I. Introduction

The majority of Americans will visit a zoo or similar facility that exhibits animals at some point in their lives. Under current laws, the amount of protection each animal is afforded within U.S. Zoos and related animal exhibitions, varies by species. In denotative terms, a zoo is “a collection of living animals usually for public display.” This relatively simple definition gives no indication of the implications a zoo has for animals confined to their cages.

Wild animals have intrigued humans throughout history. The first animal exhibitions were recorded as far back as Ancient Egypt where wild animals, regarded as objects of wealth, were presented as gifts to the pharaohs. Queen Hatshepsut opened the first zoo in 1500 B.C. and approximately 500 years later, around the year 1000 B.C., the Chinese emperor, Wen Wang, founded the Garden of Intelligence.[1] This enormous zoo covered about 1,500 acres. To display power and wealth, rulers from Northern Africa, India, and China established many small zoos between 1,000 and 400 B.C.  The Romans used animals commonly found in zoos for entertainment; they watched hundreds of thousands of them fight to the death in arenas. The Greeks established the first public zoos, which were used by students to study animal and plant life.

King Henry I created the first wild animal menagerie in Britain. Animal menageries remained private collections until the early part of the 19^th century, at which time they became open to the general public. Public accessibility in Western Europe began at zoological collections in Paris, Vienna, Dublin, and later, in London. The Zoological Society of London justified London’s zoological collection as “the advancement of zoology and animal physiology and the introduction of new and curios subjects of the Animal Kingdom.”[2]  Throughout the 19^th and early 20^th century, there were only a small number of animal collections. These consisted of animals from around the world, captured by the Victorian explores or presented as gifts from parts of Africa and Asia in return for diplomatic favors.[3] In the 1950s, there was a ‘zoo boom’ during which time entrepreneurs recognized the potential money to be made from exhibiting wild animals to satisfy public curiosity.[4] German collector, Carl Hagenbeck, built the first wild animal park in 1848. He allowed the animals outdoor access, believing their enclosure should more closely resemble nature.

Today, there is a push by animal rights activists to that same effect. Until the 20^th century, there was little or no concern for the welfare of zoo animals. It was not until the late 1970s and early 1980s that the appearance of zoos began to change to reflect the public opinion; this transition took place as people were educated about the true conditions endured by zoo animals. Currently, the public image of zoos is changing through methods ranging from mission statements to welfare inspections in order to justify their existence to their critics and the public. It is no question that zoos have come a long way from the time of Ancient Egypt towards ensuring the welfare of zoo animals, but the question remains: Is it enough? Is the welfare of zoo animals protected today? This paper will examine existing laws that pertain to zoo animals, from regulating their movement and trade to ensuring their welfare. Clearly, there are significant deficiencies both in the laws and in their enforcement, which leaves the welfare of zoo animals at risk.

 Zoos exist in today’s society for a myriad of reasons including, as the American Zoological Association (hereinafter “AZA”) claims, conservation, education, science, and recreation.[5] Whatever purpose they exist for, the status of the animals is the same: The animals are property owned by the Zoo. This severely limits their protection under the law, as well as the ability of people concerned about their care and welfare to bring suit on their behalf. Proponents of animal rights, however, argue that regardless of their intent, zoos reinforce the notion of human domination over non-human animals, which is never beneficial to animals. Animal rights advocates argue that the existing laws are insufficient to protect the welfare of animals kept in captivity.

i.      The Animal Welfare Act

One of the most important laws protecting zoo animals is the Animal Welfare Act (hereinafter “AWA”). The AWA is a very important act because it is the only Federal statute concerned with the welfare of the animals, rather than regulating financial and procedural matters concerning zoo animals. Its scope, however, is greatly limited by the statute’s definitions. The Act’s effect is also limited by lack of enforcement both because of the limited resources of the department charged with enforcing the act, and the lack of a citizen suit provision.

The Animal Welfare Act[6] was originally passed in 1970 as a result of public outcry over the exposure of the research industry’s practice of stealing pets to use in medical research. Section 2131 of the Act asserts Congress’ intent to regulate animals, which are part of interstate commerce, and fall within the scope of the Act as interstate or foreign commerce to ensure their protection and humane treatment.[7] The Act protects zoo animals by regulating both dealers and exhibitors of animals falling within the scope of the act.

The AWA gives authority to the Secretary of Agriculture to “promulgate standards to govern the humane handling, care, treatment, and transportation of animals [that fall within the scope of the Act].” [8] These standards include “minimum requirements for handling, housing, feeding, watering, sanitation, shelter from extremes of weather and temperatures, adequate veterinary care,”[9] and “for a physical environment adequate to promote the psychological well-being of primates.”[10] This illustrates one of the Acts limitations:  only minimum standards are set forth for the welfare of the animals covered by the Act. Minimum standards, especially with regard to certain highly intelligent species, are not enough to truly ensure the welfare of animals because their psychological well-being is not addressed. The Secretary of Agriculture’s regulations can be found in Title 9 of the Code of Federal Regulations §§1.1-4.11. Part 1 contains definitions for terms used in parts 2 and 3; part 2 provides administrative requirements and sets forth institutional responsibilities for regulated parties; and part 3 contains specifications for the humane handling, care, treatment, and transportation of animals covered by the AWA[11]. (For more information see the Overview of the U.S. Animal Welfare Act, by David Favre.)

In order to be covered by the Act, the zoo animal must first meet the definition of animal within the statute. Unfortunately, the definition of animal within the Act greatly limits the protection offered to zoo animals:

The term "animal" means any live or dead dog, cat, nonhuman primate, guinea pig, hamster, rabbit, or such other warm-blooded animal, as the Secretary may determine is being used, or is intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet; but such term excludes (1) birds, rats of the genus Rattus, and mice of the genus Mus, bred for use in research, (2) horses not used for research purposes, and (3) other farm animals, such as, but not limited to livestock or poultry, used or intended for use as food or fiber, or livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber. With respect to a dog, the term means all dogs including those used for hunting, security, or breeding purposes.[12]

Warm-blooded animals include humans, non-human mammals, primates, and birds. Therefore, all cold-blooded animals, including insects, fish, reptiles, and amphibians are excluded from any protection under the Act.[13] This is unfortunate when you consider the large number of cold-blooded animals kept in zoos across the country. It is evident when visiting a zoo that cold-blooded animals are much less protected, as mammals and well-known animals are kept in enclosures made to mimic their natural habitat and reptiles are typically kept in small glass cages.

Most zoo animals are regulated under 9 CFR §3 Subpart F, which lists the specifications for the humane handling, care, treatment, and transportation of warm-blooded animals other than dogs, cats, rabbits, hamsters, guinea pigs, nonhuman primates, and marine mammals.[14] Primates are regulated under §3 Subpart D and marine mammals are included under §3 Subpart E. These sections set out only minimal basic requirements for food, water, housing, and sanitation, and have little to do with the quality of existence for wild animals in captivity.[15] One of the strongest regulations protecting the welfare of zoo animals is 9 CFR §2.131, which deals with the handling of animals. This section defines the care anyone handling animals must use within the confines of the AWA. It restricts the use of deprivation and drug training techniques, and requires that animals are exhibited in suitable areas and climates for an appropriate period of time.[16] It also provides standards of care for young animals, performing animals, and ensures the safety of the public and of animals where there is interaction between them[17]. Certain specific mandates are issued within this section; however, many of the standards are vague and fail to offer meaningful guidelines. The directive is given “‘the animal shall only be exhibited consistent with its well-being,’” but who determines what “well-being” constitutes? This is a very subjective measure that could be easily influenced by the biases of zoo veterinarians. Combined with the infrequent inspections by Animal and Plant Health Inspection Service (hereinafter “APHIS”), the agency with the power to enforce the act, it is doubtful the welfare of animals is ensured. Regardless, this section has proven to be most pertinent in ensuring that the welfare of zoo animals is observed during exhibition.

Zoos are also subject to the AWA under the regulations applying to dealers and exhibitors define those categories of people who must be licensed in order to engage in particular animal activities, and seek to prohibit unqualified individuals from obtaining a license.[18] Clearly, zoos and dealers selling animals to zoos fall within the Act under the following definitions:

The Act defines “dealer” as:

[A]ny person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of, (1) any dog or other animal whether alive or dead for research, teaching, exhibition, or use as a pet[19]

The AWA defines “exhibitor” as:

[A]ny person, public or private, exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary, and such term includes carnivals, circuses, and zoos exhibiting such animals whether operated for profit or not; but such term excludes retail pet stores, organizations sponsoring and all persons participating in State and country fairs, livestock shows, rodeos, purebred dog and cat shows, and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be determined by the Secretary.[20]

These definitions include a broad range of animal facilities. From public zoos and private collections to small roadside attractions housing exotic animals, entertainment animals used at circuses, theme parks, and carnivals, these facilities are all subject to the Animal Welfare Act.

Anyone who meets the above definitions, must then meet the license requirement:

No dealer or exhibitor shall sell or offer to sell, or transport, or offer for transportation, in commerce to any research facility, or for exhibition, or for use as a pet any animal, or buy, sell, offer to buy or sell, transport or offer for transportation, in commerce, to or from another dealer or exhibitor under this chapter any animals, unless and until such dealer or exhibitor shall have obtained a license form the Secretary and such licenses shall not have been suspended or revoked.[21]

Additionally “[e]very research facility, every intermediate handler, every carrier, and every exhibitor not licensed under §2133 of this title shall register with the Secretary in accordance with such rules and regulations as he may prescribe.”[22] There are also record-keeping and marking requirements under the act, which govern the purchase, sale, transportation, and identification of animals as the secretary prescribes in the regulations.[23] Through these provisions everyone dealing with animals, from trainers to transporters, are covered by the Act and are therefore, subject to some provision or requirement relating to those animals. A violation of these regulations will ideally lead to enforcement of punishment provisions within the act, including, eventually rejection of exhibitor licenses.

The U.S. Department of Agriculture (hereinafter “USDA”) has delegated primary responsibility for enforcing the AWA to APHIS, which is further divided into two divisions that administer and enforce the Act: Animal Care and Veterinary Services. Animal Care is the welfare enforcement branch of APHIS. Their mission statement summarizes their role:

Animal Care . . . [establishes] standards of humane animal care and treatment and [ ] monitor[s] and achieve[s]s compliance with the Animal Welfare Act through inspections, education, and cooperative efforts.[24]

Veterinary Services is mainly concerned with livestock; however, the affiliated National Center for Import and Export regulates the import and export of zoo animals. Some animals imported from foreign countries for exhibition in zoos will be subject to the Center’s regulations and oversight.

A facility can have up to three pre-licensing inspections in an attempt to meet the standards. The USDA is required to inspect research facilities once per year and conduct follow-up examinations until AWA violations are corrected.[25]   They may also engage in any inspections deemed necessary pursuant to a complaint.[26] With the exception of the pre-licensing procedure, all subsequent inspections are unannounced.[27] APHIS employs 104 inspectors to survey the 2,000+ licensed facilities currently in existence.[28]  Despite these seeming protections under the AWA, constraints of budgets and logistics often frustrate the enforcement of the Act. 

Not only is enforcement under the act inadequate, but private citizens are also usually unable to gain standing to challenge violations. Until 1998, in the matter of Glickman v. Animal Legal Defense Fund, no one had been successful in satisfying the standing requirement under the AWA, other than for an economic injury, let alone challenging the Secretary’s regulations under the act.[29] Mr. Jurnove, the plaintiff in Glickman, repeatedly visited the Long Island Game Farm Park and Zoo, and repeatedly filed complaints with the USDA after observing animals living in inhumane conditions.[30] Mr. Jurnove sought to challenge the USDA’s regulations, promulgated by the Secretary, because although the zoo was currently in compliance with the regulations set forth for primates, they were inadequate for meeting the standard.[31] The AWA dictates that the Secretary’s regulations shall include a minimum requirement for the physical environment to promote the psychological well-being of primates.[32] Mr. Jurnove alleged that the Secretary had failed to do this in the existing regulations, and the primates at the zoo were suffering due to this deficiency.

Mr. Jurnove claimed aesthetic injury, caused from viewing the primates being kept inhumane conditions during various visits to the park in the past. Mr. Jurnove planned to return to the zoo, so future injury was imminent. Mr. Jurnove’s experience and past work enabled him to identify signs of stress amongst the primates. In response to Mr. Jurnove’s various complaints to the USDA, inspections were done, all of which found that the facility was in compliance with all USDA regulations. The court found that the USDA’s regulations caused Mr. Jurnove’s aesthetic injury, which could be redressed by a favorable decision by the court. Therefore, Mr. Jurnove met the Article III requirements for standing, and could sue on behalf of the welfare of those particular primates.

There is no citizen suit provision within the AWA, therefore, Mr. Jurnove also had to prove that he met the prudential standing requirements. He was able to do this since the interest he sought to protect was within the zone of interest protected by the statute.[33]  The AWA was passed to protect the welfare of animals, and Mr. Jurnove's claims also sought that same interest. The requirements for standing severely limit who can sue on behalf of zoo animal’s welfare and are very strictly adhered too; unless all the conditions are met, as in this case, there will be no standing to sue on behalf of the animal to protect their welfare.

Although he was able to procure standing, Mr. Jurnove and the Animal Legal Defense Fund lost on all claims when subsequently tried on the merits.[34] The court held that the Secretary’s new regulations, although not specifically requiring group housing for primates, were sufficient to maintain the psychological well-being of primates. This case illustrates the difficulty, if not impossibility, of successfully challenge existing regulations in order to improve the welfare of animals within such facilities.

Critics have various legitimate complaints about the USDA’s enforcement of the Act. First, the Office of Management and Budget (hereinafter “OMB”) controls almost everything that the USDA does. Their oversight requires that APHIS will communicate and clear all actions with the OMB before proceeding. This presents a problem because the OMB is not concerned with animal welfare; its job is to protect business.[35] The office evaluates how any action by APHIS will affect dollars and cents. The two department’s ideologies obviously conflict since the OMB’s cost considerations are inconsistent with the AWA’s purpose of protecting animals regardless of the cost. Additionally, critics argue that AWA violators have too many chances prior to punishment with APHIS’ enforcing the ACT which contributes to the continuance of animals’ suffering. Critics argue that the USDA needs to interpret the AWA from the animals’ perspective.  The USDA’s regulations only require bare minimums and lack specific standards for the care of any exhibited animals.

The USDA’s enforcement has also been targeted by critics, who cite several problems with the administration of the Act. First, the USDA only keeps inspection records for three years. Therefore, the USDA does not have a true compliance record of the exhibitors or other entities it regulates, as it is limited by a three-year paper trail.[36] Another problem with the USDA’s administration of the Act is the department’s propensity to enter into Stipulation Agreements or Consent Decrees with entities it alleges violated the AWA. Under such agreements, the only admission the charged entity makes is that the USDA has jurisdiction over it. The entity neither has to admit or deny liability; the party charged with a violation is not required to admit it has violated the statute. In future actions, the Administrative Law Judge would not be able to use the prior Act to assess more severe penalties as a repeated offender.

There are several areas where improvements to theAWA are necessary, so that the Act’s mandate of protecting animals is carried out. APHIS clearly lacks adequate resources to properly conduct inspections of the thousands of facilities that house wild animals, which, in turn, hinders the effectiveness of the Act. The Animal and Plant Health Inspection Service needs additional funding to hire more inspectors to consistently and effectively conduct yearly surprise evaluations and inspections resulting from a complaint. If the AWA had a citizen suit provision, any concerned citizen who sees a zoo animal kept in inadequate provisions could bring suit to enforce provisions that protect that animal’s welfare. This would compensate for the Service’s lack of resources that currently results in the inadequate enforcement of the AWA’s provisions. Additionally, the USDA should adopt species-specific regulations providing for care and handling. Currently, under the regulations in §3 Subpart F, which covers the majority of zoo animals, species as diverse as giraffes, zebras, elephants, prairie dogs, and polar bears are provided protections.  Specific species threatened with extinction that are housed often have additional protections from other federal acts. 

ii.      Endangered Species Act

The Endangered Species Act (hereinafter “ESA”) was signed by President Richard Nixon on December 28, 1973, and passed both houses of Congress. [37] It was designed to protect wildlife and their habitats for the sake of biodiversity.[38] The ESA’s protections extend only to those species formally listed in Section 4 of the Act as “threatened” or “endangered.”[39] The responsibility for listing species is split between the Secretary of the Interior, whose authority to list species is delegated to the U.S. Fish and Wildlife Service, and the Secretary of Commerce, whose authority is further delegated to the National Marine Fisheries Service.[40] Not only can these officials seek to have a species listed or a listing revised, but under §1533(a), any interested person can petition the Secretary of the Interior to do so. The Secretary must then determine if such petition is warranted, and publish his decision in the Federal Register within 12 months.[41] This determines whether further action by the Secretary is required as prescribed in §1533(b)(6). The decision to list species as “threatened” or “endangered” must be in compliance with §4 of the Act, which instructs the agencies to base their final decision exclusively on the “best scientific and commercial data available.”[42]

Currently, there are over 1,050 animal species designated as either “threatened” or “endangered” and 555 of those are foreign species.[43] One problem with the Act is that foreign species are not granted the benefit of Critical Habitat Designation that native non-captive species are afforded. The Act applies to listed species being imported, exported, bought or sold in interstate or foreign commerce, or taking of those species.[44] Therefore, only some zoo animals will be protected, and only some actions regarding these animals will be limited or regulated. The standards for determining whether a species should be listed are found in §4 of the Act. Listed species can be found at 50 CFR §17.11 and §17.12 (link to pdf listing of species).  The ESA does not regulate possession of endangered species, nor the welfare of those possessed. Rather, it regulates only the movement of those species within the U.S. and even then, only where interstate commerce or a “take” is involved. Section 7 of the ESA makes it unlawful to import or export listed species from the U.S. or to take any species within the US.[45] The term “take” is defined in §3 of the Act, “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”[46] “Harass” is further defined in the regulations as “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns, which include, but are not limited to, breeding, feeding, or sheltering.”[47] Unfortunately, the regulation goes on to exempt other practices including “(1) animal husbandry practices that meet or exceed the minimum standards for facilities and care under the Animal Welfare Act, (2) breeding procedures, or (3) provisions of veterinary care…“[48] According to Mark Carpenter, a senior biologist at U.S. Fish and Wildlife Services (hereinafter “USFWS”), the exemption for normal animal husbandry is accepted by USFWS to mean the zoological display and exhibition of listed wildlife, greatly limiting the protection of zoo animals by this Act.[49] Therefore, only the sale and transport, and other non-animal husbandry related acts will be regulated under the Endangered Species Act.

Another limitation of zoo animal protection under the Act comes about in Section 7(d), which allows the Secretary to give permission for listed species to be imported or exported, subject to licensing requirements and regulations as the Secretary prescribes.[50] Under §1539, the Secretary may permit any take of a species for “scientific purposes or to enhance the propagation or survival of the affected species, including, but not limited to, acts necessary for the establishment and maintenance of experimental populations pursuant to subjection (j),” which regulates such experimental populations (those populations of species outside their original habitat ranges).[51] The standard for the Secretary of the Interior to issue such exemption permit is found in subsection (d) which dictates that the Secretary’s decision must be made in good faith only where the proposed act will not disadvantage any endangered species and the purpose and policy of the ESA will be carried out.[52]  Due to the aforementioned stipulations in the statute, zoos can usually move animals between facilities without permits, since there is very little buying and selling of listed zoo animals and normal animal husbandry is exempt from the take provision of the ESA.[53]  However, Section 9 of the ESA extends the scope of the Act’s coverage even further, to include both private and public sectors. It asserts that “no ‘person’ defined as all private and public entities, whether individuals or organizations can import…export...take...possess, sell, deliver, carry, transport, or ship any endangered species of wildlife.”[54]

The USFWS’ power under the act comes from Section 11, which provides enforcement mechanisms in the form of both civil and criminal penalties.[55] Civil penalties allow damages up to $25,000 for violations, as well as a discretionary award of attorneys’ fees to the prevailing party.[56] Criminal penalties include fines of up to $50,000 and/or up to one year in prison per violation.[57] USFWS has a division of law enforcement that handles police-type actions, investigations, arrests, etc. Fish and Wildlife also has a solicitor’s office that handles the preparation of prosecutions under the Act. Cases are brought by the Justice Department for the United States. The U.S. District courts implement the specific sentencing requirements for violations. Additionally, Section 11 authorizes citizen suits to be filed against any person who allegedly violated the Act.[58]

Even though there is a citizen suit provision within the Endangered Species Act, standing is a limitation on the ability to challenge agency action under the law. Specifically, the following case illustrates the inability of citizens to challenge the methods used to obtain foreign species. In 1986 the Fish and Wildlife Service and the National Marine Fisheries Service, on behalf of the Secretary of the Interior and the Secretary of Commerce respectively, promulgated a joint regulation interpreting  §7(a)(2) to require consultation only for actions taken in the United States or on the high seas. Therefore, U.S. action abroad was exempt from all provisions of the ESA. Defenders of Wildlife, as an organization dedicated to wildlife conservation, filed suit against the Secretary of the Interior, seeking a declaratory judgment that the new regulation is in error as to the geographic scope.[59] They also sought an injunction requiring the Secretary to reinstate the initial interpretation, which covered U.S. action abroad. The Court of Appeals affirmed the district court holding, which found standing based on a procedural injury. Section 7 requires interagency consultation; therefore it seems that the citizen suit provision of the ESA would create a procedural right to consultation in all persons. However, the Supreme Court disagreed, holding that plaintiffs did not have standing to challenge the regulation because the “injury in fact requirement is not satisfied by congressional conferral upon all persons of an abstract self contained non-instrumental right to have the executive observe procedures required by law.”[60] Basically, the court reiterated that a generalized grievance, such as the plaintiff’s in this matter, is never enough. The injury requirement is very strict; the party seeking review must be among the injured. Past exposure to illegal conduct is never enough without the existence of continuing adverse effects.

In contrast, the court found standing where a suit was brought under the ESA on behalf of circus elephants, who plaintiffs alleged were being abused, in ASPCA v. Ringling Bros. and Barnum and Bailey Circus, 317 F. 3d 334. In this matter, plaintiff Thomas Rider, who worked as an elephant handler, sued for mistreatment of the elephants manifested through visible injuries resulting from the training practices of the circus. Plaintiff alleged his injury was imminent because he would return to view the elephants, even if not employed by the circus in the future. He also alleged that he could detect mistreatment of the elephants through visible manifestations of abuse apparent on the elephants’ legs and feet. He claimed that he suffered aesthetic and emotional injury from seeing the animals being mistreated in their current situation at the circus. The citizen suit provision of the ESA only eliminates the need to prove the prudential standing requirement, and therefore, Article III standing requirements must still be met.  The Court found that the plaintiff had alleged enough to show injury in fact which is “an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.”[61] The court examined his alleged ability to recognize the effects of mistreatment and what the injunction he sought would accomplish. The court held that the plaintiff’s allegations were insufficient to withstand a motion to dismiss for lack of standing, based on the plaintiff’s purely emotional, aesthetic claim.

Even if a citizen gains standing, the claim itself may fail under the ESA.  In the matter of In Defense of Animals v. Cleveland Metroparks Zoo,[62] the plaintiffs brought action in state court challenging the proposed move of lowland gorillas from one zoo to another for mating purposes. Plaintiff’s set forth three claims, first, that the movement of the specific gorilla at issue would result in needless pain and risk to that gorilla, an endangered species. Second, plaintiff’s alleged the movement of the specific gorilla would result in harm to the plaintiffs who monitor the Gorilla’s health. Finally, they claimed the movement of the specific gorilla would result in harm to the plaintiff’s interests as taxpayers.[63] The court held that the claim was preempted under the ESA, pursuant to the specific provision within the Act, stating the intent to preempt any state law or regulation which applies to the importation or exportation of or interstate foreign commerce in endangered species. The court found that the federal law, ESA, completely occupies the field of interstate commerce in gorillas as an endangered species, and therefore, such a claim is preempted by the federal law. The court found the same with regard to plaintiff’s AWA claim, holding that its provisions regarding the transportation of non-human primates when applied to endangered species also preempts any state laws which might be applied to attempt to regulate such commerce. Therefore, the plaintiff’s claims were necessarily federal in nature, and the matter was properly removed to federal court. The federal court, however, dismissed the action for failure to state a claim. They held that the notice requirements within the ESA citizen suit provision had not been provided, and even so, there was no violation of the ESA based on the transportation of the gorilla. Finally, the court found that the Plaintiffs could not state a cause of action under the AWA since that statute does not provide for private suits to enforce its terms.[64]

While the ESA provides a citizen suit provision and stiffer enforcement penalties, zoos are not typically subject to suits under the ESA. As with the AWA, adequate enforcement and application to foreign acquisition of species remains difficult. Since most species of interest at zoos are acquired from foreign lands, restrictions on trade of certain species is an additional restriction on zoos.

iii.      The Lacey Act

Prior to being amended, the Lacey Act made it a crime to:

[I]mport species of wild animals, wild birds, fish (including mollusks and crustaceans), amphibians, reptiles, or the offspring or eggs or any of the foregoing which the Secretary of the Interior prescribes by regulation to be injurious to human beings or to the interests of agriculture, horticulture, forestry, or wildlife, except that the Secretary may permit importation for zoological, education, medical, or scientific purposes[65]

The broad exemption within makes the Act and its provisions virtually inconsequential for zoo animals. While there is a limit on the importation of such animals, it is easily and frequently avoided.

As amended, the Lacey Act prohibits dealing in wildlife taken, transported, or sold in any manner that violates any state, national, or foreign law.[66] The amended version, however, exempts zoo animals. The statute specifically states that it is not applicable to persons licensed or registered and inspected by the Animal and Plant Health Inspection Service or any other Federal agency or wildlife sanctuary, i.e. all zoos housing animals regulated under the AWA.[67] Even where this provision applies, it is limited to violation of certain foreign laws only. This section came before the court in the matter of U.S. v. Henry Molt,[68] in which the Defendant’s motion to dismiss the case brought on behalf of endangered species, was granted. The court held that the foreign laws and regulations of the Lacey Act are intended for protection of wildlife in those countries, here, wildlife located in Fiji and Papua New Guinea. The Lacey Act would not be violated by transportation of wildlife in a foreign country in a vehicle without registration plates or a driver’s license, as local law requires. The Lacey Act does not apply to a violation for a motor vehicle infraction, rather, only to violations of wildlife protection laws.

Overall, the Act does not delegate legislative power to foreign governments, but simply limits illegally taken wildlife from the stream of foreign commerce. The Act prohibits the importation of endangered species into the U.S., and it directs the Secretary of State to seek similar action in foreign countries. The legislative history indicates the intent of the Act is to dry up the U.S. market for such species, thereby depleting the demand for such in foreign countries and sharply reducing the trade of such species.[69] The broad exemption in the act for exhibition animals, along with strict requirements, make this statute virtually inapplicable to zoo animals.

iv.      Species Specific Protections

Several laws in existence protect specific species of wild animals that are not even native to the U.S.. These species-specific statues include the African Elephant Conservation Act, the Asian Elephant Conservation Act, the Great Ape Conservation Act, and the Rhinoceros and Tiger Conservation Act. Although the goals of these Acts are noble, it seems they are less effective than they intend. Generally, the Acts contain findings of Congress about the current endangered status of these animals, the causes of their endangerment, and Congress’ intent to protect them through the provisions of the Acts. Most importantly, the statutes establish specific species conservation funds, from which the Secretary of the Interior may provide financial assistance for approved projects for research, conservation, management, or species protection. The funds designated range from $5,000,000 for Asian Elephants, African Elephants, and Great Apes, to $10,000,000 for Rhinos and Tigers. These fund are only designated for a specific period of years, but presumably may be renewed upon expiration. The first of these Acts to be passed was the Rhinoceros and Tiger Conservation Act of 1995. [70] The African Elephant Conservation Act also requires the Secretary to establish a moratorium on the importation of raw and worked ivory from an ivory producing country that does not meet specified criteria, including being a party of CITES and adhering to CITES limitations on ivory trade. The African Elephant Conservation Act imposes civil and criminal penalties on any person who among another things, imports raw ivory from any country other than an ivory producing country, or from a country for which a moratorium is in effect, or who exports raw ivory from the U.S.. The Act also provides a reward for anyone who furnishes information that leads to a civil penalty or conviction under the Act. Beyond providing funding for conservation efforts and some limits on the ivory trade in the U.S., it seems these Acts have had little effect to actually protect endangered species.

As with other acts, there seems to be a lack of enforcement mechanisms written into the act and a lack of resources to carry out the mandates of the act. The future of zoo animal protection may then rest outside U.S. federal law.

States are subject to the Animal Welfare Act, but because the AWA only sets forth minimum standards governing the care and welfare of animals, states are also free to create their own laws to protect animals. The only requirement is that states create stricter standards than the federal law.  Today every state has enacted its own unique law prohibiting cruel treatment of animals. Forty-one states and the District of Columbia provide felony-level penalties for certain types of cruelty violations.[71] State anti-cruelty statutes do not afford zoo animals legal rights, but do provide protection against cruelty. Similar to the federal Animal Welfare Act, each state’s definition of “animal” and the statute’s exemptions limit the effectiveness of anti-cruelty laws. Many states take a broad approach defining “animal” as every living creature except a human being, and thereby including every animal within its scope. However, some states exempt classes of animals or whole kingdoms. Only three states, Minnesota, Mississippi, and Oklahoma provide no exemptions. Some states, including Georgia, Idaho, Michigan, Missouri, New Jersey, and Washington entirely exempt zoo animals and/or exhibition animals from its anti-cruelty provisions. Pennsylvania’s law proves to be one of the strongest since the intent to protect zoo animals in captivity is specifically mentioned. Some states including Arkansas, Kentucky, and South Dakota allow for additional licensing or permitting requirements by states or local government. However, some state’s including Connecticut, Hawaii, Iowa, Mississippi, Missouri, Nebraska, New Mexico, and North Carolina have no specific provisions in their anti-cruelty laws to protect exhibited animals. For more information on state laws applying to zoo animals see the Animal Protection Institute’s Website, http://www.api4animals.org/1308print.htm.

California’s anti-cruelty law applies to “every dumb creature,” creating a very broad scope of application.[72] It prohibits maliciously and intentionally maiming mutilating, torturing, wounding, or killing animals.[73] Cruelty includes overdriving, overloading, overworking, torturing, tormenting, depriving of necessary sustenance, drink or shelter and cruelly beating, mutilating, or killing any animal. Such a violation can result in a misdemeanor or felony charge and include a fine up to $20,000 and up to one year in prison. It also allows for forfeiture or seizure of the animal and recovery for cost of care. It exempts farming, hunting, and research from its provisions.[74] The Texas anti-cruelty statute, on the other hand, differentiates punishment based on what offense has been committed. On a person’s first offense of neglect, it is a class A misdemeanor, but allows for a fine up to $4,000 and imprisonment up to one year.[75] On the third offense for neglect, the charge is a state jail felony with a fine up to $10,000 and a minimum of 180 days in prison; however, one could be sentenced up to two years. For the first offense of intentional cruelty, it is a state jail felony, with up to $10,000 in fines and 180 days to two years in prison. The most severe punishment is for the third offense for intentional cruelty, including seriously injuring or poisoning. The charge is a felony of the third degree with a fine up to $10,000 and two to ten years imprisonment.[76]

Enforcement of state anti-cruelty laws is left up to state and local law enforcement. More and more, there are divisions dedicated solely to enforcing animal anti-cruelty statutes being developed in large cities. It is questionable though, how general enforcement agencies located in high-crime areas would have the staffing and resources to strictly enforce animal anti-cruelty statutes.

One important new piece of state legislation was recently passed in Louisiana. LA HB 1621 makes it a Class 4 violation to kill a current or former zoo or circus animal for sport. The law prohibits zoos and circuses from providing, selling or donating any animal for use in a canned hunt, which is where hunters pay a fee to kill captive, tame animals. This mandate also prohibits transferring any animal from a zoo or circus to a canned hunt, and prohibits canned hunting facilities from purchasing, accepting as a donation, or receiving any animal formerly housed in a zoo or circus. Prior to this protection, retired zoo and circus animals would often end up in canned hunting facilities.  (For more on the issue of canned hunts, click here.)

State Anti-Cruelty laws, so long as they are not preempted by the AWA nor exempt zoo animals all together, are a valid source of protection for zoo animals. Like federal statutes however, only the most heinous offenses will be prosecuted as budget and staff constraints are always a hindrance to effective enforcement.  While maltreatment can be addressed at the state level, it is the actual taking of zoo animals from their native habitats in other countries that poses considerable problems.

i.      CITES

Roughly 5,000 species of animals are protected from over exploitation through international trade regulations found within the Convention on International Trade in Endangered Species (hereinafter “CITES”).[77] CITES was drafted as a result of a resolution adopted in 1963 at a meeting of members of the World Conservation Union. The text of the Convention was agreed to on March 3, 1971 and entered into effect on July 1, 1975.[78] This Convention facilitates cooperation between nations to protect wild plants and animals from over exploitation in international trade.[79] It was designed to ensure that international trade in species of wild animals does not threaten their survival. Annually the international wildlife trade is estimated to be worth billions of dollars and it includes hundreds of millions of plant and animal specimens.[80] Adherence to this international treaty is voluntary. Once a country joins CITES, the Convention is legally binding – that country must then implement the Convention into their own national laws. The Convention recognizes that countries best manage the wildlife within their own borders and therefore, does not dictate wildlife management for member countries. Rather, it leaves parties of the Convention free to regulate the trade of animals within its borders. This could be beneficial to animals in one country, but a hindrance for species in another, since laws will inevitably vary. According to the U.S. Fish and Wildlife Service, CITES currently has 166 members.[81]

Article I of the Convention defines  the terms. It is interesting to note that the term “[s]pecimen” means “any animal or plant, whether alive or dead,” therefore this applies both to animals listed in the appendices and the products derived from those animals.[82] Unlike the AWA, CITES does not determine protection based on type of animal, but rather solely on listing status. Any type of species can potentially be listed, from leeches to lions. While more charismatic creatures such as bears and whales are better known examples of CITES species, the most numerous groups include less popularized animals such as corals, mussels, and frogs.[83]

There are three appendices that list species and subspecies to which the Convention applies. Placement of a species in Appendix I, II, or III determines the degree that the Convention parties regulate trade in that species. According to the Convention, animals listed in Appendix I shall:

[I]nclude all species threatened with extinction which are or may be affected by trade. Trade in specimens of these species must be subject to particularly strict regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances.[84]

Well-known endangered species, including the Asian elephants and the Panda Bear are listed in Appendix I. Animals that are not presently threatened with extinction, but may become so unless trade and use of such specimens is subject to strict regulations are listed in Appendix II.[85] A permit from the importing country is not required for an Appendix II species. Appendix III contains species that are protected in at least one country that has asked other CITES parties for assistance in controlling the trade.[86] For example, one may ship the scarlet macaw from Panama, but not from Costa Rica.[87] One would need an export permit for Appendix III species only when the export is from a country that has included the species on its Appendix III list. Importation of an Appendix III specimen still requires a certificate of origin. Each party to the Convention must designate one or more Management Authority in charge of administering the licensing system and one or more Scientific Authority to advise them on the effects of trade on the status of the species.

CITES operates by subjecting international trade to controls that require all import, export, re-export, and introduction for the species covered by CITES be authorized through a licensing system. Any trade of such species listed requires the prior grant and presentation of an export permit which can only be granted when all conditions are met. Animals listed in Appendix I cannot be exported without an export permit, that may only be granted where the Scientific Authority of the state has confirmed it will not be detrimental to the species and the management authority confirms that the species was obtained lawfully, the shipment will minimize the risk of injury and cruel treatment to the animal, and the receiving country has obtained an import permit.[88] The import of an Appendix I species requires the prior grant of an import permit, which requires that the Scientific Authority find that the import is not for purposes detrimental to the species and that the recipient is well-equipped to handle and care for it. The Management Authority must also find that the specimen is not to be used for primarily commercial purposes.[89]

The protections for animals and restrictions in their trade decrease as their listing status decreases. Trade of animals in Appendix I is almost non-existent, unless there is a prior grant of authority, which is only to occur in exceptionally limited circumstances. In contrast, trade of animals listed in Appendix III only requires that the animal was not obtained unlawfully and transport of the animal minimize the risk of injury or cruel treatment. This illustrates just how important it is to ensure proper listing of animals that are endangered or threatened, so that they may be afforded the most protection available under the Convention.

Once a species is listed in Appendix I or II, any amendments to the listing must abide by the provisions set forth in Article XV. Under this Article, any party to the convention may propose an amendment to Appendix I or II for consideration 150 days before the meeting. A two-thirds majority, who must be present and voting, adopts amendments. For any other amendment, a meeting of the  parties is convened upon written request by one-third of the parties to amend. The amendment is adopted upon a two-thirds majority vote of the parties.[90]

Captive-born animals are subject to different standards under the Convention. The treaty states “[s]pecimens of an animal species included in Appendix I bred in captivity for commercial purposes…shall be deemed to be specimens of species included in Appendix II.”[91] Additionally, where the Management Authority of the state of export is satisfied that any specimen of an animal species was bred in captivity, a certificate from the Management Authority is be accepted in lieu of any of the permits or certificates required under the provisions of Articles III, IV, or V, which govern the import and export of species listed in Appendix I, II and III.[92] A final exemption under Article VII allows traveling zoos, circuses, and other exhibitors to move without permits or certificates as long as they register full details of the specimens they transport with the Management Authority. The Management Authority must be satisfied that the animals will be transported in a manner that will minimize risk of injury, damage to health, or cruel treatment. Unfortunately, species that are listed in the appendices, but born in captivity, are afforded much less protection under CITES than their free-roaming counterparts. One benefit of this provision however, is that captive breeding programs at zoos can reintroduce species into the wild without obtaining prior permits. The frequency of this occurring, though, is rare since reintroduction is costly and difficult. In addition to captive animals, the Convention exempts species that were acquired before CITES provisions applied to them. These “pre-Convention” specimens have no protections afforded them under the Act.  However, even where no export or import permit is required, the USFWS still requires documentation.

In addition to the Endangered Species Act, the USFWS administers CITES, and therefore, controls import and export of listed species to and from the U.S.. The regulations implementing CITES can be found in 50 CFR Ch 1 Part 23. CITES does not apply within the U.S., since it deals only with crossing international boundaries, specifically international trade of a listed species. The USFWS adopts the CITES standard nomenclature, since it is the international standard. Mike Carpenter, senior biologist with the USFWS, reports the list of species regulated under the U.S. Endangered Species Act is wholly separate and unrelated to the list of species in the appendices to the International CITES Treaty. Species may be listed on one or the other or both, but the reasons for listing, the listing process, the legal requirements, and the benefit of listing is entirely different and unrelated.

The Treaty dictates in Article XI that the parties must convene regularly, meeting at least once every two years. During these meetings the convention will update and amend the Treaty. Non-governmental organizations may participate in meeting, but they have no vote. This section of the Treaty also discusses the procedure for meetings and the role of the Secretariat of the Convention. Article XIV discusses the impact of the International Treaty on domestic legislation. According to the provisions of the Treaty, member parties are free to adopt more strict regulations than the international standards for their own country. A member state may withdraw from the Convention at any time, pursuant to the process of denunciation laid out in Article XXIV.

This treaty was litigated in the matter of The Humane Society of the U.S. v. Bruce Babbitt[93]. In this matter, the plaintiffs appealed from the district court’s grant of summary judgment in favor of the Secretary of the Interior, which would allow Lota, an Asian elephant, to be transferred from the Milwaukee Zoo to a circus. The Humane Society of the U.S. (hereinafter “HSUS”) was challenging a certificate issued by the Secretary that exempted Hawthorn, the Asian elephant’s handlers, from the ESA and CITES. Although Asian elephants are subject to regulation under both CITES and the ESA as an endangered species, the USFWS had issued a certificate designating Lota, to be a pre-Convention animal and therefore, exempt from CITES import and export restrictions.[94] The court found that the USFWS regulation interpreting commercial activity to exclude the transportation of an endangered species across state or national borders, where there is no change of ownership or control of the animal was valid. The court found that the interpretation of commercial activity was not unreasonable because it was in accord with the legislative history of the act.[95]

The movement and transfer of Lota was determined to be exempt from the provisions of the ESA regulating her trade and movement. Additionally, the court found that the HSUS could not establish facts sufficient to prove they had standing to challenge the USFWS finding that Lota was a pre-Convention animal and therefore, not subject to CITES. The court did state, “while we can imagine a situation where a frequent zoo visitor’s systematic observation of an animal species might be sufficiently threatened by the removal of some or even one animal from the zoo to make out a cognizable claim for standing purposes, this does not appear to be such a case.”[96] Here, the plaintiff was a resident who claimed that he had visited the zoo several times during the period that Lota was held by them. Plaintiffs asserted injury because the challenged conduct threatened to diminish or deplete the overall supply of endangered animals available for observation and study, rather than the specific animal who was being affected by such provisions. The court ultimately found that the plaintiffs lacked standing to sue on behalf of Lota, because they could not establish a concrete injury in fact, causation, or redressability. It seems, therefore, that the court has left room for someone who visits a specific zoo on a frequent basis and plans to return to bring suit on behalf of the welfare of a specific animal, i.e. an elephant, where the person feels the Secretary’s regulations are inadequate to ensure the animal’s welfare. A claim of this sort should draw attention to the fact that  laws protecting elephants do not provide for their mental well-being, despite their being highly intelligent creatures. Hopefully this will be a feasible claim in the future to ensure animals, especially highly intelligent ones, are well-protected.

The matter of Born Free v. Gale Norton,[97] indicates how difficult, if not impossible, it is to contest a decision by the Secretary of the Interior to import endangered species. In this matter, the zoo sought to import African elephants from Swaziland, claiming that they would be killed if they were not transported. The court held that the advocates, Born Free, failed to show a likelihood of success to warrant preliminary injunctive relief. Despite the potential detrimental effects to the remaining foreign herd, no overall detriment to the species was shown since the elephants were to be used for breeding and proceeds from their importation would benefit the foreign elephant habitat. Further, the court found that the zoo’s proposed purposes of breeding and education outweighed their commercial purpose of increased admissions revenues as a result of displaying the elephants.[98]

In the matter of Pedersen v. Benson,[99] an importer had a permit to import five giraffes from Kenya, three of which were sold and released to public zoos after the requisite quarantine period. The other two were bought by ‘Africa USA,’ but not released. One of them had a heart attack and died. Plaintiff’s filed suit to have the other one they purchased released. The permits, issued by APHIS, were issued under the further understanding that all the giraffes would be consigned to an approved zoological park. Africa USA is a privately-owned zoo, and lacks governmental control. The government feared that giraffes, as ruminates, could be infected or exposed to hoof and mouth disease. The government had conducted the necessary inspection of the facility and found that the zoo met all qualifications except for the “governmental control” requirement.[100] The Court found no basis to uphold the government’s claim that a government officer may impose an ad hoc system of licensure upon any citizen, or upon any one group, i.e. private zoos, as opposed to another. Here, the importation was specifically permitted for all five animals, and any one animal was just as much a potential carrier of hoof and mouth disease as this particular giraffe. Therefore, this matter was dismissed for failure to state a cognizable claim.[101] While the Secretary is free to regulate the transport of animals, especially where there is concern with the spread of infectious diseases, he can not apply his standards arbitrarily. Ultimately, Africa USA, having met all current requirements set forth in CITES, was allowed to import their one remaining giraffe to their private zoo facility.

While CITES sets forth restrictions on the international trade of zoo animals it is limited to species being traded after CITES was adopted. Even then challenges to the decision to import or export, once a permit has been granted, are rarely, if ever, successful. While CITES regulates trade by either allowing or restricting it, voluntary standards regulate the specifics of the transport.

i.      International Air Transport Association

The International Air Transport Association (hereinafter “IATA”) governs the majority of transport of animals by air, ranging from live cats and dogs to large exotic zoo animals. Animals have been transported by air since the early 1930s. The IATA claims that today’s methods are the most humane and expedient for long distance transport.[102] It claims that one of its main objectives is to ensure humane air transport for all animals, whether pets or wild animals. The IATA Live Animal Regulations is the worldwide standard for transporting live animals by commercial airlines. Some member counties also enforce the regulations for the transportation of live animals within their country. Government agencies, such as the USFWS and the management authorities of CITES, also enforce the IATA regulations for the packaging of endangered species for international transport.

The IATA represents a large portion of the airline industry and provides the specific standards required for transport for those member airlines. Currently, it represents 270 airlines consisting of 95% of air traffic.[103] It operates similar to the American Zoological Association in that membership is voluntary; but it is extremely valuable within the industry to establish credibility. An applicant airline that fulfills all membership entry requirements (application form, supporting documents, application and entrance fee, and membership dues), will be admitted to IATA, subject to successful completion of the IATA Operational Quality Standard (OQS) audit process. Starting January 1, 2000, all new members must now demonstrate that they operate according to recognized international Operational Quality Standards. These standards include an appropriate live animal transport policy.

The U.S. Department of Agriculture recently announced in the U.S. Federal Register its intention to apply the U.S. Animal Welfare Act (AWA) to all flights operated by non-US carriers as of April 7, 2004. This requires carriers serving the U.S. market to fully comply with 9 CFR, Chapter 1 (A) (3). According to the IATA the USDA indicates that the existing IATA Live Animal Regulations observed by IATA carriers today comply with the U.S. requirements for the most part.[104] In addition to the USDA regulation of animal transport, 22 USCS §1978 allows the Secretary of the Interior or the Secretary of Commerce to certify to the President that a national of a foreign country either directly or indirectly engaged in trade or taking, which diminished the effectiveness of any international program for endangered or threatened species. Thereafter, the President may direct the Secretary to prohibit the bringing or importation into the U.S. of any products from the offending country for any duration the President determines appropriate.[105]

Organizations where membership is voluntary seem to offer more meaningful regulations and protections for zoo animals. They set forth strict, specific standards, and additional enforcement mechanisms are provided to ensure members adhere.