West Virginia has no law that restricts or otherwise mentions great apes. In fact, West Virginia does not even have a state endangered species provision providing additional state protection for endangered or threatened species. The state allows a person to keep a “wild animal” in captivity for a fee of two dollars, but that provision applies only to native West Virginia species. Additionally, it is unlikely that the state law requiring individuals to obtain a permit for a roadside menagerie would apply to non-native species. In early 2012, legislators passed a bill that would have defined exotic animals and required possessors to obtain a license to possess them, but this was vetoed by the state’s governor.
The only law to address great apes because it covers all animals is the state’s anti-cruelty provision. W. Va. Code, § 61-8-19. The law does except the humane use of animals or activities regulated under the Animal Welfare Act (7 U.S.C. § 2131, et seq.), and the law’s accompanying regulations. This would include scientific research and animal exhibitors licensed under the AWA.
II. How Different Use of Great Apes are Affected by Law
West Virginia has no law that restricts possession or use of a great ape by any person or entity. Typical uses of apes in the U.S. include private possession, (e.g., as a “pet”), at a traditional or roadside zoo, at a sanctuary, or for scientific research purposes. Since some West Virginia administrative regulations could be interpreted to apply to great apes, the listed uses are examined individually.
A. Private Possession of Great Apes
There are no limitations on possessing great apes as pets in the state of West Virginia. No law or regulation regulates possession or even mentions great apes, non-human primates, or non-native exotic mammals.
B. Possession by Roadside and Traditional Zoos (Class C USDA Licensees)
There are no limitations on possessing great apes as in traditional or roadside zoos in the state of West Virginia. The only question is whether a person would have to obtain a “menagerie permit” for a roadside zoo.
West Virginia requires a person to obtain a permit “for the keeping and maintaining in captivity of wild animals, wild birds, amphibians or reptiles as a roadside menagerie." W. Va. Code, § 20-2-52. Under the law, animals must have been purchased from a licensed commercial dealer or other legal source and “[t]he director is satisfied that provisions for housing and care of wildlife to be kept in captivity and for the protection of the public are proper and adequate.” The fee for the permit is $25.
It is unclear, however, if this permit would apply to exotic or non-native species. The law uses the phrase “wild animal.” That term actually is defined in Chapter 20 as ". . .all mammals native to the State of West Virginia occurring either in a natural state or in captivity, except house mice or rats." W. Va. Code, § 20-1-2. This would, of course, exclude all species of great apes.
The menagerie law then uses the term “wildlife” later in the law:
“Wildlife” means wild birds, wild animals, game and fur-bearing animals, fish (including minnows,) reptiles, amphibians, mollusks, crustaceans and all forms of aquatic life used as fish bait, whether dead or alive.
W. Va. Code, § 20-1-2. It is assumed that “wild animals” in that definition refers back to the statutory definition thereby excluding non-native species. Using common rules of statutory interpretation, it is assumed that a menagerie permit is not required for non-native species.
West Virginia does not have any laws relating to animal sanctuaries or wildlife rehabilitation. Most likely anyone could establish a sanctuary and possess apes. There are no laws or regulations requiring a permit or governing the care of any non-native species in captivity.
D. Scientific Testing and Research Facilities
West Virginia excludes activities regulated under the federal Animal Welfare Act from its cruelty law (see W. Va. Code, § 61-8-19). Additionally, great apes are likely excluded from the reach of W. Va. Code, § 20-2-50, a law requiring individuals to obtain a permit to take or maintain wildlife in captivity for scientific purposes. Relying on Chapter 20’s definition for wildlife, discussed in Section IIB above, this term would exclude exotic species. The overall intent of the law appears the protection of native fauna.
While Great Apes are not normally used in chemical testing, in a few states they are still part of scientific research that would be exempt under state anti-cruelty laws.
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III. State Laws Affecting Great Apes in West Virginia
West Virginia does not address the possession, importation, or captive care of apes in any laws or administrative regulations. Permits are only required to hold in captivity native West Virginia species according to the Natural Resources Code’s definitions. The only inclusion of apes would be the state’s general anti-cruelty provision. Under the cruelty law, it is a misdemeanor to intentionally, knowingly or recklessly mistreat an animal in a cruel manner, abandon an animal, withhold food, shelter or proper sustenance, and bait or harass an animal for the purpose of making it perform for a person's amusement. W. Va. Code, § 61-8-19(a)(1). A person who intentionally tortures, or mutilates or maliciously kills an animal, or causes another to do so, is guilty of a felony. W. Va. Code, § 61-8-19(b). The law also provides enhanced penalty provisions for subsequent offenses of cruelty. Notably, the law exempts certain practices such as the humane use of animals or activities regulated under the provisions of the Animal Welfare Act (7 U.S.C. § 2131, et seq.) and its promulgated regulations. This would then exempt medical research with animals permitted under the AWA and activities by licensed animal exhibitors.
West Virginia is devoid of any mention of great apes, or primates in general, it its laws or regulations. It can safely be said that possession by any person, whether the use is for a private pet, to display in an animal act, or for breeding would be legal (unless prohibited by federal law or local ordinance). Interestingly, in early 2012, Gov. Earl Ray Tomblin vetoedSB 477, a bill that would have directed the West Virginia Division of Natural Resources to establish permit requirements for persons who possess, breed, and sell exotic animals. The bill additionally required the DNR to define exotic animals, mandated owners keeping these animals to maintain liability insurance, established a license fee, and allowed confiscation of exotic animal kept in contravention to the law. Until another bill is passed and signed in West Virginia, possession of apes remains unfettered.