Congressional Concern Over The Dabney Decision

On February 20, 1996, United States Representative Michael D. Crapo sent a letter to Secretary of the Interior Bruce Babbitt in which he expressed his concern about BLM's consideration of a prohibition of llama use on public lands. Congressman Crapo specifically requested any and all information relating to any proposed bans. Ex. 16. Mr. Tipton's April 3, 1996 letter informing Congressman Crapo of BLM's new policy regarding llamas on public lands was in response to Congressman Crapo's letter. Ex. 2.

In addition to Representative Crapo, at least three other United States Representatives are concerned with the spread of inaccurate information concerning paratuberculosis and have recently written letters questioning the prohibition of llamas in Canyonlands and expressing their fear that the decision would be followed by other managers of public lands. On April 9, 1996, United States Representative James V. Hanson, in his capacity as the Chairman of the House Subcommittee on National Parks, Forests and Lands, sent a letter to the Director of the National Park Service, Mr. Roger Kennedy, in which he specifically noted the lack of science used in the Canyonlands decision. Representative Hanson asked Mr. Kennedy to "intercede and reverse [the Canyonlands] policy" because it was not justified by science. Ex. 17. He wrote:

Several months ago, the Superintendent of Canyonlands adopted a ban on the use of llamas as pack animals in the park. In correspondence to me dated June 26, 1995, he stated that the primary justifications for that action were based on the regulatory definition of "pack animals" as contained in 36 CFR 1.4 and 2.16, and in order to prevent transmission of disease (ruminant paratuberculosis of Johne's Disease) to desert bighorn sheep. Neither of these arguments have merit.

....The second justification for the llama ban, the threat of the spread of Johne's disease to bighorn sheep, is even more questionable. According to scientists at Colorado State University (see attached letter), there have only been 4 cases of Johne's disease reported as occurring in llamas. These scientists go on to state, "It is scientifically unsound, however, to formulate a policy about llama use based specifically on a concern about Johne's disease spread by these animals." The Utah Department of Fish and Game concurs in this analysis and has refused to endorse the policy adopted by the Superintendent, even though they fully share in any concern about disease transmission to the bighorn sheep. I must also point out the inconsistency with this policy compared to the bison management issue at Yellowstone National Park, where the Park Service has argued for years that no action to control brueallods was necessary because there has never been a documented case of the transmission of that disease from bison to cattle.

In further discussions with the Superintendent, he has stated that he adopted this approach because he believes he should "err on the side of protecting the resource." We do not hire park managers to make mistakes, we hire them to make sound judgments on the basis of the best available scientific information.

...However, [the] concern I have is the precedent which would be established if this decision is permitted to stand. It will be a signal to other public land managers that they can adopt similar bans on the use of llamas, without a thorough review, or based on a mistaken assumption of the potential of disease transmission to wildlife populations.

Ex. 17 (emphasis added).

In a February 5, 1996 letter to Mr. Dabney, United States Representative Wayne Allard, himself a veterinarian, wrote:

I have been informed by Llama organizations in my district of the action taken by yourself to ban llamas from the Canyonlands National Park. I have studied the history of this particular situation stemming from the original commentary by Dr. Terry Spraker of Colorado State University that seemingly was misquoted by a news reporter.

I am a veterinarian and have recently finished some continuing education courses at Colorado State University. I spent some time discussing with my colleagues paratuberculosis in domestic animals. In this case it seems as there is no scientific basis for banning llamas in National Parks or BLM land based solely on the remote possibility of Johne's disease.

Ex. 18 (emphasis added).

Finally, United States Representative Helen Chenoweth dispatched her own letter on February 24, 1996 to the Director of the BLM's National Applied Resource Sciences Center, Mr. Lee Barcow, requesting that the Center provide "any and all information relating to [the] proposed [llama] ban." . " Ex. 19.

The March 12, 1996 CSU Workshop is the most comprehensive gathering of scientific experts and noted authorities on the transmission and epidemiology of Johne's disease to date. Participants in the Workshop included Dr. LaRue Johnson and Dr. Terry Spraker from Colorado State University as well as featured scientists Dr. Ellen Belknap from Colorado State University, Dr. David Getzy from Colorado State University, Dr. Beth Williams from the University of Wyoming, Dr. Sue Stehman from Cornell University and Dr. Harley Moon from Iowa State University. In addition, representatives from the BLM, USFS, ILA, American Sheep Industry, the American Association of Small Ruminant Practitioners, the National Park Service and the FWS also participated in the CSU Workshop. The CSU Workshop was recorded and memorialized by transcript ("CSU Transcript") so that the scholarly presentations and discussions regarding the transmission and epidemiology of Johne's disease, as well as the conclusions arrived at by the participants in the Workshop, could be memorialized for future policy-making decisions. See CSU Transcript, Ex. 20.

At the Workshop, the transmission of Johne's disease by pack llamas in National Parks or on public lands was discussed at length by the featured scientific speakers and the attendees. Throughout the discussion, there was almost universal agreement as to the scientific evidence regarding Johne's disease and its transmission by llamas.

The incidence of Johne's disease in llamas appears to be virtually non-existent. At most, there have been only two (2) confirmed and two (2) more suspected cases of Johne's disease diagnosed llamas in North America during this century. Ex. 20 - Belknap at 21; Stehman at 101. Two of those four cases came from a herd of approximately 200 llamas in Colorado. After the discovery of Johne's disease in the two llamas in the herd, the entire herd was systematically tested with no new cases in the several succeeding years. There was no evidence that paratuberculosis had been transmitted to any other llama in the herd. Ex. 20 - Belknap at 23-24. 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. Ex. 23, Ex. 20 - Belknap at 30.

Johne's disease has been isolated in at least one Rocky Mountain Big Horn Sheep herd in Colorado. Ex. 20 - Williams at 46. However, it has not been diagnosed in Desert Big Horn Sheep. Ex. 20 - Williams at 66. As noted below, there are many factors which influence the transmission of Johne's disease, and it is quite possible that Desert Big Horn Sheep behavior may reduce the breed's susceptibility to paratuberculosis, relative to the Mountain Big Horn Sheep variant. Ex. 20 - Williams at 66.

Johne's disease is transmitted between animals primarily by fecal/oral transmission. Ex. 20 - Stehman at 75; Williams at 52.4 However, even animals that ingest substantial quantities of fecal material may not necessarily become infected with paratuberculosis. Ex. 20 - Stehman at 85. There are numerous animal behavioral characteristics and ambient environmental conditions that 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 AU animals is simply impossible, let alone transmission between occasionally traversing pack llamas and free-ranging wildlife in an expansive refuge. These factors include:

1. High Dose -- extremely high concentration of organisms required for transmission

2. Continuous/Repeated Exposure exposure for weeks is required for transmission to sheep
Stehman at 148-49;
Williams at 53, 68,
Moon at 187-188.

3. High-Shedding ("Clinical") Llama --only terminal or clinical animals will likely introduce a sufficient concentrated dose into the environment for transmission to occur

4. Healthy Pack Llama -- a clinical, high-shedding llama is emaciated, wasted, and generally not athletic enough to serve as a pack animal.

5. Alkalinity of soil -- acidic soil is more conducive to organism survival

6. Humidity -- areas that are damp,foggy and rainy are more conducive to organism survival

7. Temperature -- colder areas are more conducive to organism survival; sunlight and heat tend to kill the organism

8. Elevation -- low elevation (sea level)is more conducive to organismsurvival
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9. Density -- a high density of animals is more conducive to transmission

10. Light -- shade is more conducive to organism survival

11. Water -- pooling of water is more conducive to organism survival

12. Animal behavior/preferences -- Big Horn Sheep are unlikely to ingest fecal material of other species

13. Animal age - higher organism concentrations are required to infect older individuals

While all these 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 big horn sheep in the Planning Area 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 a big horn sheep or any other animal.. Transmission requires a high dosage of the organism and llamas classified as "clinical" are the high-shedding animals. However, a clinical llama 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 the Planning Area, or any other area, it would, almost 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 Big Horn Sheep.

Second, the unique and specific environmental conditions of the Planning Area make it a hostile environment for paratuberctilosis and paratuberctilosis transmission. The organism survives best in an ambient environment that has: a relatively wet climate, no ultraviolet light, acidic soil conditions, lower elevation, and moderate temperatures. Conversely, the organism's survival rate is significantly inhibited by heat, dryness, alkaline soil conditions, elevation and exposure to ultraviolet light. It is our understanding from telephone conversations with Milton Haderle, the Refuge Manager at the Planning Area, that the environmental characteristics at the Planning Area include:

The environmental characteristics of the Planning Area thus discourage Johne's organism survival. A climate such as that present at Point Reyes, California presents a more conducive (damp, foggy, rainy, at sea level) environment, although even there the risk of paratuberculosis transmission from a pack llama to another animal would still be negligible as a result of nonclimatic (i.e. animal behavioral) factors. Ex. 20 - Williams at 57-61. Further, animal density is a key epidemiological factor. The classic Johne's disease "incubator" is a densely packed dairy farm or shed where cows are proximate to one another, to a stationery food source and to fecal matter. Ex. 20 - Stehman at 1 12. The vast expanse of the Planning Area and the transient behavior of native species located there militate strongly against paratuberculosis transmission.

Big horn sheep, both mountain and desert, 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 big horn sheep make them even less likely animals to become infected with paratuberculosis than their mountain-inhabiting cousins. Ex. 20 - Williams at 66.

In sum, the scientific evidence presented at the Workshop establishes that the risk of the Johne's disease transmission from llamas to big horn sheep (Rocky Mountain or Desert) or any other native, North American ungulate is infinitesimal and does not justify a ban on pack llamas from public lands. Ex. 20 - H. Moon at 193; Stehman at 148; Ex. 21 (Statement by Dr. Harley Moon); Ex. 22 (Statement by Dr. Elizabeth Williams); see schematic representation of risk factors at the end of this comment. Mike Miller, a veterinarian with the Fish & Wildlife in Colorado, has specifically worked with and studied the Colorado herd of Rocky Mountain Big Horn Sheep that has been infected with Johne's disease. It was 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 Big Horn Sheep or anything else lends a lot of credence to just how unlikely that scenario would be." Ex. 20 - Miller at 166.

Since the risk of llama paratuberculosis transmission is near zero, in order to sustain a pack llama ban based on a perceived threat of such transmission, the Agencies would effectively have to adopt a zero-risk tolerance policy with respect to the Planning Area. The folly of such a policy -- with its attendant surrealistic view of costs and benefits and its resultant degradation in public confidence in administrative decision-making -- was addressed by nationally respected scientist Dr. Harley Moon at the CSU Workshop. Dr. Moon noted that a policy of zero tolerance is not sustainable in today's society and is not a goal that can be practically followed by those charged with managing the Nation's wildlife and environmental heritage. Ex. 20 - H. Moon at 193-94.

Other research and studies corroborate the conclusions of the scientific panelists at the CSU Workshop and the Associations have included, as Exhibits to these comments, several scientific journal articles reporting on research and epidemiological studies that have been conducted in this area. Ex. 24 - 35. These articles consider the transmission of various diseases, including paratuberculosis, by livestock, llamas, goats, cattle, horses and sheep, not merely whether those diseases have been diagnosed in certain species. These scholarly monographs document the incredible resiliency of llamas to paratuberculosis and other diseases, as compared to other livestock animals, and their manifestly unlikely role as paratuberculosis transmitters.

Further, it appears that the primary scientific authority relied upon by the Agencies in crafting the Draft Plan's proposed llama prohibition is the very well-respected scholarship of Dr. Beth Williams of the University of Wyoming, one of the scientific panelists at the CSU Workshop. The Draft Plan states, in pertinent part:

Johne's Disease (paratuberculosis) transmission from domestic llamas has been identified as a potential threat to North American native ungulate species (Williams et. al., 1979, 1985).

Ex. 1 at 35.

In fact, nothing in either the 1979 or 1985 monographs published by Dr. Williams and her colleagues supports the above statement in the Draft Plan. The 1979 Williams article, entitled "Paratuberculosis (Johne's disease) in Bighorn Sheep and a Rocky Mountain Goat in Colorado," Ex. 3 1, essentially reports that paratuberculosis had been isolated and diagnosed in three Bighorn Sheep and a Rocky Mountain goat. In a brief introductory paragraph and as an aside, the 1979 monograph quite accurately mentions that paratuberculosis: has been reported in captive wild species, including white-tailed deer, roe deer, European red deer, moose, aoudad, mouflon, camel, bighorn sheep, reindeer, Japanese sika deer, water buffalo, yak, gnu, and llama.

Ex. 31 at 1 (citations omitted). Thus, while the 1979 Williams study acknowledged that paratuberculosis had been reportedly diagnosed in one llama, the 1979 Williams monograph says absolutely nothing about whether llamas are remotely likely transmitters of paratuberculosis to "North American native ungulate species." as the Draft Plan represents to the public.

Nor does the 1985 Williams study support the bald statement contained in the Draft Plan that "(paratuberculosis) transmission from domestic llamas has been identified as a potential threat ... 11 Entitled "Lymphocyte blastogenesis, complement fixation, and fecal culture as diagnostic tests for paratuberculosis in North American wild ruminant and domestic sheep," Ex. 29, the 1985 American Journal of Veterinary Research article by Dr. Williams and her co-authors does not even mention the word "llama. " Indeed, one of the co-authors of the 1985 Williams study is Oregon State University Veterinarian Dr. Stanley Snyder who, as noted above, finds the risk of llama paratuberculosis transmission to be "quite remote." Ex. 9. Rather, the 1985 study discusses various methodologies for diagnosing the presence or absence of paratuberculosis in deer, elk, domestic sheep and Bighorn hybrid sheep, makes several recommendations about methodological approaches to diagnosis, and suggests further study. As with the 1979 monograph before it, Dr. Williams' 1985 article could not fairly be read to support any view -- one way or the other -- about the transmission of paratuberculosis by llamas to any other animal, wildlife or domestic.

Further, notwithstanding the silence of her 1979 and 1985 articles on the subject, Dr. Williams does have a strong view on the transmission issue: she categorically rejects precisely the interpretation of her scholarship being touted in the Draft Plan to support the proposed llama prohibition based on the risk of paratuberculosis transmission to Bighorn Sheep and native North American ungulate wildlife.

The rationale for prohibiting use of llamas and domestic goats in these areas is based on the statement "Johne's Disease (paratuberculosis) transmission from domestic llamas has been identified as a potential threat to North American native ungulate species (Williams et al., 1979, 1985)". As author of the scientific papers cited as justification for prohibiting goats and llamas from these areas, I wish to point out that neither paper mentions llamas or domestic goats as "a potential threat to North American native ungulate species". In fact, the 1985 paper does not even mention llamas. Use of these citations, in the context of rational for prohibiting llamas and domestic goats due to the potential transmission of paratuberculosis, is a gross misinterpretation of their context.

It is my opinion, based on years of studying mycobacterial diseases of wild species and knowledge of the scientific literature concerning paratuberculosis in a variety of wild and domestic species, that the risk of introduction of paratuberculosis (Johne's disease) via infected llamas into National Parks in the southwestern United States is insignificant.

Ex. 22 (emphasis added).

Resolutions And Policy Statements Of Other Governmental Agencies
And Private Organizations

BLM is not the first organization to determine that the scientific evidence concerning the transmission of Johne's disease does not justify a ban of llamas on public lands. In response to the Canyonlands decision, veterinarians in the Western States Livestock Health Association and the Western District United States Animal Health Association both passed a resolution recommending that no public lands be closed to llamas without sufficient scientific evidence indicating that disease transmission will occur. Ex. 36. The American Association of Small Ruminant Practitioners has also put forth a policy statement which states that the scientific evidence does not justify a ban of llamas on public lands. Ex. 3 7.

Regulatory Authority To Prohibit Llamas On Public Lands

BLM's authority, as found in FLPMA, Executive Order No. 11987 (1977), 43 CFR

§ 8560. 1-1, and 50 CFR §§ 25.21, 25.31, 27.52, and 35.7, to regulate public lands is admittedly broad and discretionary. Obviously, and as the Agencies are aware, that broad discretion must nonetheless be exercised reasonably, rationally, and in the public interest. The Associations believe a prohibition on llama access to the Planning Area -- at the very least one based on the threat of paratuberculosis transmission to Bighorn sheep or other wildlife -- would be patently unreasonable and unjustified in light of the available scientific evidence.

In addition, the Draft Plan's implied classification of llamas as an "exotic species" is exceedingly inappropriate in light of other federal animal classification regulations, as well as the llama's long history in North America. First, the United Stated Department of Agriculture has classified llamas as farm animals, even when they are used solely as pack animals:

Farm animal means any domestic species of cattle, sheep, swine, goats, llamas, or horses, which are normally and have historically, been kept and raised on farms in the United States, and used or intended for use as food or fiber, or for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber. This term also includes animals such as rabbits, mink, and chinchilla, when they are used solely for purposes of meat or fur, and animals such as horses and llamas when used solely as work and pack animals.

See, generally, 9 CFR § 1. 1. Further, llamas are the oldest domesticated farm animal in the New World and, in fact, the common ancestor of all camelids was indigenous to North America. See Ex. 35. Given this history, it is inaccurate to label llamas as "exotic" to the United States.

Since the authority granted by Executive Order No. 11987 (1977), 43 CFR § 8560. 1-1, is expressly limited to "exotic" animals, the Associations believe the Agencies would be acting ultra vires were they to rely on that Executive Order in taking any regulatory action respecting llamas, especially in light of the aforementioned USDA classification, as well as the "historic" presence of llama ancestors in North America.

Conclusion

The Associations recognize that the protection of wildlife in the Planning Area is critical to maintaining the integrity and beauty of the Kofa wilderness area for future generations. The Associations also understand the additional, particularized importance of the Planning Area wildlife, since the Kofa wilderness serves as a vast resource for wildlife transplantation throughout the southwestern United States. The Agencies' legitimate and vital mission to protect our national wildlife heritage in the Planning Area and elsewhere is best served, however, by administrative decision-making that is transparent, open, and -- most important -- well founded in science, fact, and truth. In the important effort to protect precious wildlife, any reliance on speculation based on off-the-cuff remarks would taint any eventual regulation. Reliance on such "junk science" would serve only to undermine the legitimacy and credibility of the regulatory decision-making process itself. The Associations strongly urge the Agencies to weigh carefully and deliberately the available scientific data, which demonstrates a powerful disconnection between llamas and ,paratuberculosis transmission, before acting to implement the Draft Plan. The Associations are confident that, following such a serious and fair-minded review, the Agencies will determine that there is no credible scientific basis for prohibiting pack llama access to the Planning Area, as proposed in the Draft Plan and for the reasons stated therein. Finally, the Associations stand ready to assist the Agencies in obtaining any additional scientific information and testimony that might be necessary to fairly conclude this matter.

Very truly yours,

For GIBSON, DUNN & CRUTCHER

BEC/cvr