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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 Montana Great Ape Laws



Rebecca F. Wisch


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

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I. Introduction

While the state of Montana controls possession and importation of “exotic wildlife” by law, great apes are not specifically identified or addressed (MT ST 87-5-701 et seq.). Instead, Montana regulates the possession of great apes by administrative regulation and reference to the federal endangered species list.  In the regulations, great apes are specifically defined as a "prohibited species " meaning  they “may not be possessed, sold, purchased, exchanged, or transported in Montana, except as provided. . .”  (ARM 12.6.2215; 2201

This prohibition applies primarily to private ownership. There is a list of commercial uses that are allowed, including a few categories not found in other states. These include accredited zoos, state-licensed roadside zoos, businesses under certain circumstances, certain educational or scientific institutions, certain non-profits, rescue organizations and other uses not relevant here.  (ARM 12.6.2220).

In addition, Montana law addresses the commercial use of great apes in what it terms, “roadside menageries,” where animals are kept in captivity for the purpose of exhibition or attracting trade. Under MT ST 87-4-801 et seq., the law requires the adoption and enforcement of reasonable regulations for the housing, care, treatment, feeding, and sanitation of animals kept in roadside menageries. Notably, this chapter does not concern the exhibition of any animal by an educational institution or by a traveling theatrical exhibition or circus based outside of Montana.

Like other states, Montana does not define Great Apes as "endangered," either under its own endangered species law (MT ST 87-5-101 -132) or accompanying regulation.  (ARM 12.5.201)  It does, however, cover them by reference to federal law.   (MT ST 87-5-107(3)(b)). Montana prohibits any possession , commerce, or taking of federal protected endangered species.

Finally, great apes are covered under the state’s anti-cruelty law (MT ST 45-8-209 - 211, 217).  However, the law contains a number of exempt categories including scientific research and teaching. 

II. How Different Uses of Great Apes are Affected by Law

While Montana’s law appears to prohibit most uses of great apes, different activities are addressed by various state laws. The law regulates the possession of great apes depending on whether a person possesses an ape privately (e.g., as a “pet”), at a traditional or roadside zoo, as a sanctuary, or for scientific research purposes. This section examines the laws by those uses.

A. Private Possession of Great Apes

Montana law does not appear to offer a permit exception for this form of possession under any circumstance.  There is not even a grandfather provision for possible ownership that might have pre-dated the statute. Section 87-5-705 clearly states that a person may not import into the state, possess, or sell any exotic wildlife unless it is allowed by law or rule and the person has obtained a permit. Since ape families are defined as "prohibited species" under ARM 12.6.2215, a permit is issued only to select categories. No private possession permits are allowed under this rule. This reasoning that private possession is disallowed in Montana is buttressed by the state’s endangered species law.

B. Possession by Roadside and Traditional Zoos (Class C USDA Licensees)

Both traditional and roadside zoos are allowed to possess apes even though apes are defined as a “prohibited species” by state regulation. Roadside and accredited zoos are excepted from that subchapter of regulations that otherwise prohibits possession of apes. A roadside or traditional zoo must comply with permit requirements and maintain apes according to the standards described in ARM 12.6.1301 to 1309. For more, see section III(B)(3) below.

C. Sanctuaries

While state law or regulation does not use the term “sanctuary,” it appears that possession here may again governed by the regulations for Part 7 relating to exotic wildlife. Under ARM 12.6.2220, the Montana Department of Fish, Wildlife and Parks may issue a permit for possession of a prohibited species to:

(h) a rescue facility for exotic wildlife with either national or state agency affiliation engaged in temporary housing of exotic wildlife for the purpose of rescue for relocation.

This section only contemplates temporary housing of exotic wildlife, though temporary is not clearly defined.  The regulations contained in Subchapter 22 implements standards of care for exotic wildlife.  For more on specific standards, see III(A)(3) below.

D. Scientific Testing and Research Facilities

For the possession and use of a Great Ape by a scientific authority, a person or facility must possess the required federal license. Part 7 on exotic wildlife specifically exempts licensed research facilities from the provisions of the section:

Sections 87-5-705 through 87-5-708 and this section do not apply to:

(iii) a research facility for testing and science that employs individuals licensed under 37-34-301 or that submits evidence to the department that it meets animal testing standards as provided by the national institutes of health, the national science foundation, the centers for disease control and prevention, the United States department of agriculture, or another similar nationally recognized and approved testing standard . . .

As great apes are not used in testing in the United States, this is not an issue.

III. State Laws Affecting Great Apes in Montana

Montana addresses the use and possession of great apes through several avenues in its laws. The state has an exotic wild animal law that limits the importation and possession of certain species (MT ST 87-5-701 et seq.). This is significant because the corresponding administrative regulations specifically list all species of great apes as “prohibited” species. In addition, the commercial use of great apes in roadside attractions is also dealt with at the state law level. And while Montana does not specifically list great apes under state law as an endangered species, there is incorporation by reference to federal law. Finally, great apes are protected from intentional cruelty and neglect under the state’s anti-cruelty provision.

A. Importation, Introduction, and Transplantation of Wildlife Law

Under Montana’s chapter on fish and wildlife laws, the state has enacted a section dealing with the importation and possession of exotic wildlife.  While the impetus of the law is to “protect Montana's native wildlife and plant species, livestock, horticultural, forestry, and agricultural production, and human health and safety,” the application of the law results in a ban on the possession of controlled or prohibited species listed in the accompanying administrative regulations.

1. Which Great Apes are Covered?

Part 7 defines exotic wildlife generally as any species not native to Montana (87-5-702(3). It then goes further to define “prohibited exotic wildlife” as an animal species placed on the depart of fish and wildlife list per 87-5-704(3)(a) that may not be imported, possessed, or sold.  Montana specifically identifies the Hylobatidae family (gibbons) and the Pongidae family (apes) as prohibited species (ARM 12.6.2215):

(7) “Prohibited species” means a live, exotic wildlife species, subspecies, or hybrid of that species, including viable embryos or gametes, that may not be possessed, sold, purchased, exchanged, or transported in Montana, except as provided in 87-5-709, MCA, or this subchapter.

2. What is Prohibited?

Under 87-5-705, a person may not import into the state, possess, or sell any exotic wildlife. As mentioned above, all great ape species are described as “prohibited species” by administrative regulation. Thus, a person may only import a great ape if he or she has obtained authorization for importation from the department.

There are exceptions to this general ban on importation and possession. Section 87-5-709 states that this section do not apply to:

(a) institutions that have established that their proposed facilities are adequate to provide secure confinement of wildlife, including:

(i) an accredited zoological garden chartered by the state as a nonprofit corporation;

(ii) a roadside menagerie permitted under 87-4-803 that was established for the purpose of exhibition or attracting trade;

(iii) a research facility for testing and science that employs individuals licensed under 37-34-301 or that submits evidence to the department that it meets animal testing standards as provided by the national institutes of health, the national science foundation, the centers for disease control and prevention, the United States department of agriculture, or another similar nationally recognized and approved testing standard; or

(b) domestic animals.

Further, under ARM 12.6.2220, the Montana Department of Fish, Wildlife and Parks may issue a permit for possession of a prohibited species only to the following:

(a) a zoo or aquarium which is an accredited institutional member of the American Association of Zoological Parks and Aquariums;

(b) a roadside menagerie or zoo licensed by the department;

(c) a business that displays, exhibits, or uses the species for exhibition or commercial photography or television and has a USDA Class C Exhibitor's license . . [under listed conditions]

(d) a college, university, or government agency, for scientific or public health research;

(e) any other scientific institution, as determined by the department, for research or medical necessity;

(f) a tax-exempt nonprofit organization licensed by the United States Department of Agriculture that exhibits wildlife solely for educational or scientific purposes;

(g) a person who, due to a medical necessity, has assistance requirements that may be provided by the prohibited species and that requirement is certified by a physician licensed in the state of Montana; or

(h) a rescue facility for exotic wildlife with either national or state agency affiliation engaged in temporary housing of exotic wildlife for the purpose of rescue for relocation.

3. Standards for Keeping of Exotic Wildlife under the Law

The exotic wildlife life allows the adoption of regulations concerning the possession and control of wildlife. Subchapter 22 on Exotic Wildlife implements standards of care for exotic wildlife possessed in compliance with the law.

ARM 12.6.2203 provides that any exotic wildlife held in captivity must be treated in a humane manner.  Except when it is necessary to provide care, exotic wildlife cannot be restrained with a chain, rope, or other holding device. In addition, facilities must be “maintained in a sanitary condition, be large enough to provide room for exercise, be sturdy enough to prevent escape, and provide protection to the public.” The caretaker must provide food, water, and shelter in sufficient quantity and quality to maintain the healthy condition of the exotic wildlife, and also minimize the spread of disease.

This section also states that specific conditions for housing may be required by the department elsewhere in the state code or Federal Code of Regulations. Those standards must be consistent with 9 CFR, Ch. 1, Part 3 “Standards for Humane Handling, Care, Treatment and Transportation” and also meet  ARM 12.6.1302 (which concerns housing in roadside zoos).

4. Penalties

Violation of this section dealing with the possession and importation of exotic wildlife results in a fine of not less than $50 or more than $1,000, with imprisonment in the county detention center for not more than six months, or both. The department must also revoke any license or permit issued by it under this title to the person and deny any application by the person for a license or permit under this title for a period not to exceed 2 years from the date of the conviction (87-5-721).

If exotic wildlife is held in violation of Part 7, it will be shipped out of state, returned to the point of origin, or destroyed within a time set by the department, not to exceed 6 months. Interestingly, the law states that the person in possession of the exotic wildlife may choose the method of disposition. The department may charge any person convicted of a violation of this part for the costs associated with the handling, housing, transporting, or destroying of the exotic wildlife.

B. Part 8 of Fish & Wildlife Code: Menageries and Zoos

This section of law targets the commercial use of wild animals. This includes both "roadside menageries" defined as a place where “one or more wild animals, including birds, reptiles, and the like, are kept in captivity for the evident purpose of exhibition or attracting trade, on or off the facility premises” (87-4-801), and zoos chartered as nonprofit corporations by the state or participating in the American zoo and aquarium association (AZAA) accreditation program.. A roadside menagerie does not, however, include the exhibition of any animal by an educational institution or by a traveling theatrical exhibition or circus based outside of Montana.

This section not only requires these entities to obtain permits to operate, but also to obtain the wild animals for capture (87-4-804). Moreover, regulations pertaining to the care and keeping of these animals have been promulgated, and 87-4-806 demands that facilities be open to inspection at any reasonable hour.

1. What Great Apes are Covered?

The relevant facilities covered in this part are roadside menageries and zoos. Any “wild animal” kept by a roadside menagerie is included under the law, which would include any species of ape. The same wording of “wild animal” is used in the laws covering zoos.  The regulations (subchapter 13 on “Roadside Zoo Regulations”) also uses the general term “wild animals.”

2. What is Prohibited?

While Part 8 clearly allows for both roadside attractions with apes and traditional zoos, it is unlawful for any person to operate a roadside menagerie or wild animal menagerie without a permit. A permit for less than five animals is $10, while a permit for more than five animals is $25. While the fee to maintain a zoo is nominal, the law does include an extensive permitting process.

Under 87-4-803, the application for a permit must include such information as:

  • the applicant's name and address;
  • the exact location of the facility;
  • a list of species and the number of animals to be held in the facility;
  • the type of facility contemplated, including cage specifications;
  • a copy of all required federal permits for exhibition of wild animals; and
  • a copy of a liability insurance policy to cover bodily injury or property damage.

A zoo application for permit must include

  • the applicant's name and address;
  • the exact location of the facility;
  • a copy of the nonprofit corporation documents approved by the secretary of state's office;
  • a copy of the required federal permits for exhibition of wild animals; and
  • if applicable, a copy of the American zoo and aquarium association accreditation program specific to the facility.

In addition to the permit application requirements, the law states that a permit may not be granted by the department “until it has satisfactorily verified that the provisions for housing and caring for the animals and for protecting the public are proper and adequate and in accordance with the standards established by the department.”  (87-4-803(4)).

3. Standards for Keeping Wild Animals in Roadside and Traditional Zoos

Section 87-4-802 mandates that the Department establish and enforce regulations for the housing, care, treatment, feeding, and sanitation of animals kept in roadside menageries and zoos.  While the permit application requirements include cage specifications (87-4-803(iv)), it is unclear whether the failure to meet standards related to cage size would prevent the issuance of a permit.

Regulations are contained in ARM 12.6.1301 to 1309. Under this subchapter, a permitee is required to frame and publicly display his or her state permit at the roadside menagerie. Additionally, a copy of these roadside zoo regulations must be prominently displayed for public information (12.6.1301).

Section 12.6.1302 lists the housing requirements for wild animals held in captivity at roadside menageries.  This regulation covers general cage construction, a prohibition on tethering, a “privacy screen” for the animal, and even bedding for "the comfort of the species of animals."

Subsequent sections provide that an animal must be given fresh, ample water at all times and good quality food that is normally eaten by the animal in the wild (12.6.1303). Animals must be handled in a humane manner and kept free from disease and parasites. Interestingly, when an animal is “afflicted or unsightly,” it must be removed from public display by the owner and immediately given professional medical attention, or be destroyed in a humane manner.

Both the law and regulations contain another protection for wild animals kept in menageries and zoos; animals must be obtained by permit and not unlawfully captured from the wild (87-4-804). While traditional zoos can apply for capture permits issued by the director, roadside menageries can only obtain captive-bred wild animals from a licensed zoo, menagerie, alternative livestock ranch, fur farm, game bird farm, or animal rehabilitation center. This limitation is echoed by the accompanying regulations, which state that “[a]ll animals retained at a roadside zoo or menagerie shall have been secured in a lawful manner.” (12.6.1306). Evidence of lawful capture must be maintained and presented to officers upon demand.  It is the purchaser’s responsibility to obtain this written information.

4. Penalties

Violation of any statute included in Part 8 is punishable as provided in 87-1-102 (a section related to violation of fish and wildlife laws.). While this law was repealed in October of 2011, proposed legislation indicates that the penalty would be a fine of not less than $50 or more than $1,000 with imprisonment in county detention for up to six months, or both. Conviction also results in revocation of permits and wildlife licenses. Further, any animals being kept in violation of any section of this part may be confiscated or ordered disposed of at the discretion of the director (87-4-807).

C. Nongame and Endangered Species Act

As listed species on the federal list of endangered and threatened species, most great apes are protected under Montana’s Nongame and Endangered Species Act. This act prohibits possession and sale of such species.

1. Which Great Apes Are Covered

Although the general thrust of Montana's law is geared towards native species, all Great Apes are covered by reference to the federal endangered species list.  (MT ST 87-5-107(3)(b)). In fact, Montana only lists three native species on its state list (the whooping crane, the Northern Rocky Mountain gray wolf, and the black-footed ferret). ARM 12.5.201.

2. What is Prohibited

Under 87-5-107, "it is unlawful for any person to take, possess, transport, export, sell, or offer for sale and for any common carrier or contract carrier knowingly to transport or receive for shipment" an endangered species appearing on the United States' list of endangered native fish and wildlife. This would cover all ape species except captive-bred chimpanzees.

This act also includes some general exceptions. The director may permit the taking, possession, transportation, exportation, or shipment of species or subspecies of wildlife which appear on the state list of endangered species, on the United States' list of endangered native fish and wildlife for scientific, zoological, or educational purposes, for propagation in captivity of such wildlife, or for other special purposes (87-5-109).

3. Standards for Great Apes Kept under Montana's Endangered Species Law

This section does not deal with housing conditions. There are also no state administrative regulations concerning the care and keeping of captive endangered species. In most of cases where an animal is held under an exception to the state law, a federal permit will be required and housing issues are addressed under the 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)].

4. Penalties

Like the exotic wildlife ban described previously, violation of this section is a misdemeanor with penalties not exceeding $1,000 and six months' imprisonment.  (87-5-111(1) & (2)) Unlike the wildlife ban, consequences to the wildlife are more flexible.  The director may transfer any seized animals to a qualified zoo, school or scientific facility for safekeeping while court proceedings are pending.  Upon a conviction, the animals are forfeited, with the director only required to dispose of them "as appropriate."  (87-5-111(4))

D. Cruelty to animals (45-8-211)

Montana’s anti-cruelty law is generally applicable to great apes. The statute provides that a person commits the offense of cruelty to animals if he or she knowingly or negligently subjects an animal to mistreatment or neglect by torturing, beating, injuring or killing “the animal.” The law also applies to neglect, where a person fails to provide an animal in his or her custody with food and water of sufficient quantity and quality, or, in cases of immediate, obvious, serious illness or injury, licensed veterinary or other appropriate medical care. Knowingly or negligently abandoning an animal is also included. Violation results in a $1,000 fine or imprisonment in the county jail for a term not to exceed one year, or both. A person convicted of a second or subsequent offense of cruelty to animals or of a first or subsequent offense of aggravated animal cruelty shall be fined an amount not to exceed $2,500 or be sentenced to the department of corrections for a term not to exceed two years, or both.

IV. Conclusion

Montana law views great apes as “exotic wildlife,” through which possession is limited by permit. It does not appear that any private possession of great apes is allowed in the state. However, state law and accompanying regulations clearly allow the use of apes and other wild animals in both traditional and roadside zoos. While these regulations contain general standards of care for animals in such zoos, enforcement and inspections provisions are vague.  As is true with many states, there is not an overall law that directly addresses the possession of apes or the specific needs of apes in captivity.

 

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