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Giraffe
Removal From Zoo To Resume
Appeals Court Lifts Emergency Stay Order
The emergency stay order that was keeping the remaining three giraffes at Natural Bridge Zoo was lifted last week by the Virginia Court of Appeals.
The court issued the emergency stay on Oct. 4, pending arguments from both the attorney for former zoo owners Karl and Debbie Mogensen and the attorneys from the state Animal Law Unit on behalf of Rockbridge County.
Those arguments were filed over the past few weeks and the court lifted the stay on Oct. 31. It also denied the Mogensen’s request for a stay pending an appeal, meaning the giraffes can be moved as soon as the Animal Law Unit can make arrangements to do so.
Gretchen Mogensen, who has taken over operation of the zoo, shared the Court of Appeal’s ruling on her Facebook page and said that she plans to livestream the moving of the remaining giraffes, as she had done with Jeffrey, the male giraffe that was moved from the zoo on Oct. 3.
That move, which took most of the day, involved Jeffrey being isolated in the barn without access to food and water. The state’s giraffe experts brought in to move him used several methods, including waving what appeared to be a large tarp and then using a Hot Shot Paddle, a paddle with tiny ball-bearings inside like a rattle, to attempt to move Jeffrey out of the stall and onto a trailer that did not appear to have any source of ventilation.
In their response to arguments from Senior Assistant Attorney General Michelle Welch, who tried the case on behalf of Rockbridge County, the Mogensens’ attorney Erin Harrigan included exhibits with testimony from experienced giraffe handler Robert Scott Brown and giraffe transporter Edward Novack, both of whom were critical of the methods used to move Jeffrey.
Novack called the length of time it took to move Jeffery “absolutely unacceptable,” and noted that there were “clear signs of excessive stress” in the animal’s behavior leading up to the move. He also noted that the video showed a “disregard for proper travel protocols” and that there were a number of violations of the provisions of the Animal Welfare Act. The full effect of the methods used in the transfer, he added, might not be apparent “for several weeks or even months.”
Further complicating the matter is the fact that two of the three female giraffes are pregnant and well into their third trimester. In his affidavit, Brown stated that he “would never consider moving a giraffe at this point,” and Novack said that the risks were “unacceptably high,” adding that he “cannot overstate the dangers inherent in such a move.”
In his ruling on Oct. 2, Rockbridge County Circuit Court Judge Christopher Russell acknowledged that there was risk in moving the pregnant giraffes, but ultimately that risk fell to the owner of the animals, which is the state. He also acknowledged that the giraffes had been well cared for at the zoo in the time since being seized.
Jeffrey departed the Natural Bridge Zoo a little after 4:30 p.m. on the afternoon of Oct. 3 and arrived at the Georgia Safari Park just before 1:30 a.m. the following morning, according to reports from the park’s medical staff, which Welch submitted with her arguments against the stay.
He was offloaded from the trailer nearly 20 minutes later, and several abrasions were noted. It was further noted that Jeffrey “exhibits no symptoms of discomforts and [the] lesions are not bleeding. [The] Leisons are mild and no treatment is needed.”
Another report, dated Oct. 7, noted that Jeffrey was “acclimating to his new home,” a process that was going “about as smooth as can be expected.” The report also included an additional note that eggs from the whipworm parasite were found in Jeffrey’s feces and that steps were being taken to treat for the parasite, which was estimated to have been in his system for some time as it takes 10 to 12 weeks for the eggs to appear in an infected animals feces.
Harrigan argued that the “manner and method” of transport of the other giraffes would pose serious health risks to them, and in the case of two of them, to their unborn babies.
“The risk of injury or death is not theoretical or vague and this Court does not have to imagine the risks involved in transporting a giraffe,” she argued. “Indeed, the transport of Jeffrey by the County just a few weeks ago illustrates exactly the risk of harm, injury or death facing the giraffes remaining at the zoo.”
In addition to the concerns raised by Brown and Novack, Harrigan noted that three of the animals seized in December of 2023 have since died: a gibbon, a skink and a macaw. The gibbon was awarded back to the zoo by the jury, while the skink and the macaw were awarded to the state. Additionally, one of the capuchins was “neutered without authorization from the trial court and before the entry of an order awarding custody to the county.”
She also cited the potential loss of revenue if the giraffes are removed from the zoo, noting that the giraffes are not pets or companion animals, but rather “personal property used by a business that exhibits animals to the public to generate revenue.” The Georgia Safari Park is a similar type of business and will profit from the giraffes that have been ‘donated’ by the county, she argued.
“The County could kill all four giraffes in transport and [the Mogensens] may be entirely precluded from seeking damages for the negligent destruction of property,” she argued. She also argued that the state “will not suffer substantial injury from staying the proceeding,” and that there had been no objections to the care provided by Gretchen Mogensen and the zoo staff in any of the regular inspections held since they were seized in December of 2023.
Welch argued that the Mogensens did not have any grounds to argue about the potential financial loss since the giraffes had been awarded to the state by the jury and that they did not have the right to “‘extract the value’ of animals [they have] cruelly treated or neglected.” She further argued that leaving the giraffes in the care of the Mogensens was a greater risk to their health than transporting them.
“The minimal risks of transportation far outweigh any harms by the giraffes remaining at the Natural Bridge Zoo facility,” she argued, citing an affidavit from Dr. Sean Brewer, a veterinarian who was consulted to examine the giraffes and offer opinions “regarding the giraffes’ condition and the risks of transportation.”
Brewer concluded that the standard of care required for both pregnant and newborn giraffes “would be difficult to accomplish at the Natural Bridge Zoo.” He went on to say that, while animal transport does have risks, “any risks associated with transport is outweighed by the benefit this change will have on the giraffes and their future offspring.”
“The harm of a stay to the giraffes, therefore, includes the suffering and possibly permanent injury caused by inadequate care, especially in the winter,” Welch added.
Welch also challenged the claims that the death of the gibbon was caused “by the stress of transport” as the Mogensens claim, but that the cause of death, in the opinion of Dr. Cheryl Antonucci, who testified during the trial, was ulcerative colitis, a disease where bacteria from the digestive tract enter the bloodstream, which is “very common in this species.”
Antonucci went on to testify that stress “plays a factor in inflammatory bowel disease,” but the gibbon died “roughly eight weeks” after it was transported from the zoo. “I think this animal had a chronic disease,” Antonucci concluded in her testimony.
-In her brief, Harrigan cited several issues with the trial held in Rockbridge County Circuit Court earlier this year as grounds for appeal, including the fact that the defense was denied the opportunity to have experts examine the animals seized by the state and thus could not present any evidence of the condition of the animals. She also noted that all of the experts presented by the county had not examined the animals on the day of the seizure in December of 2023, but several weeks later, with one examination taking place nearly two months after the animals were seized from the zoo.
Additionally, she argued that the trial court “erred” in not allowing the defense to raise a motion to suppress “to challenge the constitutionality of the search and seizure warrant used to enter the zoo and seize the animals and evidence used at the trial.”
She cited several issues that were raised as cause for fi nding the warrant was “constitutionally defective,” including several omissions from the warrant regarding the “credibility and reliability of the confidential informant,” the “concealment” of the fact that the informant “harbored serious bias and was paid by an animal activist organization,” the fact that the investigator sent undercover at the zoo by the Animal Law Unit had observed the “clean facility and good conditions of the animals” during her visits, and several “favorable” inspections reports from the United States Department of Agriculture which “undermined the credibility and reliability of the information relayed by the confidential informant.”
She also argued that a key witness for the defense, Gretchen Mogensen, was not allowed to testify at trial after being “inadvertently” left off of the defense’s witness list. The county, she argued, “never alleged it would suffer any prejudice by permitting Gretchen Mogensen to testify, instead saying ‘[counsel] is just wrong that I have to show them actual prejudice.’” The county also “made no effort to articulate how it was harmed by the inadvertent omission of a witness from the witness list, and the county could not establish how it would have been prejudiced by calling the witness to the stand.”
Harrigan’s final argument as grounds for appeal was that the evidence presented was “inefficient … to establish either animal cruelty or a lack of adequate care that posed a direct and immediate threat to the life, health, or safety of any of the seized animals.”
The evidence presented on the conditions at the zoo, she argued, were based solely on the day of the seizure when the zoo employees were “prevented … from performing their normal daily care of animals for more than 18 hours.”
Evidence included the fact that some animals didn’t have food or water in their enclosures, despite photographs showing “substantial amounts” of food at the zoo that day; animal enclosures not being large enough, while the county did not take measurements and did not have written standards for the proper enclosure size for the animals seized; noting an ammonia smell and inadequate ventilation in some areas, though the photographs showed “multiple, working ventilation fans throughout the facility”; the low temperatures in the enclosures, though the county “had not taken any temperature measurements” and witnesses provided “conflicting information” about it; and some animals having an “inadequate diversity” of enrichment items.
Harrigan argued that, for some of the animals, those were the only grounds for the seizure. She acknowledged that while those conditions over an extended period of time “may negatively affect an animal’s health,” the county “introduced no evidence that would permit the factfinder to conclude that the conditions complained of constituted cruel treatment or jeopardized the life, health or safety of the animals.”
