COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
for the resolution of the prohibition of llamas at the Canyonlands National Park

[ The Complaint ]
[ Introduction ]
[ Plaintiffs ]
[ Defendants ]
[ Background ]
[ Initial Prohibition of Llamas ]
[ Efforts to Spread False Information ]
[ Prohibition in the Backcountry ]
[ Response of the Scientific Community ]
[ Officials Rejected Canyonlands Prohibition ]
[ Johne's Risk Factors ]
-- Claim for Relief --
[ 1. Violation of National Environmental Policy Act ]
[ 2. Violation of Park Service Implementation Rules ]
[ 3. Violation of Park Service Rulemaking Procedures ]
[ 4. Less Restrictive Measures ]
[ Plaintiff's Request for Relief ]
[ Return to Home Page ]

T H E C O M P L A I N T

GLEN E. DAVIES (0823)
STUART W. HINCKLEY (4051)
PARSONS, DAVIES, KINGHORN & PETERS
185 South State Street, Suite 700
Salt Lake City, Utah 84111
Telephone: (801) 363-4300
Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

Plaintiffs ROCKY MOUNTAIN LLAMA AND ALPACA ASSOCIATION (the "RMLA"), UTAH LLAMA ASSOCIATION (the "ULA"), ELDON G. REYER, JAMES SCOTT WOODRUFF, W. ROBERT RILEY, ROBERT A. FERRIS, LOUGENE ANN BAIRD, MICHAEL JAMES BROWN, VICTORIA EVERHART, CHARLIE HACKBARTH, DARYL OWEN WOOD, STEVEN KYRIOPOULOS, JERRY DUNN, and JODI J. ROBINSON, by and through their respective counsel, for their claims against Defendants, allege as follows:

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INTRODUCTION

1. This action involves the failure of the United States National Park Service (the "NPS") to fulfill its obligation to protect and manage lawfully the park lands and resources committed to its stewardship in southeastern Utah. Specifically, Plaintiffs challenge the decision taken by Walter D. Dabney ("Dabney" or "Defendant Dabney"), Superintendent of the NPS's Southeast Utah Group ("SEUG"), to preclude the entry of llamas into the territory of the SEUG's Canyonlands National Park and Orange Cliffs Unit of the Glen Canyon National Recreation Area (collectively "Canyonlands National Park") for recreational, pack and other uses.1

2. The NPS, through its regional instrumentalities including the SEUG, is the federal agency charged with managing and overseeing the public's access to and utilization of park lands and other natural resources within the National Park System, including lands within the SEUG. In carrying out its charge, the NPS must comply with various statutory and regulatory requirements in its management of park resources.

3. While Plaintiffs acknowledge that the NPS's task of managing and overseeing park lands is a difficult one, and often requires a complex and careful balancing of varied interests and goals, the official decision-making challenged in this action cannot possibly be supported or justified under any reasonable interpretation of applicable laws and regulations.

4. Plaintiffs fully support reasonable governmental regulations designed to preserve, enhance and protect the Nation's park heritage. Plaintiffs are convinced, however, that any and all regulations governing access to and use of national parks must be well-founded in science and fact, and implemented only following careful deliberation and consideration of the relevant science and facts. No administrative decision or regulation should be based on speculation, misinformation, rumor, or the personal biases and predilections of a single NPS decision-maker, since to do so would undermine the legitimacy and credibility of the entire national park regulatory effort.

JURISDICTION AND VENUE

5. This Court has jurisdiction over this action pursuant to 28 U.S.C.  1331 (federal question),  2201 (declaratory relief), and  2202 (injunctive relief), as well as the APA   701 et seq., codified at 5 U.S.C.   701 et seq.

6 . Venue is proper in this Court pursuant to 28 U.S.C.  1391(e) and 5 U.S.C. 703, because inter alia one or more of the defendants in this action resides in this judicial district, and a substantial part of the events or omissions giving rise to the claims asserted in this Complaint occurred in this judicial district.

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THE PARTIES
Plaintiffs

7. The RMLA is a nonprofit association of residents of the western regions of the United States with an interest in llamas. The RMLA's purpose is "to educate the members and the public as to the breeding, raising, care, and use of llamas." A high percentage of the RMLA is interested in the recreational use of llamas as pack animals in the vast public lands that are included within the RMLA's geographic reach. In addition, RMLA members actively use their llamas for showing, spinning fiber, guarding sheep, attending parades and 4-H projects, as well as breeding llamas for sale.

8 . The ULA is a nonprofit association of residents of Utah with an interest in llamas. The ULA's purpose is "to educate members and the public as to the caring for, breeding, raising, and use of llamas or other camelids." A high percentage of the ULA is interested in the recreational use of llamas as pack animals in the vast public lands of Utah.

9. Eldon G. Reyer is a resident of Lamy, New Mexico. He is a retired National Park Ranger, llama owner, and national park visitor. In or about November 1996, Mr. Reyer requested, and was denied by Defendant Dabney, permission to enter the territory of the SEUG with a pack llama.

10. James Scott Woodruff is a resident of Lander, Wyoming. He is a llama owner and national park visitor. In or about October 1996, Mr. Woodruff requested, and was denied by Defendant Dabney, permission to enter the territory of the SEUG with a pack llama.

11. W. Robert Riley is a resident of Lyons, Colorado. He is a llama owner and national park visitor. In or about September 1996, Mr. Riley requested, and was denied by Defendant Dabney, permission to enter the territory of the SEUG with a pack llama.

12. Robert A. Ferris is a resident of Buena Vista, Colorado. He is a llama owner and national park visitor. In or about October 1996, Mr. Ferris requested, and was denied by Defendant Dabney, permission to enter the territory of the SEUG with a pack llama.

13. Lougene Ann Baird is a resident of Sedalia, Colorado. She is a llama owner and national park visitor. In or about October 1996, Ms. Baird requested, and was denied by Defendant Dabney, permission to enter the territory of the SEUG with a pack llama.

14. Michael James Brown is a resident of Boulder, Colorado. He is a llama owner and national park visitor. In or about October 1996, Mr. Brown requested, and was denied by Defendant Dabney, permission to enter the territory of the SEUG with a pack llama.

15. Victoria Everhart is a resident of Cory, Colorado. She is a llama owner and national park visitor. In or about September 1996, Ms. Everhart requested, and was denied by Defendant Dabney, permission to enter the territory of the SEUG with a pack llama.

16. Charlie Hackbarth is a resident of Carbondale, Colorado. He is a llama owner and national park visitor. In or about September 1996, Mr. Hackbarth requested, and was denied by Defendant Dabney, permission to enter the territory of the SEUG with a pack llama.

17. Daryl Owen Wood is a resident of Oak City, Utah. He is a llama owner and national park visitor. In or about September 1996, Mr. Wood requested, and was denied by Defendant Dabney, permission to enter the territory of the SEUG with a pack llama.

18. Steven Kyriopoulos is a resident of Sterling, Utah. He is a llama owner and national park visitor. In or about November 1996, Mr. Kyriopoulos requested, and was denied by Defendant Dabney, permission to enter the territory of the SEUG with a pack llama.

19. Jerry Dunn is a resident of Golden, Colorado. She is a llama owner and national park visitor. In or about November 1996, Ms. Dunn requested, and was denied by Defendant Dabney, permission to enter the territory of the SEUG with a pack llama.

20. Jodi J. Robinson is a resident of Miami, New Mexico. She is a llama owner and national park visitor. In or about October 1996, Ms. Robinson requested, and was denied by Defendant Dabney, permission to enter the territory of the SEUG with a pack llama.

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Defendants

21. Defendant United States Department of the Interior is the Cabinet-level department of the United States government ultimately responsible for the oversight and management of the National Park System, including the SEUG.

22. Defendant Bruce Babbitt is the Secretary of the Interior and is the Cabinet-level head of the Department of the Interior in Washington, D.C. He is ultimately responsible to the President, the Congress and the American people for ensuring the lawful implementation of environmental and park-related statutes and regulations on lands within the National Park System, including the SEUG.

23. Defendant Roger Kennedy is the Director of the United States National Park Service at the NPS's headquarters in Washington, D.C. He is specifically responsible to the Secretary of the Interior, as well as the Assistant Secretary of the Interior for Fish and Wildlife and Parks, for ensuring the lawful implementation of environmental and park-related statutes and regulations on lands within the National Park System, including the SEUG.

24. Defendant the National Park Service is a bureau of the Department of the Interior and is the agency specifically responsible for the oversight and management of the National Park System, including the SEUG.

25. Defendant John Cook is the Director of the Intermountain Field Office 9 National Park Service located in Denver, Colorado. He is specifically responsible to the Director of the National Park Service for ensuring the lawful implementation of environmental and park-related statutes and regulations on national park lands within the administrative jurisdiction of the Intermountain Field Office of the National Park Service.

26. Defendant Walter D. Dabney is the Superintendent of the Southeastern Utah Group, a unit of the National Park Service located in Moab, Utah. He is specifically responsible to the Director of the Intermountain Field Office, National Park Service for ensuring the lawful implementation of environmental and park-related statutes and regulations on national park lands within the administrative jurisdiction of the SEUG, which includes the Canyonlands National Park.

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FACTUAL AND PROCEDURAL BACKGROUND
The 1993 Environmental Assessment

27. As alleged herein above, and on information and belief, the SEUG is an administrative unit of the NPS that comprises several national park sites, including the Canyonlands National Park.

28. In or about December 1993, Defendant Dabney issued the "Canyonlands National Park and Orange Cliffs Unit of Glen Canyon National Recreation Area Environmental Assessment for Backcountry Management Plan (the "Environmental Assessment"), attached hereto as Exhibit A.2 Dabney described the Environmental Assessment as "a draft Plan" that was "presented . . . in compliance with the National Environmental Policy Act (NEPA)." Ex. A at 1.

29. Additionally, the Environmental Assessment made inter alia the following representations to the affected and interested public:

Following NEPA regulations, this EA includes a brief discussion of the need for the Plan, a No Action section describing the present policies, proposed changes presented under the Preferred and Other Alternatives, and a section describing the Environmental Consequences of the alternatives described.

Management alternatives are presented below, no final decisions have been made at this point. Based on comments received from the public, this EA will be modified, and final management alternatives will be selected. The final Plan is expected to be ready by February 1994, and will be implemented as soon as the NEPA process is completed, funding pending. The Plan will provide management direction for the backcountry for the next five years. Current policy for backcountry use is presented as the No Action alternative; proposed changes are presented as the Preferred and Other Alternatives section. Where a clear preference alternative has not been selected, or if other policies are also being considered, other choices are presented. Finally, the section on Environmental Consequences describes how the various alternatives affect natural, cultural, and socioeconomic resources.

Ex. A at 1 (emphasis added).

30. Later in the Environmental Assessment, the so-called No Action Alternative with respect to "Saddle and Pack Stock Use" was identified as "[u]se of saddle and pack stock, including horses, burros, mules and llamas requires a permit." Ex. A at 14. The Preferred Alternative with respect "Saddle and Pack Stock Use" was described as "[s]addle and pack stock use will continue to include horses, burros, mules and llamas." Ex. A at 43.

31. On information and belief, following issuance of the Environmental Assessment, six public meetings were conducted and several presentations to interested public groups were apparently made by the SEUG staff, including Defendant Dabney.

32. The comment period for the Environmental Assessment closed on March 5, 1994. During, and by the conclusion of the comment period, there was no indication that a prohibition on entry of llamas as pack stock into the Canyonlands National Park was being considered or was even an issue. By March 1994, the No Action and Preferred Alternatives set forth in the Environmental Assessment continued to provide for llama access to the Park. (The only material difference between the two alternatives was whether overnight access to the Park would be granted to any pack animals, not merely llamas.)

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Initial Prohibition Of Pack Llamas From
Canyonlands National Park

33. In or about September 1994, Defendant Dabney suddenly announced to the Utah media that he was implementing a prohibition on the entry of llamas into the Canyonlands National Park for recreational, pack, or any other uses (the "Initial Prohibition"). The Initial Prohibition remained in effect through the late autumn and early winter of 1994 and was imposed unilaterally by Dabney entirely outside the NEPA process and without the opportunity for public comment or submission of evidence for the administrative record.

34. The justification for the Initial Prohibition given by Defendant Dabney was his belief that llamas may transmit paratuberculosis to native Desert Bighorn Sheep present in various parts of the Canyonlands National Park. In a "Briefing Statement" issued in or about October 1994 (the "Briefing Statement"), which was plainly issued as a post hoc justification for the Initial Prohibition announced the previous month, Dabney admitted that his concerns over the purported paratuberculosis threat from llamas emanated from impromptu comments made by Dr. Terry Spraker, a Colorado State University veterinary pathologist, at the 1994 Annual Desert Bighorn Sheep Council meeting held in Moab, Utah between the 6th and 8th of April, 1994. On information and belief, Dabney did not actually attend that meeting, but apparently learned of Dr. Spraker's comments second-hand. Dabney stated that his decision to prohibit llama entry into Canyonlands National Park was "based largely upon" discussions with and the "strong recommendation" of Dr. Terry Spraker.

35. Based on a transcript of the April 1994 Annual Desert Bighorn Sheep Council meeting prepared by the Bureau of Land Management and which the RMLA has reviewed, it is true that Dr. Spraker raised the general problem of paratuberculosis transmission to native animals in wilderness areas, regardless of the source. In an informal question and answer session, Dr. Spraker at one point added that paratuberculosis had been diagnosed in two Colorado llamas. However, Dr. Spraker's brief comments on the issue did not specifically address the risk of transmission of the disease from llamas to wildlife in wilderness areas.

36. Taken out of context and without rigorous analysis of the available scientific evidence, Dr. Spraker's 1994 comments apparently precipitated Dabney's hasty conclusion that llamas may present a substantial danger to wildlife in wilderness areas.

37. However, for reasons unclear to Plaintiffs but which, on information and belief, have to do with Defendant Dabney's personal tastes and prejudices, Dabney chose to ignore completely a later statement issued by Dr. Spraker and other prominent veterinary professors opining that the Initial Prohibition, predicated on Dabney's perceived risk of llama transmission of paratuberculosis to wildlife, was and is "scientifically unsound."

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Dabney Efforts To Spread False Information
About Llamas And Paratuberculosis

38. On information and belief, immediately following his announcement of the Initial Prohibition, Defendant Dabney proceeded to wage a one-man campaign to convince other public lands managers to follow his scientifically ignorant lead. Dabney utilized electronic mail, telephone calls, facsimile transmissions, and the United States mails to contact scores of counterparts at NPS, Bureau of Land Management, United States Forest Service, and United States Fish and Wildlife Service units around the country to convince them to adopt the Initial Prohibition.

39. Tellingly, the Initial Prohibition has not been followed by Defendant Dabney's colleagues anywhere in the United States. On information and belief, despite Dabney's best efforts to lobby his counterparts throughout the country, not a single National Park Service, U.S. Forest Service, U.S. Fish and Wildlife Service or Bureau of Land Management unit has implemented any policy or regulation remotely similar to the Initial Prohibition. Indeed, all who have considered the merits of the Initial Prohibition announced by Dabney have categorically rejected it as scientifically unfounded and have publicly refused to follow his lead.

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The Llama Prohibition In The
Backcountry Management Plan

40. Rather than reopen the comment period for the Environment Assessment and receive public comments and input from the scientific community on the propriety of the Initial Prohibition, in or about January 1995, Defendant Dabney unilaterally incorporated (and thereby made permanent) the Initial Prohibition into his Canyonlands National Park and Orange Cliffs Unit of Glen Canyon National Recreation Area Backcountry Management Plan (the "Backcountry Management Plan"), attached hereto as Exhibit B.3 The Backcountry Management Plan provided that "[l]lamas and goats are prohibited by Superintendent's Directive due to the possibility of disease transmission to native animals, especially desert bighorn sheep." Ex. B at 17.

41. The unilateral and lawless incorporation of the Initial Prohibition into the Backcountry Management Plan was made despite the fact that llama access to the Canyonlands National Park was not remotely placed in issue by the Environmental Assessment. As alleged herein above, neither the No Action Alternative nor the Preferred Alternative proposed in the Environmental Assessment purported to alter the historical access of llamas for recreational and pack uses in the Canyonlands National Park. Further, on information and belief, during the pendency of the Environmental Assessment's comment period, not a single comment or suggestion had been received by the SEUG staff from the scientific community or interested public proposing a llama prohibition. Rather, the Backcountry Management Plan was amended in secret in a scientific vacuum, without an opportunity for public comment, and based entirely on the uninformed conclusions of Defendant Dabney, who, on information and belief, has no expertise or background in the veterinary sciences.

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Response Of The Scientific Community
To The Llama Prohibition Contained In The Backcountry Management Plan

42. In a critical May 4, 1995 letter sent to Defendant Dabney, Dr. Franklyn Garry, Dr. David Getzy, Dr. Terry Spraker, and Dr. LaRue Johnson of Colorado State University addressed the issue of paratuberculosis among sheep, goats, cattle, horses, and llamas specifically in the context of the Dabney decision to prohibit llama use in and access to Canyonlands. The letter stated that while paratuberculosis is well documented among sheep, goats and cattle, and has been reported sporadically to affect some equine species, its incidence among llamas is infinitesimal. The disease has been documented in only four llamas in North America among the probable hundreds of thousands of llamas that have cumulatively inhabited the North American continent during the twentieth century. The scientists unequivocally stated that there was no demonstrable scientific evidence to indicate that llamas pose any realistic, material or measurable threat of transmitting paratuberculosis to any other animals, domestic or wildlife, anywhere. In their joint letter to Defendant Dabney, Drs. Spraker, Garry, Getzy and Johnson wrote:

To date, only four cases of Johne's disease have been documented in llamas, although a thorough search of the literature indicates one additional case where typical lesions of the disease were noted but the organism was not specifically identified. Not only has the disease been infrequently found in llamas in North America, but the reported cases have tended to be unusual in being quite young or quite old, as compared to the typically affected cow or sheep. The course of the disease in llamas has been short, with death occurring shortly after clinical suggestion of disease. It is most likely that the low reported incidence of this problem in llamas is a true representation of the disease in the species because it is unlikely that the disease has been inadvertently overlooked. By comparison with our domestic ruminant livestock, llamas have tended to maintain a high individual monetary value and, therefore, death and disease in this species has typically been closely scrutinized using standard but extensive diagnostic methods. Llamas are frequently raised in close contact with the domestic ruminant livestock and thus should have given opportune to contract the disease and show signs if there were highly susceptible to this problem.

While the low reported incidence of Johne's disease in llamas is significant in itself in suggesting that llamas are an extremely infrequent carrier of the M. paratuberculosis organism, these findings also illustrate another important issue. In the interaction between infectious organisms and mammalian hosts, there are typically strong associations between a given host and a given pathogen species. When an organism invades a host to which it is not optimally adapted, it will usually not develop an endemic infection and rather will tend to occur in a sporadic and somewhat unusual pattern as compared with the disease in the more typical host. This appears to be a common phenomenon in llamas in North America. To date, there are no identified pathogens that are specifically adapted to llamas as a host species. That is to say, that if you scour the veterinary literature, you will find reports of llamas that have contracted viral and bacterial problems from horses, cattle, sheep and goats. But there are no reported incidences of diseases contracted by these other species specifically from contact with llamas. This may not be surprising given that llamas are not standard ruminants. While they possess a forestomach for fermentation of vegetative foodstuffs, they have evolved separate from the common hoof stock ruminants, which include our domestic and wild ruminant species in North America.

. . . [O]ur current knowledge demonstrates that Johne's disease is uncommon in llamas and is likely contracted by llamas from contact with other species and is not an endemic llama problem. On that basis, it is inappropriate to view llamas as posing a substantial threat as a vector specifically for Johne's disease transmission to wildlife species.

(emphasis added).

43. The fact that Dr. Spraker joined in the May 5, 1995 letter demonstrates that there is no scientific validity to the Initial Prohibition and its subsequent incorporation in the Backcountry Management Plan. Dr. Spraker's clarification of his prior statements, which clarification was co-signed by his well-respected CSU veterinary colleagues, demonstrates that Defendant's Dabney's decision _ again, which Dabney asserted was "based largely upon" his interpretation of Dr. Spraker's 1994 statements _ is not founded on any credible scientific linkage between llamas and the transmission of paratuberculosis. For reasons apparently having nothing to do with science, however, Defendant Dabney has steadfastly refused to reverse his decision to impose the Initial Prohibition and unilaterally to revise the Backcountry Management Plan, despite the fact that the alleged basis for those actions has been effectively retracted by Dr. Spraker.

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State Government Officials, Other Parks,
Government Agencies, And AdditionalScientists
Have Evaluated,And Categorically Rejected,
The Canyonlands Llama Prohibition

44. As alleged herein above, following his announcement of the Initial Prohibition, Defendant Dabney engaged in a concerted effort to contact public lands administrators throughout the United States to encourage them to implement similar bans on llama access.

45. That Defendant Dabney has been singularly unsuccessful in his orchestrated campaign to obtain peer ratification for his arbitrary and capricious decision-making is, by now, evident.

46. For example, the Glen Canyon National Recreation Area ("Glen Canyon"), also implemented a llama prohibition in conjunction with Defendant Dabney's prohibition in the Canyonlands National Park. The Orange Cliffs Unit in Glen Canyon was a participant Backcountry Management Plan and the Environmental Assessment. At about the same time the llama prohibition took effect in the Orange Cliffs Unit, the prohibition was extended by the Glen Canyon superintendent to include all of Glen Canyon. However, the Glen Canyon prohibition was later reversed throughout Glen Canyon, with the exception of the Orange Cliffs Unit, because "[s]cientific information regarding the potential transmission of Johne's disease (a paratuberculosis) is not as severe as originally indicated referencing the status of llamas or pack animals." Glen Canyon Superintendent's Order #8 (April 29, 1996).

47. In addition, in April 1995, and despite Defendant Dabney's explicit urgings to the contrary, the local NPS officials in Glacier National Park determined not to impose a similar llama prohibition. In an April 24, 1995 letter, Glacier National Park's Chief Park Ranger Stephen J. Frye explained that the available scientific evidence would simply not support such a ban.

After several months of information gathering, consultation and evaluation, Park officials have decided not to prohibit the use of llamas as pack animals in the park's backcountry. This measure was being considered due to the possibility that llamas could transmit Johne's Disease (a paratuberculosis) to native mountain goats and bighorn sheep.

Initial concern was raised by a Colorado State University veterinary pathologist at the 1994 Desert Bighorn Council Meeting. The occurrence of Johne's disease in a herd of bighorn sheep on Mt. Evans in Colorado resulted in some mortality and prevented that herd from being used as transplantation stock for other areas. The disease was also found in a domestic llama breeding operation in Colorado.

The spread of disease from domestic animals to native wildlife populations is a serious concern for park officials. The Superintendent of Arches and Canyonlands National Parks decided to ban llamas last summer to protect their bighorn populations, some of which are used for transplantation stock and others which are struggling due to various other diseases.

The overwhelming response to inquiries by Glacier National Park officials was that the actual threat posed to indigenous species by llamas was not significant. Johne's disease is very rare in llamas and the risk of transmission is considered minimal.

48. Similarly, John Fend, the Area Manager of the Cascade Resource Area in Idaho, which is a unit of the BLM, wrote a February 2, 1996 letter to the Director of BLM's National Applied Resource Sciences Center. Mr. Fend's letter explained in great detail the genesis and spread of misinformation regarding the alleged paratuberculosis transmission by llamas. Mr. Fend urged that the BLM issue a policy statement that "the BLM does NOT intend to ban llamas from public lands based on disease conflicts or risks." In his letter, Mr. Fend, who has spent the first 15 years of his career as a Range Conservationist, stated:

I strongly believe the National Park Service . . . has misrepresented the extent of the threat/risk of Johne's disease associated with llamas being spread to wild ungulates. . . .

While the National Park Service may have legitimate reasons for restricting the use of non-native species within its boundaries to preserve the integrity of its contained ecosystems, the Park Service should not be using Johne's disease as the vector for its ban . . . it's just not scientifically sound land management (see attached letters from the Colorado State University Veterinary Teaching Hospital and Oregon State University College of Veterinary Medicine.) Similar statements/positions have been offered by the Wyoming State Veterinarian, Dr. Beth Williams, the Idaho Fish and Game State Veterinarian, Dr. Dave Hunter, and Dr. LaRue Johnson of Colorado State University who is the leading veterinary researcher on llamas in North America.

49. On February 2, 1996, Regional Forester Dale N. Bosworth issued a letter, after conferring with the Manti-LaSal National Forest, which has administrative responsibility for United States Forest Service ("USFS") lands in southeastern Utah. Mr. Bosworth reported that the USFS:

currently [has] no plans to restrict llama use on the Forest or to take permit action on outfitters and guides who provide llama services. They are aware of the concerns expressed by the NPS with disease transmission, but feel that there currently is not sufficient scientific information to warrant such a restriction on National Forest System lands in southeast Utah.

 

50. Further, on February 7, 1996, Utah State Veterinarian Michael R. Marshal responded to an inquiry regarding the prohibition of llama use in the Utah national parks (on information and belief, Canyonlands National Park), memorializing his belief that medical science does not support Defendant Dabney's decision:

I have been told the reason [the National Park Service is] prohibiting llamas from the national parks is because of a perceived disease threat from Johne's disease to the animals in the park. If I understand the current research material correctly, there is a grand total of four llamas in the United States which have been shown to have Johne's disease. Likewise to the best of my knowledge, there is no research that shows this disease transmissible to Bighorn sheep or elk from llamas.

Speaking in terms of risk assessment and epidemiology, I believe the ban of llamas from national parks is a poor decision on behalf of the National Park Service. It is my impression that the National Park Service prefers to have llamas banned from the park for other reasons, and is using this medical statement about Johne's disease as an excuse to do so. It is difficult for me to understand why such medical decisions are reached for the state of Utah, without the input from Utah veterinary medical regulatory officials.

In summary, I do not believe that medical science supports the ban of llamas in national parks.

51. In response to Defendant Dabney's decision, the veterinarian membership of the Western States Livestock Health Association and the Western District United States Animal Health Association, meeting in joint session, passed a resolution in 1996 recommending that no public lands be closed to llamas without sufficient scientific evidence indicating that disease transmission will occur. The American Association of Small Ruminant Practitioners has also issued a policy statement which states that the scientific evidence does not justify a ban of llamas on public lands. The Executive Committee of the United States Animal Health Association, which includes all 50 state veterinarians, at its 100th Anniversary meeting in October 1996, adopted the following resolution:

USAHA recommends that no public lands be closed to llamas accompanied by people for the reason of Johne's disease.

52. Most significantly, W. Hord Tipton, the Assistant Director of Resource Use and Protection for the United States Department of Interior's BLM, stated in his April 3, 1996 letter to Representative Michael D. Crapo that "the BLM will not consider banning llamas or other domestic species from the public lands based on its current understanding of [Johne's] disease."

53. The foregoing views from Defendant Dabney's public lands administrative colleagues, from state veterinary professionals, from coordinate federal public lands agencies, from national animal health organizations, and from university veterinary scientists were effectively summed up by Oregon State University Veterinarian Dr. Stanley Snyder.

As a reason for keeping llamas out of areas of our national forests, etc., the threat of llamas disseminating Johne's disease to wild ruminants is quite remote. In Oregon, where Johne's disease in cattle, sheep and goats is quite common and where llama raising is extremely popular, we have not had even a single confirmed case of Johne's disease in llamas. . . .

It is my opinion that reintroduction of wolves into the American West represents a threat to wild ruminants of many orders of magnitude greater than the remote possibility of spreading Johne's disease from llamas.

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Paratuberculosis Risk Factors and the
Canyonlands National Park

54. There have been only four cases of Johne's disease-diagnosed llamas in North America during this century. The only epidemiology or pathogenesis study on llamas with Johne's disease could not find any infected adult llamas to include in the study. Dr. Tim Deveau, who works with the U.S. Department of Agriculture's APHIS unit in Wisconsin, tried to determine the incidence of diarrhea in adult llamas with Johne's disease. He interviewed over 75 llama owners and breeders and could find no diseased animals to incorporate into his investigation.

55. Johne's disease has been isolated in at least one Rocky Mountain Bighorn Sheep herd in Colorado. However, it has not been diagnosed in Desert Bighorn Sheep. As alleged herein below, there are many factors which influence the transmission of Johne's disease, and it is quite possible that Desert Bighorn Sheep behavior may reduce the breed's susceptibility to paratuberculosis, compared to Rocky Mountain Bighorn Sheep.

56. Johne's disease is transmitted between animals primarily by fecal/oral transmission. However, even animals that ingest substantial quantities of fecal material may not necessarily become infected with paratuberculosis. There are numerous animal behavioral characteristics and ambient environmental conditions that strongly influence the likelihood of Johne's disease transmission. Each of these factors constitutes a discrete, independent probability condition. Unless enough of these independent conditions are present, the transmission of paratuberculosis between any animals is simply impossible, let alone transmission between occasionally traversing pack llamas and free-ranging wildlife in an expansive national park. These factors include:

(a) High Dose _ an extremely high concentration of organisms (108) in the fecal material ingested is required for transmission;

(b) Continuous/Repeated Exposure _ exposure for weeks is required for transmission to sheep;

(c) High-Shedding ("Clinical") Host Animal _ only terminal or clinical animals would be able to introduce a sufficiently concentrated dose into the environment for transmission to occur, and such animals are too emaciated, wasted and not athletic enough to serve as pack animals;

(d) Alkalinity of soil _ acidic soil is more conducive to organism survival;

(e) Humidity _ areas that are damp, foggy and rainy are more conducive to organism survival;

(f) Temperature _ colder areas are more conducive to organism survival; sunlight and heat tend to kill the organism;

(g) Elevation _ low elevation (sea level) is more conducive to organism survival;

(h) Density _ a high density of animals is more conducive to transmission;

(i) Light _ shade is more conducive to organism survival;

(j) Water _ pooling of water is more conducive to organism survival;

(k) Animal behavior/preferences _ neither Desert Bighorn Sheep nor Rocky Mountain Bighorn Sheep are likely to ingest fecal material of other species; and,

(l) Animal age - higher organism concentrations are required to infect older individuals.

57. While all the foregoing alleged ambient and behavioral risk factors variously influence transmission of Johne's disease from one animal to another, some factors make the risk of the transmission of Johne's disease from a pack llama to a Desert Bighorn Sheep in Canyonlands National Park particularly negligible. First, a llama that is capable of packing is highly unlikely to have a clinical case of Johne's disease and shed enough of the organism to infect another animal. Transmission requires a high dosage of the organism and llamas classified as "clinical" are the high-shedding animals. However, a llama exhibiting clinical signs of the disease is a very sick animal and certainly physically unable to pack due to emaciation, wasting, and lack of strength. Therefore, were a llama first trained and ultimately selected for packing in Canyonlands National Park, or any other area, it would, by definition, not be an individual capable of transmitting a sufficiently concentrated dosage of organism to pose a credible threat of transmitting paratuberculosis to native wildlife or to Desert Bighorn Sheep.

58. Further, the unique and specific environmental conditions of Canyonlands National Park make it a hostile environment both for paratuberculosis and paratuberculosis transmission. The organism's survival rate is significantly reduced by heat, dryness, alkaline soil conditions, elevation and exposure to ultraviolet light. The applicable conditions in Canyonlands National Park are as follows:

Ambient Characteristic	Canyonlands National Park
1. Temperature	High = 1110 Low = -280
2. Moisture (Rain and Snow)	Average Yearly Precipitation =27.67" Average Monthly Precipitation Range = 0.5" to 4.16"
3. Sunlight	255.5 Days of Full Sunlight Each Year
4. Elevation	3,500 - 7,000 feet

59. The environmental characteristics of Canyonlands National Park thus powerfully discourage paratuberculosis organism survival and transmission. The low animal density in Canyonlands National Park is a key epidemiological factor weighing strongly against paratuberculosis disease presence and transmission. The vast expanse of the Park and the transient behavior of native species located there militate strongly against paratuberculosis transmission.

60. Both Rocky Mountain Bighorn Sheep and Desert Bighorn Sheep, are unlikely to ingest any fecal matter from other species, much less the large quantity necessary to contract Johne's disease. Specifically, the behavior and nature of the Desert Bighorn Sheep make them even less likely animals to become infected with paratuberculosis than the Rocky Mountain Bighorn Sheep.

61. In sum, the scientific evidence establishes that the risk of the Johne's disease transmission from llamas to Desert Bighorn Sheep or any other native, North American ungulate is infinitesimal and does not justify a ban on pack llamas from public lands. Mike Miller, a veterinarian with the Colorado Division of Wildlife, has specifically worked with and studied the Colorado herd of Rocky Mountain Bighorn Sheep that has been infected with Johne's disease. It is his assessment that "the likelihood of [transmitting Johne's disease through fecal/oral transmission] requires a tremendous number of coincidences that just aren't going to lend themselves to happening in very many places. The fact that we don't have Johne's all over the west in the Rocky Mountain Bighorn Sheep, Desert Bighorn Sheep or anything else lends a lot of credence to just how unlikely that scenario would be."

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FIRST CLAIM FOR RELIEF
(Claim Under APA Sections 702 and 706(2) for Violation of the
National Environmental Policy Act ("NEPA"))

62. Plaintiffs hereby repeat and incorporate by reference the allegations set forth in paragraphs 1 through 61 above.

63. The National Park Service Organic Act of 1916 ("NPSOA") provides the Secretary of the Interior with the authority to "make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks . . . under the jurisdiction of the National Park Service." 16 U.S.C.A.  3.

64. When the superintendent of a National Park imposes closures and public use limits on access to his or her park, his or her decision must be "consistent with applicable legislation and Federal administrative policies." 36 C. F. R.  1. 5(a).

65. NEPA directs federal agencies to:
include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on _

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S. C.  4332(C).

66. Defendant Dabney's decision to prohibit llamas from all areas of the Canyonlands National Park is an action that triggers review under NEPA.

67. On March 16, 1995, nearly six months after the Initial Prohibition and three months after implementation of the final Backcountry Management Plan, Defendant Dabney, on information and belief, determined that his unilateral decision to impose a llama access ban in Canyonlands National Park had been unlawful, violative of Department of Interior and NPS regulations, and in derogation of applicable administrative procedures. Therefore, he drafted an internal memorandum to the files in which he stated, after the fact, that his decision to prohibit the use of llamas from all areas of the Canyonlands National Park was "categorically excluded from further compliance with the National Environmental Policy Act under Departmental exclusion 1.5 and 1.7 in Appendix 1, 516 DM 2, and National Park Service exclusion 7.4 (D)(2) [sic} in Appendix 7, 516 DM 6." 4

68. The first NEPA exclusions cited by Defendant Dabney, exclusions 1.5 and 1.7 in Appendix 1 of the Department of Interior Departmental Manual (516 DM 2), provide:
"The following actions are categorical exclusions pursuant to 516 DM 2.3A(2)."

* * *
1.5 Regulatory and enforcement actions, including inspections, assessments, administrative hearing, and decisions; when the regulations themselves or the instruments of regulations (leases, permits, licenses, etc.) have previously been covered by the NEPA process or are exempt from it.

* * *
1.7 Routine and continuing government business, including such things as supervision, administration, operations, maintenance, and replacement."

69. Defendant Dabney also appears to rely on a second NEPA exclusion, set forth in section 7.4(B)(2) of Appendix 7 of the Department of Interior Departmental manual (516 DM 6), which provides:

7.4 Categorical Exclusions In addition to the actions listed in the Departmental categorical exclusions outlined in Appendix 1 of 516 DM 2, many of which the Service also performs, the following NPS actions are designated categorical exclusions unless the action qualifies as an exception under 516 DM 2.3A(3):

* * *
B. Actions Related To General Administration

* * *
(2) Reissuance of special use permits not entailing environmental disturbance.

70. Defendant Dabney's decision to prohibit the use of llamas in all areas of the Canyonlands National Park is not covered by either of the foregoing general exclusions on which he purportedly relies in his determination that his action is "categorically excluded from further compliance with" NEPA.

71. Since no valid regulatory exclusion of NEPA applies, Defendant Dabney's prohibition of llamas in all areas of the Canyonlands National Park without complying with the requirements of NEPA is arbitrary and capricious, and abuse of discretion, and otherwise not in accordance with law; contrary to constitutional right, power, privilege or immunity; in excess of statutory jurisdiction, authority, or limitations; without observance of procedure required by law; and unsupported by substantial evidence. 5 U.S.C. 706(2)(A-E).

72. In purposefully or negligently failing to exercise appropriate official, administrative and regulatory oversight and discretion to supervise Defendant Dabney and to overturn his herein alleged decision-making, Defendants Babbitt, the United States Department of the Interior, Kennedy, Cook, and NPS, have joined in the acts or omissions giving rise to this First Claim for Relief.

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SECOND CLAIM FOR RELIEF

(Claim under APA Sections 702 and 706(2) for Violation of the
NPSOA in Implementing a Prohibition on Llama Use in the
Canyonlands National Park Without a Determination
That The Prohibition was Necessary)

73 Plaintiffs hereby repeat and incorporate by reference the allegations set forth in paragraphs 1 through 72 above.

74. When the superintendent of a National Park imposes closures and public use limits, his or her decision to take such action must be based on "a determination that such action is necessary for the maintenance of public health and safety, protection of environmental or scenic values, protection of natural or cultural resources, aid to scientific research, implementation of management responsibilities, equitable allocation and use of facilities, or the avoidance of conflict among visitor use activities." 36 C.F.R.  1.5(a) (emphasis added).

75. Defendant Dabney's decision to prohibit llamas in the Canyonlands National Park was based solely on the threat of Johne's disease transmission from llamas to Desert Bighorn Sheep.

76. In the Briefing Statement, Defendant Dabney publicly acknowledged that there are diametrically opposing views on this issue, that a wildlife disease expert at the University of Wyoming informed him that the threat of Johne's disease transmission from llamas to Desert Bighorn Sheep was unlikely to be a significant threat, and that he received numerous phone calls objecting to the ban after it had been implemented without notice or comment. In so doing, Dabney has admitted that his action is not necessary.

77. In the Briefing Statement, Defendant Dabney stated that he will not reconsider his prohibition on llamas from all areas of the Canyonlands National Park until it is proven that llamas do not pose a significant threat of transmitting Johne's disease to Desert Bighorn Sheep. In so doing, Defendant Dabney has shifted his burden of determining that a ban is necessary to the public, requiring them to prove a negative, to wit: that there is not a significant threat of the transmission of Johne's disease from llamas to Desert Bighorn Sheep.

78. Defendant Dabney's decision to implement a prohibition on llama use in the Canyonlands National Park without a determination that the prohibition was necessary as required by 36 U.S.C.  1.5(a) is arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law; contrary to constitutional right, power, privilege or immunity; in excess of statutory jurisdiction, authority, or limitations; without observance of procedure required by law; and unsupported by substantial evidence. 5 U.S.C.  706(2)(A-E).

79. In purposefully or negligently failing to exercise appropriate official, administrative and regulatory oversight and discretion to supervise Defendant Dabney and to overturn his herein alleged decision-making, Defendants Babbitt, the United States Department of the Interior, Kennedy, Cook, and NPS, have joined in the acts or omissions giving rise to this Second Claim for Relief.

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THIRD CLAIM FOR RELIEF

(Claim Under APA Section 702 and 706(2) for Violation of the
NPSOA in Failing to Follow Rulemaking Procedures)

80. Plaintiffs hereby repeat and incorporate by reference the allegations set forth in paragraphs 1 through 79 above.

81. When the superintendent of a National Park imposes conditions or restrictions on a park use or activity "which is of a nature, magnitude and duration that will result in a significant alteration in the public use pattern of the park area, adversely affect the park's natural aesthetic, scenic or cultural values, require a long-term or significant modification in the resource management objectives of the unit, or is of a highly controversial nature, [then it] shall be published as rulemaking in the Federal Register." 36 C.F.R.  1.5(b).

82. Defendant Dabney's decision to prohibit llamas from all areas of the Canyonlands National Park has resulted in a significant alteration in the public use pattern of the Canyonlands National Park area by preventing all persons, llama owners or otherwise, from using the Canyonlands National Park area for llama pack trips. In fact, Plaintiffs, and each of them, have been denied permits to use the Canyonlands National Park with one or more llamas since the ban was unilaterally implemented without notice or comment.

83. Defendant Dabney's decision to prohibit llamas from all areas of the Canyonlands National Park has adversely affected, and will continue adversely to affect, the Canyonlands National Park's natural, aesthetic, scenic and cultural value of maintaining maximum access to the public. By prohibiting llama use, Defendant Dabney restricts access to the Canyonlands National Park for those who have or want to enjoy the Canyonlands National Park with the assistance of a pack llama. In fact, Plaintiffs, and each of them, have been denied a permit to use various areas of the Canyonlands National Park with one or more llamas since the ban was unilaterally implemented without notice or comment.

84. Defendant Dabney's decision to prohibit llamas from all areas of the Canyonlands National Park is a long-term modification of the resource management objectives of the Canyonlands National Park.

85. Defendant Dabney's decision to prohibit llamas from all areas of the Canyonlands National Park has been of a highly controversial nature and has resulted in much opposition from the public and the scientific community. In fact, Defendant Dabney, together with other NPS employees and agents acting at the behest and in the supervisory control of Dabney, have received scores of letters opposing the prohibition from members of the public, Congress and the scientific community since the ban was unilaterally implemented without notice or comment.

86. During the pendency of the comment period for the Environmental Assessment, Plaintiff Woodruff was specifically notified by Defendant Dabney, and other NPS employees or agents, that an overnight use restriction for all pack animals was being considered as part of the Backcountry Management Plan and that no further prohibitions were being considered. Plaintiff Woodruff asked Defendant Dabney's office to notify him if a prohibition on llama use in Canyonlands National Park were being considered at any time. Plaintiff Woodruff was never notified of any possible or prospective llama prohibition before Defendant Dabney unilaterally implemented the prohibition without notice or comment.

87. Defendant Dabney's implementation of a prohibition of llama use in the Canyonlands National Park without utilizing the rulemaking process required by 36 C.F.R.  1.5(b) is arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law; contrary to constitutional right, power, privilege or immunity; in excess of statutory jurisdiction, authority, or limitations; without observance of procedure required by law; and unsupported by substantial evidence. 5 U.S.C.  706(2)(A-E).

88. In purposefully or negligently failing to exercise appropriate official, administrative and regulatory oversight and discretion to supervise Defendant Dabney and to overturn his herein alleged decision-making, Defendants Babbitt, the United States Department of the Interior, Kennedy, Cook, and NPS, have joined in the acts or omissions giving rise to this Third Claim for Relief.

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FOURTH CLAIM FOR RELIEF

(Claim Under APA Sections 702 and 706(2) for Violation of the
NPSOA in Implementing a Prohibition on Llama Use in the
Canyonlands NationalPark Without Issuing a
Determination that Lists why Less
Restrictive Measures will not Suffice)

89. Plaintiffs hereby repeat and incorporate by reference the allegations set forth in paragraphs 1 through 88 above.

90. When the superintendent of a National Park imposes closures and limits public use in the Park, under this supervision, the superintendent must "prepare a written determination justifying the action. That determination shall set forth the reason(s) the restriction, condition, public use limit or closure authorized by paragraph (a) has been established, and an explanation of why less restrictive measures will not suffice." 36 C.F.R.  1.5(c)(emphasis added).

91. Defendant Dabney has not prepared a written determination which sets forth an explanation of why less restrictive measures will not suffice.

92. Defendant Dabney's decision to prohibit llamas in all areas of the Canyonlands National Park without preparing a written determination which sets forth an explanation of why less restrictive measures will not suffice is arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law; contrary to constitutional right, power, privilege or immunity; in excess of statutory jurisdiction, authority, or limitations; without observance of procedure required by law; and unsupported by substantial evidence. 5 U.S.C.  706(2)(A-E).

93. In purposefully or negligently failing to exercise appropriate official, administrative and regulatory oversight and discretion to supervise Defendant Dabney and to overturn his herein alleged decision-making, Defendants Babbitt, the United States Department of the Interior, Kennedy, Cook, and NPS, have joined in the acts or omissions giving rise to this Fourth Claim for Relief.

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PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court:

(a) Declare as a matter of law that Defendants' imposition of the Initial Prohibition and subsequent issuance of the Backcountry Management Plan containing the prohibition on llamas in all areas of the Canyonlands National Park, were and are arbitrary and capricious;

(b) Declare as a matter of law that Defendants' imposition of the Initial Prohibition and subsequent issuance of the Backcountry Management Plan containing the prohibition on Llamas in all areas of the Canyonlands National Park constituted and constitute an abuse of discretion;

(c) Declare as a matter of law that Defendants' imposition of the Initial Prohibition and subsequent issuance of the Backcountry Management Plan containing the Prohibition on llamas in all areas of the Canyonlands National Park were and are otherwise not in accordance with law;

(d) Declare as a matter of law that Defendants' imposition of the Initial Prohibition and subsequent issuance of the Backcountry Management Plan containing the prohibition on llamas in all areas of the Canyonlands National Park were and are contrary to constitutional right, power, privilege or immunity;

(e) Declare as a matter of law that Defendants' imposition of the Initial Prohibition and subsequent issuance of the Backcountry Management Plan containing the prohibition on llamas in all areas of the Canyonlands National Park were and are in excess of statutory jurisdiction, authority, or limitations;

(f) Declare as a matter of law that Defendants' imposition of the Initial Prohibition and subsequent issuance of the Backcountry Management Plan containing the prohibition on llamas in all areas of the Canyonlands National Park failed and fail to observe procedure required by law;

(g) Declare as a matter of law that Defendants' imposition of the Initial Prohibition and subsequent issuance of the Backcountry Management Plan containing the prohibition on llamas in all areas of the Canyonlands National Park were and are unsupported by substantial evidence;

(h) Enjoin Defendants, and each of them, from taking any action to implement the Initial Prohibition or the prohibition on llama access contained in the Backcountry Management Plan;

(i) Order Defendants, and each of them, to vacate the Initial Prohibition and withdraw the Backcountry Management Plan, including the prohibition on llamas in all areas of the Canyonlands National Park;

(j) Order Defendants, and each of them, to cease and desist from imposition of any prohibition or restriction on llama access to the Canyonlands National Park unless and until Defendants' have fully complied with all applicable constitutional, statutory and regulatory requirements, including affording the interested public and scientific community notice and a reasonable opportunity to be heard;

(k) Award Plaintiffs' their reasonable attorneys' fees, costs, including expert witness fees, and expenses associated with this litigation;

(l) Grant such other and further relief as the Court deems just and reasonable.

Dated: March 31, 1997

Respectfully submitted,

GIBSON, DUNN & CRUTCHER LLP
John D. Fognani
Craig V. Richardson
Jeffrey E. Oraker
Jonathan M. Fingeret
1801 California Street
Suite 4100
Denver, Colorado 80202-2641
D. C. Box No. 18

PARSONS, DAVIES, KINGHORN & PETERS
Glen E. Davies
Utah State Bar No. 0823
Stuart W. Hinckley
Utah State Bar No. 4051
185 South State
Suite 700
Salt Lake City, Utah 84111

Attorneys for Plaintiff
ROCKY MOUNTAIN LLAMA AND ALPACA ASSOCIATION

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Summary of Events (Read this first)
Settlement Agreement (This is what we agreed to.)
Dabney's Memo (Llamas are not a threat!)
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