26. On or about March 7, 1987, Mr. Stuart Major [and Mr. Myles C. Culbertson] moved at least 15 cattle, 2 years of age or older, interstate from a ranch near Magdalena, New Mexico, to a non-quarantined feedlot in Hitchcock, South Dakota, in violation of the regulation at 9 C.F.R. § 78.9(b)(3)(ii), inasmuch as the only certificate accompanying the cattle did not provide individual identification of the animals[, as required]. 27. On or about April 13, 1987, [Mr. Myles C. Culbertson,] Mr. Stuart Major and Mr. M.S. Major moved at least 20 cattle, 2 years of age or older, interstate from a ranch near Los Lunas, New Mexico, to a pasture in Gordon, Nebraska, in violation of the regulation at 9 C.F.R. § 78.9(b)(3)(ii), inasmuch as the cattle were not found to be negative to an official brucellosis test within 30 days prior to such interstate movement and, further, as the only certificate accompanying the cattle did not provide individual identification of the animals[, as required]. Conclusions By reason of the Findings of Fact set forth above, [Myles C. Culbertson,] Stuart Major and M.S. "Buddy" Major, Jr., violated the Act and a regulation promulgated thereunder, 9 C.F.R. § 78.9(b)(3)(ii). . . . Discussion The evidence demonstrates that Myles C. Culbertson's participation in the cattle transaction which forms the bases of the complaint was limited to his role as broker. Mr. Culbertson advised the trade of his client's inventory, presented the cows to the potential buyers, negotiated a price, and obtained agreement for delivery from the seller. For bringing the buyer and seller together to make the business transaction, Mr. Culbertson received a commission. It is a well settled maxim that "[a] broker is one who is engaged for others, on a commission, in negotiating contracts relative to property with the custody of which he has no concern." 12 C.J.S. Brokers § 2 (1980) (emphasis added). Village of Itasca v. Luehring, [4 Ill. 426, 429-431,] 123 N.E.2d 312, 314-315 (Ill. 195[4]). See also, Hodgman, Inc. v. Feld, [113 Ill.App.3d 423, 429-431,] 447 N.E.2d 450, 454-455 (Ill. App. Ct. 1983). Oscar Mayer Corp. v. Mincing Trading Corp., 744 F. Supp. 79, 82 (D.N.J. 1990). Complaint counsel's request to impose but half the civil penalties authorized by 21 U.S.C.A. § 122 upon Stuart Major is granted. However, counsel's 53 Agric. Dec. 1030 request to diminish the civil penalties upon M.S. "Buddy" Major, Jr., is denied, for Mr. Major is seen as the principal responsible for violations of Counts VII and IX and his penalties will be the maximum allowed by the law. He had a substantial financial interest in negative brucellosis test results. It was at his residence and at his request (CX 24) that Dr. Griggs was induced to do less than the duties which were, and are, required by the brucellosis abatement efforts of veterinary health officials of the federal and state governments. ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER The Respondents Major argue on appeal that the evidence in this record does not support the violations alleged in the amended (at the hearing) Complaint (hereafter, "Complaint"). Respondent Culbertson argues that the ALJ was correct that Culbertson did not "move" cattle. The Respondents Major argue that the ALJ should be reversed--and, the Complaint dismissed, with prejudice--or that an evidentiary hearing be allowed them, to prove they committed no violations as charged in the Complaint. However, Complainant argues that Respondents Culbertson, Stuart Major, and M.S. "Buddy" Major, Jr., all committed the violations alleged in the Complaint. I agree with Complainant, for the reason that there is much more than a preponderance of the record evidence that each Respondent committed the respective violations, charged in the Complaint, which is all that is required."1 Myles C. Culbertson Taking the Culbertson violations first, this case presents one major issue for decision: Did the activities of Respondent Myles C. Culbertson, on or about March 7, 1987, and on or about April 13, 1987, constitute "movement" of cattle within the definition of "moved" in the regulations, pursuant to 9 C.F.R. § 78.1 (1987), as used in 9 C.F.R. § 78.9(b)(3)(ii), as follows (emphasis added): PART 78-BRUCELLOSIS "See Herman & MacLean v. Huddleston, 459 U.S. 375, 387-92 (1983); Steadman v. SEC, 450 U.S. 91, 92-104 (1981); In re Rowland, 40 Agric. Dec. 1934, 1941 n. 5 (1981), aff'd, 713 F.2d 179 (6th Cir. 1983); In re Gold Bell-1&S Jersey Farms, Inc., 37 Agric. Dec. 1336, 1346 (1978), aff'd, No. 78-3134 (D.N.J. May 25, 1979), aff'd mem., 614 F.2d 770 (3d Cir. 1980). Moved. Shipped, transported, delivered, or received for movement, or otherwise aided, induced, or caused to be moved. Moved (movement) in interstate commerce. Moved from the point of origin of the interstate movement to the animals' final destination, such as a slaughtering establishment or a farm for breeding or raising, and including any temporary stops for any purpose along the way, such as at a stockyard or dealer premises for feed, water, rest, or sale. § 78.9 Cattle from herds not known to be affected. (b) Class A States/areas. Test-eligible cattle which originate in Class A States or areas, are not brucellosis exposed, and are from a herd not known to be affected may be moved interstate from Class A States or areas only as specified below: (3) Movement other than in accordance with paragraphs (b)(1) and (2) of this section. Such cattle may be moved interstate other than in accordance with paragraphs (b)(1) and (2) of this section if: (ii) Such cattle are negative to an official test within 30 days prior to such interstate movement and are accompanied interstate by a certificate which states, in addition to the items specified in § 78.1, the test dates and results of the official tests; . . . . .... These regulations incorporate the 1986 changes to the brucellosis 53 Agric. Dec. 1030 regulations. Until 1986, the definition of "moved" focused more on the transportation component of the activity. However, APHIS proposed, in a 1985 rulemaking proceeding, to expand the definition of "movement" to extend legal responsibility to other involved parties indirectly responsible for unauthorized movement. The Complainant's Appeal Brief (May 13, 1994) accurately and succinctly set forth the genesis of the expanded regulations, as follows (Complainant's Appeal Brief at 3-4): Pursuant to 9 C.F.R. § 78.1, "moved", as used in 9 C.F.R. § 78.9(b)(3)(ii), is defined as "[s]hipped, transported, delivered, or received for movement, or otherwise aided, induced, or caused to be moved." Originally, "moved" was defined as "[s]hipped, transported, or otherwise moved, or delivered or received for movement." In 1985, the Animal and Plant Health Inspection Service proposed to amend this definition to "extend the legal responsibility for violations of the regulations to those aiding, inducing, or causing the movement of animals in violation of the regulations." 50 FR 37,201, 37,202 (1985). The Final Rule reiterated this interpretation: The Department received 5 comments objecting to the definition of 51 FR 32,574, 32,577 (1986). The extended definition of "moved" became effective on October 14, 1986. I find that the activities of Myles C. Culbertson fit squarely within the expanded definition portion of the 1986 amendments to the regulations covering those indirectly responsible for unauthorized movement. This becomes quite clear when the very activities listed in the ALJ's Findings of Fact are weighed against the plain words of the new regulation: "or otherwise aided, induced, or caused to be moved." I will make what is not an exhaustive list of Respondent Culbertson's activities, which shows that Respondent Culbertson aided, induced and otherwise caused the movement of the cattle. Respondent Culbertson (and his money partner, Philip Statler,) started the activity by contacting the Respondents Major and leaving a large money deposit to guarantee that their agreed-upon commission would be paid when the cattle moved (Finding 7). Respondent Culbertson solicited buyers (who were obviously out of state) for the sale of the cattle (Finding 7). Respondent Culbertson negotiated a deal with another broker (Respondent Weber) from another state (South Dakota) to sell the cattle to an out-of-state buyer (Respondent Miller) (Finding 8). (Respondent Weber signed a Consent Decision in this proceeding on May 24, 1993, in which he agreed to pay a $2,000 civil penalty; and Respondent Miller signed such a Consent Decision on June 3, 1993, in which he agreed to pay a $900 civil penalty. Of course, neither Weber nor Miller admitted any culpability herein. Separately, both Drs. Griggs and Parker received 6 months' suspension, as well). Respondent Culbertson was present and intimately involved in virtually every meeting, aspect, and occurrence of the movement of Respondents Major's approximately 600 head of cattle. Respondent Culbertson displayed the cattle to Respondent Weber, negotiated a price, and agreed upon delivery terms with Respondent "Buddy" Major (Finding 9). On several occasions, Respondent Culbertson would pick up other participants in the deal--like Respondents Miller and Weber--at Albuquerque airport and drive them 90 miles to the Respondents Major's ranch (Finding 11, 15). Regarding the March 7, 1987, movement, Respondent Culbertson was at the loading of the animals and intimately involved with the movement of the animals to South Dakota, including personally--with Respondent Weber--picking up the health certificates in the accredited veterinarian's (Dr. Parker's) office, 60 miles away, in Los Lunas, New Mexico (Finding 13). These certificates, which Respondent Culbertson returned to the ranch and which he gave to the truckers to accompany the cattle to South Dakota, were deficient because they failed to identify each animal by eartag number (as described in the Complaint, II). (Finding 14) Concerning the April 13, 1987, violations (Complaint, ¶¶ VIII and IX), Respondent Culbertson was once again intricately involved with indirectly causing the New Mexico cattle to be moved interstate. Respondent Culbertson was physically present at virtually every meeting of the other participants/principals, personally driving Respondents Weber and Miller to pertinent locations, like the veterinarian's office to pick up Dr. Griggs, and the Major ranch where Respondent Miller could personally examine his newly |