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Detailed Discussion of Nebraska Great Ape Laws



Amy Breyer


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

Printable Version

I. Introduction

Nebraska, like many other states, addresses the question of who may possess a Great Ape by reference to federal law.  Nebraska's Nongame Endangered Species Conservation Act states that it is "unlawful for any person to take, possess, transport, export, process, sell or offer for sale, or ship nongame wildlife in need of conservation...."  (NE ST 37-805).   It likewise prohibits anyone, other than certain authorized carriers from knowingly "transport, ship or receive for shipment" such wildlife.  It then declares that any wildlife on the federal endangered species list "shall" be considered endangered under state law as well.  (NE ST 37-806(1)).  It expressly gives the game and parks commission the authority to permit an otherwise-prohibited act "for scientific purposes or to enhance the propagation or survival of the affected species."  (NE ST 37-806(11)).   It outlines a brief enforcement provision, (NE ST 37-809), making violations of the ban a misdemeanor, giving officials the authority to seize animals allegedly in violation of the ban and transfer them to  a qualified facility pending proceedings.  Upon a conviction, officials may either destroy or dispose of the wildlife, as they see fit, with costs to be borne by the defendant.

As with other states, Nebraska has exceptions to the ban against possessing endangered species under its provisions concerning possession of captive wildlife.  Possession is allowed if a permit is obtained.  (NE ST 37-477).  A permit is required to auction captive mammals or wildlife, among other species.  (NE ST 37-478).  A separate permit is required to "purchase, possess, propagate or sell" such animals.  (NE ST 37-479).  However, even the exception has exceptions.  Permits are not required for any local, state or federal zoo or nature center, as well as any accredited zoos or U.S.D.A.-licensed circus.  (NE ST 37-481).  It outlines an even briefer enforcement provision, making permit violations a misdemeanor and giving peace officers the authority to enter a permit holder's facility to inspect for compliance.

Great Apes do fall under the definition of "animal" in Section 28-1008, and are thus covered by the general ban against cruelty.  (NE ST 28-1009(1), (2)) . The statute, however, carves out an exception for research facilities that meet federal standards.  (NE ST 28-1013(3)).

II. State Laws Affecting Great Apes in Nebraska

A. Ownership

Nebraska has no laws that even address – much less define or limit – who may own a Great Ape.  To the extent that possession is frequently an indicia of ownership, see next discussion.

B. Keeping/Possession

Special Permits and Licenses (for keeping of wild animals) (NE ST §37-477 - 482)

1. Which Great Apes Are Covered

Under 37-477(1), no person shall keep in captivity in this state any wild mammals or any wildlife determined to be an endangered or threatened species under the federal Endangered Species Act or section NE ST 37-806 without first having obtained a permit to do  under sections 37-478 (wildlife auction permit) or 37-479 (captive wildlife possession or propagation permit). This means that all Great Apes are covered, as Nebraska's law specifically incorporates all animals considered endangered under federal law.  (NE ST 37-806(1)).

2. What is Prohibited

It is unlawful under 37-477(1), to keep in captivity in this state any wild mammals or any wildlife determined to be an endangered or threatened species unless a person has obtained a permit.

3. What is Allowed

The state issues two types of permits.  The first is a "captive wildlife auction permit."  This is required in order to - as the name suggests - auction off captive wildlife. (NE ST 37-478).  The second is a "captive wildlife permit."  This is required in order to "purchase, possess, propagate or sell" captive wildlife.  (NE ST 37-479).

Permits are not required "by (1) any zoo, park, refuge, wildlife area, or nature center owned or operated by a city, village, state, or federal agency or any zoo accredited by the Association of Zoos and Aquariums or the Zoological Association of America or (2) any circus licensed by the United States Department of Agriculture."  (NE ST 37-481).

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 and 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: The statute contains a brief enforcement provision.  Peace officers have authority to enter the premises of a permit holder to inspect and enforce the Game Law.  Violations of this section are a misdemeanor.  (NE ST 37-482).

Nongame and Endangered Species Conservation Act   (NE ST § 37-801 - 11)

1. Which Great Apes Are Covered

All Great Apes are covered by reference to the federal endangered species list.  (NE ST 37-806).

2. What is Prohibited

Except as otherwise provided, "it shall be unlawful for any person to take, possess, transport, export, process, sell or offer for sale, or ship" endangered species.  The law further bans anyone other than an authorized carrier from knowingly "transport[ing], ship[ing] or receiv[ing] for shipment" an endangered species.  (NE ST 37-805).

3. What is Allowed

As with most other states, shipments of endangered wildlife that originate outside of Nebraska may travel into and through Nebraska, so long as they comply with whatever federal or state permits were needed at the point of origin.  (NE ST 37-806(10)).

The state's game and parks commission may also permit an otherwise-prohibited act "for scientific purposes or to enhance the propagation or survival of the affected species."  NE ST 37-806(11)).

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 and 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:  Violations of the ban are a misdemeanor.  Wildlife found in violation may be seized and transferred to "a qualified zoological, botanical, educational, or scientific institution for safekeeping" during the pendency of the proceedings.  Upon a conviction, animals are forfeited "for destruction or disposition" as the state sees fit, with costs payable by the defendant.

C. Prohibition Against Cruelty

Offenses against animals (NE ST § 28-1001 - 1020)

1. Are Great Apes Covered?

Yes, under the definition of "animal." (NE ST 28-1008(2)).

2. Statement of Prohibited Acts

Nebraska's anti-cruelty law is less comprehensive than what most other states have developed in the past few decades.  "Basic" cruelty is a misdemeanor, with more intentional conduct upgraded to a low-level felony.  "Basic" and more intentional neglect is treated similarly.  The statute enumerates some affirmative acts that would be considered cruel, such as beating.  It does not break down what would be neglectful, such as failing to provide sufficient food and water. (NE ST 28-1009(1) and (2)).

3. Statement of Duty to Provide Care

Nebraska 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

The statute expressly exempts activities by research facilities that meet federal standards under the Animal Welfare Act. (NE ST 28-1013).

4. Other Special Provisions of the Law (Seizure and Forfeiture)

The statute does allow for the seizure and forfeiture of abused animals, as well as giving a judge the option to restrict further ownership.  (NE ST 28-1019)  The law does also contain a mandatory reporting requirements for certain state employees, such as inspectors, as well as animal health care professionals, who have reason to believe that an animal has been abused.  (NE ST 28-1017, 1020)

III. How Different Categories of Possession Impact Different Activities

A. Private Ownership  (Not exhibitors)

Nebraska's brief and broadly-worded permitting exceptions appear to allow pretty much all types of possession for endangered species, including Great Apes, so long as the permitting process is followed.  For either auction or possession permits, "a person shall apply" by paying a small fee and filling out a form that includes the applicant's social security number.   The commission has the authority to adopt rules and regulations; no further restrictions are listed in the statute. (NE ST 37-479).

Since there is no language banning any of the following activities, presumably all items on the checklist summary are allowed with respect to Great Apes in this state:

Importation: Yes

Transportation: Yes

Ownership: Yes

Possession: Yes

Sale: Yes

Breeding: Yes

Living Conditions: Not covered

Liability: Liability for escapes or 3rd party attacks not discussed; presumably would just be addressed through tort law

B. Dealers (Federal Class B License)

Must obtain a permit to hold captive wildlife. (NE ST 37-479).

Since there is no language banning any of the following activities, presumably all items on the checklist summary are allowed with respect to Great Apes in this state:

Importation: Yes

Transportation: Yes

Ownership: Yes

Possession: Yes

Sale: Yes

Breeding: Yes

Living Conditions: Not covered

Liability: Liability for escapes or 3rd party attacks not discussed; presumably would just be addressed through tort law

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

A permit to purchase, possess, propogate, etc. under section 37-477  is not required for: (1) any zoo, park, refuge, wildlife area, or nature center owned or operated by a city, village, state, or federal agency or any zoo accredited by the Association of Zoos and Aquariums or the Zoological Association of America or (2) any circus licensed by the United States Department of Agriculture.  (NE ST 37-481).

Since there is no language banning any of the following activities, presumably all items on the checklist summary are allowed with respect to Great Apes in this state:

Importation: Yes

Transportation: Yes

Ownership: Yes

Possession: Yes

Sale: Yes

Breeding: Yes

Living Conditions: Not covered

Liability: Liability for escapes or 3rd party attacks not discussed; presumably would just be addressed through tort law

D. Sanctuaries

While they may fall on the opposite side of the ideological spectrum, sanctuaries appear to be treated the same as Class B Dealers for permitting purposes under Nebraska law. Thus, a sanctuary must obtain a permit to hold captive wildlife. (NE ST 37-479).

Since there is no language banning any of the following activities, presumably all items on the checklist summary are allowed with respect to Great Apes in this state:

Importation: Yes

Transportation: Yes

Ownership: Yes

Possession: Yes

Sale: Yes

Breeding: Yes

Living Conditions: Not covered

Liability: Liability for escapes or 3rd party attacks not discussed; presumably would just be addressed through tort law

E. Scientific Research

Presumably, researchers must be licensed under the Federal Animal Welfare Act, although it is not expressly stated.  Such facilities do not appear to be exempt from the permit requirement for captive wildlife (NE ST 37-477, 481); thus a permit is required under NE ST 37-479. The anti-cruelty statute carves out an exception for research facilities that meet federal standards. (NE ST 28-1013(3))

Since there is no language banning any of the following activities, presumably all items on the checklist summary are allowed with respect to Great Apes in this state:

Importation: Yes

Transportation: Yes

Ownership: Yes

Possession: Yes

Sale: Yes

Breeding: Yes

Living Conditions: Not covered

Liability: Liability for escapes or 3rd party attacks not discussed; presumably would just be addressed through tort law

IV. Conclusion

Nebraska has no on-point law that addresses either the importation or possession of great apes in the state. While Nebraska has a law that generally prohibits the keeping of endangered or threatened species in captivity, a person may obtain a permit to do so. The law itself does not explain the permit process other than by establishing a fee schedule nor does it outline an inspection process for captive wildlife facilities. Notably, typical primate possessors such as certain zoos and circuses licensed by the United States Department of Agriculture are exempt from the permit requirements. Thus, in the state of Nebraska, a great ape can be possessed by most individuals once they have obtained a permit.

 

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