Dealer means any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of: Any dog or other animal whether alive or dead (including unborn animals, organs, limbs, blood, serum, or other parts) for research, teaching, testing, experimentation, exhibition, or for use as a pet; or any dog for hunting, security, or breeding purposes. This term does not include: A retail pet store, as defined in this section, unless such store sells any animals to a research facility, an exhibitor, or a dealer (wholesale); or any person who does not sell, or negotiate the purchase or sale of any wild or exotic animal, dog, or cat and who derives no more than $500 gross income from the sale of animals other than wild or exotic animals, dogs, or cats, during any calendar year. PART 2-REGULATIONS SUBPART H-COMPLIANCE WITH STANDARDS AND HOLDING PERIOD § 2.100 Compliance with standards. (a) Each dealer, exhibitor, operator of an auction sale, and intermediate handler shall comply in all respects with the regulations set forth in part 2 and the standards set forth in part 3 of this subchapter for the humane handling, care, treatment, housing, and transportation of animals. SUBPART I-MISCELLANEOUS §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. 57 Agric. Dec. 59 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 TRANSPORTATION STANDARDS §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 distress shall be transported in commerce. 9 C.F.R. §§ 1.1, 2.100(a), .131(a)(1), 3.140(a). CHIEF ADMINISTRATIVE LAW JUDGE'S Findings of Fact 1. Peter A. Lang is, and at all times relevant to these proceedings was, a licensed dealer under the Animal Welfare Act, doing business as Safari West, in Santa Rosa, California (Tr. 18). 2. Safari West is a 400-acre private wildlife reserve [the] purpose [of which] is conservation of endangered species through propagation, education, and research. Safari West is financially supported by Respondent, through his other business endeavors. (Tr. 880-81.) 3. In or around April of 1994, Respondent arranged for the purchase of two male and one female red lechwes and one male ellipsen waterbuck from the San Diego Wild Animal Park. Arrangements were made [for Respondent to take possession of] the animals in San Diego, California, on June 8, 1994. (Tr. 36-38.) 4. A lechwe is a medium-sized African antelope. Males weigh approximately 250 to 270 pounds and females weigh between 150 and 200 pounds. Male lechwes have horns which can grow to approximately . . . 11⁄2 feet long. (Tr. 26-28, 142.) 5. Respondent had arranged to [take possession of] a giraffe and a bushbuck at the Los Angeles Zoo in April of 1994. While Respondent was en route to the Los Angeles Zoo to [obtain] the bushbuck and the giraffe, the Los Angeles Zoo canceled the shipment due to difficulties in preparing the giraffe for transport. (Tr. 160-61, 272-73.) 6. Respondent rescheduled the giraffe and bushbuck pickup for June 9, 1994, in combination with the trip to the San Diego Wild Animal Park. He also planned to pick up animals at Santa Ana Zoo and Fresno Zoo on this trip. Prior to the trip, Respondent apprised zoo staff at the San Diego Wild Animal Park of his planned route and the additional stop at the Los Angeles Zoo. (Tr. 36-37, 40, 131.) 7. Respondent transports animals in a trailer which is 29 feet long and 6 feet 4 inches wide. There is a gooseneck area which is 7 feet long and 31⁄2 feet high. The gooseneck can be divided into two compartments, each of which is 3 feet wide. The rest of the trailer can be divided every 2 feet, creating 11 stalls. Each stall has ventilation panels, access doors, and feed doors. The rear 8 feet of the roof expands upward to a maximum height of 13 feet and 9 inches. (CX 9; [Tr. 18].) 8. Respondent arrived at the Santa Ana Zoo at approximately 9:00 a.m. on June 8, 1994. At that time, Respondent [loaded] 7 red-handed tamarins, 1 serval cat, and 2 mitred conures [on his trailer. Respondent left the Santa Ana Zoo at approximately 12:00 noon, June 8, 1994, and proceeded to the San Diego Wild Animal Park.] (Tr. 18-19.) 9. Respondent arrived at the San Diego Wild Animal Park at [approximately] 57 Agric. Dec. 59 2:30 p.m. on June 8, 1994, where he was scheduled to load three lechwes--[two] male[s] and [one] female--and one waterbuck [into his trailer]. (Tr. 18.) 10. At the San Diego Wild Animal Park, Respondent discussed with animal managers Richard M. Massena and Sharon Joseph the loading of the lechwes into the trailer. Respondent suggested placing the female in the gooseneck portion of the trailer. Mr. Massena felt that the lechwe would not have sufficient room in that area and recommended placing all of the lechwes in the main area of the trailer in separate stalls. Since placing them in separate stalls would not have left enough room for the animals that were to be loaded [at the] Los Angeles [Zoo], a mutual decision was reached to place them together in a double stall. Mr. Massena determined that they should be compatible since they had been housed together in a small enclosure for 31⁄2 to 4 weeks prior to the Respondent's arrival. (Tr. 50-52, 13[0]-35, 151.) 11. The lechwes and the waterbuck were loaded [into Respondent's trailer] without incident. Mr. Massena requested that Respondent wait for 11⁄2 hours to monitor the compatibility of the lechwes in the trailer. [Respondent complied with Mr. Massena's] request, and [Mr. Massena] determined... that the lechwes were compatible. (Tr. 134, 151[, 643, 910-11].) Respondent checked on the animals [in the trailer] (Tr. 912) and left the San Diego Wild Animal Park between 4:30 and 5:00 p.m. on June 8, 1994. ([RX 4;] Tr. 18[-19, 911].) 12. Respondent traveled to Carlsbad, California, for dinner, arriving at approximately 6:15 p.m. The animals were checked before and after dinner. Respondent left Carlsbad, California, at approximately 10:15 p.m.[, June 8, 1994.] ([RX 4;] Tr. 643-44, 956.) 13. Respondent arrived at a hotel in Los Angeles, California, around midnight. Respondent fed, watered[, and checked] the animals. Respondent informed the night watchman of the contents of the trailer. The watchman agreed to keep an eye on the trailer and notify Respondent of any noise. At the hotel the next morning, Respondent fed, watered, and checked all the animals in the trailer, leaving the water tubs on board. [Respondent] then...traveled approximately 15 minutes to the Los Angeles Zoo. ([RX 4;] Tr. 645.) 14. Respondent arrived at the Los Angeles Zoo at approximately 8:00 a.m. on June 9, 1994 (Tr. 645, 957). The staff at the zoo were not ready to load the animals into Respondent's trailer. Staff and equipment were not in place; the veterinarian was not present; and the paperwork was not ready. The unpreparedness of the zoo caused a delay of approximately 2 hours. Respondent made a number of suggestions to Mr. Barnes[, the Los Angeles Zoo mammal curator,] regarding the loading; however, Respondent relied on the decisions of Mr. Barnes since he was more familiar with the animals. (Tr. 645-48, 918-23, 928-32.) 15. Two sable antelope, one greater kudu, one masai giraffe, and one harness bushbuck were loaded [into Respondent's trailer] at the Los Angeles Zoo (Tr. 19). The loading proceeded without event, except for the crating of the bushbuck, which caused an injury to the bushbuck's nose, with substantial bleeding and some swelling. A veterinarian, who was called to check on the bushbuck, determined that it was safe to transport the animal, but instructed the animal keeper to listen to the bushbuck periodically to ensure that the bushbuck was breathing. (Tr. 162-63, 166, [171-73], 929-31.) 16. Between the loadings of the various animals, Ms. Lang provided the small animals from the Santa Ana Zoo with food (Tr. 650, 705). Following the loading, while waiting for the Los Angeles Zoo staff to provide him with paperwork for the animals, Respondent moved the trailer to the shade and checked the animals on board. Prior to leaving the Los Angeles Zoo, [Respondent removed] the water tubs [from the trailer]. (Tr. 932-33.) 17. Respondent left the Los Angeles Zoo between 10:30 and 11:30 a.m.[, June 9, 1994.] Two zookeepers [from the Los Angeles Zoo], Kelley Greene and Robin Noll, joined Respondent for the remainder of the trip, to ensure the safe transport of the giraffe and bushbuck [(Tr. 160-62)]. After leaving the Los Angeles Zoo, Respondent's truck overheated, and he stopped for approximately 30 minutes while he cooled the radiator with some of the animals' drinking water (Tr. [18,] 176-77, 651, 936). 18. Respondent stopped for gas at either Wheeler Ridge or Frazier Park, approximately 11⁄2 hours from the Los Angeles Zoo. Respondent put the gas pump on automatic and circled the trailer checking all of the animals on board. While he was refueling and checking the animals, Ms. Greene, Ms. Noll, and Ms. Lang used the rest room and purchased food and beverages. ([RX 4;] Tr. 180, 656, 95859.) 19. Respondent next traveled approximately 2 hours to the Fresno Zoo ([RX 4;] Tr. [18,] 959). At the Fresno Zoo, Respondent [loaded] three cattle egret and two scarlet ibis [into his trailer (Tr. 317).] At the Fresno Zoo, Ms. Lang, Ms. Greene, and Ms. Noll all used the rest room and filled water bottles (Tr. 658). 20. Respondent spent approximately 15 minutes at the Fresno Zoo, then traveled approximately 10 minutes to a gas station ([RX 4;] Tr. 185-86). At the gas station, Respondent placed the fuel nozzle in the tank and put it on automatic. He then circled the trailer and checked on all the animals; he checked the lechwes last. Upon checking the lechwes, Respondent discovered that the female [lechwe] had been gored. (Tr. 942.) Respondent asked Ms. Noll to pull her car alongside the trailer to block the view of the gas station patrons. Respondent and Ms. Noll |