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A judge has ruled that over half of the animals seized from Natural Bridge Zoo last month will be forfeited, on the grounds that they were subject to “cruel or inadequate treatment” at the zoo.
The decision was made Friday, following twoand- a-half days of testimony on Dec. 20 and Jan. 9 and 10 in Lexington/Rockbridge General District Court.
Judge Gregory Mooney said, however, that 39 of the now 100 animals seized from the zoo by state authorities should be returned to the zoo because the state had not met the burden of proof in their cases.
On Monday, attorneys for the zoo filed a notice of their intent to appeal the decision.
“The first thing I think a lot of people have to put in proper context is, the commonwealth went on that property, the Mogensens’ property, and took about 97 animals. We got 40 back,” Mario Williams, attorney for zoo owners Karl and Debbie Mogensen, told The News-Gazette.
“You take 97 animals supposedly through all these veterinary assessments, but we get 40 where the judge goes — you’ve got to give these back. So it obviously demonstrates a rushed process,” he said.
The appeal will be heard in circuit court, in front of a jury.
“Now we have a jury trial, of at least seven jurors, and we’re hoping to get the rest of the animals back,” said Williams.
“And I feel very confident that the state is not going to be able to prove beyond a reasonable doubt to seven jurors from that locality, that any type of inadequate care or cruelty has occurred to these animals.”
By law, the trial will begin within 30 days of the appeal, but first a bond hearing will be held, to determine how much the Mogensens will have to pay towards boarding the animals in state custody.
Williams anticipates a more comprehensive presentation of evidence during the trial than during the hearing.
“We have a five-day trial coming up, so you’re going to see a lot of testimony, and it’s not going to be like it was before where the government can argue against evidence,” he told The News-Gazette. “We’re going to have a lot of evidence come in, and lot of testimony.” -Executing a search warrant on the morning of Dec. 6, state troopers, working in conjunction with the state attorney general’s office, seized 95 animals: 16 Capuchin monkeys (one of which gave birth in state custody), 11 lemurs, six Tamarin (a small primate), two Gibbon monkeys, two Sacred Ibis, three Hornbills, a Kookaburra, 15 Macaws, four parrots, two Cockatoos, a serval (a small wildcat), four pythons, six turtles, 14 tortoise, a Skink (lizard), two donkeys, two llamas, a sheep, and a dog.
The zoo’s four giraffes were impounded on Dec. 6 but not seized, or removed from zoo property, due to the difficulty of transporting them. They were not visable at the zoo last week.
In his decision last week, Judge Mooney said that the county of Rockbridge, listed as the petitioner in this case, had reached the burden of proof for 61 of the animals seized, but that the “the court is unable to fairly conclude that there is no reasonable doubt with respect to certain of the animals,” and that those 39 would be returned to the zoo.
The animals exempted from the ruling — 11 lemurs, 15 Macaws, two Cockatoos, four pythons, a Skink, two donkeys, two llamas, one sheep and one dog — are to be returned to the zoo. -As Mooney explained in his decision, this case, in dealing with animals, required a higher standard of evidence than others.
“Ordinarily, the standard of proof required in civil cases is ‘a preponderance of evidence,’ sometimes described as ‘more likely than not.’ Here, by statute, the hearing, dealing as it does with the disposition of living creatures, must be held not more than 10 business days from the date of the seizure,” he wrote.
“Consequently, the animal owner must respond more quickly than would normally be the case. However, perhaps for that reason, the General Assembly has chosen to requite ‘proof beyond a reasonable doubt,’ the standard used in criminal cases, in cases of animal seizure,” Mooney explained.
This standard had to be met for each animal, or each group of similar animals, and a determination of cruel or inadequate treatment for one animal was not extended to all, or to the zoo’s practices at large.
“The focus in this case is not overall conditions and practices at Natural Bridge Zoo, and the court makes no findings on such questions,” Mooney wrote. “Nothing in applicable sections of Virginia laws gives the court any authority to regulate or supervise the general operations of a zoo.”
-The written closing arguments from both the zoo’s attorneys and the attorney general’s office, which had been requested by the judge at the close of the hearing, were made public when Mooney released his written decision Friday afternoon.
In his closing arguments, Williams argued that the evidence presented by the attorney general’s office was not sufficient to show mistreatment “beyond a reasonable doubt.”
“One of the Commonwealth’s biggest failures, in this case, is its complete misunderstanding of the law’s respect for the immeasurable array of species in this world, and thus the law focuses on providing adequate care in the context of the type of species at issue, as demonstrated by the express language of the law,” he wrote.
“Not every dog is required to have a perfect doghouse, not every animal is required to have food or water every second of the day, and even housing space requirements demonstrate the law’s focus on ensuring adequate mobility for the animals, in proper context,” he continued.
Williams went on to question the validity of assessments made during the raid.
“And the Commonwealth could not possibly make that [inadequate care] showing because it was on the premises taking quick minutes assessments,” Williams wrote.
“The Commonwealth did not provide any evidence of continuous monitoring of any animals’ housing/enclosure to demonstrate that food was not provided at ‘suitable intervals’,“ he said.
In her closing statement, Michelle Welch, head of the Animal Law Unit of the attorney general’s office, focused on reiterating evidence and expert testimony about specific animals.
However, she also called into question evidence presented on the zoo’s behalf, arguing that the county (state) witnesses were drawing from more complete records and assessments.
“The County’s witnesses have also testified that there was a direct and immediate threat to the animals’ life, safety, or health. The County has also introduced numerous pictures of how the animals were found on Dec 6, as well as evidence of continuing vet care and evaluations,” she wrote.
“Defense, in contrast, have introduced a small number of records that don’t pertain to the animals they said they pertained to and irrelevant material either relating to the purchase of feed or condition of the animals long after the search warrant,” Welch continued.
She also noted that the zoo’s expert witnesses testified without having seen the animals.
“Dr. Ashley Spencer did not testify, nor did any other vet from the Blue Ridge Animal Clinic, despite Gretchen Mogensen testifying that other vets from the Clinic did come out to the zoo to treat animals,” Welch said.
“This means that every single expert who testified that there was nothing wrong at Natural Bridge Zoo had no prior relationship with any of these animals nor had they ever seen them in person,” she continued. “Rather, they all had personal relationships or something to gain from supporting the Mogensens.”
Williams also noted the lack of hands-on assessments, but placed the blame on the commonwealth.
“The Commonwealth failed to video these alleged conditions or provide adequate photos — all while knowing the Commonwealth would deny access to this animal,” he wrote.
In his decision, Mooney acknowledged the competing testimony from various expert witnesses.
“At the conclusion of all the evidence, the court’s general task was to consider all the evidence, assess the credibility of the various witnesses, assign weight to their testimony, and, in the case of experts, their opinions,” he wrote.
“In addition, because the opinions of competing experts were in substantial conflict, the court gave careful consideration to their credibility, possible bias, and opportunity to acquire the facts on which they based their respective opinions,” said Mooney.
The 61 animals not returned to the zoo are to be “disposed pursuant to the Code of Virginia.”
According to Victoria LaCivita, spokesperson for the attorney general’s office, these animals will remain with the state rescue partners who currently have them.
The county of Rockbridge also petitioned the judge to be awarded the cost of boarding the animals, between the day of seizure and Jan. 17, an estimated $103,200, and to be able to perform unannounced inspections of the zoo for the next five years.
The request for the cost of boarding was “taken under advisement, pending receipt of evidence of such cost, limited to animals not ordered returned.” While the request for unannounced state inspections was denied by the judge, all operating zoos are regularly inspected by the USDA.
