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Detailed Discussion of New Jersey Great Ape Laws



Amy Breyer and Rebecca Wisch


Animal Legal & Historical Cneter
Publish Date:
2013
Place of Publication: Michigan State University College of Law

Printable Version

I. Introduction

While New Jersey does not expressly forbid possession of great apes, personal possession is effectively banned by state regulations dealing with endangered and “potentially dangerous”  species. All members of the Pongidae family (apes) are listed as exotic mammals that are “capable of inflicting serious or fatal injuries." (N.J.A.C. 7:25-4.8). Further, the state Nongame and Endangered Species Conservation Act bars the taking, possession, transportation and sale of endangered species. (NJ ST 23:2A-1 - 15). Great Apes are not specifically named, but rather are included by reference to the federal endangered species list. The ban on possession of endangered apes is buttressed a companion regulation that states “no permit shall be issued for the possession of any species designated as endangered by the U.S. Department of the Interior. . .” (N.J.A.C. 7:25-4.10). The issuance of such a permit is discretionary, and requires the applicant show proof of a federal permit, meet potentially dangerous animal permit requirements, and demonstrate rigorous scientific research criteria. (N.J.A.C. 7:25-4.14).

The prohibition against possession of a potentially dangerous species applies to all types of usage, although state officials will issue a permit for possession if the applicant can make a "clear showing that the criteria for the possession of such potentially dangerous species have been met."  (N.J.A.C. 7:25.4-8(b)). Those criteria include, among other things, demonstrating that the applicant has the experience to handle the species, submission of a written statement for the purpose and intent of keeping the species as well as a written description of the housing and diet involved. (N.J.A.C. 7:25.4-9(a)). The regulation states that exceptions will not be made to keep a potentially dangerous species as a pet, for hobby purposes, or in a situation that could be dangerous for either the animal or the general public. (N.J.A.C. 7:25.4-9(a)(3)). This ban on pet or hobby purposes is echoed by a subsequent endangered species regulation. (N.J.A.C. 7:25-4.15).

Great apes are also covered under the state’s anti-cruelty laws (NJ ST 4:22-10 - 60).  Unlike many other states, there are no general exemptions for research or other activities. Uniquely, the cruelty code contains provisions that limit animal testing for products where viable non-animal alternatives exist. (NJ ST 4:22-58 - 60).

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

New Jersey bans certain uses of great apes altogether and regulates others based upon type of activity, such as zoos or scientific research.  This section examines the laws by those uses.

A. Private Possession of Great Apes

The rule on private possession for a pet is simple in New Jersey: it's not allowed. Under the state's administrative code, the "Criteria for Possession of Potentially Dangerous Species" states explicitly that "[t]he potentially dangerous species shall not be kept as a pet, for hobby purposes or in situations, which, in the judgment of the Department, could adversely affect the health of the animal or which could constitute a hazard to the public." (N.J.A.C. 4:25-4.9(a)(3)). The ban on pet ownership is solidified by regulations addressing endangered species. No permits are issued by the Department for any species designated as endangered by the U.S. Department of the Interior or the New Jersey Department of Environmental Protection under N.J.S.A. 23:2A-4. (N.J.A.C. 7:25-4.10). The Department only issues permits for endangered species to those individuals who possess federal endangered species permits and meet outlined scientific research proposal criteria (N.J.A.C. 7:25-4.14). Finally, the endangered species permit regulations state that the animal subject to the permit may not be kept as a pet, for hobby purposes. (N.J.A.C. 7:25-4.15(b)). Together, these regulations eliminate the ability of individuals to keep any apes as pets in New Jersey.

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

1. Roadside zoos or other commercial exhibitors

It is unclear whether a roadside zoo or other animal exhibitor could receive a permit to exhibit apes in New Jersey. While the state has a permit classification for “animal exhibitor,” the regulations specifically prohibit the possession of state or federally-listed endangered species. (N.J.A.C. 7:25-4.10). All apes except for captive-born chimpanzees are federally-listed endangered species. The criteria for obtaining a discretionary endangered species permit in New Jersey require that an applicant holds a federal permit, has a sponsoring organization, and completes a detailed scientific research proposal. (N.J.A.C. 7:25-4.14). Since “[a]pplicants for a permit to possess endangered wildlife species in New Jersey must be sponsored by a scientific institution, zoological society or similar organization accredited by its professional peers,” a typical menagerie would not likely obtain such backing. (N.J.A.C. 7:25-4.14(d)).

If the Department found that regulation inapplicable or if the exhibition involved non-endangered apes, the Department may have the discretion to issue an "animal exhibitor" permit. (N.J.A.C. 7:25-4.6(a)(6)).  This permit is “issued to exhibitors of exotic mammals, birds, reptiles or amphibians or nongame species other than zoos. Traveling exhibits, small exhibitions not qualifying as zoos, and circuses are included, including importation, exportation, and sale of species listed in the permit.” (N.J.A.C. 7:25-4.6(a)(6)).

Because great apes are still classified as potentially dangerous species, the criteria listed in 7:25-4.9 would need to be met for an animal exhibitor permit. These include:

  1. Education and Background: Persons wishing to apply for a permit to possess a potentially dangerous species must have extensive experience in maintaining the species desired or related species.
  2. Knowledge: Persons wishing to apply for a permit to possess potentially dangerous species must demonstrate a working knowledge and expertise in handling and caring for each of the species desired.
  3. Protection of the Public: The housing facilities shall also be constructed to prevent public access to and contact with the animal. The potentially dangerous species shall not be kept as a pet, for hobby purposes or in situations, which, in the judgment of the Department, could adversely affect the health of the animal or which could constitute a hazard to the public.
  4. Purpose and Intent: Persons applying to possess potentially dangerous species must submit a written statement of the purpose and intent of keeping the species.
  5. Housing and Feeding: Persons applying for a permit to possess a potentially dangerous species must supply a written description of the housing and caging facilities for the species required. A summary must be submitted of a continuous source of food for the specific diet of the animals. Division personnel may inspect the completed facilities to determine if the facilities are suitable for the animal. Facilities must be constructed to prevent the possible escape of the animal.


(N.J.A.C. 7:25-4.9).

Again, it appears that most apes would be covered under the endangered species regulations, which limit issuance of permits to valid scientific and conservation purposes.

2. Traditional or accredited zoos

Traditional zoos would likely qualify for a permit under New Jersey regulations. Since all apes except for captive-born chimpanzees are federally-listed endangered species, a zoological park would need to obtain both an endangered species permit AND potentially dangerous animal permit. The endangered species regulation states, “[i]f the designated endangered species is also designated as an exotic mammal, bird, reptile or amphibian or nongame species or potentially dangerous species, the criteria established by 7:25-4.7 and 7:25-4.9 must also be met.” (N.J.A.C. 7:25-4.10). The criteria for obtaining a discretionary endangered species permit in New Jersey require that an applicant holds a federal permit and has a sponsoring organization in addition to a scientific research proposal (N.J.A.C. 7:25-4.14). Notably, “[a]pplicants for a permit to possess endangered wildlife species in New Jersey must be sponsored by a scientific institution, zoological society or similar organization accredited by its professional peers.” (N.J.A.C. 7:25-4.14(d)). The overall goal of the endangered species permit is that the research “. . .will not jeopardize the animal's health and has a reasonable probability of yielding . . .scientifically-reliable, new information of use to researchers or zoologists specializing in the study or conservation of the species in question.” (N.J.A.C. 7:25-4.14(2)).

Traditional zoos could then be permitted to possess apes under a "zoological holding" permit.  (N.J.A.C. 7:25-4.6(a)(3)). This application is substantially shorter and less rigorous, however, than the exhibitor application.  While both ask for certain basic information such as an inventory of all animals possessed and their veterinarian, as well as payment of a non-waivable fee, the zoo application does not require a specific breakdown of births, deaths and sales/transfers, nor a list of handlers and their experience, emergency procedures or multiple reminders of "no contact" with the public.

C. Sanctuaries

New Jersey does not address this type of use, either in its endangered species law or the accompanying regulations. Unlike some other states, it does not even broach the topic of sanctuaries via the language of "rescue" or "rehabilitation” (the latter permit only applies to birds in New Jersey). Likely, a sanctuary would need to obtain both a potentially dangerous animal permit and endangered species permit for all endangered apes (excluding captive-born chimps, which are listed as threatened). The permit to possess endangered species requires that an applicant holds a federal permit and has a sponsoring organization in addition to a scientific research proposal (See N.J.A.C. 7:25-4.14). If a sanctuary had a sponsor and met the goal of aiding in the study of conservation of species, a permit might be granted by the Department.

D. Scientific Testing and Research Facilities

Possessors who wish to use great apes for scientific research also need a permit (as well as the federally required license). Scientific study is a specifically enumerated type of permit contemplated by the regulation. (N.J.A.C.7:25-4.6(a)(2)). Since all apes except for captive-born chimpanzees are federally-listed endangered species, scientific researchers would need to obtain both an endangered species permit AND potentially dangerous animal permit. The endangered species regulation states, “[i]f the designated endangered species is also designated as an exotic mammal, bird, reptile or amphibian or nongame species or potentially dangerous species, the criteria established by 7:25-4.7 and 7:25-4.9 must also be met.” (N.J.A.C. 7:25-4.10). The criteria for obtaining a discretionary endangered species permit in New Jersey require that an applicant holds a federal permit and has a sponsoring organization in addition to a scientific research proposal (N.J.A.C. 7:25-4.14). Notably, “[a]pplicants for a permit to possess endangered wildlife species in New Jersey must be sponsored by a scientific institution, zoological society or similar organization accredited by its professional peers.” (N.J.A.C. 7:25-4.14(d)). Offers of sponsorship have detailed requirements such as: a testament to the research from the sponsoring organization; name and address of a professional who has expertise in handling, care and breeding of the species at issue who agrees to the monitor the research; a statement from this overseeing professional; and a liability waiver, among other requirements. (N.J.A.C. 7:25-4.14(e)(1-6)). Applicants must also demonstrate relevant education, past and current research, publications, funding, and equipment demonstrating that the applicant has working knowledge and expertise in handling and caring for the species in question. (N.J.A.C. 7:25-4.14(b)(3)). The overall goal of the endangered species permit is that the research “. . .will not jeopardize the animal's health and has a reasonable probability of yielding . . . scientifically-reliable, new information of use to researchers or zoologists specializing in the study or conservation of the species in question.” (N.J.A.C. 7:25-4.14(2)).

Importantly, New Jersey has a section in its cruelty laws that prohibits “a traditional animal test method for which there is an appropriate validated alternative test method that has been adopted by the relevant federal agency or agencies responsible for regulating the specific product or activity for which the test is being conducted . . .” (NJ ST 4:22-58). While the section does not apply to medical research, it does limit chemical testing of all animals in New Jersey where other testing methods exist.

III. State Laws Affecting Great Apes in New Jersey

New Jersey law deals with the use and possession of great apes in two of its laws. The state's endangered species law bans the taking, possession, transport or sale of an endangered species. (NJ ST 23:2A-6). While it does not mention great apes by name, it does incorporate them by reference to the federal endangered species list.  The regulations, in turn, list apes not just as endangered, but as a "potentially dangerous species" which triggers yet further restrictions on usage and possession. 
Great apes are also covered by the state's anti-cruelty law. (NJ ST 4:22-10 - 60) The statute bans a range of both affirmative conduct, such as beating or torturing, as well as omissive conduct, such as failure to feed or water an animal. (NJ ST 4:22-26). Unlike other states, New Jersey does not exempt certain activities such as research. However, subsequent sections prohibit the use of animal testing where validated alternative testing exists in developing a product. (NJ ST 4:22-58 – 60).

A. Chapter 2A. Nongame and Endangered Species

Great apes are covered species under the state's endangered species law due to their listing on the federal endangered and threatened species list.  (NJ ST 23:2A-3(c)). New Jersey's law prohibits possession and usage of these species unless the possessor qualifies under one of the enumerated exceptions eligible for a permit.

1. Which Great Apes Are Covered

The Endangered and Nongame Species Conservation Act covers those species on "any Federal list of endangered species.” (NJ ST 23:2A-6). This would then cover all species of apes except for captive-born chimpanzees, which are deemed “threatened” by the federal government.

2. What is Prohibited

Under 23:2A-6, "no person shall take, possess, transport, export, process, sell or offer for sale, or ship, and no common or contract carrier shall knowingly transport or receive for shipment any species or subspecies of wildlife" including federally endangered species. (NJ ST 23:2A-6).

The Act also gives the Commissioner of the Department of Environmental Protection the authority to promulgate exceptions, which it has done. (NJ ST 23:2A-7).  These regulations define apes as both “potentially dangerous species” (N.J.A.C. 7:25-4.8) and as endangered species. (N.J.A.C. 7:25-4.10). Both of these permits must be obtained to possess endangered species of apes (all but captive-born chimpanzees).

Notably, an endangered species permit does not allow an animal to be “kept as a pet, for hobby purposes or in situations which, in the judgment of the Department, could adversely affect or provide no net benefit to the health of the animal or the welfare of the species.” (N.J.A.C. 7:25-4.15(b)).

Permits for endangered species are given only after a “clear showing by the applicant that all the requirements for the possession of endangered species” are met.  (N.J.A.C. 7:25-4.10(b)). These requirements are outlined in 7:25-4.14 and require that an applicant possess a federal endangered species permit, obtain a sponsoring organization, and submit a research proposal. The overall goal of the endangered species permit must show that the research “. . .will not jeopardize the animal's health and has a reasonable probability of yielding . . .scientifically-reliable, new information of use to researchers or zoologists specializing in the study or conservation of the species in question.” (N.J.A.C. 7:25-4.10(b)). Applicants must also demonstrate relevant education, past and current research, publications, funding, equipment demonstrating that the applicant has working knowledge and expertise in handling and caring for the species in question. (N.J.A.C.7:25-4.14(b)(3)).

In addition to the complicated endangered species permit, an applicant must also obtain a “potentially dangerous species” permit. The endangered species regulation states, “[i]f the designated endangered species is also designated as an exotic mammal, bird, reptile or amphibian or nongame species or potentially dangerous species, the criteria established by 7:25-4.7 and 7:25-4.9 must also be met.” (N.J.A.C. 7:25-4.10). These include:

  1. Education and Background: Persons wishing to apply for a permit to possess a potentially dangerous species must have extensive experience in maintaining the species desired or related species.
  2. Knowledge: Persons wishing to apply for a permit to possess potentially dangerous species must demonstrate a working knowledge and expertise in handling and caring for each of the species desired.
  3. Protection of the Public: The housing facilities shall also be constructed to prevent public access to and contact with the animal. The potentially dangerous species shall not be kept as a pet, for hobby purposes or in situations, which, in the judgment of the Department, could adversely affect the health of the animal or which could constitute a hazard to the public.
  4. Purpose and Intent: Persons applying to possess potentially dangerous species must submit a written statement of the purpose and intent of keeping the species.
  5. Housing and Feeding: Persons applying for a permit to possess a potentially dangerous species must supply a written description of the housing and caging facilities for the species required. A summary must be submitted of a continuous source of food for the specific diet of the animals. Division personnel may inspect the completed facilities to determine if the facilities are suitable for the animal. Facilities must be constructed to prevent the possible escape of the animal.

 (N.J.A.C. 7:25-4.9).

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

There are no specific standards for the care of apes or primates under New Jersey laws or regulations. As endangered species, individuals who apply for a permit to possess endangered wildlife species must present a written description of the housing and caging facilities for the species. (N.J.A.C. 7:25-4.15(a)). The housing facililites must prevent access from the public and a qualified veterinarian must be “readily available” at all times. (N.J.A.C. 7:25-4.15(b)(c)). The permit application requirements necessitate that a professional with expertise in the handling, care and breeding of the species at issue monitors the research that bases the endangered species permit.

The general criteria for possession of any wildlife do not deal with housing or other conditions beyond the general mandates to supply an "adequate diet" and a cage that allows the animal to "perform the normal behavior patterns of its species." (N.J.A.C. 7:25.4-7(a)). Similarly, the further criteria for possession of potentially dangerous species, (N.J.A.C. 7:25-4.9), speak mainly to requiring proof that the applicant can demonstrate sufficient knowledge and experience in handling the desired species and that the housing facilities will be constructed to prevent public access and contact.  The only paragraph that deals specifically with housing potentially dangerous species states:

Persons applying for a permit to possess a potentially dangerous species must supply a written description of the housing and caging facilities for the species required. A summary must be submitted of a continuous source of food for the specific diet of the animals. Division personnel may inspect the completed facilities to determine if the facilities are suitable for the animal. Facilities must be constructed to prevent the possible escape of the animal.

(N.J.A.C. 7:25-4.9(a)(5)). 

Beyond these general guidelines, housing issues are addressed under the federal regulations required for a federal permit. [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

Penalties for violation of New Jersey's endangered species law range widely. (NJ ST 23:2A-10). They include temporary or permanent injunctions, civil penalties up to $25,000 per day for each day the violation continues, or criminal penalties of fines up to $50,000 per day per continuing violation, imprisonment, or both. Unlike other states, the statute does not contain a forfeiture provision.

D. Cruelty to animals (Chapter 22 - Prevention of Cruelty to Animals)

Great apes are covered under New Jersey's anti-cruelty law. The statute bans affirmative conduct such as abusing, torturing or cruelly killing "a living animal or creature."   (NJ ST 4:22-26(a)).  It also bans failure to act, such as failure to provide sufficient food, water or shelter. (NJ ST 4:22-26(c)). Penalties range from $500 - $5,000. New Jersey has a section in its cruelty laws that prohibits “a traditional animal test method for which there is an appropriate validated alternative test method that has been adopted by the relevant federal agency or agencies responsible for regulating the specific product or activity for which the test is being conducted . . .” (NJ ST 4:22-58). While the section does not apply to medical research, it does limit chemical testing of all animals in New Jersey where other methods exists.

IV. Conclusion

New Jersey defines great apes in the endangered species regulations as both endangered species and “potentially dangerous species.” Possession is prohibited except by permit and does not allow private possession for pets.  The regulations that control these uses outline general standards of care for animals kept in these settings, but specifics are still largely left to underlying federal regulation.  Like most other states, no law specifically deals with the care and handling of owned great apes.

 

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