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Detailed Discussion of Kentucky 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 Kentucky, all chimpanzees, gorillas, bonobos, orangutans, and gibbons are classified as “inherently dangerous” exotic wildlife by the Department of Fish and Wildlife Resources (DFWR). Because of this, the possession of apes by the general public is prohibited, though certain zoos, circuses, research facilities and other entities are allowed to possess apes with DFWR authorization. The only exception to the possession ban for the general public is for those individuals who legally possessed apes in Kentucky prior to July 13, 2005. Also, because all species of apes - except for captive chimpanzees - are considered “endangered species” under both state and federal law, a DFWR permit is required to import, transport, possess, and sell those apes. Those permits are only issued for zoological, educational, or scientific purposes. Because they are not “endangered species,” captive chimpanzees may be imported and possessed for additional purposes by approved facilities. In addition to any other required state and federal permits, all apes that are imported into Kentucky must be accompanied by an import permit and a certificate of veterinary health.

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

In Kentucky, there are two state laws that apply to apes – the Fish and Wildlife Resources Law and the state’s anti-cruelty statute. The Fish and Wildlife Resources Law outline certain restrictions and legal requirements for importing and possessing wildlife and authorize the state’s Department of Fish and Wildlife Resources to regulate apes and other wildlife. The state’s anti-cruelty statute generally protects captive apes from abuse and neglect.

 

A. FISH AND WILDLIFE RESOURCES LAWS

The following restrictions and requirements come from various provisions within Kentucky’s Fish and Wildlife Resources Law.[1] All species of apes are generally considered protected “wildlife” under these provisions, which are implemented and enforced[2] by the Kentucky Department of Fish and Wildlife Resources (DFWR). Beyond being considered “protected” wildlife, all species of apes are also classified as “inherently dangerous” exotic wildlife, and several special restrictions apply to all apes because of that classification. In addition, the Fish and Wildlife Resources Law has certain provisions that apply only to “endangered” species, including gorillas, bonobos, orangutans, gibbons, and wild chimpanzees. The following sub-sections explain how the different species of apes are affected by their various classifications under the Fish and Wildlife Resources Law.

1. ENDANGERED SPECIES RESTRICTIONS

Section 150.183 of the Fish and Wildlife Resources Law prohibits the importation, transportation, possession, or sale of any “endangered species,”[3] except with a permit issued by the Department of Fish and Wildlife Resources for zoological, educational, or scientific purposes and for captive breeding to promote the preservation of a species.[4] All gorillas, bonobos, orangutans, gibbons, and wild populations of chimpanzees are considered “endangered species” under this law. Captive chimpanzees are not. Any person or entity that possessed an endangered ape prior to December 28, 1973 may continue to possess that ape for the remainder of the animal’s life without a state permit. This exemption does not authorize the importation, breeding, or sale of “endangered” apes that were possessed prior to that date.

2. INHERENTLY DANGEROUS WILDLIFE RESTRICTIONS

Section 150.280 of the Fish and Wildlife Resources Law directs the Department of Fish and Wildlife Resources (DFWR) to develop a list of “potentially damaging” species of wildlife and to prohibit the transporting or holding of those animals. DFWR has classified all species of primates, including all apes as “inherently dangerous” and prohibits the importation and possession of those animals by the general public.[5] Under DFWR regulations[6] “inherently dangerous” animals may be only imported or possessed by the following:

(a) A zoo or facility that is designated as the official zoo of a municipality;

(b) A government agency;

(c) A college or university;

(d) A licensed or accredited educational or research institution;

(e) A lawfully operated circus;[7]

(f) An exhibitor sponsored or contracted by a lawfully operated state or county fair; or

(g) A person or organization requesting exemption for a service animal, as defined by the Americans with Disabilities Act.

Under DFWR’s Exotic Wildlife regulations, those exempt entities must have agency “authorization” to import or possess “inherently dangerous wildlife” (including apes).[8] Although the Exotic Wildlife regulations are unclear as to the form of agency “authorization” that is required, they imply that a “captive wildlife permit” is required to possess any species of ape. Additionally, under the state’s endangered species restrictions in KY ST § 150.183, permits to possess endangered apes (gorillas, bonobos, orangutans, gibbons, and wild chimpanzees) can only be issued for zoological, educational, or scientific purposes and for captive breeding to promote species preservation.[9] (See Section II(B)(1), above.) Because they are not considered “endangered,” DFWR may permit the above-listed exempt entities to import and possess captive-born chimpanzees for any purpose. A permit application may be denied if the applicant has a prior conviction for any violation of DFWR regulations, or state or federal laws pertaining to exotic wildlife.[10]

Zoos that are accredited by the Association of Zoos and Aquariums (AZA)[11] are exempt from the state’s  wildlife permit requirements.[12] Also, any person who legally[13] possessed an ape in Kentucky prior to July 13, 2005 may retain possession of that ape for the remainder of the animal’s life.

All wildlife, including apes, that reside within the state must be maintained within an enclosure sufficient to prevent:

(a) Escape;

(b) Direct contact with the public; and

(c) Bodily injury to the public.

DFWR’s conservation officers[14] may inspect facilities housing apes at any reasonable time and may confiscate apes that are imported or possessed without a permit or in violation of the agency’s exotic or endangered wildlife rules.[15]

3. BUYING, SELLING, OR BREEDING OF INHERENTLY DANGEROUS OR ENDANGERED WILDLIFE

DFWR’s Exotic Wildlife regulations are somewhat unclear about how the dual classification of Great Apes as both “inherently dangerous” and “endangered” affects the purchase, sale, and breeding of those animals. Section 3(6)(b) of the Exotic Wildlife regulations states that legally possessed “inherently dangerous” animals (including all species of apes) cannot be bred or replaced, except by AZA-accredited zoos or by the following entities with DFWR authorization:[16]

(a) A zoo or facility that is designated as the official zoo of a municipality;

(b) A government agency;

(c) A college or university;

(d) A licensed or accredited educational or research institution;

(e) A lawfully operated circus;[17]

(f) An exhibitor sponsored or contracted by a lawfully operated state or county fair; or

(g) A person or organization requesting exemption for a service animal, as defined by the Americans with Disabilities Act.

There is no rule regarding the sale of “inherently dangerous” wildlife.

Because gorillas, orangutans, bonobos, gibbons, and wild chimpanzees are also classified as “endangered species,” Section 150.183 of the Fish and Wildlife Resources Law makes it illegal to sell (but not buy or breed) those endangered apes, except with an endangered species permit issued by DFWR.[18] Those permits are only issued for zoological, educational, and scientific purposes.

4. IMPORTING WILDLIFE

Under Section 150.180 of the Fish and Wildlife Resources Law, a “wildlife transportation permit” is required to import any live wildlife,[19] including all species of apes.[20] Prior to issuing a wildlife transportation permit, the Department of Fish and Wildlife Resources (DFWR) must determine that the animals to be imported:

(1) would not constitute a menace to the state;

(2) are free from disease; and

(3) are free from other undesirable physical characteristics.[21] 

A permit application may be denied if the applicant has a prior conviction for any violation of DFWR regulations, or state or federal laws pertaining to exotic wildlife.[22] DFWR’s Exotic Wildlife regulations exempt zoos that are accredited by the American Zoo and Aquarium Association[23] from the import permit requirements.[24]

Additionally, under Section 150.183 of the Fish and Wildlife Resources Law and DFWR’s endangered species regulations,[25] permits to import “endangered” apes (gorillas, orangutans, bonobos, gibbons, and wild chimpanzees) are only issued for zoological, educational, and scientific purposes.

In addition to the import permit requirements, all wildlife entering the state must be accompanied by a certificate of veterinary health stating that the animal is free from symptoms of disease.[26]

B. STATE GENERAL ANTI-CRUELTY LAWS

The state’s anti-cruelty statute,[27] which prohibits the intentional neglect or mistreatment of animals, generally applies to Great Apes in Kentucky. Because all captive apes are necessarily dependant on their keepers, the provision requiring owners to provide their animals with adequate food, drink, space, and health care are particularly relevant. 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, beating, or torturing[28] an animal may protect apes from being physically abused in the course of training, to induce performances, or for any other reason.

Any state or local law enforcement agent, animal control officer,[29] or agent of an incorporated society for the prevention of cruelty to animals has the authority to enforce the state’s anti-cruelty laws.[30] The abuse or neglect of an ape in violation of this law is a Class A misdemeanor.[31]

C. LOCAL LAWS

While the importation and possession of apes are regulated under both federal and state laws, county and municipal governments may also regulate “inherently dangerous” wildlife (including all species of apes) within their jurisdictions.[32] Typically, those local ordinances either restrict the possession of apes, regulate activities involving apes, or set minimum standards for the housing and care of apes. The following examples demonstrate how some towns, cities, and counties in Kentucky have addressed the issue:

Bowling Green 5-1.01, 5-1.16: It is illegal to own, harbor, or keep any ape without a state and a city permit. City permits will only be issued upon satisfactory demonstration that the animal housing facility is adequate for that animal, the animal will be properly restrained, and he or she will not constitute a threat to public health or safety. Also, any movement of a wild or exotic animal within the city requires the written permission of the Animal Control Officer. (Ord. BG2006-5, 3/7/2006)

Campbell County 90.01, 90.40: It is illegal to own, harbor, sell, or keep Great Apes within the county. Certain zoos, circuses, veterinarians, rescue societies, educational institutions, and research facilities are exempt from the ban; 90.41: It is illegal for anyone, whether or not exempt from the county’s possession and sale ban to breed any species of ape in the county.

Lexington-Fayette County 4-11.1: It is illegal to keep or hold any Great Ape within the county. The ban does not apply to AZA-accredited zoos, certain circuses, and federally-licensed research institutions. (Ord. No. 147-94, § 1, 7-14-94; Ord. No. 178-98, § 1, 6-25-98; Ord. No. 187-2000, § 1, 6-29-00; Ord. No. 90-2005, § 2, 4-21-05)

 

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 the Department of Fish and Wildlife Resources (DFWR) Exotic Wildlife regulations, all species of apes are classified as “inherently dangerous” wildlife that may not be imported or possessed as pets.[33] The ban includes an exemption for “inherently dangerous” animals that were legally possessed in Kentucky prior to July 13, 2005.

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

Importation: Apes may not be imported for use as pets.

Transportation: Apes cannot be possessed (even for transportation purposes) by the general public. DFWR’s Exotic Wildlife Regulations allow a person to obtain a “wildlife transportation permit” for the temporary transportation or possession of a prohibited animal if the animal is within the state for less than ninety-six (96) hours.[34] A DFWR endangered species permit may also be required to import any “endangered” ape (gorilla, bonobo, orangutan, gibbon), even for the limited purpose of transporting a pet ape through the state.

Possession: Banned; an exemption exists for chimpanzees that were legally possessed as pets prior to July 13, 2005 and “endangered” apes (gorillas, bonobos, orangutans, and gibbons) that were legally possessed as pets prior to December 28, 1973.

Sale: Chimpanzees: not covered; “endangered” apes (gorillas, bonobos, orangutans, and gibbons): banned

Breeding: Banned.

Living Conditions: The state has no minimum standards of care for captive exotic animals, including all species of apes.

 

B. ZOOS

According to DFWR’s Exotic Wildlife regulations, AZA-accredited zoos can import, buy, possess, and breed Great Apes; no state permits are required. There is currently one AZA accredited zoo in Kentucky, the Louisville Zoo. Beyond that, any zoo that is designated as “the official zoo of a municipality” can import or possess apes with DFWR authorization. Under Section 150.183 of the Fish and Wildlife Resources Law and DFWR’s endangered species regulations,[35] official municipal zoos must have a DFWR permit to import or possess any “endangered” ape (gorilla, bonobo, orangutan, gibbon). All species of apes that are imported by the Louisville Zoo or any municipal zoo must be accompanied by a health certificate. Under DFWR’s Exotic Wildlife regulations, all other zoos are prohibited from importing or possessing apes, except that any facility that legally possessed any species of ape prior to July 13, 2005 may keep that ape for the remainder of the animal’s life. Apes that are held under this exemption may not be bred. The state has no minimum standards for the housing and care of apes kept by zoos. However, all zoos are regulated by the U.S. Department of Agriculture under the Federal Animal Welfare Act[36] and those facilities must comply with the federal minimum standards of care for apes.

 

C. EXHIBITORS (USDA Class C Licensee)

There are various types of exhibitors that display apes, including: circuses, wild animal parks, sanctuaries, and performing animal acts. Under DFWR’s Exotic Wildlife regulations, most of those exhibitors are prohibited from importing and possessing apes in Kentucky. The following limited exceptions apply:

(1) Lawfully operated circuses (specifically, “travelling entertainment show[s] consisting of acrobats, clowns, and trained animals) and exhibitors that are sponsored or contracted by a lawfully operated state or county fair may possess chimpanzees with DFWR authorization and “endangered” apes (gorillas, bonobos, orangutans, gibbons) with a DFWR permit.

(2) Exhibitors that legally possessed apes in Kentucky prior to July 13, 2005 may keep and display those apes for the remainder of those animals’ lives. Breeding is not allowed under this exemption.

(3) Out-of-state exhibitors may obtain a DFWR “wildlife transportation permit” to import and exhibit apes within the state for up to 96 hours. A DFWR endangered species permit may also be required to import any “endangered” ape (gorilla, bonobo, orangutan, gibbon), even for the limited purpose of exhibiting that animal for less than 96 hours within the state.

All apes that are imported for exhibition must be accompanied by a certificate of veterinary health. It is illegal for any exhibitor to allow their apes to have direct physical contact with the public. The state has no minimum standards for the housing and care of apes kept by exhibitors. However, all exotic animal exhibitors are regulated by the U.S. Department of Agriculture under the Federal Animal Welfare Act[37] and those facilities must comply with the federal minimum standards of care for apes.

 

D. SANCTUARIES

Kentucky has no laws governing the establishment of exotic animal sanctuaries, nor does it exempt sanctuaries from the state’s “inherently dangerous” exotic wildlife ban. Therefore, it is illegal for a sanctuary to import or possess apes. However, DFWR’s Exotic Wildlife regulations allow any person who legally possessed apes in Kentucky prior to July 13, 2005 to keep those apes for the remainder of the animals’ lives.

 

E. RESEARCH FACILITIES

Government agencies, educational institutions, and licensed or accredited research facilities may import and possess apes for scientific research with DFWR authorization and, if necessary, “endangered” species permits (and in compliance with all federal registration and permit requirements). The state’s Fish and Wildlife Resources law does not allow the importation of apes that are diseased or that possess any other undesirable physical characteristics. There is no exception for the importation of apes for scientific research. The state has no minimum standards for the housing and care of laboratory apes. However, all research facilities are regulated by the U.S. Department of Agriculture under the Federal Animal Welfare Act[38] and those facilities must comply with the federal minimum standards of care for laboratory apes.

 

IV. CONCLUSION

Although the various rules affecting the importation, possession, sale, and breeding of the different species of apes may seem somewhat confusing at first blush, one thing is clear – apes are among the most heavily regulated animals in the state. In general, it is illegal for the general public to import and possess all species of apes. Beyond that general rule, a thorough analysis of the state’s “inherently dangerous” exotic animal rules and the “endangered species” restrictions is necessary to understand which activities are allowed with each species of ape, by whom those activities may be conducted, and for what purposes.



[2] In addition to the DFWR conservation officers, state and local law enforcement agents must enforce the state’s wildlife laws. Ky. Rev. Stat. Ann. § 150.090(3); Ky. Rev. Stat. Ann. § 150.120.

[3] The term “endangered species” means any species of wildlife seriously threatened with worldwide extinction or in danger of being extirpated from the Commonwealth of Kentucky. The Department of Fish and Wildlife Resources (DFWR) is responsible for developing a list of “endangered species.” Under DFWR regulations, all species that are designated as “endangered” by the Secretary of the Interior under the Federal Endangered Species Act are also classified as “endangered” under the state’s Fish and Wildlife Resources Law and DFWR’s corresponding regulations. 301 Ky. Admin. Regs 3:061(2).

[4] 301 Ky. Admin. Regs 3:061(3); Ky. Rev. Stat. Ann. § 150.183. Any person who violates this law may be fined up to $500.00, imprisoned up to six months, or both. Ky. Rev. Stat. Ann. § 150.990(6); Under DFWR’s Exotic wildlife regulations, zoos that are accredited by the American Association of Zoos and Aquariums are exempt from the agency’s “wildlife transportation” and “captive wildlife” permit requirements. 301 Ky. Admin. Regs. 2:082(2).

[5] A person may apply for a transportation permit to temporarily transport or possess a prohibited animal listed in this section if the animal is within the state for less than ninety-six (96) hours. 301 Ky. Admin. Regs. 2:082(3)(5).

[7] “Circus” means a traveling public entertainment show consisting of acrobats, clowns, and trained animals. 301 Ky. Admin. Regs. 2:082(1)(2).

[11] This regulation actually exempts facilities that are accredited by the “American Zoo and Aquarium Association;” it has not been amended to reflect the association’s name change.

[13] In order to have legally possessed an endangered ape (gorilla, orangutan, bonobo, gibbon, wild chimpanzee) in Kentucky prior to July 13, 2005, a person would have had to possess a DFWR permit authorizing the possession of endangered wildlife, which permits are not granted to keep endangered animals as pets. Otherwise, if not eligible for a DFWR permit to possess an endangered ape, a person wishing to keep an endangered ape (gorilla, orangutan, bonobo, gibbon, wild chimpanzee)  under the “inherently dangerous” wildlife ban exemption would have had to possess an that ape prior to December 28, 1973 to be exempt from the state’s endangered species permit requirement. No similar issue exists for captive-born chimpanzees, since they are not considered “endangered wildlife” under the state’s Fish and Wildlife Resources Law.

[16] DFWR’s Exotic Wildlife regulations do not specify the type of “authorization” that is required by the agency to breed “inherently dangerous” wildlife (including all species of apes), but Section 150.280 of the Fish and Wildlife Resources Law specifies that a DFWR permit is required to propagate all “protected” wildlife.

[17] “Circus” means a traveling public entertainment show consisting of acrobats, clowns, and trained animals. 301 Ky. Admin. Regs. 2:082(1)(2).

[19] “Wildlife” means any normally undomesticated animal, alive or dead, including without limitations any wild mammal, bird, fish, reptile, amphibian, or other terrestrial or aquatic life, whether or not possessed in controlled environment, bred, hatched, or born in captivity and including any part, product, egg, or offspring thereof, protected or unprotected by Chapter 150 of Title XII of the Kentucky Revised Statutes. Ky. Rev. Stat. Ann. § 150.010(41).

[20] Any person who violates this law may be fined up to $1000.00 for a first offense, $1,500.00 for a second offense, and $2,000.00 for each additional offense. Ky. Rev. Stat. Ann. § 150.990(8).

[23] This regulation actually exempts facilities that are accredited by the “American Zoo and Aquarium Association;” it has not been amended to reflect the association’s name change.

[32] Ky. Rev. Stat. Ann. § 65.877. Although this statute only mentions gorillas under the “inherently dangerous” animals list, the Department of Fish and Wildlife Resources actually lists all species of primates as “inherently dangerous.” 301 Ky. Admin. Regs. 2:082(3)(3).

[36] 7 U.S.C.A. § 2131 et seq.

[37] 7 U.S.C.A. § 2131 et seq.

[38] 7 U.S.C.A. § 2131 et seq.

 

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