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Detailed Discussion of Massachusetts Great Ape Laws



Amy Breyer


Animal Legal & Historical Center
Publish Date:
2012
Place of Publication: Michigan State University

Printable Version

I. Introduction

Although Massachusetts does not have a law that specifically addresses Great Apes, several state laws cover them as protected endangered species.  Its Endangered Species Act (MA ST 131A § 1 - 7) bans just about all activities related to the acquisition, possession, transport and sale of an endangered species.  The Act's definition of “endangered species” specifically includes animals covered under federal law, encompassing Great Apes. The ban does, however, carve out several exceptions under Section 3.  It allows the transport, possession or sale of such animals coming from outside the Commonwealth, so long as the activities comply with any required federal or state permit.  It allows the state's fish and wildlife director to issue permits for these activities “for scientific, conservation, management or educational purposes” although does not define those terms.  The ban  also allows the director to “permit the removal, capture, or destruction” of any endangered species if the department of public health certifies a situation as a public health hazard, although again does not define what rises to the level of a public health hazard.

Massachusetts also bans the private possession of what it terms “exotic pets.”  (MA ST 131 § 23) Under this law, no one may keep a federally listed endangered species as a pet without a license.  The law grandfathered in any animals possessed prior to January 1, 1974 providing certain conditions were met.  It gives discretionary authority to the director to issue breeder’s or dealer’s licenses; both categories include the ability to buy, possess or sell the regulated animals.  Licenses for the individual ownership of an animal as a pet are also permitted, but without the right to sell the animal except under further permitting authority by the director.   Other than the cruelty law described below, Massachusetts does not have any laws or regulations that specifically address or complement federal regulations that govern humane conditions for keeping Great Apes.

The Commonwealth’s anti-cruelty laws (MA ST 272 §77 - 95) prohibit the exhibition of wild animals (§77B). The ban does not apply, however, to zoos, circuses, theatrical exhibitions, educational institutions or wild animal farms.  It would apply to other uses such as privately-owned roadside zoos. 

The law also bans various acts of cruelty, including overwork, abuse, torture, the failure to provide sufficient food and water, abandonment and other ills. (MA ST 272 §77) It authorizes officials to investigate cruelty complaints (MA ST 272 §83), requires forfeiture of the animal(s) upon conviction (MA ST 272 §77), and holds corporations liable for the acts of its representatives (MA ST 272 §79).  Notably,  the Massachusetts law does not carve out any exceptions for either research or research institutions.

II. State Statutes - Massachusetts

A. Ownership

Massachusetts does not use the language of “ownership” in the context of Great Apes. To the extent that possession is frequently an indicator of ownership, see the discussion below.

B. Keeping/Possession

Massachusetts Endangered Species Act (MA ST 131A § 1 - 7)

1. Which Great Apes Are Covered

The law specifically covers “all species” listed under the Federal Endangered Species Act of 1973 and its amendments.  All Great Apes are considered endangered under federal law (except captive-born chimpanzees, which are still listed as "threatened" under a special provision).  Thus, Great Apes are protected under the Massachusetts Endangered Species Act.  The accompanying regulation details the exact list of animals covered.

2. What is Prohibited

“[N]o person may take, possess, transport, export, process, sell or offer for sale, buy or offer to buy, nor shall a common or contract carrier knowingly transport or receive for shipment, any plant or animal species… listed under the Federal Endangered Species Act.” In other words, it is not legal for a person to have a Great Ape in Massachusetts, nor is it legal to get around that ban by buying or selling the ape out-of-state, whether that person drives the ape personally or puts the animal on a plane, train or boat.

3. What is Allowed

Section 3 lists three exceptions to the above ban.  First, a person “may transport, possess or sell” an otherwise banned animal if the animal is coming from a point outside of Massachusetts and so long as it is done in compliance with any required federal or state permit.

Second, “the director may permit the taking, possession, purchase, sale, transportation, exportation or shipment of”…  any endangered species (among others)… “for scientific, conservation, management or educational purposes.”

Third, the director also “may permit the removal, capture, or destruction of any [endangered] species”…  to protect human health, when a public health hazard exists as certified by the department of public health.” 

4. Other special provisions of the law

a. Housing: This statute does not deal with housing conditions.  Housing for certain types of usage is controlled by federal regulations.    [See 9 C.F.R. 3.75 – 3.92 (housing, feeding and related care for non-human primates); 42 C.F.R. 9.4 & 9.6 (relating to chimpanzees in sanctuaries); 64 Fed Reg 38145 (relating to psychological well-being of non-human primates held by dealers, exhibitors and research facilities)].

b. Enforcement: This statute contains a provision for imposing fines and civil assessments (payable to a state endangered species fund), and even imprisonment, for violations of the ban.  However,  it does not address initial issues such as a search, seizure or a hearing process in order to get to the outlined penalty phase.

c. The statute also does not contemplate any third party liability for injury or damage due to escaped or any other animals.

Exotic pets ban (MA ST 131 § 23) (Note: formal name of section is: Propagation, dealing, etc., in fish, birds, mammals, reptiles oramphibians; rules and regulations; licenses; fees)

1. Which Great Apes Are Covered

Like the endangered species law above, all Great Apes are covered here because they are covered under federal law.  The law specifically states that "[t]he director shall draw up a special exemption list [to the ban against keeping exotic animals but] . . .  no animal protected by . . .federal endangered species law . . . shall be listed." (MA ST 131 § 23).

2. What is Prohibited

No individual or entity may own a Great Ape without a license from the Massachusetts Division of Fisheries and Wildlife.

3. What is Allowed

This ban recognizes the exceptions that include species owed before the law's enactment date and certain individuals licensed under the act. Anyone who owned a Great Ape as a pet prior to January 1, 1974 was automatically grandfathered and given a license, provided he or she had evidence both that the animal was suitably contained and that person in fact did own the animal prior to that date.  Additionally, the fish and wildlife director has the discretion whether to issue licenses to breeders, to dealers, or to individuals wishing to keep Great Apes as pets (MA ST 131 § 23(7)).  For this last category, the license does not include the right to sell the animall, as that requires a further  permit from the director. The statute does not outline any criteria needed in order to qualify for a license.

The accompanying regulations  contain language that apes, as federally protected species, would not be exempted from licensing requirements.  This means that entities normally exempt, such as zoos, would  still need to get a license to possess a Great Ape. 

4. Other special provisions of the law

a. Housing:  This statute does not deal with housing conditions.  (See also housing discussion under Massachusetts Endangered Species Act.)

b. Enforcement: There is a brief enforcement provision stating that animals found in violation of the ban “may be seized” and “shall be disposed of” by law enforcement “for the best interests of the Commonwealth.”

C. Prohibition Against Cruelty

Crimes Against Chastity, Morality, Decency and Good Order; cruelty to animals (MA ST 272 § 77 - 95)

1. Are Great Apes Covered?

Yes.  The provisions in Massachusetts’ anti-cruelty statute apply to all animals.  The statute reads in relevant part:

Whoever overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, cruelly beats, mutilates or kills an animal, or causes or procures an animal to be overdriven, [etc]...  and whoever, having the charge or custody of an animal, either as owner or otherwise...  unnecessarily fails to provide it with proper food, drink, shelter, sanitary environment, or protection from the weather, [etc] shall be punished...

[emphasis added] (MA ST 272 § 77).

2. Statement of Prohibited Acts

The cumbersome wording of the statute is a remnant of the original language used in the 1800’s when anti-cruelty laws first started to develop both in the U.S. and England.  In a nutshell, it bans either committing or allowing a variety of mistreatment, including:  overwork, abuse, neglect, failure to provide sufficient food, water or shelter, torture or killing.

3. Statement of Duty to Provide Care

Massachusetts’ anti-cruelty law does not provide a statement of positive duties of care.  It is only expressed as a negative, i.e., what conduct is banned, such as failing to provide it with proper food, drink or shelter.

4. List of Exceptions

Unlike other states, the Commonwealth of Massachusetts does not carve out exemptions for research or other activities.

5. Other:  Exhibition of Wild Animals

The anti-cruelty law also contains a provision that bans the public exhibition of wild animals for commercial purposes.  However, it exempts zoos, theatrical exhibits, educational institutions or wild animal farms. (MA ST § 77B).   In other words, the ban pretty squarely prohibits truck stops from displaying a tiger.  It equally squarely permits things like displaying a tiger at a zoo, using an elephant for a production of Aida, bringing a petting zoo to a school, or bringing injured wildlife to a rehab center.  It does not specifically address, however, whether it would permit an otherwise-disfavored commercial use (such as displaying animals for profit), by an otherwise-favored entity (such as a nonprofit rescue or sanctuary).

III. How Different Categories of Possession Impact Different Activities

A. Private Ownership (Not exhibitors)

Here is a checklist summary for Massachusetts regarding whether the following activities are allowed with respect to Great Apes:

Importation Yes as to out-of-state animals, with appropriate permitting.  Animals already residing in-state are not addressed.

Transportation: Yes as to out-of-state animals, with appropriate permitting.  Animals already residing in-state are not addressed.

Ownership: Not covered, although see possession below.

Possession: Yes,  if owner can establish both that animal is suitably contained and was owned prior to January 1, 1974. For all others, licenses may be granted at the discretion of the fish and wildlife director or under certain exemptions.

Sale: Yes as to out-of-state animals, with appropriate permitting.  For all others, permits to sell may be granted at the discretion of the fish and wildlife director.

Breeding: No.

Living Conditions: Not covered. (Federal regulations would apply for licensed exhibitors.)

Liability: Not covered.

B. Dealers and Breeders (Federal Class B License)

Here is a checklist summary for Massachusetts regarding whether the following activities are allowed with respect to Great Apes:

Importation: Yes, if licensed by fish and wildlife director as well as in compliance with any federal (i.e., USDA) or other state permits required.

Transportation: Same

Ownership: Not covered, although see possession below.

Possession: Yes, if licensed by fish and wildlife director as well as in compliance with any federal (i.e., USDA) or other state permits required.

Sale: Same

Breeding: Yes, if granted a “propagator’s (breeder’s) license.  Unclear whether a dealer’s license allows the dealers to breed the animals, or simply possess, buy, offer or sell animals that have been lawfully bred by someone else.

Living Conditions: Not covered. (See above for applicable federal regulations.)

Liability: Not covered.

C.  Zoos and other Exhibitors (Federal Class C License)

Must be licensed under the Federal Animal Welfare Act.  There do not appear to be any limitations beyond those required for federal licensing.  Presumably, these uses would qualify under the exemption for “scientific, conservation, management or educational purposes” in the endangered species ban.  The general ban in the anti-cruelty law against displaying wildlife for commercial purposes expressly exempts zoos, theatrical exhibits and circuses, among other uses. 

Here is a checklist summary for Massachusetts regarding whether the following activities are allowed with respect to Great Apes:

Importation: Not covered

Transportation: Not covered

Ownership: Not covered

Possession: Not covered

Sale: Not covered

Breeding: Not covered

Living Conditions: Not covered. (See above for applicable federal regulations.)

Liability: Not covered

D. Sanctuaries

This category is not mentioned at all in any of the relevant statutes. However, since sactuaries do not display animals for commercial use, the prohibition on the commercial display of wild animals under MA ST 272 § 77B would not apply.

E. Scientific or Educational Research

Must be licensed under the Federal Animal Welfare Act.  There do not appear to be any limitations beyond those required for federal licensing. These uses probably would qualify under the exemption for “scientific, conservation, management or educational purposes” in the endangered species ban.  The general ban in the anti-cruelty law against displaying wildlife for commercial purposes expressly exempts zoos, theatrical exhibits and circuses, among other uses. 

Here is a checklist summary for Massachusetts regarding whether the following activities are allowed with respect to Great Apes:

Importation: Not covered

Transportation: Not covered

Ownership: Not covered

Possession: Not covered

Sale: Not covered

Breeding: Not covered

Living Conditions: Not covered. (See above for applicable federal regulations.)

Liability: Not covered

 

IV. Conclusion

Compared to other states, Massachusetts has perhaps slightly better than average laws with respect to the ownership and possession of Great Apes.  The Commonwealth does not have any specific standards for keeping Great Apes in captivity, however it does reference federal standards in both its endangered species law as well as its exotic animal ban.  It also does not contain the broad exception for research that many other state cruelty laws do.  There does not appear to be any state legislation affecting Great Apes that is pending at this time.

 

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