This paper examines state and local statutes and regulations regarding private possession of captive wildlife, or exotic pets. It also discusses the policy and constitutional issues surrounding these regulations.
In April 2003, Rock City Pub in Green Bay, Wisconsin was visited by Jasper, a black-capped Capuchin monkey, whose owner, Tracie Cornelius, liked to bring him along on her trips to the bar. Frightened by another patron, Jasper sprinted out the back door and into the streets of the city. What followed was a citywide race to find the monkey between Cornelius and the city’s animal control officer, who promised to seize the monkey since Cornelius lacked a permit to keep the exotic animal. Ultimately, Jasper’s owner found him first and secretly moved the monkey to a location outside the city limits, avoiding the permitting requirement of the ordinance. After being denied a permit to keep him, and after losing a protracted battle against the Green Bay city council to change the regulation, Cornelius and Jasper moved to a suburb that allowed monkeys as pets.
In December 2003, a 10-year-old North Carolina boy named Clayton James Eller was shoveling snow at his aunt’s house in Millers Creek, when he got too close to the cage of her pet, a 400-pound Bengal tiger. The animal dragged Clayton under the chain-link fence and into its cage, mauling the boy. Clayton’s uncle, hearing his scream, dashed to the boy’s rescue, attempting to get the tiger to relent. When that failed, he ran back into the house, retrieved his gun, and shot the tiger. In the end, both the boy and the tiger died.
From absurd tales like Jasper’s to horrific ones like Clayton’s, there has been a rapid increase in incidents involving private possession of captive wildlife, or so-called exotic pets.
Since much of the trade in exotic pets occurs on the black market or over the internet, it is difficult to determine exact statistics of such incidents. However, the statistics that do exist are startling. See, e.g., Richard Farinato, The Whims and Dangers of the Exotic Pets Market , Humane Society of the United States, at http://www.hsus.org/ace/19518 (last accessed Sept. 1, 2004). With regard to animals kept as exotic pets in the U.S., the Captive Wild Animal Protection Coalition, an alliance of animal protection groups and wildlife professionals fighting the trade in exotic pets, estimates the following numbers: 5,000-7,000 tigers (more than the wild population in Asia), 10,000-20,000 large cats, 17.3 million birds, 8.8 million reptiles, and at least 3,000 great apes. CWAPC Fact Sheet , Captive Wild Animal Protection Coalition, at http://cwapc.org/education/download/cwapc_factsheets1.pdf (last accessed August 6, 2004).
The Animal Protection Institute, an animal welfare group, catalogues attacks or escapes involving exotic pets. It details over 120 captive large cat incidents (attacks or escapes) since 1990, 75 nonhuman primate incidents since 1994, nearly 200 reptile incidents since 1995, and nearly 75 incidents involving other exotics such as bears, wolves, ferrets, and even a hippo, since 1995. All of these lists show drastic increases over the last several years, and API stresses that these are only partial accounts of the number of incidents. Captive Feline Incidents , Animal Protection Institute, at http://www.api4animals.org/383.htm (revised July 6, 2004); Captive Non-Human Primate Incidents , Animal Protection Institute, at http://www.api4animals.org/381.htm (revised July 6, 2004); Captive Reptile Incidents , Animal Protection Institute, at http://www.api4animals.org/380.htm (revised July 6, 2004); Incidents Involving Miscellaneous Captive Held Exotic Animals , Animal Protection Institute, at http://www.api4animals.org/382.htm (revised July 6, 2004).
The Captive Wild Animal Protection Coalition releases a monthly report of incidents including human injuries and fatalities, animal injuries and fatalities, confiscations, and escapes. For April 2003, the same month as Jasper’s escape, CWAPC reported 4 human fatalities, 93 animal fatalities (most from a single California faux-sanctuary), 17 confiscations, 4 escapes (Jasper is not mentioned), and one indictment of an individual for selling lion and tiger meat. Captive Wild Animal Report: March 31 to April 30, 2003 , Captive Wild Animal Protection Coalition, at http://cwapc.org/news/IncidentReportApril2003.pdf (2003). For the two-month period including the time when Clayton Eller was mauled, CWAPC reported one human fatality in the U.S. (Clayton), four human injuries, six U.S. animal fatalities, 179 confiscations (most from a private breeder in Texas), and eight escapes. Captive Wild Animal Report: November-December 2003 , Captive Wild Animal Protection Coalition, at http://cwapc.org/news/IncidentReportNovDec2003.pdf (corrected and updated Feb. 20, 2004). However, these statistics are somewhat imprecise since several of the reported incidents involved private zoos, unaccredited sanctuaries, and other institutions that blur the line between commercial possession and private possession.
Spurred by concerns about public health, public safety, and animal welfare, lawmakers have begun to realize the dangers posed by private possession of exotic animals. Public health can be endangered by the introduction of non-native microorganisms with which the population is not prepared to cope. For example, an outbreak of monkeypox in the Midwest caused by pet prairie dogs resulted in bans on the keeping of those animals in several cities, counties, and states. Similarly, threats to public safety, in the form of attacks by exotic pets, can also spur new laws, as did the mauling of Clayton Eller. Physical attacks may be even more likely than disease outbreaks to encourage regulations since the media covers them in a more sensational manner. Finally, to a lesser degree, lawmakers consider animal welfare in prohibiting or restricting exotic pet ownership. Numerous stories of poorly nourished, poorly housed, and abused animals have taught that personal possession of exotic pets is not in the interest of the animals themselves.
Depending on which of these concerns serves as a motivation for the enactment of protective laws, different animals may be covered. In instances where a local citizen has been attacked by a tiger or other similar animal, the governing body is more likely to ban or restrict possession of lions and tigers and bears, and other “dangerous” animals. On the other hand, where there has been an outbreak of monkeypox or salmonella, possession of reptiles, rodents, or other “dirty” animals is more likely to be banned or restricted. As will be discussed in more detail later in this paper, nearly every animal, with the exception of domestic cats and dogs, is subject to exotic regulations in some jurisdiction. This includes big cats, wolf-hybrids, ferrets, snakes, bears, primates, hippos, alligators, and many others.
Just as the type of animal varies by jurisdiction, so does the type of regulation. The law may be a complete ban, in which the exotic animals are simply prohibited from private individual possession. However, these bans frequently explicitly exclude zoos, circuses, and other types of possession that are distinguishable from pet ownership. Rather than flat-out banning possession, some jurisdictions establish licensing schemes, whereby individuals must obtain a permit, usually from the state fish and wildlife department, prior to owning an exotic pet. Other states regulate (though do not ban or license) the possession of animals, creating limits to the quantity of animals an individual may have or setting standards for importation and animal care. Finally, a few states have no regulations whatsoever of exotic pets.
These various regulations have been challenged in courts under various common law and constitutional doctrines. However, courts have almost universally upheld the validity of exotic pet regulations as a legitimate exercise of state police power that does not infringe on the constitutional protections of equal protection, due process, or takings.
This paper discusses these issues in detail. First, it examines the three major reasons for enacting exotic pet restrictions. Second, it discusses the characteristics of various legal responses to exotic pets by examining the jurisdictions that may pass such regulations (federal, state, and local), the types of regulatory schemes (bans, regulations, and permits), and the types of animals covered (tigers, bears, snakes, etc.). The following section examines the case law surround exotic pets by discussing the common law and constitutional issues raised by such regulations. Finally, this paper concludes with some recommendations for combating the private trade in wild animals.
A NOTE ON TERMINOLOGY
Before delving into the substantive issues, one caveat should be made regarding the terminology used throughout this paper. The term “exotic pets” should not sit well with animal rights advocates. The very inability of humans to domesticate these animals begs the question of whether they can properly be considered our pets. Additionally, a persuasive critique of the very concept of pet ownership in the context of domestic animals has challenged the possessive assumptions of the term “pets.” As the animal protection group In Defense of Animals states, “By disavowing the concept and accompanying language of animal ownership, we can reconstruct the social and legal relationship between humans and animals.” Guardian Campaign Brochure , In Defense of Animals, available at http://www.guardiancampaign.com/IMAGES/GuardianBro.pdf (last accessed Aug. 12, 2004). While this appraisal over-simplifies the issue to some degree, it is true that our reduction of animals to pets and our belief in our ability to own them is buttressed by the words we use to talk about animals.
Additionally, the concept of “exotic” is problematic, since it relies on an ideology of otherness that has been challenged by postcolonial theorists. See, e.g. , Edward Said, Orientalism (1979). Historically and contemporarily, the ownership of all things “exotic,” including animals, has symbolically represented the imperial appropriation of non-Western human and animal difference. See Steve Baker, Picturing the Beast 67, 13-14 (1993). For a much more thorough presentation of these arguments regarding imperialism and anthropocentrism in the context of zoos, equally applicable to exotic pets, see Steve Best, Zoos and the End of Nature , Animal Writes (May 26, 2002), available at http://www.geocities.com/RainForest/1395/aro020526.html .
Nevertheless, for simplicity, and to avoid the annoyance caused by hundreds of scare quotes, this paper will use the term “exotic pets,” since that is the term used by most statutes and by the popular media. Additionally, the sad truth is that these animals are owned as pets, regardless of whether or not we think they should be property. Given the existing legal system, it would be dishonest to pretend they are not owned.
A discussion of the legal responses to exotic pet ownership should begin with the motivations that spur such regulations. Over the last decade the regulation of exotic pets has increased dramatically. These regulations have come as a response to three primary concerns: public health, public safety, and animal welfare. Three Reasons for Banning Private Possession of Exotic Animals , Animal Protection Institute, at http://www.api4animals.org/1001.htm (revised May 21, 2001). Public health refers to the epidemiological risks of exotic pet ownership. Public safety refers to the risks of attacks and trauma associated with such ownership. Animal welfare refers to the mistreatment suffered by wild animals kept as pets, be it physical abuse, malnutrition, or neglect.
A. PUBLIC HEALTH
Not surprisingly, exotic animals frequently carry exotic diseases. In the spring of 2003, an outbreak of monkeypox occurred throughout the Midwest among individuals exposed to prairie dogs. Centers for Disease Control, Update: Multistate Outbreak of Monkeypox --- Illinois , Indiana, Kansas , Missouri , Ohio , and Wisconsin , 2003 , Mortality & Morbidity Wkly. Rep. 52(27), 642-646 (July 11, 2003), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5227a5.htm . This outbreak caused the Food and Drug Administration (FDA) and the Centers for Disease Control (CDC) to severely restrict the rodents as pets. 21 C.F.R. § 1240.63 (2004) . The monkeypox problem also spurred several states to establish further regulations of exotic pets. For example, in Indiana, where at least seven residents contracted the disease, the state Board of Animal Health considered permanently banning the animals as pets, though as of the time of this writing no such regulations were in place yet. Diana Penner, Indiana Weighing Exotic Pets Rules; Monkeypox Cases Prompt Animal Health Board to Look at Limits on Sales, Distribution , Indianapolis Star , Sept. 8, 2003, at 1B. The West Virginia legislature’s recent creation of an animal health control board to oversee exotic pets is directly attributable to the monkeypox scare from pet prairie dogs. Kris Wise, All Not Welcome in Wild, Wonderful West Virginia; Lawmakers Want Board to Monitor Exotic Pets in State Legislature , Charleston Daily Mail (West Virginia), Mar. 12, 2004, at P6A. An outbreak of tularemia has also been attributed to commercially traded prairie dogs. Abdu F. Azad, Prairie Dog: Cuddly Pet or Trojan Horse ? , Emerg. Infect. Dis. 10(3), ¶1 (Mar. 2004), available at http://www.cdc.gov/ncidod/EID/vol10no3/04-0045.htm .
Rodents are not the only dangerous exotic animals kept as pets. Ninety percent of reptiles carry salmonella, which can be transferred to humans through feces. The CDC estimates that every year 70,000 people contract salmonella from pet reptiles. Healthy Pets, Health People , Centers for Disease Control, at http://www.cdc.gov/healthypets/animals/reptiles.htm , (last reviewed December 22, 2003). Macaque monkeys, who are increasingly kept as pets, frequently carry Cercopithecine herpesvirus 1, also known as B virus. The virus is mostly harmless in monkeys but can be fatal in humans. Eighty percent of untreated humans who contract B virus die from the infection. B Virus , National Center for Infectious Diseases, at http://www.cdc.gov/ncidod/diseases/bvirus.htm . Scientists warn that the increase in the trade in non-human primates, including macaques, could create “an emerging infectious disease threat in the United States.” Stephanie R. Ostrowski et al., B-virus from Pet Macaque Monkeys: An Emerging Threat in the United States ? , Emerg. Infect. Dis. 4(1), ¶ 16 (Jan.-Mar. 1998), available at http://www.cdc.gov/ncidod/eid/vol4no1/ostrowsk.htm .
The risk of zoonotic diseases (those that can be transmitted from animals to humans) from exotic animals is of special importance because of the fact that they are non-native. While the diseases may be somewhat harmless in their natural context, their introduction into populations that have not evolved to be resistant poses special dangers. As mentioned above, B virus is harmless in monkeys, yet fatal in humans. The outbreak of monkeypox in prairie dogs (and subsequently in humans) was traced back to giant Gambian rats imported from Africa. While the disease was balanced in its original environment, its introduction into a new context caused it to spread among unprepared species.
Additionally, since many exotic pets live in dirty and stressful conditions, they are more likely to contract and transmit diseases like salmonella. Baby turtles, considered cuter and more pet-worthy, are more likely to have salmonella bacteria than adult turtles.
The ways humans interact with their companion animals also poses special disease problems in the context of exotics. Specifically, kissing or hugging bacteria-covered animals can easily transmit pathogens through the mouth, or through scratches by sharp-clawed animals. The hygiene practices required for exotic pets are much stricter than those associated with domestic animals like cats and dogs, and many owners fail to understand the extra precautions necessary to avoid diseases. For a further discussion of these issues, see Bridget M. Kuehn, Wildlife Pets Create Ethical, Practical Challenges for Veterinarians , Journal of the American Veterinary Medical Association, available at http://www.avma.org/onlnews/javma/jul04/040715d.asp (July 15, 2004).
Despite the epidemiological risks associated with exotic pets, they are not the main impetus for regulations. Rather, public safety concerns about animal attacks can be more of a motivation for lawmakers to restrict ownership of exotic pets.
B. PUBLIC SAFETY
Whereas the public health concern revolves around diseases, the public safety concern revolves around actual physical attacks by exotic pets. The animals of concern for public safety are somewhat different from those of concern for public health. The latter concerns rodents, reptiles, and other “diseased” animals, while the former concerns primarily big cats and other “dangerous” animals.
Of course, the question of what constitutes a dangerous animal is an open one. In Rhoades v. City of Battle Ground , exotic pet owners challenged on equal protection grounds an ordinance that banned exotic pets, yet allowed dangerous dogs under certain conditions. Rhoades v. City of Battle Ground , 63 P.3d 142 (Wash. Ct. App. 2002). The court, in upholding the ordinance, found a rational relationship between the regulation and the public interest in preventing exotic pet attacks. Id . at 147-48. For a further discussion of this issue, see the equal protection section below. This case demonstrates the existence of a legitimate state interest in preventing attacks by captive wild animals, and it is precisely this interest that most often spurs regulation of exotic pets.
Regulations of wild animal possession frequently come in the wake of attacks by pets. For example, in North Carolina, where there are no statewide laws governing exotic pet ownership, the Surry County board of commissioners recently banned big cats, non-native venomous reptiles, nonhuman primates, and wolves after a 10 year old boy and a 14 year old girl were mauled by captive tigers in separate incidents. Sherry Wilson Youngquist, Surry County OKs Ban On Exotic Pets , Winston-Salem Journal , Mar. 16, 2004, at B2. Similarly, Harris County, Texas instituted regulations for possession of a variety of wild animals after “a spate of maulings and attacks by exotic pets.” Steve Brewer, New Rules Are Put to Test in Seizure of Pet Cougar , Houston Chronicle , Dec. 2, 2000, at A35.
These public safety concerns generally have to do with the unpredictability of wild animals. The United States Department of Agriculture warns that such animals can become agitated in unfamiliar circumstances: “Some owners take their animals into inappropriate public places and situations, such as schools, parks, and shopping malls. Because of these animals' potential to kill or severely injure both people and other animals, an untrained person should not keep them as pets. Doing so poses serious risks to family, friends, neighbors, and the general public.” Animal and Plant Health Inspection Service, U.S. Dep’t of Agric., Position Statement, Large Wild and Exotic Cats Make Dangerous Pets , Misc. Pub. No. 1560, ¶ 4 (2000), available at http://www.aphis.usda.gov/ac/position.html . A corollary danger exists even when wild animals do not “turn” on their owners; often the sheer size and strength of an animal can cause injury or death, even when she is “only playing.” Id .
But human owners are not the only ones at risk. Captive wild animals themselves are frequently victims of neglect and abuse.
C. ANIMAL WELFARE
Human-centered worries about disease and attacks are far more likely than animal welfare to be the impetus for laws banning or restricting possession of exotic animals. Though nearly all exotic pet laws mention animal welfare as a rationale, it is not clear how much this concern actually influences their implementation. Nevertheless, animal welfare groups are occasionally able to sufficiently publicize the atrocities suffered by captive wild animals to puncture the speciesism of state legislatures, local councils, and enforcement agencies.
In one recent horrific incident in California, wildlife officials raided the home of a private breeder to discover 90 tiger carcasses, “including big cats that had been tied to car bumpers and starved cubs in a freezer.” In May 2004, officials seized dozens of big cats, including lions, tigers, and leopards, who were malnourished, underweight, and generally in poor condition. When The Fund for Animals took over care for these animals, the daily expense was $500, clearly well beyond the capabilities of most exotic pet owners. Seema Mehta, After Ordeal, New Sanctuary Sure to Get the Aye of the Tigers , Los Angeles Times , June 11, 2004, at B6.
Because they are by definition less domesticated, wild animals have needs that far exceed their owners’ capabilities. Minnesota’s recent law prohibiting possession of exotic animals seems to have been motivated, at least in part, by animal welfare concerns. Just a few months before the law’s passage, four tigers were found dead at a Minnesota breeding facility. Minnesota Passes Law Against Keeping Dangerous Animals as Pets , Int’l Fund for Animal Welfare, at http://www.ifaw.org/ifaw/general/default.aspx?oid=96023 (June 2, 2004).
Many exotic animals are imported, often illegally, resulting in severe trauma, injury, and death. In one incident, a man attempted to smuggle 44 exotic birds into Miami strapped to his legs. Monica Engebretson et al., The Dirty Side of the Exotic Animal Pet Trade , Animal Issues 34(2), ¶ 1 (Summer 2003), available at http://www.api4animals.org/1563.htm . The Humane Society estimates that 80 percent of wild caught birds die during capture and transport, and puts the total animal death toll in the millions. Humane Society, Pets Aren’t Wild , All Animals 4(3), ¶ 8 (Fall 2002), available at http://www.hsus.org/ace/15548 . In 1998, 2 million reptiles were imported into the U.S., the majority of which died within their first year of captivity. Engebretson, supra , at ¶ 28, 31.
Given these health, safety, and welfare interests, governments have sought to regulate and limit the private possession of exotic pets. But who has the authority to regulate this issue? What can be done at the federal, state, and local levels? What are the options for the substantive content of such regulations?
Legally speaking, the exotic pet issue is, in essence, an issue of private property possession clashing with governments’ police power to regulate nuisance, public health, and public safety. This section will discuss the different levels at which these regulations may be passed, focusing primarily on the state and local level. It will examine the different types of regulations passed, be they permit schemes, registration schemes, or total bans.
A. FEDERAL LAWS
The primary focus of this paper is on state and local regulations of exotic pets, but the few relevant federal laws also deserve brief mention. Because of the limited nature of the federal government, most regulations occur at the state and local levels, where the police power allows general regulations for the public welfare. Federal laws do exist, however, that regulate captive wild animals in some of the constitutionally enumerated areas, such as interstate commerce and foreign policy.
The U.S. Federal Government is one of limited and enumerated powers, and may only govern in the ways set forth in the Constitution. There is, therefore, no federal police power. See, e.g. , United States v. Lopez , 514 U.S. 549, 566 (1995). Congress is limited to passing laws regulating interstate commerce, and other issues enumerated in the Constitution. U.S. Const. art. I, § 8. As a result, there is very little federal legislation limiting possession of exotic animals. The issue has been primarily left to states to decide.
A few federal laws, such as the Endangered Species Act , implicate a private citizen’s right to possess wild animals as pets, though the focus of this paper is state and local control. For a good overview of relevant federal laws, see Nicole G. Paquette, The Status of Captive Wild Animals in the U.S.: An Overview of the Problem and the Laws , Animal Protection Institute, at http://www.api4animals.org/1578.htm (2003). Since Paquette’s article was written, the Federal Government has passed what may be the most substantial federal protection of exotic pets, the Captive Wildlife Safety Act, passed pursuant to the Congress’s power to regulate interstate commerce. U.S. Const. art. I, § 8, cl. 3. The CWSA prohibits the interstate commerce of big cats, and could substantially limit the number of wild animals sold into the pet trade. See Bush Signs Exotic Pets Bill into Law , Int’l Fund for Animal Welfare, at http://www.ifaw.org/ifaw/general/default.aspx?oid=79437 (Dec. 24, 2003).
Since regulations at the federal level are significantly limited by Article I of the Constitution, the real ability to regulate private possession of captive wild animals occurs at the state and local level. The principle of federalism on which the Constitution relies holds that the federal government assumes authority only over certain enumerated areas, while all other powers are reserved to the states. U.S. Const. amend. X. Under this federalist system, state governments are free to regulate for the general welfare under their plenary police power, so long as those regulations do not infringe on the Constitutional rights of state citizens.
B. STATE LAWS
Whereas the federal government is limited by the enumerated powers granted in the Constitution, state and local governments usually have plenary police power, which allows them to legislate for the general welfare. As such, there are fewer obstacles to passing exotic pet regulations at the state level. State laws are easier to pass than federal laws, and potentially more effective than local laws because of the resources and expertise available for enforcement through the state wildlife agency or state law enforcement agency. Though it is often difficult to get animal protective laws passed at the state level, these laws can be very effective when enforced.
Exotic pet regulations vary from state to state. While some states have a complete ban on exotic pets, other states simply require permits for their possession, and some states have no regulations whatsoever. This paper does not aim to cover the laws of all 50 states, nor the laws of the thousands of counties and cities in the country. A fantastic resource for such thorough information is the Animal Protection Institute’s webpages. For a clickable map of all state laws and their texts, see http://www.api4animals.org/323.htm ; For a color-coded map of state regulations, see http://www.api4animals.org/372g.htm ; For the text of all state laws regarding exotics, see http://www.api4animals.org/372.htm . The purpose of this section, rather than to specifically discuss each state or local law, is to give a few examples of the major types of regulations, and to compare these approaches to exotic pets.
While there is no uniformity in laws regulating the possession of exotic pets, three central variables recur among and between different jurisdictions’ laws: (1) the degree of regulation, (2) the animals covered by the law, and (3) the punishment for violation. In what follows, each of these variables are discussed in turn.
1. THE DEGREE OF REGULATIONS
The degree to which a state regulates possession of exotic pets is the most important variable, since it is the crux of the legality of exotic pet ownership. The degree of regulation is determined by the strictness with which the state seeks to regulate exotic pet ownership. At the strictest end, some states have complete prohibitions on owning certain animals. At the other end of the spectrum, some states have no regulations at all, allowing full ownership. Somewhere in the middle are licensing schemes, which require the owner to obtain a permit from a state agency in order to keep exotic pets. This section will examine these different statutes, with a focus on bans and licensing schemes.
Fourteen states have complete bans on at least most of the pets considered exotic. In essence, a ban entirely prohibits private possession of captive wildlife, unlike other regulations which only limit or condition private ownership.
California is one such state with a ban on exotic pets. Its law makes it “unlawful to import, transport, or possess alive animals restricted in subsection (c) below except under permit issued by the Department of Fish and Game.” Cal. Code Regs . tit. 14 §671(a) (2004). While this at first seems to be a permitting scheme rather than a ban, the conditions for permitting by the Department only apply to commercial, research, and educational entities, and no permits are granted for private pet ownership. § 671.1(b)(1). The ban applies to not only transportation or importation into the state, but also covers the simple possession of such animals.
The law bans the possession of a large variety of animals from alligators to zebras, and enumerates them by class, order, family, genus, and species. § 671(c). The California regulations even list the reason for prohibiting each animal, denoting either a “D” or a “W” depending on whether the animal was listed because it is a detrimental species or because it is a welfare species. Detrimental animals are “listed because they pose a threat to native wildlife, the agriculture interests of the state or to public health or safety”; welfare animals are “listed to prevent the depletion of wild populations and to provide for animal welfare.” § 671(b). For some unexplained reason, only mammals are listed as “welfare animals,” perhaps because of the same thinking that lies behind the Animal Welfare Act . § 671(c).
Massachusetts also bans private ownership of exotic pets. Mass. Gen. Laws Ann . ch. 131, § 23 (2004). Its laws recognize both the human safety and animal welfare rationales for regulating private ownership of wild animals. The ban is intended to “protect wild animals from unnecessary or undesirable interference and from improper treatment,” as well as to “[protect] … the public health, welfare and safety.” Mass. Regs. Code tit. 321, § 2.12(1) (2004).
Like the California law, the Massachusetts law prohibits possession of wild animals without a license. “[I]t is unlawful for any person to possess, maintain, propagate or cultivate, sell or offer to sell any animal without having a valid license issued to them by the Director in one of five classes.” § 2.12(3). Licenses are only given out for limited reasons, none of which include the keeping of animals as pets. The classes for which licenses may be granted are propagator’s licenses, public stocking licenses, dealer’s licenses, possessor’s licenses, and dog training licenses. § 2.12(3)(a)-(e).
While some of these classes may seem to be loopholes that would allow for exotic pet possession, that is not the case. The possessor’s licenses, for example, are only given to applicants for birds or mammals that were lawfully possessed before July 1, 1980, and for other limited possessions, not including pets. § 2.12(3)(d); § 2.12(10)(l). In fact, the regulations explicitly require the Division of Fisheries and Wildlife to reject any application seeking a license for a pet. “Applications for a license … including both initial applications and renewals, shall … be denied when … the application is for a license to possess, maintain, propagate or cultivate animals as pets.” § 2.12(9)(a). Applications should also be rejected where the applicant’s “purposes or intentions [are] based purely on curiosity, impulse or novelty, or to provide for personal amusement or entertainment.” § 2.12(9)(b).
The Massachusetts law allows for a few exceptional cases in which a class 4 propagator’s license may be issued for captive wild animals. These include scientific research, educational use, commercial propagation (not for the pet trade), dog training for sporting events (hunting), population recovery breeding programs for endangered and threatened species, animal training for the disabled, and licenses for those who lawfully possessed their animals before July 1, 1980. § 2.12(10)(a)-(l). None of these exceptions, however, would cover individual pet ownership.
The Massachusetts director of the Division of Fisheries and Wildlife also issues a list of exempted species for which no permit is needed. Mass. Gen. Laws Ann . ch. 131, § 23 (2004). These species must meet four criteria: first, the animal cannot pose any threat to a native Massachusetts ecosystem; second, the animal cannot pose a threat to human health or safety; third, care for the animal is no more demanding than care for “common domestic animals”; and fourth, the captivity of the animal cannot have a significant adverse effect on the animal’s natural population. § 23. All state and federal species that are endangered, threatened, or species of special concern are “categorically non-exempt,” meaning they cannot be added to the license-exemption list. Mass. Regs. Code tit. 321, § 9.01(3) (2004). The animals that have been added to this license-exemption list include boas and pythons, skinks, parrots, hedgehogs, chinchillas, and flying squirrels, among others. § 9.01(8)-(12) . A separate statute allows ferrets as well. Mass. Gen. Laws Ann. ch. 131, §77 (2004). However, bears, tigers, venomous snakes and other more dangerous animals are not on the exemption list, nor are any primates, and these animals will likely never meet the criteria for private ownership in Massachusetts, as outlined in Mass. Regs. Code tit. 321, § 9.01(4).
The California and Massachusetts laws serve as good models of exotic pet bans. Both laws create licensing schemes for wild animal possession, though neither state allows private pet owners to qualify for these licenses. They differ in that the California law enumerates which species are illegal, while the Massachusetts law categorically bans all “undomesticated” pets, and then enumerates the exceptions. Compare Cal. Code Regs . tit. 14 §671(c) (2004) and Mass. Gen. Laws Ann . ch. 131, § 23 (2004). Finally, some states ban some exotic pets while allowing others. Nevada, for example, prohibits private ownership of alligators, foxes, coyotes, and others, while allowing pet elephants, monkeys, wolves, and even yaks. Nev. Admin. Code ch. 503, §110, §140.
b. LICENSING SCHEMES
Some states do not completely ban exotic pets, though they do seek to monitor them within their borders. These states have created licensing schemes to regulate exotic pets by giving the authority to state agencies to issue permits for animals deemed sufficiently safe. These permit schemes can ensure at least some degree of public safety and animal welfare. These regulations go by different names: some states issue “permits,” others issue “licenses,” and others issue “registration certificates,” though there is no practical difference. The Animal Protection Institute counts 14 such states. Summary of State Laws Relating to Private Possession of Exotic Animals , Animal Protection Institute, at http://www.api4animals.org/372g.htm (last revised Oct. 9, 2003). In essence, these schemes create regulatory requirements for captive wildlife within their states, which owners must meet in order to receive a permit. Without a permit, citizens may not possess an exotic pet.
Texas’s exotic pet law states, “A person may not own, harbor, or have custody or control of a dangerous wild animal for any purpose unless the person holds a certificate of registration for that animal issued by an animal registration agency.” Tex. Health & Safety Code § 822.103 (2004). The animal control office with authority over the location at which the animal is kept issues these registration certificates, or, if no such office exists, by the county sheriff. § 822.101. Permits are effective for one year, and can be renewed. § 822.103 .
Registration applications require a number of supporting documents, intended to assure public safety and animal welfare. Applicants must submit a detailed description of the animal “including species, sex, age, if known, and any distinguishing marks or coloration that would aid in the identification of the animal.” § 822.104(b)(2). They must also give the registration agency proof of liability insurance, a color photograph of each animal, a photograph and description of the animals’ enclosure including a scale diagram, and a signed statement by a veterinarian confirming that the vet “inspected each animal being registered not earlier than the 30th day before the date of the filing of the renewal application” and “finds that the care and treatment of each animal by the owner meets or exceeds the standards prescribed under this subchapter.” § 822.104(c)-(d). The law also requires the Texas Board of Health to establish standards for housing, with which registrants must comply. § 822.111(a). These standards should be established in a manner that protects public safety, prevents escape, and “provides a safe, healthy, and humane environment for the animal.” § 822.111(a)(3). Owners are also required to comply with the Animal Welfare Act , and keep a log of the animal’s veterinary care. § 822.112(a)-(b).
In the event of non-compliance with any of these requirements, a registration application should be denied, and in cases of falsification of any of the above documents, the certificate should be revoked. § 822.105 . The animal registration agency is charged with ensuring compliance, and is given the right to inspect facilities at any reasonable time. § 822.108 . If a certificate of registration is denied or revoked, applicants have a statutory right to appeal. § 822.105(c). If the certification is denied or revoked, the individual may not possess the animal, and commits a Class C misdemeanor if he or she continues to have the unregistered animal. § 822.113 . The offender may also be civilly penalized up to $2,000 per animal per day. § 822.114(a).
While states like Texas use permit systems to regulate exotic pets, other states employ them to supplement their bans. For instance, Michigan uses a licensing scheme to regulate those owners exempted from its ban on wolf-dog hybrids and large carnivores. Michigan bans acquisition and possession of wolf-dog hybrids and large carnivores, though it “grandfathered” animals already owned as pets at the time of the laws’ enactments. In order to maintain public safety and animal welfare, the state created a strict permit system for those owners who were allowed to keep their already-existing pets. Mich. Comp. Laws §287.1001-1023 (2004) ; Mich. Comp. Laws §287.1101-1123 (2004).
Owners who possessed a wolf-dog hybrid before June of 2000 are required to meet a number of conditions in order to obtain the necessary permit for their pets. For example, owners must be 21 or older, have no convictions for animal neglect or mistreatment or any felony convictions in the past 10 years, and must be knowledgeable in wolf-dog hybrid care. § 287.1004(4). The animals must also have a subcutaneous microchip implanted for identification purposes. § 287.1005 . Regulations also require that the wolf-dog not be tethered outdoors, nor be allowed to roam free. The housing facility must be locked, secure, “well-braced,” “securely-anchored,” built of specified materials, and of a certain square footage sufficient to protect both the general public and the wolf-dog’s welfare. § 287.1006(1). The regulations even dictate the maximum length of the animal’s leash, six feet. § 287.1006(3)(b).
For large carnivores (lions, leopards, jaguars, tigers, cougars, panthers, cheetahs, and bears), Michigan has identical regulations. No more of these animals may be bought, sold, or transferred, and those owned prior to the law are licensed and heavily regulated for human safety and animal welfare. Mich. Comp. Laws §287.1104 (2004). Each of the wolf-dog permit regulations regarding owners, microchipping, housing, and leashes is the same for large carnivores. § 287.1104(4), §287.1105, § 287.1106(1), § 287.1106(3).
Licensing schemes like those used in Texas and Michigan allow states to regulate exotic pet care in ways that help minimize threats to public safety and animal welfare. Along with the bans discussed above, such schemes are the most common form of regulating exotic pets, though other states have adopted even more permissive captive wildlife laws.
c. OTHER REGULATIONS
Like licensing schemes, other regulations allow exotic pet ownership while prescribing the conditions under which such animals may be kept or imported. Unlike licensing schemes, these other regulations are not as strictly enforced because, while owners are legally obligated to comply with the regulations, they are not forced to go through the permit process, or to prove that their animal is safely housed and humanely treated. These regulations may govern a wide variety of issues regarding animal care, such as limiting the number of animals a person may have, requiring veterinary examinations and inspections, or dictating the specifications for cages and enclosures. This section discusses a few state regulations that are neither full bans nor licensing systems, but that do govern private ownership of exotic pets.
As mentioned, Michigan explicitly bans wolf-dog hybrids, large cats, and bears, though it does not prohibit other exotic pets. It does, however, regulate certain aspects of their importation. The state completely prohibits the importation into the state of “any species having the potential to spread serious diseases or parasites, to cause serious physical harm, or to otherwise endanger native wildlife, human life, livestock, domestic animals, or property.” Mich. Comp. Laws §287.731(1) (2004). For other wild or exotic animals, Michigan regulates various aspects of their importation, such as requiring physical exams by vets, negative disease tests, and proper animal care and restraint. § 287.731.
Other states regulate only the importation of animals across their borders, but do not regulate the pets that are already there. Ohio, for example, allows “nondomestic” animals into the state only if they are “accompanied by a permit issued prior to entry and certificate of veterinary inspection,” are test-negative for infectious diseases and parasites, are in compliance with other state and federal regulations, and were legally residents in the state or country of origin. Ohio Admin. Code §901: 1-17-12 (Anderson 2004). Beyond this, the state of Ohio does not regulate exotic pets. Other states have similar approaches, including Washington ( Wash. Admin. Code §16-54-030 (2004) ) and Idaho ( Idaho Code §36-701, (2004)).
Until recently, West Virginia also had no statewide regulations, but after the 2003 monkeypox outbreak its legislature created an animal health control board to monitor the trade in exotic pets. Wise, supra . Iowa and Wisconsin are now the only states that have no state-wide regulations at all, and leave the entirety of the issue to local governments. Summary of State Laws Relating to Private Possession of Exotic Animals , Animal Protection Institute, at http://www.api4animals.org/372.htm (revised Oct. 9, 2003). The Wisconsin Department of Agriculture, Trade and Consumer Protection, however, spurred by the monkeypox outbreak, is seeking to strengthen existing importation rules to require veterinary inspection and certification for all animals, including exotic pets, imported into the state. Proposed Order of the State of Wisconsin Department of Agriculture, Trade and Consumer Protection Adopting and Amending Rules , Docket No. 02-R-07 at 11-12 (Nov. 13, 2003), available at http://www.datcp.state.wi.us/core/agriculture/animals/pdf/captive_wildlife.pdf (last accessed Aug. 26, 2004). See also Lee Bergquist, State Wants Vets To Inspect More Pets; Proposal Targets Animals Brought From Out Of State , Milwaukee Journal Sentinel (Wisconsin), Jan. 15, 2004, at 01B.
The above illustrates the varying degrees of exotic pet regulations, from complete bans such as those in California and Massachusetts, to licensing schemes like those in Texas and Michigan, to importation restrictions like those in Ohio and Idaho, to the lack of regulations in Iowa and, until recently, Wisconsin and West Virginia. The degree of regulations is the most complex component of exotic pet laws, but a few other components should also be considered. The next section deals with a second crucial issue: to which animals do these regulations apply?
2. ANIMALS COVERED BY REGULATIONS
Independent of the degree of regulation (bans, permits, or other regulations), a second crucial variable is the types of animals covered by statutes. Of course, every state regulates different animals, and they even use different terms to refer to the class of animals being regulated: exotic, dangerous, inherently dangerous, potentially dangerous, wild, non-native, undomesticated.
Almost all states at least enumerate which animals their laws cover, and no states are so vague as to only use an adjective like “exotic” or “dangerous.” Delaware’s law, however, is an example of a more general prohibition: “No person shall bring into this State, possess, sell or exhibit any live wild mammal or hybrid of a wild mammal or live reptile not native to or generally found in Delaware without first securing a permit under this chapter.” Del. Code Ann. tit. 3 § 7201 (2004).
Unlike Delaware’s broad regulation of non-native wild mammals and reptiles, California’s regulations are extremely thorough when it comes to the animals covered. It enumerates a long list of prohibited species by their scientific and common names, including the typical exotic pets like tigers, primates, and wolves, as well as some more obscure animals such as scaly anteaters, stingrays, and pandas, to name just a few. Cal. Code Regs . tit. 14 §671(c) (2004). Most states are closer to California’s approach of enumerating which specific animals are prohibited, rather than the Delaware law’s broadness.
There are several species that consistently appear in state regulations. This may be due to their popularity as pets, their difficult care, and/or their special risk to human health and safety. Most regulations, though certainly not all, apply to at least large cats, wolves, bears, and venomous reptiles. Primates are usually covered, but because they are not as likely to attack, some states ignore them in formulating regulations. See, e.g. , Conn. Gen. Stat. §26-40A (2004).
Current events in a state often dictate which animals are covered by regulations. As was mentioned above, states that were at the heart of the 2003 monkeypox outbreak were far more likely to ban prairie dogs and other rodents. See sec. II, A, supra. Additionally, the state of New York took steps to ban some exotic pets shortly after significant news coverage of an incident in October 2003, in which officials discovered a 400 pound pet tiger and a 3-foot pet caiman in a Harlem man’s apartment. In June 2004, the New York State Senate and Assembly passed bills to ban private possession of tigers and other dangerous animals. S. 7616 and Assemb. 2684, 2004 Leg., Reg. Sess. (N.Y. 2004), available at http://assembly.state.ny.us/leg/?bn=S07616&sh=t, and http://assembly.state.ny.us/leg/?bn=A02684&sh=t (last accessed Aug. 29, 2004). The media’s coverage of exotic pet incidents often stimulates public support for regulations of the specific animals at issue, be they prairie dogs or tigers.
However, unlike those cases in which the public strongly supports regulation, some species are far more controversial. Ferrets, for example, have been a bone of contention in New York City and California, where laws ban their possession. Opponents of the bans argue that ferrets are just as domesticated as cats and dogs, and pose no special health or safety risks. See, e.g., NYCFerrits.com, Ferret Ban F.A.Q.s , at http://www.nycferrets.com/ (last accessed Aug. 27, 2004). At the time of this writing, intense pressure by ferret advocates in California has resulted in the passage of a state senate bill that legalizes those ferrets already owned as pets. Californians for Ferret Legalization, Victory! SB 89 Goes to the Governor (Aug. 24, 2004), at http://www.ferretnews.org/update.html#082404 (last accessed Aug. 27, 2004). As will be discussed in section IV below, constitutional challenges to ferret bans have failed, as courts have affirmed state and local governments’ right to regulate or ban ferret possession. However, most states do not see ferrets as “exotic,” and do allow their possession as pets. See, e.g. , Mass. Gen. Laws Ann. ch. 131, §77 (2004) .
Some states also regulate hybrid animals, those offspring of mating between a domestic animal and its wild counterpart, usually wolves and dogs. Massachusetts, for example, explicitly bans such hybrids. “No person shall possess, sell, trade, breed, import, export or release a wild canid hybrid or wild felid hybrid, except as otherwise provided by rules and regulations of the division.” The statute defines such animals in broad terms as:
Any mammal which is the offspring of the reproduction between any species of wild canid or hybrid wild canid and a domestic dog or hybrid wild canid, or is represented by its owner to be a wolf hybrid, coyote hybrid, coy dog or any other kind of wild canid hybrid, or which is the offspring of the reproduction between any species of wild felid or hybrid wild felid and a domestic cat or hybrid wild felid or is represented by its owner to be a wild felid hybrid.
Mass. Gen. Laws Ann . ch. 131, §77A . Many other states include hybrid animals in their lists of regulated exotic pets. See, e.g. , La. Admin. Code tit. 76, §115 (2004).
As public interest in various exotic pets increases, an unregulated animal may be newly understood to pose a danger. In these instances, regulations may need to be altered to ensure public safety and animal welfare. State statutes usually reserve the authority to list new animals to the director of the state wildlife agency. Colorado regulations, for example, state, “The Wildlife Commission retains the statutory authority and duty to amend these regulations and to impose requirements, restrictions, and/or prohibition on possession of any of the listed species if and when further evidence comes to the Wildlife Commission's attention which makes such amendments appropriate.” 2 Colo. Code Regs . §406-8, ch. 11, #1103B (2004).
In the final analysis, there is no real universality about which animals are prohibited by exotic pet regulations. Interested parties should look to the relevant law itself to determine which animals are or are not permitted within a specific jurisdiction.
3. PUNISHMENT OF THE OFFENDER AND THE FATE OF THE ANIMAL
A third important variable in exotic pet laws is the consequences for violation of the statute, in both human and animal terms. The offending owner may be fined, imprisoned, or deprived of the animal. The animal herself may be confiscated, euthanized, or sent to a safer environment, such as a wildlife sanctuary.
Regarding the human consequences of violating exotic pet regulations, the owner could face a variety of punishments, varying in severity from prison time to fines to pet seizure. At the strictest end, several states consider non-compliance with regulations to be a criminal misdemeanor, punishable in some cases with prison time. See, e.g. , Mich. Comp. Laws §287.1115(1)(a) (2004). Some states fine exotic pet owners who violate regulations. In Texas, for example, offenders face fines of up to $2,000 per animal per day. Tex. Health & Safety Code § 822.114(a) (2004). In addition to (or instead of) imprisonment and fines, most jurisdictions will confiscate animals who are improperly or illegally kept in violation of regulations. Michigan uses all of these forms of punishment:
[A] person who violates this act is guilty of a misdemeanor. The person shall be punished by a fine of not less than $250.00 or more than $1,000.00, plus costs of prosecution. However, a person who fails to obtain a permit as required by this act shall be punished by a fine, for each large carnivore for which the permit was required, of not less than $500.00 or more than $2,000.00, plus costs of prosecution. In addition, a person who violates this act may be punished by 1 or more of the following:
(a) Imprisonment for not more than 93 days.
(b) Community service work for not more than 500 hours.
(c) The loss of privileges to own or possess any animal.
Mich. Comp. Laws §287.1115(1) (2004). Note that this law allows for a complete loss of privileges to own or possess any animals in the future, an important remedy for protecting animal welfare. Michigan also provides for the civil forfeiture of large carnivores owned in violation of the regulations. § 287.1116 . The animal may be returned to the owner once the conditions are corrected and the owner demonstrates compliance with the law. § 287.1118(1).
As will be seen below in section IV , owners have asserted that the confiscation of their pets constitutes a deprivation of property in violation of the due process and takings clauses of the U.S. Constitution. Courts have disagreed, and affirmed agencies’ right to seize animals whose owners have violated exotic pet regulations.
Of course, in cases where the owner has abused the animal or neglected her in inhumane conditions, the owner should also face charges under separate animal cruelty laws.
The fate of animals seized from noncompliant owners can vary significantly. Most statutes put the discretionary authority in the hands of a wildlife director or other official to decide what happens to the animal. For example, Massachusetts’ law states that any animal owned or possessed in violation of the statute “may be seized and shall be disposed of by the director of law enforcement for the best interests of the commonwealth.” Mass. Gen. Laws Ann . ch. 131, § 23 (2004). In many instances, the animals will be euthanized. More humane officials will often try to place confiscated animals in the care of a reputable animal care organization, such as a wildlife sanctuary. Michigan’s law explicitly provides for such placement in sanctuaries or shelters, although it also allows placement in accredited zoos. In cases where the animal has injured or killed a human or another animal, however, the court may order its humane euthanasia. Mich. Comp. Laws §287.1120(4) (2004).
This section has addressed the three most important variables among different exotic pet laws: the degree of regulation (bans, licenses, and other regulations), the types of animals covered, and the human and animal consequences of statutory violations. While the discussion has so far focused on these variables in the context of state exotic pet laws, these variables are also crucial for comparing local laws.
C. LOCAL LAWS
Since local decision-making bodies frequently consist of small boards or councils, rather than the large bi-cameral legislatures of most states, regulations can often be more swiftly enacted at the municipal or county level. Cities and counties are also more subject to the whim of local residents, so regulations frequently come on the heels of attacks on the area’s children or other sensational exotic pet incidents. For example, while Wisconsin has no real statewide exotic pet laws yet, as mentioned above, a slew of local governments have swiftly passed ordinances limiting exotic pet ownership. The city of West Bend, Wisconsin passed an ordinance against exotic pets after a resident was seen walking the streets with a large snake around his neck, and Muskego, Wisconsin created a similar ordinance after a wallaby attack injured two children. Mike Johnson, Thiensville Exotic Pet Ban to Take Effect Soon , Milwaukee Journal Sentinel (Wisconsin), Feb. 19, 2004, at 05B. Because of the responsiveness and malleability of municipal and county governments, animal rights and welfare groups, along with concerned citizens, have begun to seriously target the local level for laws curbing captive wild animal possession. For a list of local ordinances regulating exotic pet ownership, see Ordinances Regulating Private Possession of Exotic Animals , Animal Protection Institute, at http://www.api4animals.org/375.htm (revised Feb. 18, 2004).
The specific details of these local laws vary in the exact same ways that state laws vary. The degree of regulation, the types of animals regulated, and the consequences for violations all differ from locale to locale. Essentially, the entire discussion above regarding the nuances of state regulations is equally applicable to local laws.
1. THE DEGREE OF REGULATIONS
First, the degree of regulation varies from bans to licenses to other regulations at the local level just as it does at the state level. However, based on the ordinances listed at the aforementioned Animal Protection Institute webpage, the vast majority of local laws are prohibitions or bans, probably because cities lack the infrastructure and resources to establish and operate licensing schemes. One such ban was passed in Surry County, North Carolina, where a 14 year-old girl was mauled by her father’s captive tiger. The county realized that “[b]y their very nature, inherently dangerous exotic animals are wild and potentially dangerous, and, as such, do not adjust well to a captive environment.” The county board of commissioners, therefore, banned all “inherently dangerous exotic animals” from the county, and gave current owners a year to get rid of their pets. Surry County , N.C. , Animal Control Ordinance art. VIII (2004), available at http://www.co.surry.nc.us/Commissioners/Ordinances/2004/251.pdf (last accessed Aug. 30, 2004).
Greenville County, South Carolina does not ban exotic pets, but rather uses a permit system. The county requires permit applicants to meet certain animal welfare and public safety assurances:
No permit shall be granted unless the applicant provides satisfactory assurances that said animal(s) is not capable of being returned to its natural environment (in the case of wild animals) and will be provided with sufficient good and wholesome food and water, proper shelter and protection from the weather, veterinary care when needed to prevent suffering, and humane care and treatment, and that the animal(s) will not be cruelly ill treated, tormented, overloaded, overworked or otherwise abused and that adequate protective devices are provided to prevent it from escaping or injuring the public. The applicant shall further specify the duration, method, location, dimensions of any cages, pens or confinement area … No permit shall be issued unless the applicant has complied with all state and federal regulations concerning the possession, display or exhibition of wild or vicious animals. All applicants must be eighteen (18) years of age or older.
Greenville County, S.C., Code§ 4-19(b) (2004), available via http://www.greenvillecounty.org/disclaimer/County_Ordinances_Disclaimer.asp?DirURL=http://www.municode.com/resources/gateway.asp?pid=12026%26sid=40 (last accessed Aug. 30, 2004). Denials or revocations of permits for violations of these welfare and safety concerns may be appealed to the county administrator. § 4-19(c).
These ordinances are just a couple of examples of the numerous local laws regarding exotic pets, though they do a give picture of the varying degrees of regulations, including bans and permit schemes.
2. ANIMALS COVERED BY REGULATIONS
Regarding the types of animals regulated at the local level, some governments enumerate particular animals, while others only generically reference “exotic” or “dangerous” animals. Due to the lack of wildlife infrastructure, in particular biological knowledge, local laws are less likely than state laws to be specific enumerations, and may simply refer to “wild,” “dangerous,” or “exotic” pets. However, the preferred trend, for the sake of effective enforcement, is to list which animals are prohibited.
In 2001, Boulder, Colorado replaced its old, un-enforced ordinance, which simply banned “exotic pets,” with a new ordinance enumerating precisely which animals are prohibited. The ordinance now covers ursids, felids, mustalids, venomous reptiles, procyonides, elephants, marine mammals, hyenas, edentates, viverrids, canids (excluding domestic dogs, wolves, and hybrids), marsupials, ungulates, primates, prosimians, and crocodilians. Boulder , Colo. , Rev. Code tit. 6, ch.1, 6-1-4(b) (2004), available at http://www3.ci.boulder.co.us/cao/brc/6-1.html (last accessed Aug. 30, 2004). After pressure from pet owners, the city abandoned its plans to ban some popular pets, including amphibians, crustaceans, and spiders. Greg Avery, Sorry, Flipper: Boulder Bans Exotic Pets , Scripps Howard News Serv., July 4, 2001.
As already mentioned, local events can also substantially affect which animals are regulated. In Texas and North Carolina, for example, municipal and county regulations of dangerous animals followed in the wake of tiger attacks. See sec. II, B, supra . The Surry County ban mentioned above, which followed a tiger mauling, applies to large cats, wolves, primates, venomous reptiles, and bears. Surry County , N.C. , Animal Control Ordinance art. VIII (2004), available at http://www.co.surry.nc.us/Commissioners/Ordinances/2004/251.pdf (last accessed Aug. 30, 2004).
3. PUNISHMENT OF THE OFFENDER AND THE FATE OF THE ANIMAL
The punishments for violation of local laws vary in the same way that state laws do. Some cities go as far as to authorize prison sentences for violations, while others rely on fines and confiscation to enforce the laws. In Chesapeake, Virginia, which has a permit system, violation of the ordinance resulting in the escape of an animal constitutes a class 2 misdemeanor, and the owner must pay the full costs of locating and subduing the animal. Chesapeake , Va. , Code ch. 10, art. 2, div. 1, § 10-49 (2004), available via http://library9.municode.com/gateway.dll/VA/virginia/2639?f=templates&fn=default.htm&npusername=10529&nppassword=MCC&npac_credentialspresent=true&vid=default (last accessed Aug. 30, 2004). In Toledo, Ohio, where some exotic pets are prohibited, each day of violation constitutes a separate offense of first-degree misdemeanor, and offenders face up to 6 months in prison, and $1,000 fine per offense. Toledo , Ohio , Code ch. 505, § 505.20(b), 501.99(a) (2004). Of course, the success of these local ordinances is generally determined by the desire of local law enforcement to go after violators.
At the local level, the fate of the animal after seizure is usually in the hands of a wildlife or animal control official. This official generally has the discretion to either euthanize the animal or send her to a sanctuary. The Surry County regulation, for example, states, “If the owner cannot be located, or has not claimed the animal within 3 days after taking and impoundment, the Animal Control Officer shall have the discretion to sell, adopt or euthanize the animal.” Surry County , N.C. , Animal Control Ordinance art. VIII § 4(e).
It should also be noted that local laws and state laws can be incongruous. For example, local laws may have stricter penalties, or some animals may be allowed under state law, but banned by the local government. In these instances, the stricter local law controls when it is an otherwise legitimate exercise of police power. Many exotic pet regulations explicitly grant this power to local governments. Michigan law, for example, states, “A local unit may adopt an ordinance governing large carnivores that is more restrictive than this act.” Mich. Comp. Laws §287.1121(1 ). See also , Cal. Code Regs . tit. 14 §671.1(a)(1) (2004). On the other hand, there may be instances in which the doctrine of preemption dictates that a state law trumps the local law.
Of course, owners of captive wildlife are unhappy with these regulations, and have sought to fight them in court. The following section details these attempts to challenge the enforcement and implementation of exotic pet laws.
Disgruntled exotic pet owners whose animals have been seized may challenge these state and local regulations in court. There are two main approaches to such lawsuits. First, owners can challenge the application of the regulation to their particular case, by asserting, for example, that their animal is not actually dangerous, or that the animal does not pose a threat to public health. Second, owners can challenge the legitimacy of the regulation itself, by asserting that the enactment exceeds the power of the state or local legislative body. Such a challenge would assert that the regulation violates constitutional protections such as the equal protection clause, the due process clause, or the takings clause of the U.S. Constitution.
This paper will not discuss the other common law issues regarding exotic pets, though they erve a brief mention. Some of these other issues, which vary from state to state, are what type of liability applies in tort cases (negligence or strict liability), the legitimacy of exotic pet zoning, and exotic pets in the context of property transactions and restrictive covenants. See, e.g. , Harper v. Robinson , 589 S.E.2d 295 (Ga. Ct. App. 2003) (dismissing strict liability claim because plaintiff’s pet was, in fact, a dog, and not a ferae naturae wolf); Bd. of Comm’rs of Roane County v. Parker , 88 S.W.3d 916 (Tenn. Ct. App. 2002) (upholding county decision not to rezone plaintiff’s land for exotic animals); Cavaliere v. Skelton , 40 S.W.3d 844 (Ark. Ct. App. 2001) (enforcing a restrictive covenant prohibiting possession of non-household pets against subdivision residents who kept Bengal tigers). Rather than deal with these issues, this section will focus on cases regarding the actual regulatory statutes themselves, specifically challenges to the enforcement of these laws, and challenges to their constitutionality.
A. CHALLENGING ENFORCEMENT
Exotic pet owners who have had their animals seized by animal control or by the state wildlife department may challenge the agency’s application of the regulation to their specific case by arguing that their pet is not a nuisance. However, courts are extremely deferential towards administrative determinations, and are very unlikely to reverse in favor of the pet owner.
In Summit County Board of Health v. Pearson , an Ohio court of appeals held that the administrative body’s determination of a public nuisance resulting from unsanitary confinement of exotic pets was not arbitrary and capricious, and was “supported by a preponderance of reliable, probative and substantial evidence.” Summit County Board of Health v. Pearson , 809 N.E.2d 80 (Ohio Ct. App. 2004). The Pearsons, owners of 44 large cats, 16 black bears, and a host of other exotic pets, challenged the Summit County Board of Health’s conclusion after an administrative hearing that the pets constituted a nuisance. The court, in affirming the Board’s decision, found that evidence of poor waste disposal and poor food storage was sufficiently substantial to make the decision neither arbitrary, nor capricious. Also among the evidence, the court cited a lack of veterinary care and vaccinations, standing wastewater, inadequate cleaning of urine, severe odors, and unsafe animal housing and transportation posing a threat to humans. This case demonstrates the deference given to agency decisions regarding nuisances, and also outlines the “arbitrary and capricious” standard of review commonly applied to such administrative determinations.
Owners might also challenge the relevance of the statute’s intent in the case of their particular animal. For example, a reptile owner might argue that her lizard does not carry salmonella, or a tiger owner might argue that her pet poses no threat of attacking. However, courts are hesitant to get into the business of second-guessing the application of the enactment. In Flikshtein v. City of New York , the New York appeals court held that the dangerousness or viciousness of plaintiff’s pet monkey was irrelevant, and that the city could remove the monkey regardless of its benevolent behavior. Flickshtein v. City of New York , 710 N.Y.S.2d 112 (App. Div. 2000). The City Health Code unambiguously prohibited the keeping of a monkey as a pet, and the court refused to construe an exception for harmless pets . New York City , N.Y. , Rules of the City of New York , tit. 24, § 161.01 (2000). This case demonstrates the hesitancy of courts to become second-order administrators of exotic pet regulations. Courts lack both the resources and the expertise to determine the substantive issue of a pet’s dangerousness, and are thus likely to leave the question to the agency charged with enforcing the regulation.
As Pearson and Flikshtein show, challenges to the enforcement of exotic pet regulations usually fail because of the deference given to administrative agencies. Absent a showing of arbitrary and capricious agency action, courts rarely find in favor of pet owners on enforcement challenges. Owners, then, might also challenge the constitutionality of the regulation itself, as the next section discusses.
B. CHALLENGING REGULATIONS
Failing a challenge to the administrative agency’s enforcement of the regulation, a pet owner might also challenge the legislative body’s authority to pass such a regulation in the first place. Since most regulations are enacted pursuant to the state and local police power to regulate for the general welfare, they are usually only challengeable based on constitutional protections afforded to all U.S. citizens. Police power is plenary, which means that a state may regulate anything it wishes for the general welfare. (For more on police power as it relates to dogs, click here .)
However, the Constitution limits the states’ regulatory powers by affirmatively granting rights at various places in its text, most importantly in the Bill of Rights and other amendments. Specifically, the 14 th amendment prohibits the states from denying equal protection of the law to anyone within their jurisdictions. U.S. Const. amend. XIV, § 1. As will be discussed in more detail below, several exotic pet owners have asserted that the disparity between exotic pet laws and dangerous dog laws denies equal protection to the class of exotic pet owners. To date, no court has agreed with this assessment. A second relevant constitutional protection, also discussed in detail below, is that of due process, which prohibits the states from depriving “any person of life, liberty, or property, without due process of law.” U.S. Const. amend. V; XIV, § 1. This protection essentially requires certain procedural steps prior to deprivation, and provides at least some substantive rights. In the context of exotic pet regulations, some owners have asserted that the seizure of their animals occurred in a manner that denied them sufficient notice and an opportunity to be heard. As with equal protection challenges, these due process challenges have been unsuccessful. A third clause used to challenge exotic pet regulations is the takings clause of the 5th amendment. The clause states: “nor shall private property be taken for public use, without just compensation.” U.S. Const. amend. V. Exotic pet owners have argued that the passage of such regulations takes their property, and that they are entitled to compensation for their lost pets. Courts have generally found exotic pet laws to be regulations, not takings, since they are enacted under the legitimate right of governments to legislate for the general welfare, and therefore no compensation is owed.
1. EQUAL PROTECTION
The equal protection clause of the 14 th amendment prevents the states from passing discriminatory laws. However, all laws discriminate in some sense, since they divide the governed into distinct classes. The basic criminal prohibition against murder discriminates against murderers. Since legal discrimination is, in this sense, inevitable, the Supreme Court has created a three-tiered review standard, whereby the egregiousness of the classification determines the strictness of the review.
Classifications based on characteristics that are seen as irrelevant and immutable, such as race, are given strict scrutiny. For strict scrutiny, the government must be pursuing some compelling purpose, and the law must be narrowly tailored to that purpose. See, e.g., Loving v. Virginia , 388 U.S. 1 (1967) (holding that lines drawn along racial boundaries deserve strict scrutiny).
Classifications based on characteristics that are only occasionally relevant, such as gender, are given intermediate scrutiny. For intermediate scrutiny, the government must be pursuing some important purpose, and the law must be substantially related to that purpose. See, e.g. , Craig v. Boren , 429 U.S. 190 (1976) (holding that classifications based on gender must be substantially related to an important government interest).
Classifications based on characteristics that are legally relevant, such as the murder example, are given rationality review, the lowest level of review. For rationality review, the government must be pursuing some legitimate purpose, and the classification must be rationally related to that purpose. With rationality review, the fit between the end (or the purpose of the law) and the means (the law itself) can be rather loose. Courts are willing to tolerate greater levels of over-inclusiveness and under-inclusiveness with categories that are less offensive. Courts are sympathetic to the argument that categorizations are necessary to efficient governing.
Exotic pet owners have argued that regulations unfairly discriminate against them compared to other pet owners, and have challenged these regulations as violations of the 14 th amendment. However, since exotic pet ownership is not an immutable characteristic, nor is it a “suspect classification” (as race or gender classifications are), these regulations receive rationality review. The state or locale will win, so long as it can demonstrate a legitimate state interest, and a rational relationship between the regulation and that interest. Since courts recognize public health and safety as legitimate government interests, and since exotic pet regulations are rationally related to securing the public health and safety, owners have lost all such equal protection challenges.
In Wright v. Fish and Game Commission , an unpublished California appeals court case, the court upheld the Fish and Game Commission’s ferret ban against an equal protection challenge from a ferret owner. Wright v. Fish and Game Commission , No. D040685, 2003 Cal. App. Unpub. LEXIS 8091 (Cal. Ct. App. Aug. 26, 2003). The owner argued that the ban discriminated between ferret owners and owners of other companion animals, in violation of the California Constitution’s equal protection provision. However, the court found that the ban was rationally related to the legitimate state interests in protecting human safety from attacks and from rabies, and in protecting wildlife from feral ferret colonies.
Regarding the human safety interest, the court noted a 1988 report on pet ferrets by the Department of Health Services that documented 452 ferret attacks over a ten-year period. The court cited some of the more gruesome descriptions from the report: “‘ferrets sometimes unleash frenzied, rapid-fire bite and slash attacks on infants, usually on their heads and throats, and sometimes inflict hundreds of bites. The animals have been reported to then drink the victim's blood and eat the shredded tissues.’ In some cases, the bites left ‘macerated tissues that resembled bloody ground beef.’ In several cases, ferrets had eaten all or part of the victims’ ears. One 29-day-old infant lost her entire nose, most of her eyelids, lips, and other facial tissues, and her hands were also chewed.” Id . at *6. The court also noted a human health concern regarding rabies in ferrets. Id . at *7. In recognizing a legitimate wildlife concern, the court cited a 1995 recommendation to keep ferrets illegal by the chief of the wildlife management division of the Department of Fish and Game, since ferrets would prey on “small mammals, ground nesting birds, and waterfowl.” Id . at *9.
These legitimate state interests (human health, human safety, and wildlife conservation) were all rationally related to the law that banned pet ferrets, and thus the equal protection claim failed. Id . at *18-20. Despite testimony indicating that dogs are more likely than ferrets to bite humans or carry rabies, that there have been no confirmed cases of rabies contracted from a ferret, and that domesticated ferrets cannot survive in the wild, the court still found the health, safety and wildlife interests to be rationally related to the ban. Id . at *9, 13. In rationality review, the regulation need not be perfect, or even a good idea. The court need only find “any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id . at *16. For an almost identical ferret case in New York federal district court, with similar legal reasoning on the equal protection issue, see New York City Friends of Ferrets v. City of New York , 876 F. Supp. 529 (S.D.N.Y. 1995) (finding a rational relationship between the City’s ferret ban and the legitimate legislative interest in public safety).
Just as the plaintiffs in Wright and New York City Friends of Ferrets challenged ferret bans, Gerald and Heidi Rhoades asserted that their city’s ordinance prohibiting exotic pets, including their pet serval, caiman, and cougars, violated the equal protection clause. Rhoades , 63 P.3d at 147. They made two distinct equal protection claims, neither of which succeeded. First, they argued that the ordinance treated city residents differently from residents living on land that might later be annexed by the city, since the latter class would be allowed to keep their exotic pets. Second, the Rhoadeses argued that the ordinance treated exotic pet owners differently from owners of dangerous dogs, because dangerous dogs were allowed under a licensing scheme while exotic pets were not. Id . at 146. Since the Rhoadeses were not part of a suspect class and were not seeking defense of a fundamental right, the court employed rationality review for both equal protection claims. Id . at 146.
Regarding the first claim, that future annexed city residents would receive preferential treatment because they would be allowed to keep their pets, the court found the issue not yet ripe for judicial review since the future residents were not under the jurisdiction of the city. The court reasoned that there was no justiciable controversy since there had not yet been any disparate treatment. Id . at 147.
In addressing the Rhoades’ second claim, that dangerous dog owners received preferential treatment over exotic pet owners, the court held that the city could rationally consider exotic pets to be more of a concern than dangerous dogs. Id . at 147-48. The court found it of no consequence that the state Supreme Court had stated in an earlier opinion that “a vicious dog and a wild animal are equally dangerous.” Frobig v. Gordon , 881 P.2d 226, 229 (Wash. 1994). The local city government was not bound by the Supreme Court’s opinion in exercising its police power and in making judgments about public safety. Rhoades , 63 P.3d at 148. The Washington state constitution only required that local exercises of police power not conflict with the general laws. Id . at 148. Based on the opinion of a veterinarian, the court found that the city had sufficient reason to ban exotic pets while licensing dangerous dogs. Id . at 148. The equal protection challenge failed on the dangerous dog issue just as it failed on the future residents issue.
Besides being challenged for discriminating between classifications of exotic pet owners and domestic pet owners, regulations have also been challenged for discriminating between private pet ownership and other possessions of wild animals for research and educational purposes. In Kent v. Polk County Board of Supervisors , the Iowa Supreme Court held that a county ordinance regulating possession of dangerous and vicious animals did not violate equal protection. Kent v. Polk County Board of Supervisors , 391 N.W.2d 220 (Iowa 1986). The county ordinance banned the possession of dangerous animals as pets, but contained exemptions for their use in research, education, and reproduction. Id . at 221. The ordinance also exempted zoos, humane societies, education or medical institutions, circuses, carnivals, animal hospitals, wildlife rescue organizations, licensed game breeders, and the federal, state, or county governments. Id . at 222.
In Kent, a lion owner, argued that banning dangerous animals as pets, while allowing their possession for research, education, reproduction (as well as for circuses and zoos), discriminated against pet owners in violation of the equal protection clause of the 14 th amendment. Id . at 224. As the respective courts did in Wright , New York City Friends of Ferrets , and Rhoades , the Iowa Supreme Court employed the rational relationship test in evaluating Kent’s claim, holding that the county interest in public health and safety was sufficiently related to the ban on keeping dangerous animals as pets. Id . at 224-25.
The court also held that it was rational for the county to determine that the purported benefits derived from the use of animals for research, education, and reproduction (and presumably for circuses and zoos) outweighed the public safety concerns, thereby warranting the ordinance’s exceptions. Id . at 225.
While each of these cases argued against the exotic pet regulations under the equal protection clause of the 14 th amendment, the amendment also contains another clause utilized in suits over such regulations: the due process clause.
2. DUE PROCESS
As well as requiring the states to provide equal protection of the laws, the 14 th amendment also states that no “State [shall] deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The clause has been interpreted to essentially provide two separate protections: a substantive protection as well as a procedural one. Substantive due process refers to fundamental liberty interests which the government may only deprive a citizen of under limited circumstances.
Procedural due process refers to the necessary processes that the government must go through before depriving a person of life, liberty, or property. Both of these protections have been utilized in fighting exotic pet regulations. Procedural due process outlines the procedures that the government must go through prior to depriving a person of her life, liberty, or property. The basic requirements of due process are notice (meaning that an individual must be notified before deprivation), and an opportunity to be heard (at which the individual may give her side of the story). Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 542 (1985). A hearing of some sort is generally required before deprivation of life, liberty, or property. Mathews v. Eldridge , 424 U.S. 319, 333 (1976). Due process only becomes an issue when what has been taken away falls into the category of life, liberty, or property. If the government deprives a citizen of something that is not their property then there is no due process issue to begin with.
In the context of exotic pet regulations, owners have contended that the seizure of their pets constituted a deprivation of property without sufficient notice or opportunity to be heard, thus violating the due process clause. In responding to these claims states have generally made two major arguments. First, they may argue that under state common law the animal was not the individual’s property, as was the case in a Florida case discussed below. Second, they may argue in the alternative that even if the animal was the individual’s property, sufficient process was given to justify deprivation of that property.
Florida v. Butler is an instance of this first argument, in which the state won because the court found no property interest requiring due process. Florida v. Butler , 587 So. 2d 1391 (Fla. Ct. App. 1991) Butler’s two pet alligators were seized by the Florida Game and Fresh Water Fish Commission after they were discovered sleeping in his bed at his mobile home, one having already bit him. Id . at 1391-92. Butler argued that, despite the fact that he did not have the required permit, the alligators should be returned to him since he received no pre-deprivation hearing prior to the seizure of the animals. Id . at 1392. The court disagreed, and held that the lack of a hearing prior to the seizure of the alligators for lack of a permit did not violate the due process clause of the Constitution. Id . at 1393. The court determined that Butler’s mere possession of the alligators did not confer a property interest in the animals, and cited a common-law principle and an administrative code that vested title to all wild animals in the state of Florida. Id . at 1392. Since the state owned title to all wildlife, and since Butler did not have the required permit to possess the alligators, there was no protected property interest requiring due process. Id . at 1392-93.
In instances in which individuals do have legitimate property interests in their exotic pets, states have won due process challenges by demonstrating that the depravation process was sufficient, consisting of notice and an opportunity to be heard. Loudermill , 470 U.S. at 542. In Rhoades , the Washington case discussed above, the owners argued that the Battle Ground city ordinance violated due process since it did not provide sufficient notice prior to the impounding and destruction of exotic pets. Rhoades , 63 P.3d at 149. The City responded, and the court agreed, that the ordinance provides a “notice of violation” 30 days prior to the impounding. Owners may also appeal this notice in municipal court for judicial review, and impoundment is stayed pending the appeal, allowing the animal to remain with the owner. Id . at 150. The court found this to be sufficient process to not violate the 14 th amendment.
While procedural due process is concerned with the pre-deprivation procedure afforded to citizens, substantive due process is concerned with a citizen’s liberty interests, which the state may not arbitrarily take away. In the exotic pet context, owners have asserted liberty and property interests in keeping their pets. However, courts have reasoned in a fashion almost identical to that used in the equal protection challenges. They have held that deprivations of these interests are legitimate when done in accordance with the state’s exercise of its police power. Essentially the courts have said that as long as the state is acting in pursuance of public safety, these liberty and property deprivations are not due process violations.
In New York City Friends of Ferrets , ferret owners argued that the seizure and euthanasia of biting ferrets deprived them of their property without due process of law. The court disagreed, holding that state exercises of police power that deprived persons of property were only subject to the same rationality review discussed above in the equal protection context. The court found a rational relationship between the increased risk of diseases and the mandatory seizure and euthanasia of biting pet ferrets. New York City Friends of Ferrets , 876 F. Supp. at 534-35.
Similarly, in Kent , the court also held that the rational nexus between the exotic pet ban and public safety was sufficient to not violate Kent’s substantive due process rights, despite the fact that Kent was technically deprived of his property since he owned the lion prior to the enactment of the ordinance. Kent , 391 N.W.2d at 225-26. On the procedural due process issue, the court determined that Kent had both notice and an opportunity to be heard. Id . Kent was provided notice that the ordinance was in effect and was ordered to either apply for a permit or place his lion in the control of a group authorized to have the animal, such as a sanctuary or educational institution. His permit request was denied. Id . at 221. The court failed to elaborate on exactly when Kent had an opportunity to be heard, though presumably his application for a permit to keep the lion constituted that opportunity. Ultimately, the court rejected Kent’s due process claim on both the substantive and procedural levels. Id . at 226.
These cases demonstrate the difficulty of winning a due process claim for deprivation of an exotic pet. First, the individual may not even have a legitimate property interest in the wild animal in states like Florida. Second, as long as the state acted in the interest of public safety in implementing the exotic pet regulation, substantive due process claims will fail since the state may deprive an individual of liberty and property when acting pursuant to its police power. Third, as long as the exotic pet regulation provides sufficient notice to owners and allows them a legal appeal of the administrative determination, procedural due process claims will fail, too.
While due process primarily deals with the procedural hurdles the government must go through prior to depriving someone of property, the takings clause of the 5 th Amendment (also referred to as eminent domain) requires that the government give just compensation when appropriating a person’s private property for public use. U.S. Const. amend. V. This clause is usually at issue in land use disputes, when a government might, for example, appropriate someone’s land to build a freeway, or when the government zones lands for particular uses only. In takings cases, the essential question is whether the law is merely a regulation, and therefore a legitimate exercise of police power, or whether the law actually constitutes a taking, requiring compensation. General regulations that devalue property are not necessarily takings.
In the exotic pet context, some owners have argued that regulations depriving them of their pets constitute a taking of their animal for the public welfare, and that they should receive just compensation for their loss. Just as in equal protection and due process challenges, courts have sided with the state or municipality, and have not seen these regulations as takings requiring compensation.
In Kent , the lion owner asserted that the passage of the regulation constituted a taking of the animal, and that he deserved compensation for the loss of his beloved pet. Kent , 391 N.W.2d at 226. The court sympathized with his loss, but held that he did not deserve compensation because the seizure of the animal was merely a regulation and not a taking. Id . at 227. The court recognized that some regulations may go so far as to actually constitute takings, when the state exceeds its police power. Id . at 226. This, however, was not such an instance, since “the societal benefit arising from this regulation outweighs the burden on Kent.” Id . The court also reasoned that the property was not “taken” from Kent, since he was free to keep the animal and leave town. Id . Ultimately, the court held that the exotic pet ban was a legitimate regulation pursuant to the local police power to regulate for the general welfare, and not a taking requiring just compensation. Id . at 227.
Similarly, in Rhoades , the owners argued, as Kent did, that the seizure of their animals constituted a taking for public use. Rhoades , 63 P.3d at 152. The court disagreed. It outlined a dual threshold test used to determine whether a regulation constitutes a taking. It first asked whether the regulation was a “total taking,” such that it denied the Rhoadeses a “fundamental attribute of ownership.” Id . Since the Rhoadeses were free to keep the animals and leave town, the court held that they did not satisfy this first prong of the takings test. “There can be no total takings when there is a way to save the property.” Id . Had this been a total taking, then the Rhoadeses would have been entitled to compensation, but since it was not, the court went on to the second prong. It asked whether the regulation was meant to prevent a public harm or to confer an affirmative public benefit. Id . Had it been the latter, the Rhoadeses would have been entitled to compensation. But since the animals posed a direct threat to public safety, the court concluded that the Rhoadeses failed the second prong of the test, since the regulations were meant to prevent a public harm, rather than to confer a public benefit. Id . at 152-53.
Like the Iowa Supreme Court in Kent , the Washington Court of Appeals reasoned that since the owners had the option of keeping the animal and leaving town, and since the regulation was passed for the public welfare pursuant to the legislative police power, the seizures were not a taking requiring just compensation under the 5 th Amendment.
Taken together, these cases demonstrate the difficulty of challenging exotic pet regulations as unconstitutional. Courts generally find such regulations to be consistent with the equal protection, due process, and takings clauses. As long as regulations are passed for public safety reasons, courts find them legitimate exercises of state or local police power.
Unfortunately, as the trade in exotic pets grows, we can expect more abused animals, more maulings, and more disease outbreaks. With sufficient prodding from animal rights groups and concerned citizens, state and local governments can be responsive to these tragedies and continue to prohibit, or at least limit, captive wildlife ownership. The Animal Protection Institute has begun this important work and offers model legislation for states and local governments. Model State Legislation , Animal Protection Institute, at http://www.api4animals.org/1002.htm (revised Aug. 21, 2003); Model Ordinance , Animal Protection Institute, at http://www.api4animals.org/376.htm (revised Aug. 21, 2003).
State and local governments have already received the go-ahead from the judiciary, since courts have almost universally upheld the validity and constitutionality of exotic pet regulations. The responsibility therefore falls upon legislatures to enact stricter laws, and upon executive agencies to vigilantly enforce those laws that already exist.
Legislatures should follow states like California and counties like Surry County in establishing complete bans of captive wildlife. Permitting systems, while a step in the right direction, fail to grasp the fact that most of these animals are inherently dangerous, and require extraordinary care to live a bearable life. As such, the establishment of standards and guidelines is insufficient to guarantee either animal welfare or public safety.
States should adopt a precautionary principle regarding which animals to ban, whereby all wild animals are presumptively unsuitable for private ownership or possession. Specific animals should be enumerated to prevent any confusion in implementation.
Exotic pet laws should also model Michigan’s practice of prohibiting any future animal ownership by individuals violating exotic pet laws. Most offenders have demonstrated their inability to responsibly care for animals. Regulations should also encourage the prompt placement of seized animals in accredited sanctuaries, and should avoid euthanizing the animals, except under rare circumstances. Most of these animals have already lead miserable lives, and deserve experienced and humane care by trained professionals in a natural habitat.
In addition to this legislative burden, it is of utmost importance that state wildlife agencies and local police and animal control enforce existing laws. The practice of keeping captive wildlife is, in itself, a form of animal neglect at best, and animal cruelty at worst. A high priority should be given to preventing this animal abuse and ensuring that other species do not suffer at the hands of their captors. The lobbying work of animal rights groups and the will of legislatures are worthless if executive agencies and departments are not willing to enforce their laws.
In the end, the trade in captive wildlife will likely continue until people realize that wildness is not something that can be confined or owned. Until then, state and local laws can help prevent these abuses, and may even help foster among their citizens the understanding that animals exist for their own sake, not merely to be possessed as “pets."