Zoo facilities range from dilapidated roadside zoos and small “petting zoos” to lavish landscapes that attempt to replicate a species’ natural habitat. Public opinion about zoos ranges just as widely. While many are opposed to zoos, others view zoos as a public good, as educational institutions, and also as vehicles for studying and breeding endangered species. However, even in the best managed zoos, there are going to be issues arising out of the sale of animals, their confinement and transport, and eventually how the animals will spend their later years once they are no longer suitable for exhibit.
First, an overview of the applicable laws:
The Convention of International Trade of Endangered Species of Wild Flora and Fauna (CITES) is an international treaty among 175 member countries that provides for the regulation of endangered species through the use of a permit system. Species are listed in one of three appendices, depending on how endangered they are, and each appendix has its own restrictions. A few aspects of CITES weaken its protective force for zoo animals. First, there are its essential limitations as a treaty: participation as a member of CITES is completely voluntary for any nation; and, even if a nation agrees to the treaty, the means by which a nation enforces the treaty is entirely up to it. That is, CITES members agree on the desired end, but the means and any implementation plan is never specified. Second, any animal of a species, if born in captivity — even if he is a member of a species classified as most endangered — receives significantly less protection than members of that species still in the wild. Third, all animals that have been housed in zoos prior to 1973, the year that CITES went into effect, are exempt from its protections.
- The Animal Welfare Act
The AWA, regulated and enforced by the United States Department of Agriculture (USDA) through its Animal Plant and Health Inspection Service (APHIS), provides minimum standards of care and treatment for animals that are bred for commercial sale, used in research, transported commercially, or exhibited to the public. These standards include guidelines about food, water, housing, and veterinary care. A serious deficiency in this law, however, is its language that prohibits “unnecessary” suffering, without further defining what that threshold might be. In other words, it is left to the industry to deem what is necessary and what is not. In the context of zoos, it is important to note that the AWA only applies to warm-blooded animals; any cold-blooded animals are excluded from the legal protections of care and welfare provided by the Act. Also, with the exception of nonhuman primates, the AWA does not take into account the mental health of the animals. Finally, the Act does not include a citizen suit provision, which means an individual is prevented from bringing a private action against an entity for alleged violations of the Act. Under the Act, APHIS is required to conduct a yearly inspection of any zoo facility and investigate any complaints. However, APHIS suffers from a lack of resources and understaffing, which has led to inadequate monitoring and enforcement of the AWA.
- The Endangered Species Act
The ESA, under the supervision of the Department of the Interior’s U.S. Fish & Wildlife Service, has the purpose of protecting endangered and threatened species and of ensuring the conservation of their habitat. Unlike the AWA, the Endangered Species Act includes a citizen suit provision. In the context of zoos, applicability of the ESA is limited. A citizen may file a lawsuit if the behavior at issue involves animals that are specifically listed as either “endangered” or “threatened”; and even for animals so classified, the Act only regulates the import and export of species as they are bought or sold into foreign commerce. Under the ESA, it is “unlawful… to… take any [endangered species] within the United States.” Among the ten different ways a person can illegally “take” an animal according to the Act, one may “harm” an animal, which includes a significant habitat modification or degradation, and one may “harass” an animal by disrupting its normal behavior patterns. However, generally accepted animal-husbandry practices and breeding procedures are exempt from this provision.
- Species Specific Statutes
These statutes, such as The Rhinoceros and Tiger Conservation Act, The African Elephant Conservation Act, and The Asian Elephant Conservation Act, tend to reinforce protections already provided by CITES, and they typically create additional funding for the preservation of the species.
Individual states have their own animal cruelty statutes. Generally, these laws define cruelty as intentional acts of beating, tormenting, overworking, starving, or otherwise abusing an animal; they also can include instances of neglect. However, the statutes vary considerably from state to state regarding what animals are covered and what the penalties are for violations. Currently, six states have chosen to make zoo animals wholly exempt from their animal cruelty statutes.
Laws About “Retirement” for a Zoo Animal
After perhaps years of being on exhibition, where do the animals go? Or, in zoo breeding programs where a “surplus” has been created, what does the facility do with the unneeded extra animals? As one can glean from the laws discussed above, there is nothing available in the legal system to ensure retiring animals receive proper treatment. In fact, these animals often are sold to research facilities; to dealers for canned hunts; to roadside attractions where they endure a life of isolation, concrete, and car fumes; into the illegal trade for exotic animals where they are kept in private, unregulated premises or sold off for their parts (a tiger skin, a rhino horn, a bear claw); or to slaughterhouses. Animals that are released to sanctuaries remain the exception rather than the norm.
Accreditation by the American Zoo and Aquarium Association
Accreditation by the The American Zoo and Aquarium Association is given much weight within the zoo industry. Its Code of Professional Ethics mandates a higher level of care than the AWA’s minimum requirements. However, getting beyond the specific guidelines a zoo facility must follow in order to be accredited, one must also consider the monitoring and enforcement mechanisms in place. This is especially true when we are determining the effectiveness of any industry’s efforts at self-regulation: inevitably there will be a weighing of interests — the costs and benefits to the industry versus the animals — rather than the creation of a system that prioritizes the animals’ protection above all else. Finally, let us not lose sight of the fact that the AZA is an organization of voluntary membership, and therefore its guidelines do not have the force of law.
Who Can Sue? The Legal Threshold for Standing
- Constitutional Requirements
One of the greatest hurdles in animal law cases is establishing standing. That is, since the animals themselves do not have standing to sue, individuals or organizations must be the ones to bring forth a complaint. To meet the constitutional requirements for standing, a plaintiff must show (1) injury in fact — that she has suffered or will suffer a concrete and particularized injury, (2) causation — that the injury is caused by the action of the defendant, and (3) redressability — that a favorable decision by a court will redress the injury. Note that the injury must be to the plaintiff; it is not enough for someone to come forward claiming injury to an animal. A finding of lack of standing prevents a court from ever getting to the merits of the case, and therefore prevents the court from possibly advancing the interests of the animals at the heart of these cases. So what kind of injury can a person show if he wants to see abuses at a local zoo come to an end?
- Aesthetic Injury
In the context of zoos, the court has found “aesthetic injury” to be sufficient for standing. The 1998 case Animal Legal Defense Fund v. Glickman (154 F.3d 426) illustrates the legal issue of standing and, at the same time, sheds light on the underlying problems of confining animals in zoo settings. In this case, plaintiffs were alleging they suffered aesthetic injury during regular visits to a zoo when they observed primates living under conditions that did not meet the needs of the animals for their psychological well-being. For example, the one plaintiff that was granted standing observed one primate in a cage that had only one enrichment — an unused swing; he also observed a chimpanzee isolated in an area where the chimpanzee could not see or hear any other primates. The plaintiff, aware of the social nature and needs of these primates (his background included training in wildlife rehabilitation and volunteering with animal relief and rescue organizations), was “upset… very much” to see these conditions. Although defendants in cases such as this one may try to argue that a plaintiff voluntarily subjects himself to the injury by repeated visits to an upsetting environment, courts have never suggested that someone refrain from a lawful behavior in order to avoid injury. After the Glickman holding, an ordinary visitor/viewer of animals on exhibit has standing to challenge USDA regulations that violate the AWA. The Administrative Procedure Act allows someone to make a claim if the injury falls within the “zone of interests” of the statute. Aesthetic or emotional injuries meet this requirement under the AWA.
- Should Whales Have Standing?
In 2011, PETA filed a suit against Sea World. What was different about this case: five orcas were named as the plaintiffs. PETA claimed that the whales were enslaved — a violation of the Constitution’s 13th Amendment that prohibits slavery — as they were forced to live in tanks and perform each day. The question before the court was not about any specific abuses the whales had endured; rather, it was whether animals were entitled to the same constitutional protection as humans against slavery and, therefore, could have standing to sue. Although this case was dismissed, it was viewed as an important step in the animal protection movement: it was the first time that a federal court was asked to consider animals as living, sentient beings with rights of their own, rather than simply worthy of protection as the property of humans.
What About “Safari” Theme Parks?
Although “safari” settings may seem to be much more animal-friendly, these environments still pose many of the same problems related to other zoo facilities — sale, transport, the later years. And, though these outdoor settings are better than cages, they still are nothing like a species’ natural habitat: the animals here have little reason to engage in their natural abilities, such as foraging and problem-solving. Furthermore, although architects may plant some familiar vegetation in the designated areas, there are considerable limitations to how effectively one can mimic several diverse ecosystems all within the boundaries of one “safari” location. New Jersey, USA is not Africa. And it certainly is not Africa and Asia and other remote regions where these numerous species belong.
In addition, here are a few eye-opening facts about these “safari” settings, taken from Thomas G. Welch’s Globalization and Animal Law, citing statistics found on the Helping Animals web site:
- Disney’s Wild Animal Kingdom: 31 animals died of neglect and negligence before the park even opened, “including two West African crowned cranes who were run over by safari trucks, four cheetah cubs who swallowed a toxin found in antifreeze, and two Oriental small-clawed otters who ate poisonous seeds from loquat trees planted in their exhibit.”
- Six Flags Wild Safari: in one three-month period, 26 animals died… causes of death ranged from neck and skull fractures to hypothermia, tetanus, pneumonia, and drowning. Six Flags also has sold a “surplus” of baboons to biomedical research and exotic hoofed animals to hunting ranches. Meanwhile, Six Flags Discovery Kingdom in Vallejo, California has used “training” methods such as beating elephants with bullhooks, and has failed to give its animals proper veterinary care.
In response to the issues concerning zoos and their animals, the legal system relies on regulation rather than prohibition. However, I encourage individuals to thoroughly consider the lives these animals are forced to endure. Some proponents of zoos point to the extended life expectancy of many captive animals compared to those living in the wild. First, this is not true of all species; for example, it is not true of elephants, whose life in the wild naturally exceeds 60 years. But, even for those who may live longer at a zoo facility than they would have survived in the wild, what quality of life is there? I ask: would a person choose an extra ten years of life if it meant having to live the entirety of his life imprisoned?
For those who argue that zoos are essential to educate the public –especially children — consider alternative ways that individuals can learn about animals:
There are so many quality television programs, such as those on the Animal Planet channel. And, while Disney’s theme parks are objectionable, DisneyNature is doing the public an extraordinary service by producing high quality films like African Cats and Chimpanzee. These films are a hybrid of documentary and mainstream film-making that makes them palatable for the general public, including children, and they are made without exploiting the animals in them. Ultimately, a person will learn a great deal more about a chimpanzee this way than by observing an agitated and depressed chimpanzee placed in an artificial setting.
- Wildlife Watching
Whether it’s a whale watching excursion or a visit to one of our glorious national parks, there are plenty of ways to witness the majesty of animals and the natural world. And for anyone wanting to see elephants, big cats, zebras, and hippos, I recommend a real safari trip. Yes, it will be more expensive than a visit to the zoo, but it also will be an extraordinary experience well worth the price. Just be sure to use a safari company that allows you to observe the animals in the wild respectfully, without disrupting them or the environment. Last summer, I traveled to South Africa and Zimbabwe, using Hills of Africa Travel.
- Visit or Volunteer at an Animal Sanctuary
Some of my greatest moments with animals have been while I was working as a volunteer at a sanctuary. Check out places like Farm Sanctuary (New York, California), Poplar Springs (Maryland), Woodstock Animal Sanctuary (New York), Chimpanzee Sanctuary Northwest (Washington), and Elephant Sanctuary (Tennessee). This September, I’ll be helping out at Best Friends in Kanab, Utah.