57 Agric. Dec. 59

have been reduced and the death of [one of] the male lechwe[s may] have been avoided.

Sanctions

Complainant recommends the maximum civil penalty of $2,500 for each violation and a cease and desist order. [Section 19(b) of the Animal Welfare Act provides that sanctions shall be imposed as follows:

§ 2149. Violations by licensees

(b) Civil penalties for violation of any section, etc.; separate offenses; notice and hearing; appeal; considerations in assessing penalty; compromise of penalty; civil action by Attorney General for failure to pay penalty; district court jurisdiction; failure to obey cease and desist order]

Any dealer, exhibitor, research facility, intermediate handler, carrier, or operator of an auction sale subject to section 2142 of this title, that violates any provision of this chapter, or any rule, regulation, or standard promulgated by the Secretary thereunder, may be assessed a civil penalty by the Secretary of not more than $2,500 for each such violation, and the Secretary may also make an order that such person shall cease and desist from continuing such violation. Each violation and each day during which a violation continues shall be a separate offense. No penalty shall be assessed or cease and desist order issued unless such person is given notice and opportunity for a hearing with respect to the alleged violation, and the order of the Secretary assessing a penalty and making a cease and desist order shall be final and conclusive unless the affected person files an appeal from the Secretary's order with the appropriate United States Court of Appeals. The Secretary shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the person involved, the gravity of the violation, the person's good faith, and the history of previous violations.

7 U.S.C. § 2149(b).

The Department's current sanction policy is set forth in In re S.S. Farms Linn County, Inc. (Decision as to Joseph Hickey and Shannon Hansen), 50 Agric. Dec.

476, 497 (1991), aff'd, 991 F.2d 803 (9th Cir. 1993) (not to be cited as precedent under 9th Circuit Rule 36-3):

[T]he sanction in each case will be determined by examining the nature of the violations in relation to the remedial purposes of the regulatory statute involved, along with all relevant circumstances, always giving the appropriate weight to the recommendations of the administrative officials charged with the responsibility for achieving the congressional purpose.

Respondent has shown good faith... [in cooperating with the investigation by the Animal and Plant Health Inspection Service of the events which led to the institution of this proceeding]. . . . Furthermore, there is no indication that Respondent intentionally caused harm to the lechwe[, and I do not find that Respondent's violation of section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)) was willful]. Respondent does not have a history of previous violations. [However, a failure over the course of 42 hours to handle an animal as expeditiously and carefully as possible, in a manner to prevent trauma, behavioral stress, physical harm, and unnecessary discomfort, is very serious]. In addition, Respondent has a fairly large business. Although, he does not make money buying and selling animals, there are a large number of animals present at his facility.

Based on these considerations, I conclude that a civil penalty of $1,500 and a cease and desist order are appropriate and warranted.

ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER

Respondent raises seven issues in Respondent's Appeal. First, Respondent contends that:

A. The manner in which the Respondent handled the male lechwe on June 10, 1994 in no way caused it harm or death.

The... Complaint states . . . and Judge Palmer in the [Initial] Decision and Order found "[o]n or about June 10, respondents [sic] violated section 2.131(a) of the Regulations, (9 C.F.R. § 2.131(a)), by handling two lechwes in a manner that caused trauma, behavioral stress and physical harm, and resulted in the death of one of the lechwes."

There is no testimony or evidence whatsoever suggesting that the Respondent did anything on June 10, 1994 to cause trauma, behavioral

57 Agric. Dec. 59

stress and physical harm that resulted in the death of one of the lechwes. The only thing the Respondent did on June 10, 1994 was remove the male lechwe from the trailer and administer first aid. That certainly cannot be considered a violation of 9 C.F.R. § 2.131(a)(1).

Respondent's Appeal at 1-2 (footnotes omitted).

The record does reveal that on the morning of June 10, 1994, Respondent unloaded from his trailer, and administered first aid to, a male lechwe, that died within minutes after Respondent unloaded and gave first aid to the animal. However, the Chief ALJ's reasons for finding that Respondent violated section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)), which, with minor changes, I have adopted (Decision and Order, supra, pp. 24-27), do not include Respondent's act of unloading the male lechwe on June 10, 1994, or the first aid Respondent administered to the male lechwe on June 10, 1994. Instead, the basis for finding Respondent violated section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)) include Respondent's actions and failures to act, which are fully addressed in this Decision and Order, supra, pp. 24-27, and need not be repeated here, from the time the lechwes were loaded into his trailer at the San Diego Wild Animal Park on June 8, 1994, through, and including, Respondent's failure to unload the lechwes at his premises in Santa Rosa, California, until approximately 12 hours after his arrival in Santa Rosa, California.

Respondent's focus on his June 10, 1994, acts of unloading and administering first aid to the male lechwe that died, which Respondent had handled in violation of section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)) over the course of the immediately preceding 42 hours, is misplaced. I find that the Chief ALJ's conclusion, that Respondent failed to handle the lechwe as expeditiously and carefully as possible in a manner that does not cause trauma, behavioral stress, physical harm, and unnecessary discomfort, in violation of section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)), is fully supported by the record.

Second, Respondent contends that "[t]he Respondent never willfully nor intentionally violated 9 C.F.R. 2.131(a)(1)." (Respondent's Appeal at 2.) An action is willful under the Administrative Procedure Act if a prohibited act is done intentionally, irrespective of evil intent, or done with careless disregard of statutory requirements. Therefore, the fact that Respondent did not "intentionally

4

*See Toney v. Glickman, 101 F.3d 1236, 1241 (8th Cir. 1996); Cox v. United States Dep't of Agric., 925 F.2d 1102, 1105 (8th Cir.), cert. denied, 502 U.S. 860 (1991); Finer Foods Sales Co. v. Block, 708 F.2d 774, 777-78 (D.C. Cir. 1983); American Fruit Purveyors, Inc. v. United States, 630 F.2d 370, 374 (continued...)

cause harm to the lechwe" (Initial Decision and Order at 19; Decision and Order, supra, p. 29) would not prevent a finding (with respect to the lechwe that died on June 10, 1994) that Respondent intentionally, or with careless disregard of requirements, failed to handle the animal as expeditiously and carefully as possible in a manner that does not cause trauma, behavioral stress, physical harm, and unnecessary discomfort, in violation of section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)). However, there is some evidence in this record that Respondent did not willfully violate section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)). The Chief ALJ found that Respondent violated 9 C.F.R. § 2.131(a)(1), but did not find that Respondent's violation was willful. In these circumstances, the record is not strong enough to reverse the Chief ALJ on this issue.

Third, Respondent contends that:

C. The male lechwe died from capture myopathy, a fatal and irreversible disease caused at the time the lechwe was loaded into the trailer.

(...continued)

(5th Cir. 1980) (per curiam), cert. denied, 450 U.S. 997 (1981); George Steinberg & Son, Inc. v. Butz, 491 F.2d 988, 994 (2d Cir.) cert. denied, 419 U.S. 830 (1974); Goodman v. Benson, 286 F.2d 896, 900 (7th Cir. 1961); Eastern Produce Co. v. Benson, 278 F.2d 606, 609 (3d Cir. 1960); In re Samuel Zimmerman, 56 Agric. Dec. slip op. at 43 n.4 (Nov. 6, 1997); In re Fred Hodgins, 56 Agric. Dec.

slip op. at 143-44 (July 11, 1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re David M. Zimmerman, 56 Agric. Dec. 433, 476 (1997), appeal docketed, No. 97-3414 (3d Cir. Aug. 4, 1997); In re Volpe Vito, Inc., 56 Agric. Dec. 166, 255-56 (1997), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 138 (1996); In re Zoological Consortium of Maryland, Inc., 47 Agric. Dec. 1276, 1284 (1988); In re David Sabo, 47 Agric. Dec. 549, 554 (1988). See also Butz v. Glover Livestock Comm'n Co., 411 U.S. 182, 187 n.5 (1973) ("`Wilfully' could refer to either intentional conduct or conduct that was merely careless or negligent."); United States v. Illinois Central R.R., 303 U.S. 239, 242-43 (1938) ("In statutes denouncing offenses involving turpitude, 'willfully' is generally used to mean with evil purpose, criminal intent or the like. But in those denouncing acts not in themselves wrong, the word is often used without any such implication. Our opinion in United States v. Murdock, 290 U.S. 389, 394, shows that it often denotes that which is `intentional, or knowing, or voluntary, as distinguished from accidental,' and that it is employed to characterize `conduct marked by careless disregard whether or not one has the right so to act."")

The United States Court of Appeals for the Fourth Circuit and the United States Court of Appeals for the Tenth Circuit define the word "willfulness," as that word is used in 5 U.S.C. § 558(c), as an intentional misdeed or such gross neglect of a known duty as to be the equivalent of an intentional misdeed. Capital Produce Co. v. United States, 930 F.2d 1077, 1079 (4th Cir. 1991); Hutto Stockyard, Inc. v. USDA, 903 F.2d 299, 304 (4th Cir. 1990); Capitol Packing Co. v. United States, 350 F.2d 67, 78-79 (10th Cir. 1965).

57 Agric. Dec. 59

Judge Palmer states in the Decision and Order that, "the animal (2nd lechwe) probably died from capture myopathy, a deadly condition caused by the stress of capture." There is nothing the Respondent could have done to cure, reverse in anyway [sic] or remedy the outcome of death for the lechwe by capture myopathy. Capture myopathy, as the name implies, and as Judge Palmer correctly states, occurs at the time an animal is captured, and in this instance, when it was loaded into the trailer at the San Diego Wild Animal Park. As Judge Palmer correctly states in the Decision and Order, "... it is a deadly condition". . . .

Capture myopathy is an irreversible disease. In the Decision and Order, Judge Palmer, states six things the Respondent could have done differently. As discussed below . . . none of those six items could have stopped or cured capture myopathy. The outcome still would have been the same. In fact, some of the measures that Judge Palmer suggests would have been harmful or even dangerous to the other animals and the lechwe and the others were unnecessary.

Respondent's Appeal at 3 (emphasis in original) (footnotes omitted).

The Chief ALJ does state that the male lechwe "probably died from capture myopathy" (Initial Decision and Order at 15 (emphasis added)). However, I do not find that the record supports a finding that capture myopathy was the cause of the June 10, 1994, death of the male lechwe, and I have deleted the Chief ALJ's reference to the probable cause of death in this Decision and Order. Further, Respondent's focus on the cause of the June 10, 1994, death of the male lechwe is misplaced. Even if I found that the capture myopathy was the cause of death of the male lechwe (which I do not find), that finding would not negate the fact that Respondent failed to handle the male lechwe as expeditiously and carefully as possible in a manner that did not cause trauma, behavioral stress, physical harm, and unnecessary discomfort to the animal. While one of the purposes of section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)) is to prevent death, the regulatory provision is explicitly designed to prevent trauma, overheating, excessive cooling, behavioral stress, physical harm, and even unnecessary discomfort to animals. Therefore, Respondent's actions and failures to act need not have been the cause of the June 10, 1994, death of the male lechwe in order to find that Respondent violated section 2.131(a)(1) of the Regulations (9 C.F.R. §2.131(a)(1)). Moreover, while it is undisputed that the male lechwe in question died on June 10, 1994, the male lechwe's death is not a necessary prerequisite to a finding that Respondent violated section 2.131(a)(1) of the Regulations (9 C.F.R.