In the United States, depending on the state in which you live, you may not be able to move to, visit, or sell your aviary-raised parrot across state lines, or acquire a member of the opposite sex with which to breed your parrot out-of-state; and you may not be able to purchase a parrot in another state and bring it home. That is, if your bird is “listed” as endangered or threatened under US federal law.

These obnoxious restrictions arise from state Endangered Species Acts (state ESAs), which are implemented pursuant to compacts with the federal government under the Endangered Species Act of 1973 (ESA)(16 USC sec. 1531 et seq.). The federal ESA is what implements US treaty obligations under CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora).

These interstate prohibitions, further, unnecessarily burden local parrot sanctuaries and rescues because individuals must abandon their birds to them upon moving out of state. Finally, these interdictions threaten the health of our national pet breed stock.

While state ESAs are essential tools for states’ conservation of their’ own native flora and fauna, their provisions regarding nationally internationally listed animals add nothing whatsoever to the benefit of non-native listed specimens in their native habitats. Rather, they enact a level of trade and travel restriction on aviary raised companion parrots that are listed which was never intended nor contemplated by the drafters of CITES or ESA.

As a case of first impression (meaning “what follows does NOT constitute legal advice), these unnecessary burdens should be found unconstitutional because they may violate the Commerce Clause: the states impose an onerous burden on pet bird owners and breeders without properly having the nexus of a legitimate state interest which is benefited by imposing such a burden.

In part, this obvious conclusion has not yet emerged because neither CITES nor US law provide the legal framework which would adequately reflect the situation on the ground, as wrought by state ESAs. Unfortunately, the US expressly does not distinguish between aviary-raised and wild but reserves the extreme case — differentiation into a separate domestic species — for later determination.

Below we review the way US law reached this conclusion: it has to due with an earlier situation involving oryx, addax and gazelle, all listed on Appendix I of CITES and in the US under ESA. Clearly, the companion parrot inhabits a more domestic space than a herd of ungulates, which raises the question how “wild” is third-generation aviary-bred and later (the sole available international standard for distinguishing them).

So is your parrot “domesticated”? The scientific community certainly does not regard aviary-raised as a separate domestic species of wild specimens. In fact, under the Convention on International Trade in Endangered Species (CITES), which the US implements federally through the Endangered Species Act of 1973 (ESA; 16 USC sec. 1531 et seq.) and which states implement via compact with the feds and legislation, separate treatment is provided for grandchildren of wild-sourced parrots (F2 and higher): permitting regulates limited trade in these specimens.

Under CITES, the F2 distinction establishes a threshhold for permitting limited trade. This regulation of breeding institutions comes at a cost to the public and to breeders. It is not practical for a small-scale breeder to incur the expense of inspection and regulation; it is even less so appropriate to expect to apply a permitting system to private citizens with companion parrots engaging in limited intrastate travel and trade. While state ESAs empower states to protect native endangered flora and fauna, those ESAs don’t make a lot of sense when they add further interstate restrictions on non-native endangered or threatened species.

Consider: the combined limitations on interstate movement and sale/exchange compromise the future health of our domestic breed stock for aviary-raised parrots because aviculturists, depending on the state in which they reside, may not be able to maintain proper herd genetic diversification in their stock. Imagine an aviculturist with two female hyacinth macaws — a threatened species — who wants to exchange one female for a male and breed the remaining female, yet she is the sole hyacinth breeder in her state: she must go across state lines to finish out a breeding pair and so diversify the gene pool. However, because the only authorized interstate transaction is the noncommercial exchange of same-sex animals, the aviculturist is stuck: she cannot exchange a female for a male hyacinth. Subsequent breeding from an insufficiently diverse gene pool risks the emergence of undesirable recessive genes as dominant. If American companion animal owners want to maintain a healthy national pet stock, they have a vested interest in seeing these laws are changed.

While the federal government mirrors CITES in keeping “captive-bred” in the same legal category as wild, CITES further provides for nations to establish permitting systems for limited international trade based on grandchildren of wild stock (F2). Federal law developed in this way: In 1970, the federal government listed the scimitar-horned oryx, the addax, and the dama gazelle as endangered. Then in 1991 FWS proposed a rule, but did not move on it till reopening it to comments twelve years later in 2003.

Thereafter, in 2005 FWS proposed new regulations which declared the three species endangered and generally authorized a permitting system for otherwise banned activities, including stem-cell research on and trophy hunting of, the domestic captive-bred populations. Simultaneously, the Service announced its finding that the domestic populations depended wholly on captive-breeding programs and that activities relating to those programs enhance the propagation and survival of the overall species. FWS sought comments on those announced findings.

Several months later, based on the comments on its findings, FWS inserted an entirely new, final regulation detailing specifics permitting for the captive-bred populations. Predictably, various organizations challenged the new rule, and the courts ruled against FWS, as FWS had not subjected the express permitting provisions to comment earlier .

Importantly, the captive-bred stock of these species remained in herds in relatively “wild” environments, not in the house environment, potentially separated from the flock, as companion parrots do. The proposed rule and final rule do not contain discussion of the point at which “captive-bred” are deemed domesticated, nor did they venture into the question of maintaining such stock in companion animal, non-herd situations. So, in the end, the attempt to distinguish captive-bred from wild species failed.

In 2013, the Administration reconsidered the oryx/addax/gazelle “captive-bred” dilemma and ultimately confirmed that for those species ESA did not distinguish between “captive-bred” and wild specimens. FWS based its argument by reasoning about definitions: ESA must “specify for each species listed ‘over what portion of its range’ it is endangered or threatened” and that “range” refers only to “native range.” However, in a footnote, FWS expressly limited its determination: “This analysis does not address situations where members of a species have been held in captivity for a sufficiently long period that they have developed into a separate domesticated form of the species.” (78 Fed.Reg. 33790, 33792 f. 2 (June 5, 2013). [Emphasis added.] In other words, FWS distinguished domesticated/wild but did not draw any distinction regarding in-herd or not, domestic situation and not.

The problem is that domestication is a lengthy process, and the fact that tameable third-generation parrots live often independent of flock and in the house begs for a different statutory construction or even amendment. Domestication, derived from the Latin for “belonging to the house,” is a combined genetic and acculturative process which is multi-generational and mutually beneficial. While the domesticator exercises control and care over the target domesticate‘s reproduction and lifestyle to gain a more ready supply, the target domesticate acquires benefits which set it apart from its wild counterparts. The genetic part takes place via selective breeding instead of natural selection. Certainly our tame parrots should not be required to be completely domesticated before they and us enjoy the benefits of interstate travel and trade as do our neighbors.

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