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Detailed Discussion of Idaho Great Ape Laws



Hanna Coate


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

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I. INTRODUCTION

In Idaho, gorillas, chimpanzees, bonobos, orangutans, gibbons, and all other nonhuman primates are classified as “deleterious exotic animals” which are dangerous to the environment, livestock, agriculture, or wildlife of the state. As a result of this classification, it is illegal to import or possess an ape without a Deleterious Exotic Animal permit issued by the Idaho State Department of Agriculture (ISDA). Until 2009, only zoos and other U.S. Department of Agriculture licensed exhibitors, educational institutions, and research facilities could obtain an ISDA Possession Permit. This meant that apes could not be imported, possessed, bought, or sold for use as pets or by facilities other than those listed above. ISDA amended its Exotic Animal Regulations in 2009 and under the agency’s current rules, any person (or facility) that is qualified, has an approved facility, and meets the agency’s other requirements can now obtain a permit to possess apes. As a result, apes may once again be possessed as pets, or for any other purpose, with an ISDA Possession Permit. Anyone wishing to import an ape must have any necessary federal permits and must comply with certain state administrative requirements, including import permits and health certificates.

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

Idaho has a variety of laws affecting the importation, possession, breeding, and sale of apes. The state’s Deleterious Exotic Animal laws and ISDA’s regulations establish certain restrictions and permit requirements for the importation, possession, breeding, and sale of “deleterious exotic animals,” including all species of apes and other nonhuman primates. Idaho’s Fish and Game Code includes a Department of Fish and Game permit requirement for the importation of exotic animals. Finally, the state’s general anti-cruelty laws prohibit the physical abuse and neglect of apes and other animals.

 

A. DELETERIOUS EXOTIC ANIMAL LAWS

In Idaho, all apes and other nonhuman primates are classified as “deleterious exotic animals,” which are dangerous to the environment, livestock, agriculture, or wildlife of the state.[1] According to Idaho’s legislature, it is in the public interest to strictly regulate the importation and possession of those animals.[2] Under the Idaho State Department of Agriculture’s (ISDA) regulations, it is illegal for any person to import or possess an ape (or other deleterious exotic animal) without an ISDA permit.[3] The agency issues the following deleterious exotic animal permits:

1. Possession Permit: This permit authorizes the possession of the animal listed on the permit and remains valid for the life of the animal, until the animal is transferred to another owner, or until the animal leaves the state.[4] In order to qualify for a possession permit, applicants must have the following:

(1) ISDA approved facilities and animal enclosures that comply with the construction standards in the Association of Zoos and Aquariums (AZA) Minimum Husbandry Guidelines for Mammals;[5]

(2) A veterinarian who will care for the animal(s);

(3) Appropriate training and experience with the species listed on the application;

(4) A written animal escape plan;

(5) Necessary federal permits and/or licenses;

(6) Proof of sterilization of each animal, or an approved method of birth control, unless the applicant intends to breed the animal(s) and is authorized by ISDA to do so.[6]

Possession Permit holders may not breed their apes unless they satisfy the following requirements and have written ISDA authorization:

(1) Obtain a U.S. Department of Agriculture Exhibitor’s (Class C) license;

(2) Be a member in good standing of the International Species Information System;[7] and

(3) Participate in a Population Management Plan or a Species Survival Plan[8] administered by an Association of Zoos and Aquariums Taxon Advisory Group.[9]

Under ISDA’s old regulations (effective March 20, 2004), the agency could only issue possession permits to the following facilities: zoos and other U.S. Department of Agriculture licensed exhibitors, educational institutions, and research facilities. The agency amended its rules in 2009 and removed those restrictions.[10] Under ISDA’s revised rules, the agency has discretion to grant a permit to any person who, in the reviewing official’s opinion, is qualified to possess a deleterious exotic animal, has an approved facility to house the animal(s), and meets the other requirements listed above.[11]

2. Temporary Exhibitor Permit: A Temporary Exhibitor Permit authorizes circuses and other travelling exhibitors to temporarily possess deleterious exotic animals within the state.[12] Temporary Exhibitor Permits are valid for up to 30 days and all covered animals must be removed from the state before the permit expires.[13]

3. Import Permit: In addition to a Possession Permit or a Temporary Exhibitor Permit, anyone wishing to import a deleterious exotic animal must also have an ISDA Import Permit.[14] (Additional animal importation requirements are discussed in Sections II(B) and II(C), below.) ISDA Import Permits are generally valid for fifteen days from the date of issuance.[15]

All permittees must comply with ISDA’s reporting, animal identification, and record-keeping requirements.[16] It is illegal for any permittee to sell, trade, or otherwise transfer ownership or possession of a deleterious exotic animal to any person that has not obtained an ISDA Possession Permit for that animal.[17] ISDA may revoke a permit at any time for a violation of the agency’s Deleterious Exotic Animal rules.[18]

ISDA’s Division of Animal Industries enforces the state’s Deleterious Exotic Animals laws and the agency’s accompanying regulations.[19] Any person who imports or possesses an ape without the appropriate permits, or in violation of any ISDA rule, is guilty of a misdemeanor and may be assessed both criminal and civil penalties.[20] In addition, ISDA may order illegally imported or possessed apes to be transferred to approved facilities, exported, or destroyed.[21]

 

B. ANIMAL IMPORTATION REQUIREMENTS

The ISDA Division of Animal Industry regulates the importation of animals, including deleterious exotic animals,[22] in order to minimize the introduction of transmissible diseases.[23] Under ID ST § 25-214, it is illegal to import any animal that is infected with any contagious, infectious, or communicable disease.[24] In addition to any necessary federal permits, an ISDA Import Permit,[25] any permits required by the Idaho Department of Fish and Game, and a certificate of veterinary inspection[26] are required to import apes and all other deleterious exotic animals.[27] All animals entering the state may be subject to a post-entry inspection by state or federal animal health officials.[28]

Any person[29] who imports an ape in violation of Chapter 2 of the State’s Animals laws, or ISDA’s import regulations, is guilty of a misdemeanor and may be fined up to $5,000 dollars, or imprisoned up to six months.[30] In addition, ISDA may assess civil penalties of up to $5,000 per offense, and may require the violator(s) to pay reasonable attorney’s fees.[31] Also, apes (and other deleterious exotic animals) that are imported in violation of ISDA’s rules must be returned to the point of origin by the importer,[32] transferred to an approved facility, or destroyed.[33]

 

C. FISH AND GAME CODE: CAPTIVE WILDLIFE IMPORTS

The Idaho Department of Fish and Game (IDFG) and the state’s Fish and Game Commission have historically regulated the importation, possession, transportation, and sale of native and exotic wildlife.[34] Since the passage of the state’s Deleterious Exotic Animal laws, the Idaho State Department of Agriculture (ISDA) has taken the lead role in regulating certain species of wildlife that are considered deleterious exotic animals, including apes.[35] However, Section 36-701 of Idaho’s Fish and Game Code still requires any person importing or exporting any species of wildlife (including exotic wildlife) to have an IDFG permit.[36] When it enacted the Deleterious Exotic Animal laws, the Idaho Legislature did not express an intent to eliminate this permit requirement for those species of exotic wildlife that were later classified as deleterious exotic animals. In fact, Section 110 of ISDA’s Deleterious Exotic Animal regulations includes among their import requirements, “any permits required by the Idaho Department of Fish and Game.”[37] See Section II(B), above. It appears from the plain language of these laws that an IDFG import is still required to import apes and other exotic wildlife, regardless of whether they are also classified as deleterious exotic animals.[38]

 

D. STATE GENERAL ANTI-CRUELTY LAWS

The state’s anti-cruelty laws,[39] which prohibit the neglect or mistreatment of animals,[40] generally apply to Great Apes in Idaho. Because all captive apes are necessarily dependant on their keepers, the provisions requiring owners, custodians, and possessors to properly care for their animals and to provide adequate and sanitary housing facilities, sustenance, water, and shelter are particularly relevant.[41] 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[42] from intentionally inflicting pain, physical suffering or injuries on an animal[43] may protect apes from being physically abused in the course of training, to induce performances, or for any other reason. Section 25-3511 authorizes police and animal control officers to take custody of any animal that by reason of lameness, sickness, feebleness or neglect, is unfit for the activity s/he is performing, or that in any other manner is being cruelly treated.[44]

The following activities are exempt from the anti-cruelty laws:

(1) Bona fide scientific research or experiments;

(2) Normal or accepted veterinary practices;

(3) Normal or accepted animal husbandry practices; and

(4) Any other exhibitions, competitions, activities, practices or procedures normally or commonly considered acceptable.[45]

Any state or local police officer or animal control officer may enforce the state’s anti-cruelty laws.[46] A violation of the state’s anti-cruelty laws is a misdemeanor. Criminal penalties vary depending on the defendant’s past history of similar convictions.[47]

 

E. LOCAL LAWS

While the importation and possession of apes are regulated under both federal and state laws, county and municipal governments may also regulate animals within their jurisdictions.[48] Typically, those local ordinances either restrict the possession of animals, regulate activities involving animals, or set minimum standards for the housing and care of animals. The following examples demonstrate how some towns, cities, and counties in Idaho have addressed the possession of apes (and other wild or exotic animals) within their communities:

Bannock County 6.04.010 et seq.: Apes and all other nonhuman primates are classified as “dangerous animals.” A county permit is required to keep, maintain, possess, or control any dangerous animal. Certain permit applicants must provide proof of liability insurance totaling at least $500,000.00 per occurrence, per animal. Certain permittees must comply with the county’s confinement and microchipping requirements. Any person wishing to keep more than one dangerous animal or to exhibit dangerous animals must also be licensed by the U.S. Department of Agriculture (USDA). Research facilities, zoos, and circuses that are licensed by the USDA are exempt from the dangerous animal ordinances, but must still obtain a county permit at no charge.

Coeur d’Alene 6.05.030, 6.15.020: All apes and other nonhuman primates are classified as “exotic animals.” It is illegal to own, maintain, display, or offer for sale any exotic animal within the city limits. The ban does not apply to temporary traveling exhibitions such as circuses. (Ord. 3383 §2, 2010)

Idaho Falls 5-9-9: Apes and other nonhuman primates are classified as “wild animals.” It is illegal to own, keep, harbor, transport, sell, offer for sale, purchase, or barter any wild animal within the city limits. The ban does not apply to federal or state government agents, or to locally licensed zoos, circuses, sideshows, amusement shows, pet stores, animal shelters, and exhibitions or facilities for educational or scientific purposes, subject to local safeguarding requirements.

 

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

Under Section 100.01 of ISDA’s Deleterious Exotic Animal rules, it is illegal to import or possess any deleterious exotic animals, including apes, without an ISDA permit. Until recently, IDSA’s regulations clearly prohibited the issuance of Possession Permits to keep those animals as pets. (There was an exception for owners that possessed their animals prior to the passage of the state’s Deleterious Exotic Animal laws.) In 2009, the agency amended its rules and removed the list of facilities (zoos and other U.S. Department of Agriculture licensed exhibitors, educational institutions, and research facilities) that could obtain Possession Permits for deleterious exotic animals. Under ISDA’s revised rules, the agency has discretion to grant a Possession Permit to any person who, in the reviewing official’s opinion, is qualified to possess a deleterious exotic animal, has an approved facility to house the animal(s), and meets the agency’s other requirements. See Section II(A), above. As a result, it may be possible for certain individuals to obtain an ISDA permit to possess an ape, or other deleterious exotic animal, as a pet.

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

Importation: ISDA Possession Permit required; IDFG permit may also be required (see Section II(C), above).

Transportation: ISDA Possession Permit required.

Possession: ISDA Possession Permit required.

Sale: Illegal to sell to anyone who does not have an ISDA Possession Permit.

Breeding: ISDA must expressly authorize “propagation” on the Possession Permit; it is unlikely that a private pet owner could qualify for agency authorization due to the strict qualification requirements (see Section II(A), above).

 

B. ZOOS

Idaho has no special rules governing the importation or possession of apes and other deleterious exotic animals by zoos. All public and private zoos are regulated in the same manner as commercial exhibitors; see Section III(C), below.

 

C. EXHIBITORS (USDA CLASS C LICENSEES)

There are various types of exhibitors that display apes, including: zoos, circuses, wild animal parks, sanctuaries, and performing animal acts. Under Section 100.01 of ISDA’s Deleterious Exotic Animal rules, it is illegal for any exhibitor to import or possess deleterious exotic animals, including apes, without an ISDA permit. Zoos, wild animal parks, sanctuaries, and other exhibitors in a permanent in-state facility must qualify for, and obtain, a Possession Permit in order to keep and display apes. Circuses, animal acts, and other travelling exhibitors may obtain a Temporary Exhibitor Permit which authorizes the possession and display of apes (and other deleterious exotic animals) for up to 30 days. All permitted animals must be exported before the Temporary Exhibitor Permit expires. See Section II(A), above.

Exhibitors that wish to breed their apes (or other deleterious exotic animals) must have written authorization from the Department. Under ISDA’s current rules (see Section II(A), above), there are three facilities within the state that may qualify for agency authorization to breed apes: The Pocatello Zoo (Pocatello), Zoo Boise (Boise), and the Tautphaus Park Zoo (Idaho Falls). All exhibitors that are not expressly permitted to breed their deleterious exotic animals must submit proof to the Department that the animals are sterilized or that the exhibitor is using an approved form of birth control on the animals.

In addition to any required federal permits, any exhibitor wishing to import apes must obtain an Import Permit from ISDA and may also be required to have an IDFG import permit (see Section II(C), above). In addition, those facilities must comply with ISDA’s import requirements discussed in Section II(B), above.

Although the Deleterious Exotic Animal laws provide no specific minimum standards of care for captive apes, Section 201 of ISDA’s Deleterious Exotic Animal regulations requires that all confinement areas for deleterious exotic mammals comply with the construction standards in the AZA Minimum Husbandry Guidelines for Mammals.[49] Also, ISDA may impose special permit conditions to ensure the health, safety, and welfare of the covered animal(s).[50] In addition, all exotic animal exhibitors are regulated by the U.S. Department of Agriculture under the Federal Animal Welfare Act[51] and those facilities must comply with the federal minimum standards of care for primates.

 

D. SANCTUARIES

Idaho has no laws governing the establishment of exotic animal sanctuaries; nor are there any unique provisions within the Deleterious Exotic Animal laws for such facilities. All exotic animal sanctuaries are regulated in the same manner as commercial exhibitors. See Section III(C), above.

 

E. RESEARCH FACILITIES

Research facilities may possess and use apes for scientific research with an ISDA Possession Permit and any necessary federal permits. In order to import apes, those facilities must also obtain an ISDA Import Permit (and possibly an IDFG permit - see Section II(C), above) and must comply with ISDA’s import requirements discussed in Section II(B), above. Under ID ST § 25-214, it is illegal to import any animal that is infected with any contagious, infectious, or communicable disease.[52] That statute does not include an exemption for research facilities; however a potentially conflicting ISDA regulation allows the importation of diseased animals with an ISDA permit.[53] Research facilities wishing to breed apes must qualify for, and obtain, ISDA authorization to do so. Under the agency’s current Deleterious Exotic Animal rules, there are no scientific research facilities within the state that presently qualify for agency authorization to breed apes. (See Section II(A), above.) Idaho 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 [54] and those facilities must comply with the federal minimum standards of care for laboratory primates.

 

IV. CONCLUSION

Although Idaho’s Deleterious Exotic Animal rules used to be clear about the types of facilities that could possess apes with an ISDA permit (zoos and other U.S. Department of Agriculture licensed exhibitors, educational institutions, and research facilities), those rules have changed. Since 2009, any person who is qualified, has an approved facility, and meets ISDA’s other requirements may obtain a state permit to possess apes or other deleterious exotic animals. So, although the trend in virtually all other states is to prohibit or restrict the possession of apes, particularly the possession of those animals as pets, Idaho’s Department of Agriculture has actually loosened its own restrictions, which - for five years - prohibited the issuance of permits to keep apes as pets. Despite the state’s unique approach of relaxing its exotic animal restrictions, many communities within Idaho have filled this gap by enacting ordinances that prohibit the importation and possession of great apes.

 



[5] See, Idaho Admin. Code § 02.04.27.200 (confinement of deleterious exotic animals) and Idaho Admin. Code § 02.04.27.201 (construction standards for confinement areas; See also,  http://www.aza.org/husbandry-manuals/ (last visited June 28, 2011).

[6] Idaho Admin. Code § 02.04.27.101(01); See also, Idaho Admin. Code § 02.04.27.101 (application requirements, process, review, and duration of permits).

[7] http://www2.isis.org/Pages/Home.aspx (last visited June 28, 2011). There are currently three ISIS members in Idaho: The Pocatello Zoo (Pocatello), Zoo Boise (Boise), and the Tautphaus Park Zoo (Idaho Falls).

[10] See, Proposed Rulemaking: Rules Governing Deleterious Exotic Animals, Docket No. 02-0427-0801, Idaho Admin. Bull. Vol. 08-10 at 34 (Oct 1, 2008), available at http://164.165.70.60/Categories/LawsRules/Rulemaking%20Documents/Text%20of%20Rule%2002.04.27.pdf (last visited July 1, 2011).

[13] Id.

[14] Idaho Admin. Code § 02.04.27.111; ISDA shall issue import permits in accordance with Idaho Admin. Code § 02.04.21: Rules Governing the Importation of Animals.

[19] See, Idaho Admin. Code § 02.04.27.022 (inspection authority).

[20] Idaho Code § 25-3905; Idaho Admin. Code § 02.04.27.500; But see, Idaho Admin. Code § 02.04.27.501 (authorizing ISDA to handle minor violations with warnings or other administrative actions, rather than reporting violations for criminal prosecution).

[22] Idaho Admin. Code § 02.04.21.720.01.

[23] Idaho Code § 25-207; Idaho Code § 25-210; See also, Idaho Code § 25-235 (enforcement); But see, Idaho Admin. Code § 02.04.21.720 (ISDA regulation stating that the importation of wildlife and exotic animals – except deleterious exotic animals – is under the authority of the Idaho Department of Fish and Game).

[24] But see, Idaho Admin. Code § 02.04.21.107 (regulation authorizing the importation of diseased animals with an ISDA permit, in conflict with Idaho Code § 25-214).

[25] Idaho Admin. Code § 02.04.27.110; Idaho Admin. Code § 02.04.27.111; See also, Idaho Admin. Code § 02.04.21.104 (import permit requests).

[26] Idaho Admin. Code § 02.04.27.112; See also, Idaho Admin. Code § 02.04.21.101 (contents of certificates).

[27] Idaho Code § 25-221; Idaho Admin. Code § 02.04.27.110.

[28] Idaho Admin. Code § 02.04.21.051.

[29] For purposes of ISDA’s import regulations, “person” means “any individual, association, partnership, firm, joint stock company, joint venture, trust, estate, political subdivision, public or private corporation, or any legal entity, which is recognized by law as the subject of rights and duties.” Idaho Admin. Code § 02.04.21.010.28.

[30] Idaho Code § 25-219; Idaho Admin. Code § 02.04.21.990.

[31] Idaho Code § 25-238. Under subsection 2 of Idaho Code § 25-238, ISDA is not required to report minor import violations for prosecution if public interest would be best served by warnings or other administrative action.

[32] Idaho Admin. Code § 02.04.21.900.

[34] Idaho Code § 36-104(6); “Wildlife” means any form of animal life, native or exotic, generally living in a state of nature. Idaho Code § 36-202; See, Idaho Admin. Code § 13.01.10.001 et seq. (rules governing the importation, possession, release, sale, or salvage of wildlife). Generally, both commercial and private facilities (including zoos, circuses, and research facilities) must have an IDFG license to possess, import, export, transport, or sell wildlife (Idaho Admin. Code § 13.01.10.100; Idaho Admin. Code § 13.01.10.200; Idaho Admin. Code § 13.01.10.400). Since the Deleterious Exotic Animal laws designated ISDA as the lead agency in charge of regulating those animals (Idaho Admin. Code § 02.04.21.720.02), facilities that house only deleterious exotic animals are not regulated by IDFG, and do not need an IDFG license. In addition to its license requirements, IDFG regulates the conditions under which captive wildlife must be housed, maintained, and displayed (Idaho Admin. Code § 13.01.10.200; Idaho Admin. Code § 13.01.10.400). For example, the agency requires that all wildlife be given food that “so far as possible [is] consistent with food ordinarily eaten by such animals,” and prohibits the chaining or tethering of wildlife (Idaho Admin. Code § 13.01.10.200.11; Idaho Admin. Code § 13.01.10.400.10). Animals that are exhibited must be displayed “in such a way as to preserve their dignity and in a natural appearing environment.” (Idaho Admin. Code § 13.01.10.400.09(a)). It is illegal to publicly display any wildlife that is “infected, injured, or unsightly” (Idaho Admin. Code § 13.01.10.200.11; Idaho Admin. Code § 13.01.10.400.10). Also, research facilities are required to house their animals “in such a way as to preserve their dignity”(Idaho Admin. Code § 13.01.10.400.13). ISDA has no similar housing, display, and maintenance requirements for facilities with deleterious exotic animals.

[35] Idaho Admin. Code § 02.04.21.720.02.

[38] But see, http://www.agri.idaho.gov/Categories/Animals/importExport/importwildlifeexotic.php (ISDA’s animal import requirements for wildlife and exotic species stating that IDFG does not regulate deleterious exotic animals).

[40] For purposes of the anti-cruelty laws, “animal” means “any vertebrate member of the animal kingdom, except man.” Idaho Code § 25-3502(2).

[42] “Person” means “any individual, firm, corporation, partnership, other business unit, society, association or other legal entity, any public or private institution, the state of Idaho, or any municipal corporation or political subdivision of the state.” Idaho Code § 25-3502(12).

[44] Idaho Code § 25-3511; See also, Idaho Code § 25-3520B (liability of owners/keepers for the costs of caring for seized animals and animal forfeiture proceedings).

[46] Idaho Code § 25-3501; Idaho Code § 25-3504; Idaho Code § 25-3511; Idaho Code § 31-2202; Law enforcement agents may impound an animal that has been cruelly treated (Idaho Code § 25-3504) and must impound an animal that has been neglected or abandoned (Idaho Code § 25-3511); See also, Idaho Code § 25-3501, Idaho Code § 25-3519, and Idaho Code § 25-3520 (addressing the recently-amended role of the Idaho State Department of Agriculture in administering and enforcing the state’s anti-cruelty laws).

[47] Idaho Code § 25-3520A. In addition to criminal penalties, including fines and imprisonment, a defendant may forfeit possession or custody of the animal victim(s). Id; See also, Idaho Code § 25-3520B (animal forfeiture proceedings).

[48] Idaho Code § 31-714; Idaho Code § 31-801; Idaho Code § 50-302; Idaho Code § 50-334.

[52] Idaho Code § 25-214.

[53] Idaho Admin. Code § 02.04.21.107.

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