization. (Id.)
Wildlife that is not eligible for release following rehabilitation may, in some states and under certain limited circumstances, be lawfully retained to carry out other wildlife rehabilitator goals such as wildlife education to the public. (NWRA’s 2007 survey of 343 NWRA-member rehabbers show that over half of the respondents provided wildlife education programs to the public, reaching an estimated 839,000 people in 2007; http://www.nwrawildlife.org/content/facts-about-nwra). When available, this may provide an important alternative to euthanasia. For example, Indiana allows individuals to apply for an educational use permit. (312 IAC 9-10-9.5). Moreover, “Wild animals that have been used for educational purposes but are no longer capable of such use may be kept with written permission from the Division of Fish and Wildlife.” (Id. at (o)(3)). However, “all nonreleasable white-tailed deer must be euthanized.” (Id. at 9-10-9(r)). Similarly, New York has available, a “License to Collect or Possess” and a veterinarian must certify that the animal is “permanently disabled and/or non-releasable.” (http://www.dec.ny.gov/permits/28633.html). Maine’s application requires applicants to acknowledge that they not use rehabilitated animals as exhibit animals under any circumstances. (Application for Wildlife Rehabilitation Permit: http://www.maine.gov/ifw/wildlife/rehabilitation/pdfs/rehabpermitapplication.pdf). Prior to 1997, Texas permitted, on a case-by-case basis, via letter of authorization, permission for permitted rehabilitators to retain nonreleasable wildlife. However, rehabilitators now must show an “educational, fostering, or socialization” purpose when seeking approval. (31 TX ADC § 69.44(g)). Florida’s statute is perhaps the most comprehensive. Although it initially imposes a 180-day period, upon Department approval, the animal’s rehabilitation efforts may be continued for an additional time period. Moreover, “[p]ermittees may keep wildlife with permanent physical impairments for educational display under [a separate] permit.” (West's F. S. A. § 379.3761 and 68 FL ADC 68A-9.006). An important restriction in determining whether an animal is nonreleasable is that an independent rehabilitator or veterinarian and an authorized Commission representative must also evaluate the animal’s condition. Additionally, “Commission approval must be obtained prior to the disposition or dispersal of wildlife, their carcasses, parts, products or progeny therefore, possessed . . .” (Id. at Subsection (c)).
VI. OTHER COMPLIANCE CONSIDERATIONS
A few of the states have developed unique requirements which break from the common mold of the other states. For example, in effort to combat the possibility that individuals participating in illegal activities involving wildlife may attempt to utilize a wildlife rehabilitation permit as a “cover-up,” Texas statute specifically provides that “no person holding a permit authorizing the propagation for sale of protected wildlife shall be authorized to rehabilitate those species.” (31 TX ADC § 69.46(d)). Additionally, “Protected wildlife held under the authority of a rehabilitation permit may not be sold, bartered, or exchanged for any consideration. A permit issued under this section shall not authorize a person, firm, or corporation to engage in the propagation or commercial sale of protected wildlife.” (31 TX ADC § 69.44(b)). Nor may a permit holder “conduct rehabilitation on the same property as a fur-bearing animal propagation facility.” (31 TX ADC § 69.44(f)).
Realizing that special circumstances can arise, Georgia allows for a one-time permit in emergencies if the Department determines when “a person has notified the Department that such person has found or is holding any recently found ill, injured, or dependent wildlife, that the circumstances clearly indicate it to be in the best interest of the wildlife that treatment or care not be delayed pending assignment to a permitted rehabilitator, it may, at the request of such person, waive such of the qualifications and facilities requirements herein as are necessary and justified under the circumstances and immediately issue to the finder or holder of such wildlife an emergency one-time rehabilitation permit. Such permits will not be issued for any wildlife requiring care of a nature which the Department concludes the wildlife finder or holder is incapable of providing. [These] permits shall expire at the earlier of the date the wildlife is fully rehabilitated and released, or the date of expiration stated herein. If an expiration date is specified in the permit, the wildlife shall be surrendered to a Departmental representative for appropriate disposition on or before that date.” (Ga. Code Ann., § 27-2-22(c)). Georgia also requires a specific standard of care for possible rabies exposure; rehabilitators must report all possible rabies exposures and hold at-risk species (bats, bobcats, coyotes, foxes, raccoons, and skunks) in “arrival groups and in isolation for the duration of convalescence and release rehabilitated animals only in areas designated by the Department.” (GA ADC 391-4-9-.03(f)). Rehabilitators must also “submit for rabies testing all [at-risk species] accepted for care which are dead on arrival or which subsequently die during care.” (Id.).
Florida requires permittees to accept all wildlife in need of care except when “the permittee does not have appropriate space or facilities” or “the permittee lacks experience or expertise with the species of wildlife so as to present a danger to the wildlife, the permittee or the public. However, the permittee shall provide referrals to the nearest rehabilitator where appropriate care may be provided.” (68 FL ADC 68A-9.006(i)). Additionally, “Under certain emergency conditions, such as oil spills, hurricanes, floods, and other natural or manmade disasters, the Commission may impose additional restrictions or provide for permit exemptions as may be necessary to safeguard affected wildlife such as, but not limited to, the coordination and direction of rehabilitation permittees and their facilities, the assignment of zones for implementing rehabilitative services, and the authorization of additional volunteers to aid in the capture and treatment of wildlife. (Id. at Subsection (6)).
It should be noted that the U.S. Department of Fish and Wildlife also governs many animals wildlife rehabilitators will come in contact with. This article is not aimed at the federal requirements, but rehabilitators should be aware that rehabilitation of migratory birds, endangered species, and many other types of wildlife are regulated by the federal government and a separate permit must be sought from the U.S. Department of Fish and Wildlife. In reviewing a federal permit, the applicant should expect to demonstrate specialized knowledge, experience, and preparedness in handling the specific species sought to rehabilitate. Realizing that rehabilitators are likely to encounter species encompassed within the federal government’s jurisdiction, Florida requires applicants to complete a “Joint State/Federal Special Purpose Permit Application for Wildlife and Migratory Bird Rehabilitation.” (68 FL ADC 68A-9.006(3)(a); see also Florida Application Form, FWCDLE 617, dated 7/31/09, available at http://www.myfwc.com/RULESAND_REGS/Rules_Captive_index.htm).
VII. LEGAL ISSUES AFFECTING WILDLIFE REHABILITATORS
Although the most common and primary legal focus of wildlife rehabilitators lies within the permit and licensing requirements which allow them to carry-out their work, other legal issues can arise at every phase of their efforts, from acquisition of animals to the eventual release. This section attempts to introduce some of the legal implications that follow from the inherent work of rehabilitators but it is not intended to be a full legal discussion.
A. The Use of Subpermittees or Unlicensed Assistants
Given the resource constraints individual rehabilitators and rehabilitation centers experience, unlicensed volunteers play an important role in carrying-out the care prescribed by licensed rehabilitators. Several state statutes specifically address the use of unlicensed assistants. Rehabbers operating in states that do not statutorily provide for volunteers should proceed cautiously as they may violate the scope of their license or permit and could open themselves to civil or criminal liability. The law governing principal and agent relationships should be considered even when a permittee’s state laws address the use of unlicensed assistants. A few of the states studied statutorily provide for the use of unlicensed assistants. One such state is that of Colorado; beginning in 2009 unlicensed individuals have been permitted to assist in direct animal care under the supervision of fully-licensed wildlife rehabilitators. The 2009 revision to the Colorado Chapter 14 regulations includes a comprehensive set of standards. (2 CO ADC 406-14:1401 et seq.). These standards are well written and would be useful even to out of state rehabilitators seeking guidance in the use of unlicensed assistants (with an understanding that these standards will not establish compliance with laws or avoidance of liability outside the State of Colorado). Licensed rehabilitators “are responsible for the actions and activities of unlicensed individuals and shall be responsible for any violations of these regulations by those individuals.” (2 CO ADC 406-14:1401(A)(6)(g)). Colorado requires that unlicensed assistants be trained in the following: understanding that rehabilitation includes respecting a wild animal’s wildness and not treating it like a pet; competency of zoonotic disease and physical injury risks present when working with wild animals temporarily in captivity; understanding that the treated animal is in temporary care until it can develop to an age or recover from injuries that it can survive independently; recognition that an animal that is unable to recover is to be euthanized; training on wildlife diseases and parasites and understanding that some diseases are transmitted from wildlife to people; training on safe capture and handling of species with whom the unlicensed assistant will be working; basic training on diet and nutrition and on feeding wild animals; rendering first aid, admitting animals to rehabilitation, and release. Assistants must review the Wildlife Rehabilitator’s Code of Ethics and state rehabilitation regulations. (2 CO ADC 406-14:1401(A)(b)(1)). Licensed rehabilitators who may not always be physically present during the unlicensed volunteer’s handling of animals must provide written protocols and leave a phone number where the rehabilitator may be reached as a way to ensure safety of the volunteer and the animal. (2 CO ADC 406-14:1401(A)(6)(d)).
Similarly, Oregon allows “subpermittees” to perform “wildlife rehabilitation activities under the supervision (direct or indirect) of a licensed wildlife rehabilitator.” (OAR 635-044-0210(2)). However, several conditions must be met. For example, the licensed wildlife rehabilitator must inspect the subpermitee’s facilities and provide written information pertaining to caging, food, veterinary treatment and any other assistance the permitee deems necessary for the care of wildlife in the subpermittee’s possession. Moreover, the subpermitee must follow the written protocol provided by the permittee and it must be approved by the Oregon Department of Fish and Wildlife. (Id).
North Dakota, which only allows licensed veterinarians to obtain wildlife rehabilitator permits, explicitly prohibits the use of subpermittees. However, implicitly, it permits unlicensed volunteers working under direct supervision of permitees, in that it states: “[r]ehabilitation permit holders may take on students or train others in wildlife rehabilitation but all animals must remain at the designated and inspected location listed on the permit.” Moreover, “[r]ehabilitation permit holders assume all liability for students and volunteers working at their facility.” (North Dakota Agency Policy, Section entitled “Mentorship”).
B. Business Organization of Wildlife Rehabilitator
As previously introduced, individual rehabilitators and rehabilitation clinics do not receive funding for the care, treatment, and facility costs associated with rehabilitating wildlife. Individual rehabilitators often utilize their own private funds to cover expenses and receive no compensation. Although they play an important role in society and alleviate the burdens on state wildlife departments and conservation officers, the government does not provide compensation. Florida has even mandated that “[p]ermittees or their volunteers shall not require a fee associated with wildlife rehabilitation services . . . including the pick-up delivery, or acceptance of sick, injured, or orphaned or otherwise impaired wildlife.” (68 FL ADC 68A-9.006). Instead, rehabilitators and rehabilitation centers are primarily funded through donations by individuals and other entities. Veterinarians also donate their time and expertise and can provide needed nutritional care and medicines at little or no cost. Donations are usually monetary, but supplies may also be donated. Although it is impermissible to charge for the services rendered, individuals and clinics could provide estimates on what it costs to provide care for certain species; donors may even decide they want to “sponsor” an animal and cover its expenses.
Given the importance of donations to cover operating expenses, most clinics find it is necessary to achieve 501(c)(3) tax-exempt recognition from the IRS so that donors may receive a tax benefit for their generosity. Tax-exempt entities may also purchase supplies without paying sales tax. Seeking 501(c)(3) status requires submission of IRS Form 1023, supporting documentation, and the appropriate application fee (organizations anticipating revenue below $50,000 must pay a $400 application fee; all others pay a $850 application fee). Note, however, that prior to seeking 501(c)(3) status, an organization must first be recognized as a non-profit organization within their State (this involves filing an Articles of Incorporation and Bylaws with the Secretary of State or other appropriate state department). Incorporating as a separate legal entity also provides other benefits in terms of minimizing personal liability. Like veterinarians, attorneys possess specialized knowledge and can alleviate the legal burdens associated with seeking 501(c)(3) status; although the application fee cannot be waved, a charitable attorney could lend assistance in navigating the difficult application process. Attorneys can also keep organizations in legal compliance by assisting with annual or biannual business entity reports and instructing incorporated rehabilitators on maintaining a corporate record book and ensuring the state-required meetings are held.
C. Minimizing Legal Liability
By its “nature,” wildlife rehabilitation carries an inherent risk of danger. Although rehabilitation of the very young poses less threat, rehabilitators commonly encounter adult wildlife that have been injured or need rescuing from precarious situations. Clinic owners or managers could insulate their liability by having all volunteers sign waivers and/or by adopting policies that prohibit volunteers from having contact with adolescent wildlife. Similarly, the principal of the rehabilitation operation may decide it should be the only person to conduct wildlife rescues, which often pose the greatest danger. The National Wildlife Rehabilitators Association, in response to member difficulty in obtaining insurance coverage for rehabilitation activities, found an insurance coverage plan that covers rehabilitation clinics and even rehabilitators operating out of their homes. The coverage includes volunteers’ medical costs for injuries and for accidents involving the public during educational presentations. (http://www.nwrawildlife.org/content/nwra-insurance-1).
D. Compliance with Property and Trespass Laws
Rehabilitators must be conscientious of local zoning ordinances. Common residential zoning areas may prohibit possession and care of wildlife even though the individual rehabilitator themselves may have a license or permit. Colorado prompts applicants to think about this in its application, requiring that they certify that the proposed possession and treatment of wildlife is not in violation of any city or county ordinance and if any permits are required, the applicant must supply them. (2 CO ADC 406-14:1401(A)(9)). Additionally, rehabilitators should be cognizant of public health and environmental statutes and regulations (some of which may prohibit children to have contact with certain species). Additional problems may arise in the case of individual rehabilitators caring for wildlife in their homes. For example, individuals who are tenants may have difficulty getting permission from their landlords.
Aside from the property issues concerning care facilities, rescuing orphaned and injured wildlife and the subsequent release following rehabilitation can also implicate property laws. Rehabilitators must always make certain they have explicit permission from the landowner to enter upon land for any reason. Because rehabilitators are not actors or agents of the state, they do not receive the same protections afforded by law enforcement or emergency responder personnel. This is across all jurisdictions, however, for one example, Florida’s statute specifies that “[p]ermittees or their volunteers shall not represent themselves as agents of the Commission. Permittees or their volunteers shall not enter upon the property of another for the purpose of taking possession of wildlife unless authorized by the owner, lessee, or custodian of the property. (68 FL ADC 68A-9.006(5)(l)). Similarly, the Texas code provides “[a] permit holder shall not release wildlife in such a manner or at such a location so that the released animals are likely to become a nuisance or a depredation threat.” (31 TX ADC § 69.51(b), “Release of Rehabilitated Wildlife”). Moreover, “[a] permittee commits an offense if the permittee is on private property and fails to have on their person the written permission of the landowner, lessee, or operator to be on that property.” (Id. at Subsection (f)). Ensuring adequate permission to release animals is not only a sound policy for the liability of the rehabilitator, but also for the safety and security of the animal.
Regulation of wildlife rehabilitation is a relatively new phenomenon, with wildlife rehabilitation activities pre-dating most statutes and regulations. There is no legal “right” to rehabilitate wildlife and existing regulations exist as an exception to the legal norm (that possession of wildlife for any purpose is unlawful). Because this “carve out” to the law developed in response to the growing number of rehabilitation activities, the law can pose some oddities. For instance, that in some states, a person with a wildlife rehabilitation permit may not posses white-tailed deer, while in the same state, another person may possess live white-tailed deer under a permit for hunting activities. Even when a permit to rehabilitate wildlife is granted, a permit holder still faces several restrictions in terms of which species or how many animals it may rehabilitate. Because regulations have emerged only in the last thirty to forty years, they will likely continue to evolve in response to societal needs. In this regard, that the regulations concerning wildlife rehabilitation are in flux, makes this area of law particularly exciting, albeit challenging.
Given that wildlife rehabilitation is not a particularly common activity in which administrative agencies regulate (when compared to fishing and hunting licenses and other activities that makeup the bulk of an agency’s regulating activities), regulating bodies have sought guidance from other non-governmental agencies. By tapping into the expertise of those whose primary focus is on wildlife rehabilitation, governmental agencies can more efficiently prescribe standards of care without having to exert its resources in researching what it should require of its permit holders. Typically, the National Wildlife Rehabilitator’s Association serves as the non-governmental organization that lends its expertise in this area and particularly, the NWRC’s Minimum Standards of Care Manual serve as the baseline for which permitted/licensed rehabilitators must remain in compliance. Currently, the NWRC has published three updates to its Manual since it began in 1984.
Although just nine states were studied, the fact that many commonalities exist between the states (for instance, an examination requirement to demonstrate competency) as well as many distinctions (some states requiring different standards of care, while others not explicitly setting forth clear standards) underscores the importance of researching the regulations of one’s own jurisdiction in order to remain in compliance. However, knowing exactly what is required can prove difficult as several states (which were encountered but not counted as one of the nine states studied) operate solely on administrative agency discretion, which may even vary county-to-county.
While the rehabilitator’s primary legal focus is on the permit/licensing regulations of their jurisdiction, other non-licensing related legal issues are equally deserving of attention. For instance, the use of non-licensed volunteers, corporate compliance, tax-exemption, and trespass laws. Many activities that implicate the law may not be immediately obvious as needing legal attention; a rehabilitator responding to a call of an injured animal on private property may assume that by responding to that call, they are not trespassing – nevertheless, explicit permission of the landowner is needed. In spite of the various legal challenges rehabbers face - both in terms of regulatory licensing requirements and broader legal concerns - rehabbers provide an important service to their communities and the environment. And while the work of rehabbers is challenging and often described as “a labor of love,” the work comes with many rewards.
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