57 Agric. Dec. 189 §2.131 Handling of animals. (a)(1) Handling of all animals shall be done as expeditiously and carefully as possible in a manner that does not cause trauma, overheating, excessive cooling, behavioral stress, physical harm, or unnecessary discomfort. PART 3-STANDARDS SUBPART F-SPECIFICATIONS FOR THE HUMANE HANDLING, CARE, TREATMENT, AND TRANSPORTATION OF WARMBLOODED ANIMALS OTHER THAN DOGS, CATS, RABBITS, HAMSTERS, GUINEA PIGS, NONHUMAN PRIMATES, AND MARINE MAMMALS FACILITIES AND OPERATING STANDARDS §3.128 Space requirements. Enclosures shall be constructed and maintained so as to provide sufficient space to allow each animal to make normal postural and social adjustments with adequate freedom of movement. Inadequate space may be indicated by evidence of malnutrition, poor condition, debility, stress, or abnormal behavior patterns. ANIMAL HEALTH AND HUSBANDRY STANDARDS §3.129 Feeding. (a) The food shall be wholesome, palatable, and free from contamination and of sufficient quantity and nutritive value to maintain all animals in good health. The diet shall be prepared with consideration for the age, species, condition, size, and type of the animal. Animals shall be fed at least once a day except as dictated by hibernation, veterinary treatment, normal fasts, or other professionally accepted practices. TRANSPORTATION STANDARDS §3.137 Primary enclosures used to transport live animals. (d) Primary enclosures used to transport live animals as provided in this section shall have solid bottoms to prevent leakage in shipment and still be cleaned and sanitized in a manner prescribed in § 3.131 of the standards, if previously used. Such primary enclosures shall contain clean litter of a suitable absorbant material, which is safe and nontoxic to the live animals contained therein, in sufficient quantity to absorb and cover excreta, unless the animals are on wire or other nonsolid floors. §3.138 Primary conveyances (motor vehicle, rail, air, and marine). (a) The animal cargo space of primary conveyances used in transporting live animals shall be designed and constructed to protect the health, and ensure the safety and comfort of the live animals contained therein at all times. §3.140 Care in transit. (a) During surface transportation, it shall be the responsibility of the driver or other employee to visually observe the live animals as frequently as circumstances may dictate, but not less than once every 4 hours, to assure that they are receiving sufficient air for normal breathing, their ambient temperatures are within the prescribed limits, all other applicable standards are being complied with and to determine whether any of the live animals are in obvious physical distress and to provide any needed veterinary care as soon as possible. . . . No animal in obvious physical 57 Agric. Dec. 189 distress shall be transported in commerce. 9 C.F.R. §§ 1.1; 2.40, .75(b)(1), .100(a), .131(a)(1); 3.128, .129(a), .137(d), .138(a), .140(a). CHIEF ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION AND ORDER ... All proposed findings, conclusions, and arguments have been considered. To the extent indicated, they have been adopted; otherwise they have been rejected as not relevant or not supported by the evidence. For the reasons... stated [in this Decision and Order, infra], an Order is being issued requiring Respondent to cease and desist from violating the [Animal Welfare] Act, revoking his license as an animal exhibitor, and assessing a civil penalty against him of $200,000. Findings of Fact 1. Respondent, John D. Davenport, doing business as King Royal Circus, is an individual whose address is Post Office Box 683, Von Ormy, Texas 780[7]3. Respondent, at all times material to this proceeding, was licensed and operating as a [Class C] exhibitor as defined in the [Animal Welfare] Act and the Regulations. (Answer.) 2. At all times material to this proceeding, Ben Davenport, Respondent's son, was employed by the Respondent. His duties included caring for the animals involved in this case. Ben Davenport does not have any formal training in animal care. (Tr. 581-82.) 3. On or about July 18, 1997, through July 28, 1997, Respondent, through his employee and [other] son, John J. "Chewy" Davenport, exhibited three elephants-two African and one Asian-and eight llamas at a circus in Las Vegas, Nevada (CX 124 [at 2], CX 128 [at 2-5]). 4. On July 24, 1997, APHIS Animal Care Inspector, Gregory Wallen, conducted, at the Cashman Event Center in Las Vegas, an inspection of Respondent's animals, his records, and the trailer used to transport the animals. Mr. Wallen cited Respondent for recordkeeping and veterinary care violations. Specifically, records pertaining to the acquisition and disposition of the animals were not available for inspection; and the program of veterinary care had not been reviewed by the attending veterinarian since February 1996. (RX 1 [at 2].) Mr. Wallen questioned Chewy Davenport about the lack of ventilation in the trailer used to transport the animals and was told that the doors were left open when the animals were inside [(Tr. 180-83)]. Mr. Wallen accepted Mr. Davenport's explanation and decided not to record a violation. Mr. Wallen admitted at the hearing that... [he did not cite Respondent for numerous, serious violations, for which Respondent should have been cited,] which [Mr. Wallen] deeply regrets. (Tr. 157-58[, 573].) Mr. Wallen also did not cite any veterinary care or skin and foot care violations; however, the elephants had been bathed and coated with ["a heavy coat of oil, a thick coat of oil"] immediately prior to his arrival, possibly obscuring the condition of their skin (Tr. 155). 5. On or about July 28, 1997, the animals were moved from Las Vegas, Nevada, to Pahrump, Nevada. The animals were held in Pahrump for approximately one week, until August 3, 1997. (Tr. 51-58, 151-53; CX 124, CX 128.) While in Nevada, Chewy Davenport did not have the appropriate food available for the elephants and instead fed them alfalfa hay and rabbit pellets (CX 124 [at 2]). 6. While in Pahrump, Nevada, the African elephant named Heather began experiencing diarrhea. She lost weight and stopped eating and drinking. Chewy Davenport treated the elephant by feeding her [plain white] bread and walking her. She did not receive any veterinary care, but began to show some improvement. (Tr. 53-58, 151-53; CX 128.) 7. On August 3, 1997, Ben Davenport picked up the animals in Pahrump in order to transport them to Dillon, Colorado. He was accompanied by John Davis. When he arrived in Dillon, Colorado, on August 5, 1997, Ben Davenport noticed that Heather was not eating. He called his father who advised him to return to Texas as quickly as possible. (Tr. 614-15, 631; CX 124.) 8. On August 6, 1997, Ben Davenport arrived in Albuquerque, New Mexico. At approximately 5:00 p.m., Ben Davenport checked the animals and noticed that Heather was down. He did not contact a veterinarian or his father. Instead, he had a tire changed and then traveled to the airport to pick up John Boling, who was to accompany him on the remainder of the trip. Ben Davenport parked the trailer at the Wyndham Hotel while he walked to the airport to meet Mr. Boling. John Davis remained with the trailer. ([CX 115 at 2,] CX 124 [at 1-2].) 9. At approximately 6:54 p.m. on August 6, 1997, Albuquerque police officers John Guilmette, Duffy Ryan, and John Corvino entered the parking lot of the Wyndham Hotel while on bicycle patrol. The officers spotted the trailer and noticed that it was swaying back and forth despite the absence of any strong wind. They observed urine and fecal matter leaking from the [trailer], which was 57 Agric. Dec. 189 accompanied by a strong odor. In addition, they noticed that the [trailer] did not have ventilation except for two small vents at the front of the [trailer]. (Tr. 78-80; CX 115-117.) 10. The officers approached the truck and asked John Davis what was in the trailer. Mr. Davis was evasive and refused to open the doors of the trailer; however, the officers could see animals through the vents. When Ben Davenport returned, he was advised of his [Miranda] rights [under the United States Constitution not to answer the officers' questions, but that anything that Ben Davenport said might be used against him in a court of law (CX 18 at 3, CX 117 at 2)]. Ben Davenport was also evasive about the contents of the trailer, first stating that it contained only two elephants, then that there were also six llamas. The officers instructed Ben Davenport to open the trailer. (Tr. 80-89; CX 115117.) 11. When the trailer was opened, [the officers] discovered that [it contained] eight llamas, two live elephants, and one dead elephant. All eight llamas were contained in the "gooseneck" portion of the trailer. The trailer also contained circus equipment in the area with the elephants. There was very little room for the animals to move. The bedding was full of urine and feces, which was leaking out of the trailer. (CX 115-117.) 12. Heat was emanating from the trailer, which was parked on asphalt, in the sun, and had virtually no ventilation (Tr. 78-80; CX 115-117). The official temperature in Albuquerque at 7:00 p.m. was 8[6] degrees [and 20 percent humidity (CX 18 at 3, CX 117 at 2-3)]. At 5:00 p.m., when the trailer arrived in Albuquerque, the official temperature was 88 degrees (CX 4). 13. The [surviving] animals were transported to the Albuquerque Biological Park. They were accompanied by Ben Davenport who continued to care for them until the City [of Albuquerque] was awarded temporary custody and the animals were moved to the Rio Grande Zoological Park . . . [where $20,000 in modifications were made to the brand new, never used, rhino barn facility, to accommodate the two elephants, Irene and Donna] (Tr. [310-11,] 315-16). 14. The care given by Ben Davenport was observed and supervised by [Rio Grande Zoological Plark personnel. The [Rio Grande Zoological P]ark took over responsibility for feeding the animals after Ben [Davenport] reported being unable to get the elephants to eat nutritional supplements. [Rio Grande Zoological] Park personnel found that the elephants took the supplements readily. Ben [Davenport] did not possess the equipment necessary for skin and foot care[, which skin and foot care had been long neglected]. The [Rio Grande Zoological Park provided the appropriate tools, and allowed [Ben Davenport] to provide the needed care. However, when Ben [Davenport] attempted to trim... Donna's feet on his own, |