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Detailed Discussion of New Mexico Great Ape Laws



Elizabeth Love Marcero


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

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I. Introduction

New Mexico does not have any laws that directly address the protection of great apes. While the state of New Mexico controls possession and importation of endangered species by law, great apes are not specifically identified or addressed (NM ST 17-2-37 et seq.). Instead, New Mexico 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 that “the importation of these species are prohibited for the general public but may be allowed for . . .” other listed purposes (NM Admin Code 19.35.7.10(4)).

This prohibition applies primarily to private ownership by the general public. There is a list of commercial uses that are allowed, including scientific study, department approved restoration and recovery, zoological display, temporary events or entertainment, or use by a qualified expert (NM Admin Code 19.35.7.10(4)).

Like other states, New Mexico does not define great apes as “endangered,” either under its own endangered species law (NM ST 17-2-37 – 46) or any regulations. It does, however, cover them by reference to federal law (NM ST 17-2-38(D)). New Mexico prohibits any possession, transport, commerce, or taking of federal protected endangered species.

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

While New Mexico’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 zoological display, as a sanctuary, or for scientific research purposes. This section examines the laws by those uses.

A. Private Possession of Great Apes

Section 19.35.7.8 clearly states that a person may not import into the state any live non-domesticated animal without a permit from the director. The law divides the species importation list into four different groups. Great apes fall under species importation list group IV, which are the “prohibited species” that the general public is prohibited from importing (NM Admin Code 19.35.7.10(4)). This reasoning that private possession is disallowed in New Mexico is buttressed by the state’s endangered species law. However, this section provides an exception to the importation ban if the species is being used for scientific study, department approved restoration and recovery plans, zoological display, temporary events or entertainment, or use as a service animal or by a qualified expert (NM Admin Code 19.35.7.10(4)).

The temporary importation exception is covered by Section 19.35.7.13. Under this section, a species may be imported into the state for exhibition, advertising, movies, or other temporary events so long as the animal will be in the state for no more than 30 days.

New Mexico law also gives authority to the department of health to regulate certain species. Section 77-18-1 states that the sale, purchase, trade, and possession of any “subhuman primate” may be regulated by the department of health in order to protect public health and safety.

B. Possession by Zoological Display

New Mexico’s administrative code allows for the taking and possession of great apes for educational purposes under Section 19.36.2.7. In order to qualify for this exception, a zoo must comply with the permit requirements and only engage in the activities authorized under the permit. All activities under these permits must be carried out in a humane, judicious, sensitive, and otherwise appropriate manner (NM Admin Code 19.36.2.8(H)).

C. Sanctuaries

While state law or regulation does not use the term “sanctuary,” it appears that possession here is governed by 19.35.5, which covers wildlife rehabilitation permits in New Mexico. The New Mexico department of game and fish may issue permits for the rehabilitation of sick, injured, orphaned, or otherwise incapacitated wildlife for return to the wild or other authorized disposition. While the language of the regulation suggests it only applies to native species, the definition of protected wildlife is broad enough to cover great apes. The regulation defines “protected wildlife” as “a species, the possession or taking of which is controlled, regulated or prohibited by state or federal law or regulation” (NM Admin Code 19.35.5.7). This means that even under a rehabilitation permit an animal that qualifies as “protected wildlife” remains the property of the state. Protected wildlife also may not be sold, bartered, or exchanged, and their disposal or release must be reported to the department (NM Admin Code 19.35.5.8).

Housing for any animals held under a rehabilitation permit must be appropriately sized, constructed, and maintained so as to provide a humane and safe environment for the animals (NM Admin Code 19.35.5.14). All housing must also conform to accepted national standards.

D. Scientific Testing and Research Facilities

Scientific testing and research of protected wildlife is covered by the same regulation allowing for taking and possession of great apes by zoos. Under 19.36.2.7, New Mexico allows for the taking and possession of protected wildlife for “scientific purposes,” including research, management, and experimental studies. Like zoos, all scientific testing and research facilities must comply with the permitting requirements and authorized activities listed under this section. The state’s anti-cruelty law also exempts scientific research from its provisions.

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

III. State Provisions Affecting Great Apes in New Mexico

New Mexico addresses the use and possession of great apes through two primary avenues in its laws. While New Mexico does not specifically list great apes under state law as an endangered species, there is incorporation by reference to federal law. Great apes are also protected from malicious, intentional, or negligent cruelty under the state’s anti-cruelty provision.

A. Importation, Introduction, and Transplantation of Wildlife Regulation (NM Admin Code 19.35.7.1 – 23)

New Mexico’s administrative code addresses the importation of wildlife under Section 19.35.7. The purpose of the regulation is “to provide consistent criteria for the importation of live non-domesticated animals into New Mexico and to protect native wildlife against the introduction of contagious or infectious diseases, undesirable species and address human health and safety issues.” However, the application of the law results in a ban on the possession of prohibited species by the general public.

1. Which Great Apes are Covered?

The regulation defines “protected animals” as “those taxonomic groups of mammals, birds and fish listed in Chapter 17 NMSA, 1978, including any species that are listed as either state or federally threatened or endangered” (NM Admin Code 19.35.7.7(Z)). It then divides the species importation list into four different groups. Great apes fall under species importation list group IV as a “prohibited species” (NM Admin Code 19.35.7.10(4)):

(4) Species importation list group IV may be for live non-domesticated animals that are considered dangerous, invasive, undesirable, state or federal listed threatened, endangered, a furbearer or any other species of concern as identified by the director.

2. What is Prohibited?

Administrative code section 19.35.7.8 clearly states that a person may not import into the state any live non-domesticated animal without a permit from the director. Great apes fall under species importation list group IV as a “prohibited species” that the general public is prohibited from importing (NM Admin Code 19.35.7.10(4)). However, this section provides an exception to the importation ban if the species is being used for scientific study, department approved restoration and recovery plans, zoological display, temporary events or entertainment, or use as a service animal or by a qualified expert (NM Admin Code 19.35.7.10(4)).

The temporary importation exception is covered by Section 19.35.7.13. Under this section, a species may be imported into the state for exhibition, advertising, movies, or other temporary events so long as the animal will be in the state for no more than 30 days.

3. Standards for Great Apes Kept Under New Mexico’s Importation Prohibition Exceptions

This section does not deal with housing conditions. In most of the 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

Under Section 19.35.7.8, violation of permit provisions may result in the applicant or importer becoming ineligible for importation of wildlife into New Mexico. Also, the regulation indicates that violators may be subject to both administrative action and criminal prosecution (NM Admin Code 19.35.7.8).

The director may also require a certificate of compliance and impose other corrective measures when violations of this section have occurred (NM Admin Code 19.35.7.10(D)). If corrective measures are not followed or repeated violations have occurred, the director may impose a cease and desist order that makes an applicant ineligible to apply for an importation permit for up to one year. Finally, the director shall determine a certificate of compliance fee for each violation not to exceed $500.00 based on certain criteria (NM Admin Code 19.35.7.10(E)).

It is unclear what the consequences to the wildlife will be after a violation of this section has occurred.

B. Endangered Species: Wildlife Conservation Act (NM ST §§ 17-2-37 – 46)

As listed species on the federal list of endangered and threatened species, most great apes are protected under New Mexico’s Wildlife Conservation Act. This act prohibits possession, transport, and sale of such species.

1. Which Great Apes are Covered?

Although the general thrust of New Mexico's law is geared towards native species, all great apes are covered by reference to the federal endangered and threatened species lists.  (NM ST §17-2-38(D)).

2. What is Prohibited?

Under 17-2-41(C), “it is unlawful for any person to take, possess, transport, export, process, sell or offer for sale or ship any species of wildlife” appearing on the United States’ list of endangered or threatened species.

This act also includes some more general exceptions. The director may authorize by permit the taking, possession, transportation, exportation, or shipment of species or subspecies of wildlife which appear on the state or the United States’ list of endangered or threatened species, for scientific, zoological, or educational purposes, for propagation in captivity of that species, or to protect private property (NM ST §17-2-42(C)).

Also, the director may authorize by permit the removal, capture, or destruction of endangered species if necessary to alleviate or prevent property damage or to protect human health. Finally, in emergency situations endangered species may be removed, captured or destroyed without a permit if the emergency situation involves immediate threats to either human life or private property (NM ST §17-2-42(D)).

3. Standards for Great Apes Kept under New Mexico’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 the 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

Violation of this section is a misdemeanor punishable by a fine of $1,000 or imprisonment for no less than 30 days but no more than one year, or both (NM ST §17-2-45(B)).

Failure to procure a permit or violation of a permit issued by the director for an exception to this section is also a misdemeanor with penalties of not less than $50 and not more than $300, or imprisonment for 90 days, or both (NM ST §17-2-45(A)).

It is unclear what the consequences to the wildlife will be after a violation of this section has occurred. However, the statute does give the director the power to acquire land or aquatic habitat for the “conservation, management, restoration, propagation and protection of threatened or endangered species.” (NM ST §17-2-44).

C. Cruelty to Animals (NM ST § 30-18-1 – 15)

New Mexico’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 negligently mistreats, injures, or kills “an animal” without lawful justification or torments an animal. The law also applies to abandonment or failing to provide necessary sustenance to an animal under a person’s control. In order to have lawful justification for negligent treatment, injury, or killing of an animal, a person must either be humanely destroying a sick or injured animal or protecting a person from death or injury due to an attack by an animal. 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 fourth or subsequent conviction of cruelty to animals is guilty of a fourth degree felony and shall be sentenced to eighteen months imprisonment. The court may, in addition to imprisonment, impose a $5,000 fine.

New Mexico’s anti-cruelty law also addresses extreme cruelty to animals, which consists of a person intentionally or maliciously torturing, mutilating, injuring, or poisoning “an animal,” or maliciously killing an animal. A person convicted of extreme cruelty to animals faces the same penalties as those convicted of a fourth or subsequent conviction of cruelty to animals. Violation results in a fourth degree felony punishable by eighteen months imprisonment. The court may, in addition to imprisonment, impose a $5,000 fine.

A person convicted of cruelty to animals may be ordered by the court to participate in an anti-cruelty prevention program. The court may also order that a person convicted of cruelty to animals or extreme cruelty to animals obtain psychological counseling. This second requirement applies to children as well as adults.

There are several exceptions to New Mexico’s anti-cruelty statute, but only two of them might possibly apply to great apes. The anti-cruelty law does not apply to the practice of veterinary medicine or research facilities, except when research facilities are knowingly operating outside provisions governing the treatment of animals in that facility.

IV. Conclusion

New Mexico law views great apes as a “prohibited species” due to their status as an endangered species under the federal endangered species list. 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 great apes and other wild animals in zoological displays. These regulations contain very few standards of care for animals in such zoos, and enforcement and inspection provisions are vague. As is true with many states, there is not an overall law that directly addresses the protection of great apes or the specific needs of apes in captivity.

 

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