NIH can’t deny former research chimps sanctuary retirement, federal judge rules

A U.S. federal judge has ruled against the nation’s largest biomedical agency in a long-running battle over the fate of dozens of former research chimpanzees. On Tuesday, a Maryland court declared that the U.S. National Institutes of Health (NIH) violated federal law by not moving the animals out of biomedical facilities to a government sanctuary. The ruling could force the agency to transfer the great apes, though the details remain to be worked out.

“We’re elated that now we can finally move forward on getting the chimpanzees out of the laboratory,” says Kathleen Conlee, vice president of animal research issues at the Humane Society of the United States (HSUS), one of the plaintiffs in the case. “NIH does not have discretion to keep the animals in the labs. They have to retire them.”

Still, the judge who issued the ruling acknowledged the main concern NIH veterinarians had raised—that transporting old and sick chimps to a new location could jeopardize their health—and requested more information from it and other parties before she directs the agency on how to proceed. NIH declined to comment on the judge’s decision, but some in the biomedical community are decrying the ruling.

“The NIH veterinary panel of experts didn’t make the decision to retire these chimps in place lightly,” says Cindy Buckmaster, a spokesperson for Americans for Medical Progress, a pro-animal research group that has followed the issue closely. “While this may well be within the rule of law, it is a devastating and heartbreaking decision for the chimps and caregivers who love them dearly.”

U.S. scientists used chimpanzees in AIDS and other biomedical research for decades. In 2000, as studies on the animals began to wane and concerns about their well-being intensified, the government passed the Chimpanzee Health, Improvement, Maintenance, and Protection (CHIMP) Act. The law called for the creation of the only federal chimpanzee sanctuary, Chimp Haven, in Keithville, Louisiana. It also mandated the retirement of NIH-owned chimps no longer needed in biomedical research: “All surplus chimpanzees owned by the Federal Government shall be accepted into the sanctuary system.”

In 2015, the United States became the last country to end invasive chimpanzee research, when NIH announced it would no longer fund biomedical studies on the animals. That same year, the agency pledged to retire all of the approximately 300 chimps it owned or supported to Chimp Haven, whose naturalistic environment includes a 2-hectare forest where the animals can climb trees and poke sticks into artificial termite mounds.

All the remaining NIH chimps resided at three locations: the Alamogordo Primate Facility in New Mexico; the MD Anderson Cancer Center in Bastrop, Texas; and the Texas Biomedical Research Institute in San Antonio. (Some of these facilities and others also held hundreds of additional chimps, which they owned privately.)

NIH has since retired more than 200 of the chimpanzees it owns and supports. But in 2019, it announced many of the others would stay put. A panel of agency veterinarians concluded all 44 of the chimps that remained in the Alamogordo facility were too old and sick to move. Many had diabetes, heart conditions, and other issues, and the vets were concerned that taking them from facilities where some had spent most of their lives, placing them on a truck for hundreds of kilometers, and putting them to a completely new environment could further compromise their health, or even kill them.

NIH later stated the same applied to 49 of the chimpanzees at the MD Anderson facility; it has since retired all of the chimps it owns from Texas Biomed.

Others in the biomedical community have argued the apes are cared for as well—if not better—in their current facilities, and note they have access to many of the same forms of enrichment they would have at Chimp Haven. “In order to drive them to Chimp Haven, these very old and sick animals would have to sit in a small transport box for days,” Buckmaster says. “Then they would face a world of strangers and uncertain social groupings—intensely stressful to old chimps with established conspecific and human families—before they could even think about enjoying life in their new home, if they survived that long.”

As of October, 30 chimps remained at Alamogordo (the rest have died) and 46 at MD Anderson—all owned by NIH. One hundred and fifty remain at Texas Biomed and other facilities, but none of these animals is owned by NIH.

Chimp Haven has lamented NIH’s decision, arguing that the great apes deserve to live out their lives in a more natural setting. HSUS has also protested the agency’s stance, as did several lawmakers, who introduced language into spending bill reports to try to compel the agency to change its mind. But NIH held firm to the argument that the move would jeopardize the chimps’ welfare.

So in 2021, HSUS—along with Animal Protection of New Mexico and several other plaintiffs—sued NIH. In her decision this week, U.S. District Judge Lydia Kay Griggsby says NIH’s stance violates the CHIMP Act. “Congress intended for the federal sanctuary system to provide lifetime care for chimpanzees that are no longer appropriate for research due to advanced age, infections, or similar circumstance,” she wrote. “The CHIMP Act makes clear that Congress recognized that older and sicker chimpanzees … would enter the federal sanctuary system.”

The judge said she shared NIH’s concern about the frailty of the animals. But she ruled that the agency does not have the discretion to determine which chimps should not be moved to a sanctuary.

HSUS says it wants the animals transferred as soon as possible. All parties will meet with the judge in January 2023 to try to hash out the next steps.

Chimp Haven seems happy with the decision. “The sanctuary is the best place for retired chimpanzees to live out their lives in the most natural settings available,” a spokesperson says. “We look forward to working with NIH on a plan that secures sanctuary retirement for all government-owned and supported chimpanzees.”

Charles River Laboratories, which operates the Alamogordo Primate Facility under contract with NIH, referred all questions to NIH. An NIH spokesperson says the agency doesn’t comment on litigation. MD Anderson tells Science it “is committed to the safety and welfare” of the chimps in its care, now numbering 45. “MD Anderson’s experts work with the NIH to provide the best quality care for the chimpanzees, and we will await direction from the NIH on any next steps.”

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