GPSOLO July/August 2009
Exotic Animals as Pets
According to the 2007-2008 National Pet Owners Survey, about 63 percent of all households in America, or about 71.1 millions homes, have at least one pet, including cats, dogs, birds, fish, reptiles, hamsters, guinea pigs, and other common animals. But there is also a brisk trade in “exotic pets” such as giraffes, monkeys, zebras, lions, tigers, chimpanzees, and yes, bears. The Humane Society of the United States estimates that billions of wild animals are brought into this country each year, many of them bound for the exotic pet market. Experts believe the exotic pet trade is a booming business, ranging from $10 billion to $15 billion a year in this country alone.
Although the idea of owning an exotic pet may be appealing to some, these situations often result in problems for the owners of such animals, or their neighbors, and present significant concerns for the animals themselves. Owners, breeders, and sellers of exotic animals need to be aware of applicable federal, state, and local laws. Breeders and sellers importing animals must comply with federal legislation, not only relating to importation, but also for maintaining adequate living facilities for the animals. Owners are likewise responsible for the conditions in which the animals live, as well as the safety of their neighbors. The most well known legal concerns arise when an exotic animal injures someone. For example, news reports have focused on the problem of chimpanzees as pets after a recent mauling in Connecticut resulted in significant physical harm to a friend of the owner and subsequent death of the animal.
The legal issues relating to the exotic pet trade require balancing the property interests of owners, breeders, and sellers with the governments’ police power to regulate nuisance and to protect public health and safety. Not only can individuals be injured by exotic animals, but public health at large can be compromised by diseases brought to a community by non-native species, such as the monkeypox outbreak stemming from pet prairie dogs in Wisconsin in 2003. The environment is also at risk. To see the harm that can be done to an ecosystem by releasing non-native animals, one only has to search the Internet for “pythons” and “Everglades.”
Finally, the animals themselves are in significant jeopardy as they are often sold to individuals without the capacity to provide appropriate food, medical care, or habitat. This combination of risk factors often leads to legal concerns. In addressing the legal concerns related to the exotic pet trade, a practitioner must be aware of the relevant federal, state, and local regulation.
The first place to look for regulations applicable to exotic pets is at the local level—the city, town, or county ordinances, especially zoning ordinances regulating real property to ensure public health and safety and to combat nuisance. Sometimes health departments have regulations in addition to the city laws. Should these ordinances be hard to find, a local humane society, animal shelter, or veterinarian may have advice as they are often involved with the consequences of exotic pet ownership.
This will usually be the level where the most restrictive laws have been enacted, but the degree of regulation, the types of animals regulated, and the consequences for violations all differ widely from locale to locale.
The next step is to check for state regulations. A good source of information on this type of regulation is the state’s department of wildlife or natural resources department.
Exotic pet regulations also vary widely from state to state. Where some states have a complete ban on exotic pets, others require permits for their possession, and some states have no regulations whatsoever. The definition of what constitutes an exotic pet will also vary widely.
In jurisdictions with licensing schemes, individuals must obtain a permit, usually from the state fish and wildlife department, prior to owning an exotic pet. Other states regulate (but do not ban or license) the possession of exotics, limiting the quantity of animals an individual may have or setting standards for importation and animal care.
The next step is to check federal legislation. The animal in question may require a license by the U.S. Department of Agriculture (USDA). Other agencies such as the U.S. Fish and Wildlife Service (FWS) and the U.S. Department of Agriculture’s Animal and Plant Health Inspection Services (APHIS) may oversee the import and export of animals that are sold as exotic pets. Federal law affects breeders and sellers of exotic animals more than owners of exotic pets.
The reach of federal regulation is far broader than the state and local level regulations but is limited to regulating the ownership, transportation, exhibition, importation, and exportation of captive wild animals through interstate commerce and foreign policy. Because the federal government does not have a general police power, most regulations occur at the state and local levels, where police power does allow for general regulations for the public welfare.
When presented with a case involving an exotic animal, one of the first questions to consider is whether the animal arrived in the United States legally. To answer this question, a lawyer needs to know if the animal is covered by the Endangered Species Act (ESA).
The ESA is a broad regulatory regime under which more than 1,000 species of animals and plants are officially listed as endangered or threatened in the United States. With limited exceptions, none of these animals may be imported or exported either alive, as parts or products, or as hunting trophies.
Generally, an importer/exporter must use one of the FWS designated ports, and the shipment must be declared through a FWS Form 3-177 (Declaration for Importation or Exportation of Fish or Wildlife) and receive clearance. In most cases, the importer/exporter also must be licensed through the FWS and pay certain fees with each shipment.
U.S.-based shipments do not have to be declared through FWS; however, the shipment must comply with foreign wildlife laws, and live wildlife must be transported humanely. A person who ships certain species (such as those listed as endangered and threatened species, migratory birds, marine mammals, or injurious species) may not be transported through the United States. There are some exceptions for those who engage in conservation of endangered and threatened species.
The APHIS, the U.S. Customs and Border Protection, the U.S. Public Health Service, the U.S. Food and Drug Administration, and the National Marine Fisheries Service also regulate the importation and exportation of wildlife and may impose additional requirements.
If the animal in question came from abroad, the importer may have needed to comply with the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). CITES is a multinational agreement to regulate trade in endangered or threatened plant and animal species to protect the survival of wild populations. CITES is implemented pursuant to the ESA.
Some states may also impose requirements. A practitioner should contact the state fish and wildlife agency about any state-level requirements or restrictions of importation, exportation, and transportation of wildlife.
The next question to consider is whether ownership of the animal is regulated by federal law and subject to additional conditions on its treatment and care. Relevant laws include the ESA, the Captive Wildlife Safety Act (CWSA), and the Animal Welfare Act (AWA). There are no federal laws that regulate or prohibit keeping exotic animals as pets.
The ESA (7 U.S.C. § 136, 16 U.S.C. § 1531 et seq.) prohibits a person from possessing, selling, delivering, carrying, transporting, importing, exporting, or shipping, by any means whatsoever, any endangered species of fish or wildlife. The ESA also prohibits any action that causes a “taking” of any listed species of endangered fish or wildlife—this includes harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting. It is unlawful for a person to trade or possess any specimens traded in violation of CITES. There are some exceptions to this rule (for scientific purposes, for example). In these specific instances, the person must get a permit through FWS.
The CWSA (Pub. L. 108-191, 117 Stat. 2871-2872), which went into effect September 17, 2007, prohibits the interstate commerce of live big cats across state lines or U.S. borders unless the person qualifies for an exemption. Big cats covered by the CWSA include lions, tigers, leopards, snow leopards, clouded leopards, jaguars, cheetahs, and cougars; all subspecies of these species; and hybrid combinations of these species. Penalties can result in jail terms of up to five years and fines of up to $500,000.
Also note that any retail pet store that sells exotic pets must be licensed as a dealer under the AWA (7 U.S.C. 2131 et seq.). The AWA ensures that animals kept for use in research facilities, for exhibition purposes, or as pets are provided humane care and treatment; the AWA also ensures humane treatment during transportation. Under the AWA, the secretary of agriculture is authorized to promulgate standards and other requirements governing the humane handling, housing, care, treatment, and transportation of certain animals by dealers and other regulated businesses, such as pet stores. (Regulations established under the AWA are contained in 9 CFR parts 1, 2, and 3.)
In addition, the administrator of the APHIS regulates animal dealers by issuing them annual licenses and conducting unannounced inspections of their premises to check for compliance with the AWA standards and regulations.
There are no private rights of action under the AWA. Penalties for violations under the AWA range from $1,500 to $2,500 for each day of each violation and up to one year in prison.
What are the consequences to an exotic pet owner or seller/breeder if they violate a statute or if their animal causes injury to another? What happens to the animal?
Claims against pet owners, breeders, and sellers will most likely be tort actions—such as nuisance, conversion, trespass, negligence, and ultra-hazardous activities. In addition, if the animal has been abused or neglected, there may be separate charges under the applicable animal cruelty law.
An offending owner or breeder may be fined or imprisoned, and the animal may be taken, either to be euthanized or sent to a wildlife sanctuary.
However, a practitioner should be aware there may not be a claim for damages that flow from an injury through the federal or state statutes. Some federal legislation does not allow for a private right of action; instead, the aggrieved files a complaint with the appropriate federal agency.
Representing an aggrieved pet owner or breeder/seller changes the way one looks at the problem. A breeder/seller needs to comply with certain federal provisions. If these have been complied with, then state legislation should be examined. Lastly, local regulations should be consulted. When defending an exotic pet owner, the order of research should be the opposite—local, then state, then federal—because the regulations will mostly likely be more applicable at the local level.
Besides bringing suit, exotic pet owners or breeders whose animals have been confiscated may also either challenge the applicability of the regulation to their situation or challenge the legitimacy of the regulation.
If an exotic animal has been seized by animal control or by a state or federal wildlife department, owners may challenge the agency’s application of the regulation to their specific case by arguing that the animal does not fall within the parameters of the regulation. In administrative law, however, courts are deferential toward administrative determinations. A pet owner may also challenge the legislative or administrative body’s authority to have passed the regulation at all.
An exotic pet owner or pet breeder may also bring constitutional challenges, both facially and as-applied. An equal protection challenge under the Fourteenth Amendment may be brought if cities or counties enact zoning ordinances restricting people from owning exotic pets but do not include an allowance for those who already own these animals to continue to do so as a non-conforming use. In addition, any zoning ordinances must apply equally to those possessing permitted wildlife and other property owners; otherwise, the ordinances may be found invalid as applied. A procedural due process challenge under the Fifth and Fourteenth Amendments may be brought in cases where the government deprives a pet owner or breeder of property without giving appropriate notice or the opportunity to be heard. A regulatory taking challenge can also be brought under the Fifth and Fourteenth Amendments, which require “just compensation” when private property is taken for public use. If an owner or seller has violated exotic pet regulations, however, the courts have found this not to be a regulatory taking.
Significant legal issues arise when an individual chooses to buy, sell, or own an exotic animal. Given the serious negative consequences that can result from this activity, significant protection is afforded by local, state, and federal law to the people adversely affected by the presence of these animals. Additionally, there are often terrible outcomes for the animals themselves, which are often not considered at the outset. Practitioners advising individuals in this context need to familiarize themselves with a very broad set of laws and regulations; the number and variety of these regulations is only likely to increase in the future owing to rising concern about the health and safety implications of exotic animals as well as concern for the welfare of the animals themselves.
Katherine Hessler is the director and clinical professor for the Center for Animal Law Studies at Lewis and Clark Law School, Portland, Oregon; she may be reached at firstname.lastname@example.org. Tanith Balaban is a member of the Oregon State Bar; she may be reached at email@example.com.