UPDATED: Austin Aquarium Gets the Fisheye

UPDATE: In response to a pair of letters sent today by People for the Ethical Treatment of Animals, asking two city departments to investigate goings-on at the proposed Austin Aquarium, the city says a permit request to "stock" animals on site has been rejected, and a follow-up visit by Code Compliance confirms no animals are at the facility.

PETA's Delcianna Winders, director of capital animal law enforcement for the animal advocacy group, today sent a pair of letters – one to the city's Animal Services and the other to the Health and Human Services Department – citing the article by the Chronicle and other backup information, and asking for city officials to inspect the proposed Austin Aquarium in far Northwest Austin to ensure that proprietors Vince and Ammon Cavino are complying with state animal welfare law and with the city's wild animal ordinance.

In a statement emailed to media this afternoon, the city says that the Covinos were issued a citation by Code Enforcement in July for keeping animals on site without a permit, and report that a subsequent permit application to do so was denied. City inspectors followed up last week and "confirmed that the animals were removed," according to the email. "Any time there is an accusation of animal cruelty, it is a situation the City of Austin takes seriously," reads the email. Those accusations are investigated by the Austin Police Department, the email continued, which to date has not received a "complaint or request for inspection of the Austin Aquarium."

A PETA spokesman said the group did include the APD on its letters. Whether PETA will file a new complaint directly to APD remains unknown.

EARLIER: Something fishy is happening in far Northwest Austin.

At least that's what two brothers from Boise, Vince and Ammon Covino, intend with their plan to bring a full-scale public aquarium to an old Lacks Home Furnishings store site at 13530 U.S. 183, just over the Williamson County line. But whether their plan is legitimate, a fish tale – or something darker – is at issue after the death of more than 200 aquatic species at another of the brothers' aquaria made headlines in Oregon and found its way to the inboxes of Austin reporters, sparking renewed interest in the pair's questionable business dealings – including one brother's federal indictment for illegally procuring animals, and their present compliance (or lack thereof) with city ordinances and state and federal laws as they yet vow to open their doors to the public by the end of the year.

According to Vince Covino, who, with his brother Ammon, owns public aquaria in Boise, Idaho, and Portland, Ore., their proposed Austin Aquarium will bring residents a chance to encounter, including hands-on, some 2,500 different species. "It's one thing to watch a movie about marine life or read a book about marine life, but to have a hands-on experience, to have a close encounter with these species is a whole new experience," Covino told KXAN in February. "It's inspirational, it's educational, and we think families are going to love what we bring."

A report on the brothers' operations in Portland, published Aug. 19 in The Oregonian, suggests otherwise. According to the daily, in a roughly three-month period this spring more than 200 marine animals died at the Portland Aquarium, which only just opened in December 2012. Vince Covino told the daily that the aquarium's death rate is "consistent with what he's observed at other aquariums," the paper reported, and that in "many cases, we believe we've done better," he said. "We spare no expense in ensuring our animals have the best health care possible." That characterization was disputed by the Portland facility's former veterinarian, Mike Corcoran, who told the paper that he felt the animals in Portland suffered unnecessarily and that the Covino's would cut corners on providing care for their charges. "I feel those animals were subject to undue pain and suffering to save money," he said.

The fact that Corcoran and another former employee of the aquarium, a marine biologist, have left the facility and spoken up about their concerns is significant, says Lisa Wathne, captive wildlife specialist for the Humane Society of the United States. "That's a big red flag," she said. The Oregon Humane Society, which has enforcement authority in the state, is currently investigating the Portland deaths. "The fact that they're investigating these deaths is commendable," says Wathne, "but it is the exception to the rule."

Indeed, there is virtually no oversight of captive marine animals at the federal level – unless an animal is endangered, like some sharks, or sea turtles – and regulations in the states are a patchwork of protections and enforcement schemes. That makes it even more important that aquaria follow best practices – embodied in accreditation standards of the Association of Zoos and Aquariums – and employ "exceptionally knowledgeable and observant, qualified and experienced people to take care of these animals," she said.

While he won't comment directly on the alleged death log from the Portland facility, Rich Toth, director of animal husbandry at the Audubon Aquarium of the Americas in New Orleans, he does know that mortality rates in a start-up aquarium, such as Portland, tend to be higher and then stabilize as the operation gets underway. That is in part because caring for marine animals is delicate and can be tricky.

As such, he and other marine animal experts say, attention to animal welfare is heightened: Aquatic species need water quality and temperature closely controlled, attention paid to lighting and nutrition requirements, and they need to be placed thoughtfully with other species to cut down on predatory encounters – among other issues, says professor Lee Fuiman, with UT's Marine Science Institute in Port Aransas. Human safety and animal welfare "come before everything else," says Toth, who works on accrediting facilities through the AZA. Thirty-eight aquariums nationwide are accredited by the agency, a rigorous process that covers not only animal husbandry, but the entirety of operations – including finances and procurements; neither Covino aquarium is accredited.

On the issue of procurement, it seems unlikely the Covino brothers' actions would meet the ethical standards required by the AZA. Ammon Covino is currently under federal indictment out of Florida for illegally procuring animals for both the Boise and Portland aquaria. Ammon was indicted in November 2012 – before the Portland facility even opened – and charged with conspiracy to purchase and transport, and the actual illegal acquisition and transportation across state lines, of four Spotted eagle rays and two Lemon sharks sold in violation of Florida law – a federal Lacey Act violation. According to the feds, Ammon assured a Florida dealer that it would be "no big deal" for him to procure the sharks without valid permits.

Ammon remained free of pretrial detention on bond until February 2013, when he allegedly attempted to procure additional animals from Florida, again in violation of state and federal law. According to a motion to revoke Ammon's bond, while already under indictment he ordered four nurse sharks (which he paid for with a credit card). A day before the sharks were slated to arrive in Boise, federal agents executed a search warrant at the Idaho Aquarium; later that same day, the Florida dealer who'd sold the sharks and tipped the feds, received a pair of calls from someone "calling on behalf of Ammon Covino" and asking that the shipment be cancelled, the credit card refunded, and that if the dealer would "erase text messages, emails, or any evidence you have associated with him, that would be great," the caller allegedly said. "[T]hat's all Ammon told me to say."

The feds traced those calls to Ammon Covino's nephew Peter Covino IV, who is now also under indictment. Ammon tried to fight to remain out on bond, but to no avail. Although he offered the court emailed letters of support for his release written by family and friends, an Idaho judge was apparently unswayed. In a subsequent hearing in Florida a judge ruled that until the bond case was officially transferred from Idaho, Ammon would remain in jail. At issue, Magistrate Judge Lurana Snow said, was that Ammon seemed incapable of complying with conditions of bond (typically chief among those conditions is that the defendant not reoffend), and that a new charge of obstructing justice could be leveled against him.

On that note, attorney Bruce Lyons nonetheless suggested that the alleged phone conversations were overkill: Information related to the attempt to procure the nurse sharks would have been available to the feds when they executed the search warrant – in other words, Ammon wouldn't need to ask that evidence be destroyed. "Well, it wouldn't be the first time a defendant did something really stupid," Snow replied, before denying Ammon's release. (Ammon was slated to be tried in September, but has reportedly decided to plead guilty. Whether he'll face prison time or a mere fine remains to be seen.)

And so it was until June, when the court did grant Ammon release, first to travel to Portland and then, on June 15, to move to Steiner Ranch – where, presumably, he has come to work toward the opening of the Austin Aquarium. Indeed, that's where we found him on Aug. 21, inside the Lacks store with a host of contractors from KDR Electrical Services, Inc. Ammon Covino declined to comment on the allegations of shoddy care in Portland, and said he has been busy because "five to 10" reporters stop by the site each day. Covino said that the contractors were there only to make an estimate for work, despite the fact that the interior of the store was strewn with building supplies and several men walked in and out of the facility with tools as Ammon stood talking to us from just inside the front door.

According to the city's Planning and Development Review Department, the Covinos, to date, have not submitted any application for a building permit for the site – meaning no interior work of any kind is supposed to be going on. According to department spokeswoman Sylvia Arzola, the brothers were given one permit, to demolish one interior wall, and have applied for another to create an "illuminated channel" exterior wall sign that reads "Sea to Believe." Unless and until a building permit is actually issued, the Covino's will not be able to have the place inspected or to get a certificate of occupancy.

Ammon Covino told the Chronicle that he has "talked" with the city, and suggested he has made an application to do work on the place. When asked about a site plan, he said he had none. Again, he said that he was only currently getting "bids" for work inside the facility. According to the Austin Aquarium Facebook page, however, it would seem there's been a lot of work going on inside the facility, chronicled in pictures posted to the site – including one taken July 1 of Vince Covino, with a caption that says fish quarantine tanks "are onsite, being plumbed this week," and a second, taken from atop a ladder and posted on July 12 that shows part of a room littered with construction debris. That photo was posted alongside a second snap of six water tanks outside the property that apparently contain sharks. "Frequent water changes keep sharks happy," reads the post.

Those photos may in part be what prompted a complaint filed with the city's Code Compliance office on July 18; inspectors went to the facility that day and issued two notices of violation, says spokeswoman Melissa Martinez, including for failing to have an occupancy permit that would allow for the on-site "stocking" of animals. On Wednesday, Ammon Covino first told us that the brothers had never stored any animals at the unfinished and un-permitted property before conceding that they had; but they've since removed all fish to another location that he would not disclose, he said. Nonetheless, a photo posted to the aquarium FB page on Aug. 1 shows three men moving a large black tank into the front doors of the store. The caption asks a question: "Do you think we got this 5,000 pound crocodile tank in thru the front door?"

While work on the property appears to be moving forward, uninhibited by permitting requirements, it is also unclear whether the Covino brothers' latest venture will pass muster with either federal or state animal protection laws. According to the Austin Aquarium website, the facility will have sea otters and sea turtles – both animals that are protected by federal law and require a permit to show. Notably, however, federal law does not protect the majority of marine animals. State law requires a zoological permit for some aquatic species – but only for a discrete list that are considered invasive or potentially so, a list that contains only a few species commonly seen in aquaria, including fresh water stingrays, arapaima, and piranha.

Notably, in order to obtain any state animal permit, an applicant must also be accredited by the AZA; the Covinos have not applied for any of the permits granted by the Texas Parks and Wildlife Department. Of course, and particularly with aquarium operations, both state and federal permitting laws can be effectively, and legally, circumvented if the facility avoids collecting or holding any of the species they cover. In other words, the Covino brothers could escape regulation by carefully curating their collection, which would necessarily require that they avoid adding any mammals, like the promised sea otters. Still, again according to a post to their Facebook page, it appears they've already acquired at least one mammal, a young kinkajou named Dexter that has already been posing for public photo ops, according to the post.

Kinkajou that are exhibited publicly are regulated by the federal Animal Welfare Act, says U.S. Department of Agriculture spokeswoman Tanya Espinosa. To date, the Covinos have not made an application for an AWA license, she said. Although the aquarium may not yet be open, and charging for tickets, displaying the kinkajou in an effort to drive business to the aquarium would nonetheless run afoul of federal law, which requires the USDA license when individuals use mammals "for monetary gain," she said. USDA investigates not only licensed facilities but those that may be operating without a license. Currently, there are roughly 120 inspectors for some 7,500 licensees; as such, says Espinosa, much of the agency's enforcement is complaint driven. "We rely on the public, and our stakeholders, to let us know what is going on," she said. "Ensuring that people who are exhibiting these animals are [doing so] consistent with ... regulations, that is our concern."