Could Kershaw County enforce an ordinance against keeping a cougar as a pet?

Plain-English summary

Kershaw County asked whether state law allowed private cougar ownership and whether it prevented enforcement of a county ordinance restricting wild animals kept as pets or for display. The Assistant Deputy AG said he had been advised that no state law expressly prohibited the possession or keeping of a wild animal on one’s premises. He distinguished a statute restricting sale of wild carnivores as pets.

The letter then explained that an ordinance was presumed valid unless clearly invalid and that local rules generally could stand when neither preempted by nor in conflict with state law. It discussed a South Carolina Supreme Court decision upholding a municipality’s wild-animal ordinance against due-process, preemption, and equal-protection challenges. The author viewed that case as a guide for Kershaw County’s ordinance. He did not make a fact-specific ruling on any particular cougar or permit. The letter was informal.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the 1998 opinion identify a state law forbidding mere possession of a cougar? A: No. The author said no state statute specifically prohibited keeping a wild animal on one’s premises, while noting a restriction on selling wild carnivores as pets.

Q: Did the AG say a county wild-animal rule was automatically preempted? A: No. He said an ordinance generally remained valid if state law did not preempt or conflict with it.

Q: Did the opinion decide whether a specific cougar was lawfully kept? A: No. It discussed the county ordinance and analogous court authority without applying facts to an individual animal.

Background and statutory framework

Section 47-5-50 was cited for a ban on selling wild carnivores as pets. The opinion used Peoples Program For Endangered Species v. Sexton, which upheld a municipal wild-animal ordinance, to analyze local police power and preemption.

Citations and references

Statute discussed: Section 47-5-50. Cases discussed: Rothschild v. Richland County Board of Adjustment; Peoples Program For Endangered Species v. Sexton.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-14-1998/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/98jan14jones.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
C H A RLES MOL ONY C ONDON
ATTO RNEY G E N ERA L

January 14, 1998

Jimmy Jones, Director
Kershaw County Detention Center/Special ServicesNector Room 202 Court House Camden, South Carolina 29020

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Re: Informal Opinion
Dear Mr. Jones:
You have asked whether "any state law provide[ s] for an individual to legally own a wild animal in this case a cougar as a pet or in any other case?" You have enclosed a Kershaw County ordinance which prohibits any person from keeping or permitting to be kept on his premises any wild or vicious animal for display or exhibition purposes with certain exceptions and prohibiting any person from keeping or permitting to be kept any wild animal as a pet except as allowed under state law. You wish to know whether "any state law prohibit[s] us from [enforcing] ... our Kershaw County ordinance Section 3-6 (a) and (b) keeping of animals?" Law I Analysis I am advised that no state law expressly prohibits the activity which the Kershaw County Ordinance seeks to ban. While certain state statutes prohibit related activities such as the sale of wild animals, see~ S.C. Code Ann. Section 47-5-50 (prohibition upon the sale of wild carnivores as pets), no statute specifically forbids the possession or keeping on one' s premises a wild animal. An ordinance, like a statute, is presumed valid and will not be declared invalid by a court unless such invalidity is clear. Rothschild v. Richland County Board of Adjustment, 309 S.C. 194, 420 S.E.2d 853 (1992). Moreover, so long as an activity is RD I HERT

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Mr. Jones
Page 2
January 14, 1998
not preempted by state law or is not in conflict therewith, such ordinance is generally deemed valid.

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Our State Supreme Court recently upheld a wild animal ordinance adopted by a municipality in Peoples Program For Endangered Species v. Sexton,_ S.C. _ , 476 S.E.2d 477 (1996). There, the Ordinance in question made it unlawful to possess any "vicious or dangerous domesticated animal or any other animal ... of wild, vicious or dangerous propensities." Such Ordinance was challenged as unconstitutional on the basis of deprivation of due process, preemption by federal and state law, and violation of the Equal Protection Clause. The Supreme Court rejected each of these arguments. Specifically, the Court held that the Ordinance was a valid exercise of the police power because it was not arbitrary or unreasonable in its scope or application. Further, the Court reasoned that the Ordinance was not preempted by either the Federal Endangered Species Act (16 U.S.C. §§ 1531 et seq.) or the S.C. Nongame and Endangered Species Conservation Act (S.C. Code Ann. §§ 50-15-10 et seq.). In rejecting this contention, the Court noted that " [t ]he ordinance does not run contrary to the permitting of animals, but regulates the conditions under which certain animals can be kept in the town." With respect to the alleged Equal Protection violation, the Court held that the classification of wolves as wild animals was entirely reasonable and not arbitrary and the Ordinance thus did not present a case of unconstitutionally unequal treatment. In summary, the Court concluded that
[t]he exercise of police powers under a municipal ordinance is subject to judicial correction only if the action is arbitrary and has no reasonable relation to a lawful purpose .... Appellants have not met their burden of proving beyond a reasonable doubt the ordinance is unconstitutional. I believe this case is a good guide for adoption of any ordinance relating to wild animals by Kershaw County. I am thus enclosing a copy thereof. In addition, I am advised that Mr. Henry Brzezinski of the SPCA would be happy to speak with you regarding such an ordinance. He is an authority in this area. His telephone number is (803) 783-1149 and his address is 121 Humane Lane, Columbia, SC 29209. This letter is an informal opinion only. It has been written by a designated Assistant Deputy Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion.

Mr. Jones
Page 3
January 14, 1998
With kind regards, I am
Very truly yours,

$1Robert D. Cook
Assistant Deputy Attorney General
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Enclosure

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