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Detailed Discussion of Mississippi Great Ape Laws



Amy Breyer


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

Printable Version

I. Introduction

Mississippi law directly regulates Great Apes by a law that bans the importation and possession of certain wild animals deemed "inherently dangerous."  In addition, the state also addresses Great Apes in its general anti-cruelty law as well as its endangered species provisions. 

Mississippi’s wild animal ban – “Importation, Sale and Possession of Inherently Dangerous Wild Animals” - prohibits the purchase, possession, sale or similar of “any wild animal classified inherently dangerous by law or regulation.”  (MS ST §49-8-7(1)(a)) This law classifies all Great Apes as inherently dangerous.  There are several exceptions, including those who possessed an ape by permit prior to 1997, public zoos, traveling circuses, and university research facilities, among others.

The Non-Game and Endangered Species Conservation Act makes it illegal to take, possess, transport, sell or similar an endangered species.  (MS ST §49-5-109(c))  Any species on the federal endangered list is on the state list as well.  It excepts the transport of wildlife from one point outside the state to another, so long as it is done in compliance with any federal or state permit required.  The state may also issue permits in two circumstances.  One is “for scientific, zoological, or educational purposes, for propagation in captivity of such wildlife, or for other special purposes.”  (MS ST §49-5-§111(d))  The other is in order to remove, capture or destroy wildlife to protect human health, although it allows these activities without a permit if the animal poses “an immediate threat to human life.”  (MS ST §49-5-§111(e))

State law addresses liability in its anti-cruelty law as well.  Mississippi’s “Cruelty to Living Creatures” prohibits a variety of intentional or negligent misconduct toward any living creature.  (MS ST §97-41-1)  The statute also prohibits a variety of other misconduct, such as carrying in a cruel manner  or failing to give sufficient food and water.  (MS ST §97-41-5, 7)  No categories of animal are excluded nor are there any exemptions for certain activities, such as research. 

II. State Statutes– Mississippi

A. Ownership

Mississippi statutes do not use the term "ownership." In those statutes that address Great Apes, the term "own" is used in the state regulations to describe apes kept as pets or in zoos.  Whether this difference in terminology was intentional by the drafters is unclear. To the extent that possession is frequently an indicator of ownership, see discussion below.

B. Keeping/Possession

Nongame and Endangered Species Conservation Act (MS ST §§49-5-101 - 119)

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 for the "split-listing" of captive-born chimpanzees, which are declared "threatened").

2. What is Prohibited

“[I]t shall be unlawful for any person to take, possess, transport, export, process, sell or offer for sale or ship, and for any common or contract carrier knowingly to transport or receive for shipment any species” determined to be endangered, including those (among other methods) on the federal endangered species list.

3. What is Allowed

There are three exceptions to the above ban.  First, a person may transport wildlife through Mississippi from one point outside the state to another, so long as it is done in compliance with any federal or state permit required by the other state(s) involved. (MS ST §49-5-109(c))

Second, the Mississippi Commission on Wildlife, Fisheries and Parks “may permit, under such terms and conditions as may be prescribed by regulation, the taking, possession, transportation, exportation or shipment of species… [on the federally endangered species list]… for scientific, zoological, or educational purposes, for propagation in captivity of such wildlife, or for other special purposes.” (MS ST §49-5-111)  It does not define those uses here, but it does provide some definition in the regulation that accompanies the wild animal ban.   (MS ADC 40-1-32 et seq., discussed below)

Third, the commission may permit the removal, capture or destruction of an endangered species “ [u]pon good cause shown, and where necessary to alleviate damage to property or to protect human health.”  It may even allow these activities without a permit “in emergency situations involving an immediate threat to human life.” (MS ST §49-5-111(e)) What constitutes an emergency or immediate threat is not defined either by statute or regulation.

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 does address seizure and penalties for violations of the ban.  It allows enforcement officials to “direct the transfer of (seized wildlife) to a qualified zoological, educational, or scientific institution for safekeeping” at the defendant’s expense. It does not specifically include notice or hearing provisions, although it allows the wildlife commission to issue regulations to implement the section. (MS ST §49-5-113(d), 115(d))

c. The statute also does not contemplate any third party liability for injury or damage due to escaped or any other animals, although it does contain a provision requiring possessors to immediately notify law enforcement if an animal escapes.

5. Accompanying Regulation: Endangered Species Official State List, MS ADC 40-1-28

This contains the actual exemption list for species that the state determines are endangered.  It does not reference the federal list.

 

Wild animal ban (MS ST §§ 49-8-1 - 19) (Note: the formal name of this section is: Importation, Sale and Possession of Inherently Dangerous Wild Animals)

1. Which Great Apes Are Covered

All Great Apes are expressly covered

2. What is Prohibited

No person may “import, transfer, sell, purchase or possess any wild animal classified inherently dangerous by law or regulation” unless that person either holds a permit or is exempt.

3. What is Allowed

Anyone who possessed a Great Ape prior to May 1, 1997 “may” have received a fee-exempt temporary permit if the person applied by July first of that year.  Those individuals were then responsible for timely applying for an annual permit. (MS ST § 49-8-7(b)(i))

After that date, everyone was required to obtain a permit for each animal before taking possession. They are also required to maintain liability insurance, renew the permit annually and must be able to prove that all permitted animals were in compliance with this statute and regulations. (MS ST § 49-8-7(b)(ii), 7(d))  A permit holder may not transfer an inherently dangerous animal in any way until the receiving person is also either permitted or exempt.  (MS ST § 49-8-7(2)(a))

The commission has the discretion to exempt “[p]ublic zoos, university research facilities, governmental agencies, transient circuses and rehabilitation and sanctuary facilities” from the permit requirement. (MS ST § 49-8-7(c))

4. Other Special Provisions of the Law

a. Housing: The state wild animal ban does not cover housing regulations, but the accompanying regulation does for a number of species, including Great Apes.  These regulations largely mimic (but augment rather than replace) the federal regulations that cover certain types of usage.  (See regulation discussion below.) 

b. Enforcement: This statutes only briefly touches on this issue.  The Department has the power to seize wild animals in violation of the ban.  It requires permit holders to allow unannounced inspections of facilities and records, at reasonable times and without a search warrant, to ensure compliance.  It further requires permit holders to notify the Department and local law enforcement immediately if a wild animal escapes. (MS ST § 49-8-11(d), 13)

c. It also allows local governments to enact local ordinances that are tougher than the state law and regulations.  (MS ST § 49-8-17)

5. Accompanying regulation:  Dangerous Wildlife, MS ADC 40-1-32

This is an extremely extensive set of regulations dealing with many facets of possession.  For example, private owners and exhibitors are required to have a permit for each animal possessed.  Other types of usage, such as zoos and research are exempt.  The regulations detail specific permitting requirements for all applicants, such as having two years of experience in handling the species and a plan for the "quick and safe" recapture of any escaped animal.  It even details requirements specifically for individual permits (location where animal(s) will be housed) and temporary exhibitors (copy of promotional materials). Even exempt facilities must apply for an exemption certificate which requires certain information.

There are also specific record-keeping requirements.  These include injectable microchips, as well as maintaining purchase and transaction records as well as health records for each animal.

There are also detailed housing requirements.  Like the permit requirements, some are general (size of cages, providing food and water, removing waste, etc.).  There are also extensive requirements specific to various species.  For Great Apes, these include an annual TB test, a requirement to provide toys for the primates' physical and psychological well-being and very specific requirements for cage construction and strength.

Other regulations deal with inspection of facilities; disposition, seizure and penalties against owners who violate the regulations; as well as requirements that permittees notify authorities immediately in the event an animal escapes, that the permittee is liable "for any costs incurred" and specifically that neither the state nor any of its agents is liable in the event an escaped animal causes injury or damage.

C. Prohibition Against Cruelty

Cruelty to living creatures (MS ST §§ 97-41-1 - 23)

1. Are Great Apes Covered?

Yes. The provisions in Mississippi’s anti-cruelty statute apply to all animals

2. Statement of Prohibited Acts

Prohibits either causing or allowing a variety of misconduct, from overworking an animal, to depriving it of necessary food or water, to beating, torturing and killing. (MS ST § 97-41-1)  Other sections prohibit other misconduct, such as carrying in a cruel manner or confining an animal without sufficient food and water.  (MS ST § 97-41-5, 7)

3. Statement of Duty to Provide Care

Mississippi’s 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.

4. List of Exceptions

Unlike other states, Mississippi does not carve out exemptions for research or other activities

5. Other 

The anti-cruelty law also contains notice, hearing and forfeiture provisions in instances of suspected abuse. (MS ST § 97-41-2)

It also contains a provision allowing law enforcement or humane investigators to “kill, or caused to be killed, any animal other than a dog or a cat found neglected or abandoned, if in the opinion of three (3) respectable citizens it is injured or diseased past recovery, or by age has become useless.”  (MS ST § 97-41-3)  Anybody acting in good faith is immune from civil or criminal liability.  (MS ST § 97-41-3(3))

III. How Different Categories of Possession Impact Different Activities

A. Private Ownership (Not exhibitors)

Mississippi's endangered species law, wild animal ban and the accompanying regulation all impact what sorts of activities someone who privately owns or possesses a Great Ape may do with the animal.  Here is a checklist summary for this state regarding whether the following activities are allowed with respect to Great Apes:

Importation: Yes, with a permit.  Only need to comply with other-state or federal permit requirements if traveling through the state.

Transportation: Same.

Ownership: Same. (Note: the endangered species law does not cover this, but it is expressly enumerated under regulations to the wild animal ban.)

Possession: Same.

Sale: Yes, to another permit holder.

Breeding: Yes.

Living Conditions: Detailed state regulatory scheme that largely mimics the federal scheme, i.e., cage and other physical requirements as well as minimal standards for enrichment

Liability: Liable for “any costs incurred” by any person or government due to an escape.

No personal possession permit will be issued to a corporation, partnership, or other legal entity of any kind.

B.   Dealers and Breeders (Federal Class B License under the AWA)

Mississippi does not specifically address this type of usage or mention Class B licenses at all.  To the extent that personal permit holders must establish that “any wild animals… are or will be imported, transferred, sold, purchased or possessed in compliance with” state law and regulations, then it appears that the private ownership analysis above would also apply to dealers and breeders.

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

Beyond federal licensing requirements under the Federal Animal Welfare Act, public zoos would qualify for exceptions to the permit requirement under state law.  Zoos are defined under section two of the regulations that accompany the dangerous wildlife code (MS ADC 40-1-32:II).   The captive wild animals must, among other things, “represent more than a token collection” and the zoo must exhibit them “in an aesthetic manner to the public on a regularly scheduled basis.”   The zoos must be accredited by the American Zoo and Aquarium Association (AZA) and/or be the official zoo of a municipality.

Neither the statute nor the regulations address private zoos. This combination of requirements, however, appears to take aim directly against private or so-called "roadside zoos." These "attractions" typically consist of one or a few caged animals set up near the owner's principal business.  Such exhibits would be unlikely to pass as more than a minimal amount, be considered (even in contrast to modest zoo habitats) visually pleasing, and, especially in the case of traveling exhibits, would not qualify as being available on a regular schedule either.

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

Importation: Not covered (although as a practical matter, must be allowed in order to make ownership, which is allowed, possible) )

Transportation: Same

Ownership: Yes

Possession: Yes

Sale: Not covered (although as a practical matter, must be allowed in order to make ownership, which is allowed, possible )

Breeding: Same

Living Conditions: Detailed state regulatory scheme that largely mimics the federal scheme, i.e., cage and other physical requirements as well as minimal standards for enrichment 

Liability: Liable for “any costs incurred” by any person or government due to an escape.

Temporary exhibitors such as circuses and other temporary displays are permitted, but are not exempt from the permit requirement.

D. Sanctuaries

Like zoos, sanctuaries must comply with the Federal Animal Welfare Act and “must apply for an exemption certificate” under state law.   There are some significant differences though in the types of activities permitted.  Sanctuaries are defined under section two of the regulations that accompany the dangerous wildlife code (MS ADC 40-1-32:II).  These regulations require  that the facility care for the animal for the remainder of its life, shall not allow the animal to breed, shall not use it for any commercial purpose, and the facility must maintain its 501(c)(3) status.

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

Importation: Not covered (although as a practical matter, must be allowed in order to make ownership, which is allowed, possible)

Transportation: Same

Ownership: Yes

Possession: Yes

Sale: No

Breeding: No

Living Conditions: Detailed state regulatory scheme that largely mimics the federal scheme, ie: cage & other physical requirements as well as minimal standards for enrichment 

Liability: Liable for “any costs incurred” by any person or government due to an escape.

E. Scientific or Educational Research

Like zoos and sanctuaries, research facilities must be licensed under the Federal Animal Welfare Act but are exempt from state permit requirements. 

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

Importation: Not covered (although as a practical matter, must be allowed in order to make ownership, which is allowed, possible)

Transportation: Same

Ownership: Yes

Possession: Yes

Sale: Not covered (although apparently allowed because there are no restrictions limiting the total number of animals allowed or that they only may be replaced through attrition)

Breeding: Same

Living Conditions: Detailed state regulatory scheme that largely mimics the federal scheme, i.e., cage and other physical requirements as well as minimal standards for enrichment 

Liability: Liable for “any costs incurred” by any person or government due to an escape.

IV. Conclusion

Most of Mississippi's laws offer a moderate amount of protection and regulation of Great Apes, compared to the rest of the country.  The notable exception here is that the state has a ban that specifically includes Great Apes as well as the level of detail and protections offered in the regulations accompanying the dangerous animal ban.

 

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