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Great Apes and the Law: A complete resource for the legal status of the Great Apes within the United States
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Detailed Discussion of Hawaii Great Ape Laws



Hanna Coate


Animal Legal & Historical Center
Publish Date:
2011
Place of Publication: Michigan State University College of Law

Printable Version

 

 

I. INTRODUCTION

In Hawaii, gorillas, chimpanzees, bonobos, orangutans, and gibbons are heavily regulated because of their dual status as both endangered/threatened species and restricted animals. The Hawaii Department of Agriculture (HDOA) prohibits the importation or possession of restricted animals without an HDOA permit and the Department of Land and Natural Resources (DLNR) prohibits the possession, transportation, or sale of endangered/threatened species without a DLNR permit. Those agencies do not issue permits to import or possess apes as pets or for commercial purposes. As a result, commercial animal dealers and exhibitors (like circuses, performing animal acts, private zoos, and wild animal parks) cannot legally import, possess, buy, or sell apes in Hawaii. Municipal zoos, primate sanctuaries, government agencies, universities, and research facilities may import and possess apes with the appropriate federal and state permits. In addition to obtaining the necessary permits, those facilities must comply with HDOA’s inspection and health requirements for importing non-domestic animals and the Hawaii Department of Health’s basic sanitation rules for animals.

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

 

II. STATE STATUTES AND REGULATIONS

Hawaii has a variety of laws affecting the importation, possession, breeding, and sale of apes. The Department of Land and Natural Resources’ regulations establish certain restrictions and permit requirements for activities involving endangered and threatened species. Hawaii’s Department of Agriculture (HDOA) enforces the state’s restricted animal laws and administers a permit program for the importation and possession of restricted animals. In addition, HDOA’s regulations set various health-related requirements for the importation of non-domestic animals. The state’s Department of Health has developed certain basic standards of sanitation for captive animals throughout the state. Section 663-9 of Hawaii’s Revised Statutes makes the owner or harborer of any dangerous or wild animal absolutely liable for injuries or damages caused by the animal. Finally, the state’s general anti-cruelty laws criminalize the physical abuse of apes and other non-pet animals.

 

A. ENDANGERED AND THREATENED WILDLIFE RESTRICTIONS

Hawaii’s Department of Land and Natural Resources (DLNR) administers the state’s wildlife laws and regulates the importation, possession, and use of wildlife,[1] including captive apes, within the state.[2] DLNR classifies all federally listed “endangered” and “threatened” species as endangered and threatened species under state law.[3] As a result, gorillas, bonobos, orangutans, gibbons, and wild chimpanzees are considered endangered species in Hawaii, and captive-born chimpanzees are considered threatened species.[4] Under Section 13-124.3 of DLNR’s regulations, it is illegal to possess, sell, or transport any endangered or threatened species,[5] except with a DLNR permit.[6] Permits for endangered species (gorillas, bonobos, orangutans, gibbons, and wild chimpanzees) may be issued for scientific purposes, to enhance the propagation or survival of the species, or for educational purposes which enhance the survival of that species.[7] Permits for threatened species (captive-born chimpanzees) may be issued for scientific or educational purposes including cultural activities, or for activities which will enhance the survival of the species.[8]

DLNR’s Division of Conservation and Resources Enforcement is responsible for enforcing the state’s wildlife laws.[9] Any person who possesses, sells, or transports an ape in violation of DLNR’s endangered and threatened wildlife regulations is guilty of a petty misdemeanor. Criminal penalties vary depending on the defendant’s history of similar convictions.[10]

 

B. IMPORT AND POSSESSION OF RESTRICTED ANIMALS

The Hawaii Department of Agriculture (HDOA) regulates the importation and possession of animals, including apes. The agency maintains a list of “restricted” animals, which may only be imported or possessed with an HDOA permit.[11] All species of apes are classified as restricted, and permits to import or possess apes are issued for the following purposes:

(1) Research by universities or government agencies;

(2) Authorized medical or scientific purposes (as determined by HDOA);

(3) Exhibition in municipal zoos; or

(4) Primate sanctuaries.[12]

Permits are not issued to import or possess apes as pets, for private use,[13] or for commercial uses that are not listed above.[14] A permit is required for both importation and possession, and may also authorize the transfer or sale of restricted animals.[15] Prior to importing or possessing any ape, HDOA may require a permittee[16] to secure a $3,000.00 bond for each animal (or $2,000 for U.S. Department of Agriculture licensees).[17] All permittees must obtain prior HDOA site approval for facilities housing apes and other restricted animals, and must comply with any specific permit conditions.[18]

HDOA inspectors enforce the state’s Agriculture and Animals Law and the agency’s regulations.[19] Any person who imports or possesses an ape without an HDOA permit is guilty of a misdemeanor and is subject to a fine ranging from $5,000.00 to $20,000.00.[20] A person who imports, possesses, or transports an ape (or other restricted animal) without a permit and with the intent to propagate[21] or sell the animal, is guilty of a class C felony and is subject to a fine ranging from $50,000.00 to $200,000.00.[22] Anyone who violates any other provision of the Agriculture and Animals Law or HDOA regulations governing restricted animals is guilty of a misdemeanor and is subject to certain fines, which range depending on the defendant’s history of similar convictions.[23]

Apes (and other restricted animals) that are in Hawaii without a permit are considered contraband. Upon discovery, HDOA will immediately seize those animals and will either export, destroy, or donate them to a government zoo.[24]

 

C. ANIMAL HEALTH RULES: NON-DOMESTIC ANIMAL IMPORTATION

The Hawaii Department of Agriculture (HDOA) is responsible for implementing and enforcing the state’s laws for the control and eradication of transmissible diseases.[25]  In addition to any required state and federal permits, all apes (and other non-domestic animals[26]) entering the state[27] must be accompanied by a valid health certificate,[28] and presented to HDOA for inspection.[29] The agency may quarantine any animal that is affected with, or has been exposed to, any transmissible disease[30] or that was imported in violation of the agency’s preshipment requirements.[31]

All state and local law enforcement officers and HDOA agents may enforce the Animal Diseases and Quarantine laws.[32] Any person who imports an ape in violation of these animal health laws is guilty of a misdemeanor (or Class C felony for multiple or serious violations).[33] In addition to forfeiting any illegally imported animals,[34] violators are subject to certain criminal penalties, which vary depending on the defendant’s history of similar convictions.[35]

 

D. ANIMAL HEALTH RULES: SANITATION REQUIREMENTS

The Hawaii Department of Health (HDOH) has established certain sanitation rules that apply to the keeping of all animals within the state, including apes.[36] Animal waste, decayed food, and filth of every kind must be removed from animal enclosures and facilities as often as necessary to keep those areas clean and sanitary.[37] Floors must be constructed of material that is impervious to moisture and must be capable of being properly flushed with water.[38] Finally, all food products must be stored in rodent-proof boxes, bins, or rooms.[39] Any person who maintains an ape (or other animal) in violation of HDOH’s sanitation rules is guilty of a misdemeanor.[40]

 

E. LIABILITY OF DANGEROUS OR WILD ANIMAL OWNERS

The owner or harborer of an animal which is known by its species or nature to be dangerous, wild, or vicious, is absolutely liable for any injuries or damages caused by the animal.[41] The owner/harborer is not liable in the following circumstances:

(1) The person who suffered injuries or damages was on the animal owner’s or harborer’s property unlawfully;[42]

(2) The animal that caused the injuries or damages was being teased, tormented, or otherwise abused without the negligence, direction, or involvement of the owner/harborer;[43] or

(3) The use of the animal to cause damage was justified under Chapter 703 of Hawaii’s Penal Code.[44]

 

F. STATE GENERAL ANTI-CRUELTY LAWS

Certain provisions of state’s anti-cruelty laws,[45] which prohibit the mistreatment of animals,[46] apply to Great Apes in Hawaii.[47] Although all captive apes are necessarily dependent on their keepers, there are no state laws requiring owners of apes (and other non-pet animals) to provide those animals with adequate water, shelter, space, or veterinary care. The neglect provisions within Hawaii’s anti-cruelty laws only apply to pet animals (as defined under the law) and equines. It is however, illegal to starve apes and other non-pet animals.[48]

In addition, apes are sometimes trained or induced to perform for public entertainment by chemical, electrical, mechanical, and manual devices that inflict physical or psychological injuries. Accordingly, the section that prohibits any person from tormenting,[49] beating, torturing,[50] or causing substantial bodily injury to an animal[51]  may protect apes from being physically abused in the course of training, to induce performances, or for any other reason. Finally, it is illegal to transport an ape (or any other animal) in a cruel or inhumane manner.[52]

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

(1) Scientific research governed by standards of accepted educational or medicinal practices; and

(2) Accepted veterinary practices.[53]

Any state or local law enforcement officer and agents of humane societies may enforce the state’s anti-cruelty laws.[54] A violation of these anti-cruelty laws[55] is a misdemeanor.[56] In addition to fines and imprisonment, any person convicted of animal cruelty may be ordered to forfeit the animal victim(s), in which case the defendant is also liable for all costs associated with caring for the forfeited animal(s).[57]

 

G. LOCAL LAWS

While the importation and possession of apes are regulated under both federal and state laws, counties may also regulate apes and other exotic animals within their jurisdictions.[58] In Hawaii, there are four main counties, Hawaii, Honolulu, Kauai, and Maui (the fifth, Kalawao is under the administration of Maui County). The following list outlines how three of those counties have addressed the possession of apes (and other wild or exotic animals) within their jurisdictions:

Hawaii County 4.1-2; 4.1-10: Nonhuman primates are classified as both “companion animals” and “exotic animals.” It is illegal to keep or exhibit nonhuman primates (and other exotic animals) without a local permit (and any necessary federal and state permits). Permit applicants must submit evidence of surety bond or liability insurance for injuries and damages caused by the exotic animal(s) in the amount of $50,000.00 (fifty thousand dollars). Permit applications may be rejected for a variety of reasons, including previous or current violations of any local, state, or federal law relating to animals. Exotic animals may not be exhibited, displayed, or kept in such a manner so as to permit the animal(s) to escape, be at large, or to come in direct physical contact with any person unless under the direct care and control of the handler.

Honolulu County: There are no local restrictions or requirements applicable to the importation or possession of apes.[59]

Maui County (including Kalawao County): There are no local restrictions or requirements applicable to the importation or possession of apes.

 

III. POSSESSORS OF GREAT APES

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

 

A. PETS

Both the Department of Land and Natural Resources (DLNR) and the Hawaii Department of Agriculture (HDOA) require a permit to possess an ape. See Sections II(A) and (B), above. Neither agency issues permits for pet apes. 

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

Importation: Prohibited without an HDOA permit – the agency does not issue permits to import pet apes.

Transportation: Prohibited without a DLNR permit - the agency does not issue permits to transport pet apes.

Possession: Prohibited without a DLNR and HDOA permit – those agencies do not issue permits to possess pet apes.

Sale: There is no state permit authorizing the possession of pet apes. Anyone who imports or possesses a pet ape without an HDOA permit and with the intention of selling the animal is guilty of a class C felony and is subject to a fine ranging from $50,000.00 to $200,000.00.[60]

Breeding: There is no state permit authorizing the possession of pet apes. Anyone who imports or possesses a pet ape without an HDOA permit and with the intention of breeding the animal is guilty of a class C felony and is subject to a fine ranging from $50,000.00 to $200,000.00.[61]

 

B. ZOOS

Any zoo wishing to import or possess an ape must obtain two separate permits – one from HDOA (for restricted animals) and one from DLNR (for endangered or threatened species). See Sections II(A) and (B), above. Under Section 4-71-6.5 of HDOA’s regulations, permits to import or possess apes for exhibition may only be issued to municipal zoos. Private zoos cannot legally import or possess apes in Hawaii. In addition to the required state and federal permits, municipal zoos importing apes must comply with HDOA’s non-domestic animal import rules discussed in Section II(C), above.

Aside from HDOH’s basic sanitation requirements for the keeping of animals (see Section II(D), above), there are no state laws establishing minimum standards of care for apes kept by municipal zoos. However, HDOA must approve all facilities housing apes (and other permitted animals) and the agency may impose permit conditions for the health and safety of those animals. Also, all municipal zoos are regulated by the U.S. Department of Agriculture under the Federal Animal Welfare Act[62] and those facilities must comply with the federal minimum standards of care for primates.

 

C. EXHIBITORS (USDA CLASS C LICENSEES)

There are various types of exhibitors that display apes for commercial purposes, including: circuses, wild animal parks, and performing animal acts. Anyone wishing to import or possess an ape must obtain two separate state permits – one from HDOA (for restricted animals) and one from DLNR (for endangered or threatened species). Under Section 4-71-6.5 of HDOA’s regulations, permits to import or possess apes for exhibition may only be issued to municipal zoos, government agencies, or primate sanctuaries. HDOA does not issue restricted animal permits to other types of exhibitors.[63] Also, DLNR does not issue endangered or threatened species permits for commercial purposes.[64] See Sections II(A) and (B), above. As a result, commercial exhibitors cannot legally import or possess apes in Hawaii.

 

D. SANCTUARIES

HDOA defines a “primate sanctuary” as a facility that:

(1) Provides permanent care, rehabilitation, and protection for donated, abandoned, or displaced primates;

(2) Does not trade or sell primates for financial gain; and that

(3) Maintains a 501(c)(3) not-for-profit federal tax-exempt status and any permits or licenses required by federal, state, or municipal laws.[65]

In order to import and/or possess an ape, a primate sanctuary must obtain an HDOA permit (for restricted animals) and a DLNR permit (for endangered or threatened species). HDOA’s regulations specifically provide for the issuance of restricted animal permits to primate sanctuaries. See Section II(B), above. DLNR issues permits to possess and transport apes and other endangered/threatened species for educational purposes and to enhance the survival or propagation of the species. See Section II(A), above. In addition to the required state and federal permits, primate sanctuaries importing animals must comply with HDOA’s non-domestic animal import rules discussed in Section II(C), above.

Aside from HDOH’s basic sanitation requirements for the keeping of animals (see Section II(D), above), there are no state laws establishing minimum standards of care for apes kept by primate sanctuaries. However, HDOA must approve all facilities housing apes (and other permitted animals) and the agency may impose permit conditions for the health and safety of those animals. Also, primate sanctuaries that are open to the public are regulated by the U.S. Department of Agriculture under the Federal Animal Welfare Act[66] and those facilities must comply with the federal minimum standards of care for primates.

 

E. RESEARCH FACILITIES

Apes may be possessed for scientific research with an HDOA restricted animal permit and a DLNR endangered/threatened species permit. Research facilities wishing to import an ape must obtain a separate HDOA import permit and comply with HDOA’s non-domestic animal import rules discussed in Section II(C), above. Under Section 4-20-7 of HDOA’s regulations, animals entering the state must be free from symptoms of transmissible diseases and may not have been recently exposed to such diseases.[67] There is no exception for research facilities. Hawaii does not regulate the use of apes in scientific research. However, all research facilities with apes are regulated by the U.S. Department of Agriculture under the Federal Animal Welfare Act[68] and those facilities must comply with the federal minimum standards of care for laboratory primates.

 

IV. CONCLUSION

In general, the importation and possession of all Great Apes is closely regulated by HDOA and DLNR. In Hawaii, it is illegal to keep apes as pets or to use them for commercial purposes, including for-profit exhibition. Municipal zoos, primate sanctuaries, government agencies, universities, and research facilities may import and possess apes with the appropriate federal, state, and (where applicable) local permits. In addition, those facilities must comply with various federal, state, and local laws governing the importation, housing, care, and treatment of apes.

 



[1] “Wildlife” means “any nondomesticated member of the animal kingdom, including game, whether reared in captivity or not, and includes any part, product, egg, or offspring thereof….” Haw. Rev. Stat. § 183D-1.

[5] Haw. Admin. R. § 13-124-3(b); The ban does not apply to the following: (1) DLNR employees; (2) U.S. Fish and Wildlife Service agents; or (3) Persons authorized by the Board of Land and Natural Resources or its authorized representative (i.e. endangered species permit holders). Haw. Admin. R. § 13-124-3(e).

[6] The permit requirement does not apply to any endangered or threatened animal that was held in captivity, or in a controlled environment, on May 10, 1975, provided that the purposes of the holding were not contrary to the purposes of Chapter 195 of the Conservation and Resources Code, and that the wildlife were not held for sale or resale. Haw. Admin. R. § 13-124-9.

[7] Haw. Admin. R. § 13-124-4(b); See also, Haw. Admin. R. § 13-124-7.1 (revocation of permits) and Haw. Admin. R. § 13-124-7.2 (permittee compliance with other federal, state, and local laws).

[8] Haw. Admin. R. § 13-124-4(a); See also, Haw. Admin. R. § 13-124-7.1 (revocation of permits) and Haw. Admin. R. § 13-124-7.2 (permittee compliance with other federal, state, and local laws).

[9] http://hawaii.gov/dlnr/docare/index.html (last visited June 27, 2011).

[10] Haw. Rev. Stat. § 183D-5 (penalties); Haw. Rev. Stat. § 183D-11 establishes an informer’s fee, whereby any person who provides information leading to an arrest and conviction for a violation of the state’s wildlife laws will receive one-half of the fines imposed and collected in the case. Haw. Rev. Stat. § 183D-11.

[11] Haw. Rev. Stat. § 150A-6.2; Haw. Admin. R. § 4-71-6.5(a)(2); Haw. Admin. R. § 4-71-3; See also, Haw. Admin. R. § 4-71-4 (permit application requirements) and Haw. Admin. R. § 4-71-3.1 (permit and inspection fees).

[13] “Private use” means use for non-commercial purposes, such as non-profit research, and does not include individual possession of an animal as a pet. Haw. Admin. R. § 4-71-2.

[14] For example, Haw. Rev. Stat. § 150A-6.2(c) addresses the temporary importation and possession of animals for exhibition with a “short-term special permit,” but even this type of permit is not issued for the importation and possession of apes and other restricted animals; But see, Haw. Admin. R. § 4-71-3(e) (HDAP regulation creating a short-term permit for the importation and possession of performing animals in circuses and other exhibitions, provided that the animals are not on the list of “prohibited” animals. This regulation may be invalid since it expands the legislature’s list of animals – in Haw. Rev. Stat. § 150A-6.2(c) -  for which a short-term exhibition permit may be granted.)

[15] Haw. Admin. R. § 4-71-6.5(f); Where a permit for a restricted animal allows transfer or sale, the proposed transferee shall first obtain a permit for possession of the animal by application to the chief, site inspection approval, and satisfaction of any bond or other requirements applicable. Id.

[16] Government organizations, such as municipal zoos, and non-profit animal sanctuaries are exempt from the bonding requirements. Haw. Admin. R. § 4-71-8(e).

[17] Haw. Admin. R. § 4-71-6.5(a)(3); Haw. Admin. R. § 4-71-7; The bond is returned to the owner upon verification of the death or exportation of the animal, or the transfer or sale of the animal to a new owner who has secured the necessary bond and permit in advance of the transfer. Haw. Admin. R. § 4-71-8; See also, Haw. Admin. R. § 4-71-9 (conditions for bonding) and Haw. Admin. R. § 4-71-10 (failure to comply with bond conditions).

[18] Haw. Admin. R. § 4-71-6.5(e); The board may establish permit conditions including but not limited to, time, place, location, use, special precautions, health requirements, and safeguarding the animal from escape, unauthorized release, or theft, as well as any applicable requirements of municipal, state or federal laws. Haw. Admin. R. § 4-71-6.5(g) and Haw. Admin. R. § 4-71-4(f); See also, Haw. Admin. R. § 4-71-3(f) (violations of permit conditions).

[21] “Intent to propagate” shall be presumed when the person in question is found to possess, transport, harbor, or import: (1) two or more animal specimens of the opposite sex that are restricted without a permit; or (2) three or more animal specimens of either sex that are restricted without a permit. Haw. Rev. Stat. § 150A-14(g).

[23] Haw. Rev. Stat. § 150A-14(a);  Any person who voluntarily surrenders any restricted animal without a permit issued by the department, prior to the initiation of any seizure action by the department, shall be exempt from the penalties of Section 150A-14. Haw. Rev. Stat. § 150A-14(f).

[25] Haw. Rev. Stat. § 142-2.

[26] For purposes of the requirements in Chapter 150A, “animal” means any invertebrate or vertebrate species of the animal kingdom including but not limited to mammal, bird, fish, reptile, mollusk, crustacean, insect, mite, and nematode, other than common domestic animal such as dog and cat. Haw. Rev. Stat. § 150A-2.

[27] Haw. Admin. R. § 4-20-4.

[28] Haw. Rev. Stat. § 142-4.5; Haw. Admin. R. § 4-20-7.

[29] Haw. Rev. Stat. § 150A-5 (notification and holding requirements for non-domestic animals and HDOA inspection); Haw. Admin. R. § 4-20-8(a); See also Haw. Rev. Stat. § 142-4 (entry of animals without inspection prohibited) and Haw. Admin. R. § 4-20-5 (ports of entry).

[30] Haw. Rev. Stat. § 142-6; Haw. Rev. Stat. § 150A-5(8).

[31] Haw. Admin. R. § 4-20-8; Haw. Admin. R. § 4-20-7.

[32] Haw. Rev. Stat. § 142-29; See also, Haw. Rev. Stat. § 150A-11 (enforcement of Chapter 150A: Plant and Non-Domestic Animal Quarantine and Microorganism Import).

[33] Haw. Rev. Stat. § 142-12(a and b).

[34] Haw. Rev. Stat. § 142-11.

[35] Haw. Rev. Stat. § 142-12; See also, Haw. Rev. Stat. § 150A-14 (penalties for violating Chapter 150A: Plant and Non-Domestic Animal Quarantine and Microorganism Import).

[36] Haw. Rev. Stat. § 321-11.

[37] Haw. Admin. R. § 11-11-6.

[38] Haw. Admin. R. § 11-11-6(b)(2).

[39] Haw. Admin. R. § 11-11-6(b)(4).

[40] Haw. Rev. Stat. § 321-18; Any violation of HDOH’s Sanitation rules may result in a maximum $500.00 fine, imprisonment for up to one year, or both. Haw. Admin. R. § 11-11-11.

[44] Haw. Rev. Stat. § 663-9.1(c)(2); See also, Haw. Rev. Stat. § 703-300 et seq. (general principals of justification).

[46] For purposes of the anti-cruelty laws, “animal” includes every living creature, except a human being. Haw. Rev. Stat. § 711-1100.

[47] But see, Haw. Rev. Stat. § 711-1108.5 and Haw. Rev. Stat. § 711-1109 (certain acts are prohibited only when committed against “pet animals” or equines and do not apply to apes).

[49] “Torment” means fail to attempt to mitigate substantial bodily injury with respect to a person who has a duty of care to the animal. Haw. Rev. Stat. § 711-1100.

[50] “Torture” includes every act, omission, or neglect whereby unjustifiable physical pain, suffering, or death is caused or permitted. Haw. Rev. Stat. § 711-1100.

[55] The offenses described in this section are all considered cruelty to animals in the second degree. State law also covers cruelty to animals in the first degree, which is a class C felony, but those offenses only apply to pet animals and equines. Haw. Rev. Stat. § 711-1108.5.

[58] Haw. Rev. Stat. § 46-1.5; Haw. Rev. Stat. § 143-2.5; There is no legal form of local government below a county in Hawaii.

[62] 7 U.S.C.A. § 2131 et seq.

[63] There is a special HDOA short-term permit authorizing the importation and possession of certain animals by circuses and other exhibitors; however, under Haw. Rev. Stat. § 150A-6.2(c), those permits cannot be issued for apes and other restricted animals.

[64] While certain exhibitors may qualify for a DLNR permit to possess or transport apes for educational purposes to enhance the survival of the species, they would still not qualify for a HDOA restricted species permit, as those permits are only issued to municipal zoos.

[65] Haw. Admin. R. § 4-71-2.

[67] Haw. Admin. R. § 4-20-7(b)(1).

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