Full opinion text
ORDER FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF JON STUART SCOLES, CHIEF MAGISTRATE JUDGE, NORTHERN DISTRICT OF IOWA TABLE OF CONTENTS I. INTRODUCTION ... 680 II. PROCEDURAL HISTORY ... 680 III. BACKGROUND ... 681 A. The Parties ... 681 B. Plaintiffs’ Claim ... 681 IV. PLAINTIFFS’STANDING ... 681 A. Applicable Law ... 681 B. Plaintiffs ... 684 1. Tracey Kuehl ... 684 2. Lisa Kuehl ... 685 3. Nancy Harvey ... 685 4. John Braumann ... 686 C. Analysis ... 686 V. REACH OF THE ENDANGERED SPECIES ACT ... 687 VI. RELEVANT FACTS ... 689 A. Cricket Hollow Zoo ... 689 1. Tigers ... 690 2. Lemurs ... 692 B. Plaintiffs’ Site Visits ... 693 1. Tracey Kuehl ... 693 2. Lisa Kuehl ... 694 3. Nancy Harvey ... 694 4. John Braumann ... 695 C. USD A Inspections ... 695 D. Plaintiffs’ Expert Witnesses ... 701 1. Peter Klopfer, Ph.D ... 701 2. Jennifer Conrad, D.V.M ... 703 3. David Allen ... 706 E. Defendants’ Expert Witnesses ... 706 1. John Herbert Pries, D.V.M ... 706 2. Gary Pusillo, Ph.D ... 708 VII. DISCUSSION ... 709 A. Endangered Species Act ... 709 B. Lemurs ... 710 1. Social Isolation ... 710 2. Environmental Enrichment ... 711 3. Sanitation ... 712 4. Veterinary Care ... 713 5. Summary ... 713 C. Tigers ... 713 1. Veterinary Care ... 713 2. Sanitation ... 716 3. Housing and Caging ... 717 4. Environmental Enrichment ... 717 5. Nutritional Protocols ... 718 6. Summary ... 718 VIII. CONCLUSION ... 718 IX. ORDER ... 719 I. INTRODUCTION On the 5th day of October 2015, this matter came on for trial on the Complaint for Declaratory and Injunctive Relief (docket number 2) filed by the Plaintiffs on June 11, 2014. The Plaintiffs were represented by their attorneys, Daniel J. Anderson, Elisabeth Holmes, Jeffrey Pierce, and Jessica Blome. Defendants Pamela Sellner and Tom Sellner appeared personally, and were represented by their attorney, Larry J. Thorson. II. PROCEDURAL HISTORY On June 11, 2014, Plaintiffs Tracey K. Kuehl, Lisa K. Kuehl, Kris A. Bell, Nancy A. Harvey, John T. Braumann, and the Animal Legal Defense Fund filed a complaint against Defendants Pamela Sellner, Tom Sellner, and Cricket Hollow Zoo, seeking declaratory and injunctive relief. Plaintiffs claim Defendants have violated the Endangered Species Act, and ask the Court to enjoin Defendants from acquiring or possessing lemurs, tigers, wolves, lions, and serval. Defendants answered on July 17, 2014, denying the material allegations. On August 28, 2014, the Court adopted a proposed Scheduling Order and Discovery Plan submitted by the parties. Also at that time, the case was referred to me pursuant to 28 U.S.C. § 686(c)(3) and the consent of the parties. Plaintiffs’ motion for summary judgment was denied and a non-jury trial was held on October 5-8, 2015. Post-trial briefing was completed on December 18, 2015. III. BACKGROUND A. The Parties The five individual Plaintiffs are Iowans who have an interest in protecting endangered species. The Animal Legal Defense Fund (“ALDF”) is a non-profit organization registered in California, with its principal place of business in Cotati, California. The ALDF has more than 200,000 members and supporters nationwide, including Plaintiffs Tracey Kuehl, Lisa Kuehl, Kris Bell, and Nancy Harvey. The ALDF’s mission is to advance the interests and protect the lives of animals through the legal system. Defendants Pamela Sellner and Tom Sellner, wife and husband, reside in Delaware County, Iowa. Defendant Cricket Hollow Zoo (“Cricket Hollow” or “the Zoo”) is a non-profit corporation registered in Iowa, with its principal and only place of business located in rural Manchester, Iowa. The only owners, operators, members, officers, board members, or full-time employees of the corporation are the Sellners. Cricket Hollow’s stated corporate purpose is education. B. Plaintiffs’ Claim The Endangered Species Act (“ESA”) was enacted in 1973. One of its stated purposes is to “provide a program for the conservation of [ ] endangered species and threatened species.” 16 U.S.C. § 1531(b). Among other things, .the ESA makes it unlawful for any person to “take” any endangered species of wildlife within the United States. 16 U.S.C. § 1538(a)(1)(B).-“The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). Plaintiffs claim Defendants have violated the ESA’s prohibition on the “taking”’ of endangered species, by “harming” and “harassing” them. Plaintiffs argue Defendants’ captive endangered species are harmed and harassed by social isolation, inadequate veterinary care, inadequate sanitation, inadequate housing and caging, inadequate environmental enrichment, and inadequately implemented nutritional protocols. IV. PLAINTIFFS’STANDING A. Applicable Law Preliminarily, the Court must determine whether Plaintiffs have Article III standing to sue Defendants for an alleged violation of the Endangered Species Act. The ESA authorizes so-called “citizen suits.” See 16 U.S.C. § 1540(g)(1)(A) (“[A]ny person may commence a civil suit on his own behalf to enjoin any person ... who is alleged to be in violation of any provision of this chapter ...). The language permitting “any person” to commence a civil suit is “an authorization of remarkable breadth when compared with the language Congress ordinarily uses.” Bennett v. Spear, 520 U.S. 154, 164-65, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). The Supreme Court found that the “obvious purpose” of this language is “to encourage enforcement by so-called ‘private attorneys general.’” Id. at 165, 117 S.Ct. 1154. Article III of the Constitution requires, however, that there must be a “case” or “controversy” to establish jurisdiction. This “irreducible constitutional minimum” of standing requires: (1) that the plaintiff have suffered an “injury in fact” — an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal-connection between the injury and the conduct complained of — the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Bennett, 520 U.S. at 167, 117 S.Ct. 1154 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). “The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130. It would appear Plaintiffs meet the second and third standing requirements of Bennett. That is, there is a causal connection between Plaintiffs’ alleged injuries and the claimed violations by Defendants. In addition, it is “likely” that Plaintiffs’ injuries will be redressed by a favorable decision. The fighting issue, therefore, is whether Plaintiffs have suffered an “injury in fact” — the first standing requirement set forth in Bennett. In Lujan v. Defenders of Wildlife, the Court considered the issue of standing under circumstances where the claimants asserted an “esthetic interest” in viewing animals. In that case, organizations dedicated to wildlife conservation filed an action against the Secretary of the Interior, challenging a new regulation regarding the geographic scope of the ESA, and seeking declaratory and injunctive relief. 504 U.S. at 559, 112 S.Ct. 2130. The district court granted the Secretary’s motion to dismiss for lack of standing, but the Eighth Circuit Court of Appeals reversed. Concluding the respondents lacked standing to bring the action, the Supreme Court reversed, finding the Court of Appeals erred in denying summary judgment. The Court first identified the three elements constituting the “irreducible constitutional minimum of standing,” as later cited in Bennett and set forth above. The Court acknowledged that “the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.” Id. at 562-63, 112 S.Ct. 2130 (citing Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). See also Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167, 183, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). “But the ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Id. at 563, 112 S.Ct. 2130. That is, one or more of the plaintiffs must be “ ‘directly’ affected apart from their ‘special interest in the subject.’ ” Id. One of the members of Defenders of Wildlife stated she traveled to Egypt to observe the traditional habitat of the endangered Nile crocodile and intended to do so again. She averred she would suffer “harm in fact” as a result of the American role in overseeing the rehabilitation of the Aswan Dam on the Nile River. Id. Another member of Defenders of Wildlife stated she ■ had traveled to Sri Lanka and “observed the habitat” of the endangered Asian elephant and the leopard. She claimed that because of a project funded by an agency of the American government, she was unable to see any of the endangered species and that the continued development would seriously reduce the species habitat, thereby harming her because she “intends to return to Sri Lanka in the future and hopes to be more fortunate in spotting at least the endangered elephant and leopard.” Id. At her deposition, she testified she planned to return to Sri Lanka, but had no current plans to do so. Id. at 564, 112 S.Ct. 2130. The Court concluded that standing was lacking, finding the allegations “plainly contain no facts [] showing how damage to the species will produce ‘imminent’ injury” to the two members of the organization. Id. That the women “had visited” the areas of the projects before the projects commenced proves nothing. As we have said in a related context, “ ‘Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.’ ” And the affiants’ profession of an “intent” to return to the places they had visited before — where they will presumably, this time, be deprived of the opportunity to observe animals of the endangered species — is simply not enough. Such “some day” intentions— without any description of concrete plans, or indeed even any specification of ivhen the some day will be — do not support a finding of the “actual or imminent” injury that our cases require. Defenders of Wildlife, 504 U.S. at 564, 112 S.Ct. 2130 (internal citations omitted). In Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426 (D.C.Cir.1998), the Court considered standing under circumstances similar to those presented here. The plaintiffs in Glickman challenged regulations adopted by the USDA on the ground that they violated the USDA’s statutory mandate under the Animal Welfare Act (“AWA”). Finding that one of the individual plaintiffs, Mr. Jurnove, had standing to sue, the Court did not pass on the standing of the other individual plaintiffs. Id. at 429. Jurnove, who was an active volunteer for various human and animal relief and rescue organizations, visited a local “game farm” and zoo at least nine times. Jurnove claimed that on his first visit to the Game Farm, he saw many animals living under inhumane conditions. The day after his first visit, Jurnove “began to contact government agencies, including the USDA, in order to secure help for these animals.” Id. In an affidavit, Jurnove identified injuries “he has suffered to his aesthetic interest in observing animals living under humane conditions.” Id. Jurnove also asserted he intended to return to the Game Farm “in the next several weeks” and to “continue visiting the, Farm to see the animals there.” The D.C. Circuit Court of Appeals, sitting en banc, concluded that “Mr. Jurnove’s allegations solidly establish injury in fact,” Id. at 431. Citing the standing requirements of Article III, as set forth in Bennett and Lujan, the Court concluded that “Mr. Jurnove suffered direct, concrete, and particularized injury to this aesthetic interest in observing animals living under humane conditions.” Id. “Simply put, Mr. Jurnove has alleged far more than an abstract, and uncognizable, interest in seeing the law enforced.” Id. at 432. A North Carolina district court recently reached the same conclusion. In Hill v. Coggins, 2014 WL 2738664 (W.D.N.C.2014), the Court found the plaintiffs, who were “aesthetically and emotionally injured while visiting the Zoo when they observed the grizzly bears living in inhumane conditions,” had standing to pursue a claim that the defendants were violating the Endangered Species Act. As a result of witnessing the conditions in which the bears at the Zoo live, as well as the condition of the bears themselves, Plaintiffs are currently suffering and will continue to suffer aesthetic and emotional injury. Plaintiffs would like to visit the bears again in the future but are unable to do so while they are housed at the Zoo without suffering additional aesthetic and emotional injury. If, however, the bears were moved to a more humane and natural setting where the bears were allowed to live in an appropriate environment and were humanely treated, then Plaintiffs would visit the bears again. Hill, 2014 WL 2738664 at *2. Recognizing that “[a]n individual’s aesthetic or recreational interests may constitute an injury sufficient to satisfy the injury in fact standing requirement,” the Court concluded the allegations were sufficient to establish standing. Id. at *4 (citing Laidlaw, 528 U.S. at 183, 120 S.Ct. 693). B. Plaintiffs 1. Tracey Kuehl Turning to the facts in the instant action, Plaintiff Tracey Kuehl testified that she is retired from a position as executive director of a museum. Tracey grew up on a farm and has an interest in animals. At the time of trial, Tracey owned dogs, cats, two potbellied pigs, some pigmy goats, a sheep, and .about a dozen chickens. Tracey testified she enjoys seeing all types of animals, “particularly the wild ones in their natural settings.” Acknowledging that she “probably will never get to see them where. they’re living” in the wild, Tracey testified that “I really appreciate the fact that I can go to these [zoo] facilities and see them in a relatively natural setting so I can see how they act as animals.” Tracey, who lives 120 miles from the Cricket Hollow Zoo, learned about the Zoo while she was traveling through northeast Iowa and found an advertisement for the Zoo in a local tourist newspaper. She first visited the Zoo on June 23, 2012. Tracey testified she was “really upset,” “very concerned,” and “shocked” by the conditions that she found at Cricket Hollow. According to Tracey, the animal enclosures were unsanitary and the animals lacked “enrichment.” The conditions experienced by the tigers made Tracey “really, really sad and really disappointed.” Two days later, on June 25, 2012, Tracey sent a four-page letter to the Iowa Department of Agriculture and Land Stewardship (“IDALS”) describing her observations while visiting the Zoo. On the following day, Tracey sent a copy of the letter to the United States Department of Agriculture, Animal and Plant Health Inspection Service (“USDA-APHIS”). Tracey returned to Cricket Hollow on July 6, 2012, two weeks after her first visit. She decided to go back because she was “curious” and “was hopeful that something would have changed.” Tracey testified that she was “really distressed to see that nothing had changed.” Later that same day, she sent additional letters to IDALS and USDA-APHIS. Feeling “a little drained” from her first two visits, Tracey did not return to Cricket Hollow until June 24, 2013. During the one year between visits, Tracey remained active in her advocacy for the animals. Tracey reviewed the inspection reports available through the USDA-APHIS online reading room. She also contacted the Iowa Secretary of Agriculture, Iowa Department of Natural Resources, Delaware County Sheriff, Delaware County Board of Supervisors, Delaware County Department of Health, and the Mayor of Manchester. According to Tracey, she felt “obligated” to return to Cricket Hollow “to see if any substantive changes had been made that would improve the lives of any of the animals living at the zoo.” When she returned to the Zoo in June 2013, however, she “saw the same thing” that she had seen in 2012. Tracey did not return to the Zoo after that time, testifying that “it upset me so much” that “I could barely stomach to go back to the place.” When asked if she would visit the animals again “if their conditions did improve,” however, Tracey responded “yes, I would.” 2. Lisa Kuehl Lisa Kuehl (Tracey Kuehl’s sister), a resident of Madrid, Iowa, testified she is a retired commercial airline pilot and is now employed as a professional figure skating instructor. Lisa, who grew up on a farm and owns several pets, is an active member of Iowa Friends of Companion Animals, which focuses on Iowa’s commercial dog breeding industry. While researching the USDA inspection database in January 2012 for non-compliant dog breeders, Lisa found reports from August and December 2011, showing Cricket Hollow’s non-compliance with federal regulations. On April 1, 2012, Lisa took aerial photographs of the Zoo and subsequently met with State Veterinarian Dr. David Schmitt. Lisa first visited Cricket Hollow on June 21, 2012, accompanied by three other women, including co-Plaintiffs Kris Bell and Nancy Harvey. Lisa found the conditions at the Zoo to be unsanitary and the tigers pestered by flies. There was a lack of enrichment activities and, according to Lisa, “the tiger looked bored is a good way to describe it.” After leaving the Zoo, Lisa wrote to the USDA on June 28, complaining of the conditions. Numerous photographs were included with the letter. Lisa returned to the Zoo in July 2012. According to Lisa, “I was definitely worried about the animals and I was hoping that I would see them in a better place.” Lisa returned to the Zoo a third time on July 13, 2013, accompanied by co-Plaintiff John Braumann. Lisa has not returned to the Zoo since July 2013, but testified that if the conditions of the tiger, wolves, and lemurs improved at the Cricket Hollow Zoo, then she “would go back to the Zoo if I felt like I was welcome.” 3. Nancy Harvey Nancy Harvey, who lives in Ankeny, Iowa, is a retired life insurance underwriter. Like the Kuehls, Harvey grew up on a farm. At the time of trial, Harvey owned two dogs, two cats, and a bird. Harvey testified she feels a “connection” to animals and has “always felt a deep concern and love for them.” Harvey has volunteered with several advocacy groups, in-eluding Iowa Voters for Companion Animals and Red Rover Responders. Harvey also has a Facebook page called Iowa Stars for Animals, which raises funds for animal shelters. Harvey is also a member of co-Plaintiff ALDF. Harvey first became aware of the Cricket Hollow Zoo when she was shown aerial pictures taken by Lisa Kuehl. Harvey and Lisa decided to visit the Zoo on June 21, 2012. Harvey testified she was “really shocked” by the conditions in the reptile house. After witnessing a lion vomiting, Harvey “just shut down.” Harvey testified that she was “so upset and anxious and depressed” by the conditions at the Zoo that “I just didn’t want to stay there any longer, so I was ready to go.” Harvey has not returned to Cricket Hollow since that time. Harvey testified “I don’t want to see them again if they’re still living in those types of conditions.” When asked if she would return to the Zoo to visit the animals if the conditions there improved, however, Harvey responded “absolutely.” 4. John Brautnann John Braumann is a resident of Marion, Iowa, which is approximately a 40-minute drive to the Zoo. Braumann is a member of several animal protection organizations, including the ASPCA, Humane Society of the United States, Mercy for Animals, and Compassion Over Killing; but is not a member of the ALDF. Braumann testified he is ' “highly vocal against things like poaching, the ivory trade, the taking of wolves.” Braumann learned of the Cricket Hollow Zoo through a “Facebook friend” and first visited the Zoo on October 13, 2012. Braumann’s first impression was that “it struck me as a farm and not a zoo.” Braumann testified he was depressed by the “pathetic conditions” he found at the Zoo. He was “frustrated” by the lack of enrichment provided to the animals. According to Braumann, even reviewing the photographs in anticipation of testifying “upset me greatly.” Braumann returned to Cricket Hollow again on July 13, 2013. Finding the same conditions, Braumann described himself as frustrated, angry, and depressed. Braumann “made the decision that I wasn’t going to go back unless something significant changed.” Braumann testified, however, that he enjoys seeing the animals in person and would be happy to return if changes were made at the Zoo. Braumann would also visit the animals elsewhere if they were relocated. C. Analysis As set forth above, the Endangered Species Act authorizes “any person” to bring an enforcement action seeking to enjoin an alleged violation of the ESA. However, to establish the existence of a “case or controversy,” as required by Article III of the Constitution, the plaintiff must establish that they have suffered an “injury in fact.” The injury must be “judicially cognizable,” “concrete and particularized,” and “actual or imminent, not conjectual or hypothetical.” Bennett, 520 U.S. at 167, 117 S.Ct. 1154. The Supreme Court has repeatedly recognized that a claimant’s “aesthetic inter-' est” in observing animals is a judicially cognizable interest. Lujan, 504 U.S. at 562-63, 112 S.Ct. 2130 (“The desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.”). See also Glickman, 154 F.3d at 432 (“The Supreme Court has repeatedly made clear that injury to an aesthetic interest in the observation of animals is sufficient to satisfy the demands of Article III standing.”). Article III requires more, however, than an injury to a cognisable interest. “It requires that the party seeking review be himself among the injured.” Lujan, 504 U.S. at 563, 112 S.Ct. 2130. In Lujan, the Court concluded that the plaintiffs’ general intentions to return to Egypt and Sri Lanka to view endangered species failed to allege “imminent injury” to the plaintiffs. Such “some day” intentions did not satisfy the “particularized” and “actual or imminent” requirements of an injury in fact. Id. I believe, however, that the facts in this case are more akin to those described in Glickman and Coggins. The D.C. Circuit Court of Appeals concluded in Glickman that' a plaintiffs allegations that he visited a zoo repeatedly, suffered to his aesthetic interest in observing animals, living under humane conditions, and planned to return to the zoo in the future, “solidly established] injury in fact.” .Glickman, 154 F.3d at 431. Similarly, the Coggins Court found standing based on a claim that the plaintiffs suffered aesthetic and emotional injury while visiting a zoo where they observed grizzly bears living in inhumane conditions. 2014 WL 2738664 at *2. Here, the four individual Plaintiffs who testified at trial have an “aesthetic” interest in viewing endangered species living inhumane conditions. Importantly, Plaintiffs do not simply rely on injury to a generally cognizable interest. Rather, they assert a “concrete and particularized” injury to themselves. That is, Plaintiffs are “ ‘directly’ affected apart from their ‘special interest in the subject.’ ” Lujan, 504 U.S. at 563, 112 S.Ct. 2130. Unlike the plaintiffs in Lujan, Plaintiffs here do not have a “eonjectual or hypothetical” interest in the matter, but instead live within easy driving distance of Cricket Hollow and would return to view the animals if conditions improved. See Coggins, 2014 WL 2738664 at *4 (“Plaintiffs live near the Zoo; they could return to visit the Zoo at any time but decline to do so because of the alleged living conditions and physical condition of the bears and the additional harm that seeing the bears in this condition will cause Plaintiffs.”). The Court concludes the individual Plaintiffs have suffered an “injury in fact” and have met their burden of establishing the Article III standing requirements described in Bennett. The Court also concludes that Plaintiff Animal Legal Defense Fund has standing' as a plaintiff. “An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation in individual members in the lawsuit.” Laidlaw, 528 U.S. at 181, 120 S.Ct. 693 (citing Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)). Because Tracey Kuehl, Lisa Kuehl, and Nancy Harvey — all members of the ALDF — have standing, the ALDF also has standing. V. REACH OF THE ENDANGERED SPECIES ACT Next, the Court must determine which animals housed at the Cricket Hollow Zoo are covered by the Endangered Species Act and, therefore, are subject to the Court’s jurisdiction • in this lawsuit. While the record is somewhat imprecise, there are approximately 200-300 birds and animals at the Cricket Hollow Zoo, including tigers, lions, bears, equities, sheep, zebu cattle, deer, camel, Meishan pigs, pot belly pigs, dogs, birds, reptiles, and snakes. In the Final Pretrial Order, the parties stipulated that “[e]ach of the Defendants’ tigers, ring tailed lemurs, and the red ruffed lemur who have been or are currently exhibited at the Cricket Hollow Zoo in Manchester, Iowa, are listed as threatened or endangered species under the Endangered Species Act and its implementing regulations at 50 CFR § 17.11.” The parties disagree, however, regarding whether Defendants’ hybrid wolves are protected by the ESA. Pam Sellner testified that Cricket Hollow has three wolf hybrids, housed in the same cage. According to Sellner, the animals are “75 percent” wolf. That is, one parent was a purebred wolf, while the other parent was half wolf and half domesticated dog. It is undisputed that wolves (Canis lupus) are protected by the ESA. See 50 C.F.R. § 17.11(h). Plaintiffs argue the protection extends to “hybrid” wolves. The list found at 50 C.F.R. § 17.11(h) “contains the names of all species of wildlife which have been determined by the Services to be Endangered or Threatened.” § 17.11(a). However, “the listing of a particular taxon includes all lower taxonomic units.” § 17.11(g). For example, because the genus Hylobates (gibbons) is listed as endangered, all species, subspecies, and populations of that genus are considered endangered. Id. Plaintiffs argue that “crossing a general member of a protected species taxon (Canis lupus — the gray wolf) with a specific subspecies thereof (Canis lupus familiarus — the domesticated dog), produces protected offspring.” In support of their argument, Plaintiffs cite United States v. Kapp, 2003 WL 23162408 (N.D.Ill.2003). There, the defendant was convicted of violating and conspiring to violate the Endangered Species Act. Kapp’s conviction was affirmed on appeal in United States v. Kapp, 419 F.3d 666 (7th Cir.2005). A jury found that Kapp and others shot numerous exotic animals, including tigers and leopards, “while they were helplessly confined, sometimes even posing afterwards for safari-style photographs with the carcasses.” Id. at 667-68. Kapp argued on appeal that the government had failed to prove beyond a reasonable doubt that the tigers at issue were not unprotected tiger hybrids, such as ligers. Id. at 673. Before considering the merits of Kapp’s arguments, the Seventh Circuit reviewed the “reach” of the ESA. Id. at 672. Protected animals are listed in the Code of Federal Regulations by genus, then by species and, if applicable, by subspecies. When an animal is listed as protected at the species level, all subspecies of that animal are also protected. Id. at 672. If, however, an animal is listed only at the subspecies level, animals of the same species but different subspecies are not protected unless those subspecies are separately listed. Id. The Seventh Circuit noted that neither the ESA nor the regulations refer specifically to hybrids, which are crosses between listed and unlisted animals. Although the Department of the Interior at one time sought to protect hybrids under the ESA if at least one parent was a member of an endangered species, the Department reversed this position because of the adverse impact the protection of such hybrids would have on efforts to preserve listed species. At all times relevant to Kapp’s case, the USFWS enforced the policy, consistent with 50 C.F.R. § 17.11(g), in which hybrids of a listed, species and an unlisted species are not protected under the ESA. (internal citation omitted) Similarly, the USFWS policy did not allow for protection of hybrids of animals listed at the subspecies level and unlisted subspecies. Kapp, 419 F.3d at 672 (italics in original). For example, a cross between a Bengal tiger (Panthera tigris tigris) and a Siberian tiger (Panthera tigris altaica) is protected by the ESA. Id. at 675 (“The relevant taxon in this case is Panthera tigris, which is the tiger at the species level.”). In other words, because the tigers and leopards at issue in Kapp were protected at the species level, all tiger and leopard subspecies are similarly protected. Id. at 673. “But crosses between tigers or leopards (including all subspecies) and members of unlisted species or subspecies, such as lions, are not protected. Therefore, ligers or tigons, which are hybrids of tigers (Panthera tigris, listed) and lions (Panthera leo, not listed) are not protected.” Id. Plaintiffs’ argument — if I understand it correctly — is that because wolves (Canis lupus) are protected by the ESA, all subspecies of Canis lupus would be similarly protected. Offspring resulting from crossbreeding between protected species or subspecies are protected by the ESA. According to the argument, the domesticated dog (Canis lupus familiaris) is a subspecies of Canis lupus and, therefore, a hybrid wolf/dog is protected by the Endangered Species Act. If a Canis lupus familiarus is considered a subspecies of Canis lupus for purposes of the ESA, however, then it means a domesticated dog is protected by the ESA. See 50 C.F.R. § 17.11(g). It boggles the mind to consider the implications of finding that a domesticated dog is protected by the Endangered Species Act. Plaintiffs cite no authority for this extreme position. It can only be concluded that Canis lupus familiarus is not a protected subspecies of Canis lupus. Because the domesticated dog is not a protected subspecies, it follows that crosses between a wolf and a dog are not protected. Kapp, 419 F.3d at 673. If a half wolf/half dog is not protected by the ESA, then its offspring when mated with a purebred wolf is similarly unprotected. The Code of Federal Regulations makes it clear that “[cjrosses between wild animal species and domestic animals, such as dogs and wolves or buffalo and domestic cattle, are considered to be domestic animals.” 9 C.F.R. § 1.1. Accordingly, the Court concludes that hybrid wolves, resulting from crossbreeding of wolves and domesticated dogs, are not protected by the Endangered Species Act and, therefore, fall outside the jurisdiction of the Court in this lawsuit. VI. RELEVANT FACTS A. Cricket Hollow Zoo Defendants Pamela Sellner and Tom Sellner met in high school and were married in 1979. Both Sellners grew up on farms and worked with livestock. After graduating from high school in 1977, Pam took an artificial insemination course for bovines and then attended a community college studying horse husbandry, but did not finish that course. Pam worked for the Delaware County Dairy Herd Improvement Association for 25 years, retiring in 2001. Tom testified he has worked in construction and farming all of his life, and at the time of trial was working as an ironsmith at a factory. The Sellners have no formal training in zoo administration or accounting. In 1980, the Sellners purchased a farm and raised about 75 head of dairy cows and 100 head of commercial ewes. The Sellners lost the farm in 1985 during the farm crisis, however, and “started over” at their present farm in 1986. The Sellners maintain a dairy herd, raising their own replacements. According to a recent balance sheet, the Sellners have approximately 90 head of cattle and horses. The farm is classified as a Grade A dairy, with the milk suitable for bottling, cheese, butter, or other manufacturing. The Sellners began keeping “exotic” animals when they acquired an “old ugly llama” in 1986. The Sellners obtained an exhibitor’s license from the USDA in 1992, and also have a state permit to operate the Zoo. Initially, the Sellners had a “mobile zoo,” which included a squirrel monkey, small mammals, and reptiles. When they acquired a cougar, however, it could not be exhibited in a mobile zoo and they established their permanent zoo in July 2002. Cricket Hollow was incorporated in January 2005. The Zoo is adjacent to the dairy farm. Tom Sellner, who is a professional welder, constructed the enclosures. Pam testified the Zoo has 300-350 birds and animals, including over 20 equines, approximately 60 head of sheep, 25 head of goats, a few Zebu cattle, a deer, a camel, raccoons, woodchucks, ferrets, guinea pigs, porcupines, armadillo, chinchilla, sloth, coatí mundi, capybara, cavy, 2 Meishan pigs, 3 pot-bellied pigs, and a skunk. In addition, the Zoo has a cougar, tigers, lions, hybrid wolves, lemurs, bears, coyotes, foxes, bobcat, baboons, and dogs. The Zoo has approximately 30 birds and various reptiles. Pam has taken care of big cats for over 20 years. She completed a “Basic Husbandry of Wild Felines” course from the Feline Conservation Federation in Ohio in 2005, and talks frequently with “mentors” throughout the country who raise various exotic animals. She holds an “advanced handler registration” from the Feline Conservation Federation. She also reads extensively and researches different animals.' Pam is a former member of the Simian Society, having belonged to the group for 25 years. 1. Tigers The tiger enclosure at Cricket Hollow includes a steel structure covered by a shade cloth. The tigers like to lie in the shade on top of the structure. Another steel enclosure at the back of the cage is the “main house,” which can be closed with a guillotine door. The ground cover in the tiger enclosures is pea gravel, which was recommended by the USD A. Pam testified she was told that pea gravel is recommended to use as a substrate because it drains easily. Defendants use a horse stall rake to rake up feces “and the sun and the rain will sanitize it and it’s a soft giving surface for cats to walk on.” Defendants have a “land diversion contract” which provides them with a little over a ton of food each week, including produce and fresh vegetables, at minimal cost. Defendants also have a separate contract with a local store that provides food for the animals. Tom picks up the food six days a week, generally on his way home from work. The agreement does not cost Cricket Hollow anything, and saves the store the cost of disposing of the food. The meat is primarily beef, with some pork and chicken. The tigers are also fed whole prey for nutrition and enrichment. Processed meats, like hotdogs, are composted. The food is prepared at a sink in the reptile house and the milk house. Stainless steel sow feeders are used for food and water in the winter. According to Pam, the sow feeder has never been ripped off or dislodged by a tiger. In addition to raw meat and other food, Defendants give the big cats supplements produced by Dr. Gary Pusillo. Defendants generally provide a vitamin mineral supplement and calcium for the adult cats, but also use probiotics if a cat has intestinal issues. Cricket Hollow supplements the tigers’ diet with Oasis Felidae T and also uses Dr. Pusillo’s Primal Cal. None of the cats have shown any signs of brittle bone disease. Tom Sellner testified that he normally goes through all of the big cat, bear, and wolf enclosures to clean out feces before he goes to work in the morning. Pam generally cleans the enclosures for the other animals. According to Pam, small cages are “spot cleaned” at least every other day, and are “completely cleaned” on a weekly basis. To address a fly problem, the veterinarian suggested a product called Quiekbayt, which Pam testified has “worked extremely well.” On the outside pens by the carnivores, Cricket Hollow has flytraps in place and it also uses sticky-type tapes across the ceilings inside buildings. However, fruit which is used to feed the animals constantly attracts fruit flies. Exhibit 59 shows a water tank in the enclosure used for the white tiger. According to Pam, the tigers love to soak in water when it’s a hot day. Their drinking water is supplied, however, by an automatic waterer in the back of the enclosure. It is connected by a “live feed” to a water source and controlled by a float system. As soon as the animal starts drinking out of the water, the float releases more fresh water into the cup “so they always have fresh water 24/7.” For “enrichment,” Defendants place bowling balls in the enclosures for the tigers to play with. Pam testified they have been using bowling balls for this purpose since the mid-90s and.none of the cats or monkeys have ever hurt themselves on a bowling ball. The tigers also like big heavy cardboard tubes, which Defendants fill with catnip and essential oils to produce different smells. “Scratch logs” are placed in the tiger enclosures to allow the tigers to sharpen their claws and use them as toys. Pam testified they need to change them out fairly often because the tigers will destroy them. According to Pam, the “newest enrichment” is in the form of some “tiger tables,” which stand approximately four feet off the ground and “increases their flexibility because they have to jump up on them.” One of the photographs shows a chain link fence that was bent in, separating two big cat cages. Pam testified they placed the 6-by-6 kennel panel between the cages over the top of the existing fence “just so that the neighboring cat didn’t put its hands through there.” When USDA inspectors expressed concern that an animal could get hurt on it, Defendants took it out. It was not an exterior fence and, according to Pam, would not allow any animal to get in or out of the enclosure. Pam testified that Defendants have been successful in saving tiger cubs when they wouldn’t nurse. When Sheba had cubs, she would push the cubs away with her feet so they didn’t have a chance to get colostrum. Gary Pusillo, an animal nutritionist who testified at trial, provided Defendants with a colostrum supplement and they successfully raised Miraj, their first cub, and other cubs using the colostrum supplement. The oldest tigers at Cricket Hollow were a breeding pair called Sherkhan and Sheba. They died in 2014 and 2012, respectively, apparently of old age. Both were approximately 20 years old. According to Pam, neither of them was sick or suffering from illness at the time of their death. In June 2013, it was noticed that Raoul, a young tiger, started having labored breathing. Pam called the veterinarian, who suggested “a bag of different kinds of drugs and things to use on him.” Pam drove to Elkader, retrieved the medicine, and immediately gave it to Raoul. Raoul died 12 days later, but his brother, Rajahn, continues to reside at the Zoo. Pam denied ever failing to treat an animal or calling a veterinarian because of cost concerns. Casper, a white male tiger approximately 10 years old, was acquired by Cricket Hollow from northern Wisconsin in July 2014. After being transported five hours to Cricket Hollow, he had some scrapes on his face and legs as a result of turning in the transport cage. The veterinarian said that the wounds would “probably abscess out in time and that he would be fíne.” He was kept separately in a “buddy cage” and, according to Pamela, seemed to be “coming around pretty good.” However, Casper acquired pneumonia in 2014 when the weather changed in November and died. According to Pamela, a big cat will sleep up to 20 hours a day and, if they are in the wild, will hunt in the coolest part of the day to conserve energy. Pam testified it’s “disappointing to zoo visitors to see them just lying about, but that’s their natural behavior.” Pamela testified that the tigers “walk around,” but denied that they “paced the fence” or display any other neurotic behavior. 2. Lemurs At the time of trial, Cricket Hollow housed two ring-tailed lemurs (Chuki and Zaboo) in a single enclosure, and a red ruffed lemur (Lucy) next door. Lucy was hand raised by another family and came to Cricket Hollow at age 9. She is now 15 years old. Pam testified that Lucy has bonded with her and “likes to be loved and groomed.” According to Pam, “she likes her armpits rubbed and she comes up and begs for that.” The ring-tailed lemurs will take food from Pam’s hands, but they were not “hand raised” and generally play by themselves. The lemur enclosure consists of an exterior space and an interior space, located in an area in the back of the reptile house which is off limits to the public. Tom Sellner testified that the interior portion of the ' cage is 5’ x 5’, and the exterior portion is 5’ x 11’. On the inside there is a solid barrier between the lemur enclosures, but on the outside there is a fence with one-inch wire so the lemurs can see and hear each other. Pam testified that “we tried to get them to go together, but we found them to be incompatible.” The two female lemurs “are kind of bossy, it didn’t work out so well, so we do have to house them separately.” During the winter time, the lemurs are kept indoors, but during the summer they have the choice of going inside or outside. The inside portion of the lemur enclosures is in the “reptile house,” but there is a solid wall which prohibits the lemurs from seeing any of the reptiles. According to Pam, the lemurs have never exhibited any type of “fear reaction” when they go inside the building, “They’re usually there to greet you and receive food or treats or toys.” Lucy, the red ruffed lemur, has a swing in her enclosure for enrichment. The backs of the outdoor enclosures go up almost ten feet and there are shelves on the back wall and a big dead tree, which allows the lemurs to climb on and play. The lemur enclosure faces west and the lemurs like to sit on the shelves when the sun comes around in the afternoon and “sit like little Buddhas in the sun.” Defendants also place toys in the enclosures, including baseballs and a Sesame Street toy which makes noises. There are PVC tubes on chains inside the cages, and sometimes Defendants will put peanut butter inside of those and then sprinkle different kinds of nuts and seeds in the tube, which the lemurs approach as “kind of like a puzzle.” According to Pam, the lemurs “put their hands in and it adds enrichment and things to busy them.” The lemurs eat monkey biscuits. Defendants generally use New World monkey biscuits because they are higher in protein and it’s easier for them to handle. The lemurs also get fresh fruit and vegetables every day. The lemurs love everything from romaine lettuce to cut-up apples and carrots. According to Pam, “they really love greens, which would be the same basically as the lemurs picking leaves off the trees.” Cricket Hollow has a veterinarian who conducts a “walkthrough visit” at least annually. He visits each animal, and Pam usually has a list of questions written down regarding concerns or other things that she wants to review. If the veterinarian from Elkader can’t answer a question, Pam has consulted several times with Amy Kamholz, a veterinarian with Covance Primate Research Lab at the University of Wisconsin in Madison. Four lemurs have been born at Cricket Hollow. Two of them, a set of twins, died. The other two went to Waterloo and Fort Dodge. They would be approximately ages 6 and 3. B. Plaintiffs’ Site Visits 1. Tracey Kuehl Plaintiff Tracey Kuehl first visited the Cricket Hollow Zoo on June 23, 2012. She was immediately struck by a “stinky” odor, unlike the six or seven other zoos which she has visited during her lifetime. Tracey grew up on a hog farm and acknowledged they “can be pretty smelly too,” but testified that “this was significantly more than what I had experienced growing up on a hog farm.” Tracey paid Pam Sellner the $5.00 admission fee to get in, and then went on a self-guided tour which lasted for an hour or an hour and fifteen minutes. She walked passed the lemur cage, but did not see any lemurs on that visit. According to Tracey, the cage was “pretty sparse,” with a log at an angle in the cage which the lemur could crawl on. Tracey had previously observed lemurs at larger zoos (Zoo Atlanta and Brookfield Zoo), and was surprised by the small enclosure and sparse conditions. Also on that visit, Tracey observed a white tiger in a small enclosure with a quonset hut-type metal house and a log to sit on. Tracey testified, and a photograph taken by Tracey seems to confirm, that there was tiger excrement scattered throughout the enclosure. Tracey testified it was “pretty neat” to see a white tiger, but she was sad and disappointed in the conditions under which the tiger was living. Tracey also observed teenagers taunting a lion, which upset her because there were no zoo staff or volunteers in the area. In her letter to the Iowa Department of Agriculture (Exhibit 62), sent two days later, Tracey describes in detail the conditions which she found at the Zoo. Tracey returned to Cricket Hollow about two weeks later, on July 6, 2012. It was a very hot day, close to 100 degrees. According to Tracey, she observed a large container of water which was “stagnant looking” and “kind of scummy looking.” A small dead animal, perhaps a rat or a bird, can be seen floating in the water. Tracey testified the tiger enclosures were in the same condition as she had seen two weeks earlier; namely sparse with “a lot of tiger feces in them.” In Exhibit 61 at 9-10, tigers can be seen in the enclosures, sitting in the shade. It did not appear to Tracey that the tigers were provided with any enrichment activities. When Tracey returned to her home (an hour and twenty minute drive from the Zoo), she wrote another letter to the Iowa Department of Agriculture. Tracey did not return to Cricket Hollow until nearly one year later, on June 23, 2013. According to Tracey, she “saw the same thing that I had seen 12 and 14 months earlier.” Tracey documented problems which she perceived at the Zoo, including issues with the camel enclosure and piles of feces in the wolf enclosure. It also appeared to Tracey that the wolves ears were “fly bitten and crusty and injured.” Following the June visit, Tracey sent a letter to USD A-APHIS. 2. Lisa Kuehl Plaintiff Lisa Kuehl first visited Cricket Hollow on June 21, 2012, accompanied by three other self-described “advocates,” including Plaintiffs Kris Bell and Nancy Harvey. Lisa admitted that she had “preconceived notions” of what the Zoo would be like from reading USDA inspection reports, but testified that “I hoped that I didn’t find it.” Lisa testified that “the first thing that hit me was the smell of the facility.” Lisa opined that the odor “was very uncommon to agricultural smells or certainly not the kind of odor you expect when you go to a public tourist attraction.” Lisa attributed the smell to rotting food or feces. Photographs taken by Lisa during the visit were introduced as Exhibit 59. According to Lisa, there was no vegetation within the tiger enclosures and “nothing for the animal to interact with that I could see.” Lisa opined that the white tiger shown on Exhibit 59 at page 7 appears “bored.” Lisa observed the tigers for “maybe ten minutes.” According to Lisa, the tiger enclosures were “really void of any enrichment.” Lisa walked passed the lemur enclosures, but the roof of the enclosure was creating a very dark shadow and, therefore, she wasn’t able to get a good view of the animals. Lisa and the others left the Zoo after a couple of hours. Lisa returned to Cricket Hollow in July 2012. Lisa testified there were no changes in the tiger enclosures from her earlier visits. According to Lisa, the enclosures were dirty, void of any significant enrichment, and “just very unpleasant conditions for these kinds of animals.” Lisa visited the Zoo a third time on July 13, 2013, accompanied by Plaintiff John Braumann. Lisa knew Braumann through “mutual animal advocacy efforts.” Lisa took photographs to document what she believed was an ongoing problem of excessive feces and lack of enrichment in the tiger enclosures. One of the photographs shows a pile of what “looks like larger white rocks,” and is apparently old tiger feces. Lisa did not return to the Zoo after July 2013. 3. Nancy Harvey Nancy Harvey testified she has visited the Blank Park Zoo in Des Moines, the Brookfield Zoo in Chicago, and the Miller Park Zoo in Bloomington, Illinois. Harvey admitted on cross-examination that she does not have a background in zoology, and has never volunteered at a zoo. Harvey conceded that “personally, I don’t believe in zoos.” Harvey became familiar with the Cricket Hollow Zoo when she was shown aerial photographs taken by Plaintiff Lisa Kuehl. Harvey first visited Cricket Hollow, together with Lisa Kuehl and Kris Bell, on June 21, 2012. Harvey testified at trial regarding the conditions which she found at the Zoo. Among other things, Harvey described an excessive amount of feces at the bottom of the bird cages. Harvey noticed that a cockatoo had no water, and she asked Pam Sellner if she could water the bird. Sellner then went in and gave the bird water. In an enclosure holding two domestic dogs, Harvey noticed the water tank contained only “algae, nasty water.” Harvey asked Sellner if she could please water the dogs. Sellner initially told Harvey she would do that later, indicating she needed, to scrub the tank first. At Harvey’s insistence, however, Sellner and Harvey carried a bucket of water to the dog enclosure. Harvey also noticed that the water was apparently leaking out of the water tank for the Scottish Highlander cattle. Harvey told Sellner that it appeared the Highlanders had no water in their tank. Harvey testified Sellner watered the animals which Harvey specifically brought to her attention, but did not check the water for the other animals -as she walked by them. According to Harvey, she witnessed a lion vomiting and “just shut down. I couldn’t really look at any of the other animals.” Harvey admitted that she did not pay any particular attention to the tigers or lemurs that day. Harvey left the Zoo and never returned. 4. John Braumann Plaintiff John Braumann visited the Cricket Hollow Zoo on two occasions: October 13, 2012 and July 13, 2013. Braumann is active in groups advocating for animals, but is not a member of the ALDF. He has no experience in animal husbandry, other than caring for a house cat. His exposure to captive wildlife is limited to visits at two zoos and watching animal shows on TV. Braumann learned of Cricket Hollow when he was told about it by a Facebook friend. Braumann’s first impression when he visited the Zoo on October 13, 2012, was that “it struck me as a farm and not a zoo.” Early in his visit, Braumann noticed that the water bottle for the ferrets was empty. According to Braumann, a lot of the watering receptacles and food dishes had a lot of debris and did not appear to have been cleaned in “quite some time.” Braumann observed the lemurs for three or four minutes. One of the lemurs moved its tail, but “that was about it.” Braumann also observed a tiger and took a photograph. According to Braumann, the tiger enclosure contained an accumulation of feces (“probably eight to ten piles”). The only enrichment activity which Braumann observed in the tiger enclosure was a bowling ball. In another tiger enclosure, Braumann observed a log. Braumann returned to the Zoo on July 13, 2013, with Plaintiff Lisa Kuehl. According to Braumann, “nothing had really changed,” and there was an accumulation of feces in the tiger enclosures. Photographs taken by Braumann, showing what appears to be fresh and dried feces, were introduced as Exhibit 63 at 7-8. One of the tigers was being housed in a round corn crib, which Braumann had not noticed the previous year. C. USDA Inspections The Cricket Hollow Zoo is inspected regularly by the United States Department of Agriculture, Animal and Plant Health Inspection Service (“USDAAPHIS”). Pam Sellner admitted she has “locked horns” with the USDA inspectors on many occasions. According to Sellner, the inspectors were “nitpicky and obsessive compulsive about cleaning and sanitation” at times. Sellner objected specifically to Heather Cole, D.V.M., a USDA veterinary medical officer, because she “had no experience in the real world.” In an email dated November 8, 2006, Robert M. Gibbens, D.V.M., Director of the Western Region of USD A-APHIS, referred to eight USDA inspections between December 21, 2005 and June 27, 2006, and concluded that “[wjhile the violations are not grave in nature, it is clear that there is a chronic management problem at the facility, and, for whatever reason, the Séllners either do not understand the regulations, are not willing to comply, or are not able to comply.” On December 20, 2006, the Sellners entered into a settlement agreement with the USDA, agreeing to a financial penalty of $4,035. Among other things, the Sellners were cited for failing to remove excessive accumulation of animal waste and failing to provide “wholesome, palletable, and free from contamination animal feed.” Neither the tigers nor the lemurs were mentioned specifically. On July 29, 2010, Cynthia M. Neis, an animal care inspector with USDA-APHIS, inspected the Cricket Hollow Zoo, and reported Defendants’ failure to provide adequate care for the rabbits; failure to provide adequate shelter and clean and sanitary water for the dogs; failure to provide adequate shelter for capybara, deer, and woodchucks; inadequate food for the sheep; excessive algae in the water for the capybara, skunks, serval, and caracal; and excessive excreta in the llama and lion enclosures. Importantly, as it relates to this litigation, Neis found “[t]here is accumulation of water in the tiger enclosure. The water is accumulating along the fence line where the tanks used as pools are located. The water has been accumulating long enough that it has become green with algae.” On November 22, 2010, Neis conducted an additional inspection. She reported a failure to provide veterinary care for an alpine goat and toggenburg goat; the lions’ den and camel enclosure in disrepair; the roof of the bear enclosure and coyote enclosure in disrepair; inadequate shelter for the sheep and two yearling bear cubs; and inadequate perimeter fencing. Neis also reported that “[ijmmediately to the east of the lion, leopard, tiger, and bear enclosures are piles of waste that have been removed from the enclosures in the course of the prior week.” On February 16, 2011, following a routine inspection, Neis reported that a baby baboon had escaped from her enclosure and was found running at large within the primate building. Neis also reported an excessive accumulation of animal waste in the primate building. On August 16, 2011, Neis found that a 3-year-old baboon was not receiving proper care; the goats had excessively long hooves; there was inadequate shelter for sheepdogs; the rabbit boxes were in disrepair with an excessive accumulation of animal waste; there were open boxes of fruit' and produce being stored in the reptile house, with “excessive flies and fruit flies hovering over the foodstuffs”; and the monkey enclosure had an excessive buildup of animal waste. There was also an excessive presence of algae in the water provided to the cavy, the capybara, and the bobcat; with an excessive presence of animal waste in the bear, llama, kinkajou, porcupine, and armadillo enclosures. According to Neis’ report, the interior enclosure for the ring-tailed lemur did not have adequate lighting and did not “facilitate good husbandry practices nor provide lighting sufficient for Chuki’s well-being.” Neis also reported “an excessive presence of waste on the perch in the Red Ruffed Lemur’s enclosure (mammal room of the reptile house). This comes into contact with the lemur when it is on the perch.” On December 8, 2011, Neis inspected the Zoo again. According to her report, Neis found goats with excessively long hooves; inadequate enclosure for the dogs; inadequate watering for the dogs; the rabbit enclosure had an excessive accumulation of animal waste; and the food was not properly stored. Neis also concluded that the two enclosures housing tigers did not have tops or adequate kick-ins, and were not sufficient to contain the tigers. Furthermore, “[t]he enclosure housing Sasha and Keiharan (tigers) and the enclosure housing Jonwah and Kamarah (lions) have an excessive accumulation of animal waste.” Neis noted that because the owners have outside work obligations and no additional employees, “the work load continues to exceed the staffing level.” Additional inspections were conducted on January 3, May 16, and June 29, 2012, See Exhibits 10, 12, and 13. The first visit was a “focused inspection” to determine whether the dog watering problem identified in the December 8 inspection had been corrected. The noneompliant item had been corrected. On May 16, it was noted that two uncovered garbage receptacles in the educational center had been there for at least two days, resulting in excessive presence of gnat-like insects and flies in the area. On June 29, John J. Lies, an animal care inspector with USD A-APHIS, reported improper husbandry practices in the nonhuman primate building, including food that was not properly stored. On August 20, 2012, Neis conducted an inspection and reported that “[tjhere is approximately two weeks of animal waste collected in one spot under the branch in the outdoor run of the ring-tailed lemur enclosure.” Neis reported that “[t]he facility has greatly improved its fly control program. However, there is an excessive presence of flies in and around the bear enclosure.” The report also noted a buildup of animal waste in the bear enclosure. On October 25, 2012, the USDA sent a “Report of Investigation” to the Sellners, referring to the inspections on “08/16/11, 12/0811, 05/1612, and 07/2912 [sic].” The report summarized the various deficiencies identified in the inspection reports. (The photographs and other attachments to the report were not made a part of the trial exhibit.) On November 26, 2012, the Zoo was inspected by Heather Cole, D.V.M., a veterinary medical officer with USDAAPHIS. Dr. Cole found a build-up of algae in the water bottles in the two enclosures in the education center; and a build-up of feces and urine-soaked bedding in the capybara enclosure, the porcupine enclosure, the enclosure housing two foxes, and the shelter for the Meishan pigs. Dr. Cole also reported “[tjhere are cobwebs within the enclosures [housing the