[Senate Report 104-312]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 487
104th Congress                                                   Report
                                 SENATE

 2d Session                                                     104-312
_______________________________________________________________________


 
       FREE-ROAMING HORSES IN THE OZARK NATIONAL SCENIC RIVERWAYS

                                _______
                                

                 June 28, 1996.--Ordered to be printed

_______________________________________________________________________


  Mr. Murkowski, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 238]

    The Committee on Energy and Natural Resources, to which was 
referred the Act (H.R. 238) to provide for the protection of 
wild horses within the Ozark National Scenic Riverways and 
prohibit the removal of such horses, having considered the 
same, reports favorably thereon with an amendment and 
recommends that the Act, as amended, do pass.
    The amendment is as follows:
    On page 2, strike lines 18 through 25, and insert in lieu 
thereof the following:

    ``(b) The Secretary shall not remove, assist in, or permit 
the removal of any free-roaming horses from Federal lands 
within the boundary of the Ozark National Scenic Riverways 
unless--
          ``(1) the entity with whom the Secretary has entered 
        into the agreement under subsection (a), following 
        notice and a 90-day response period, fails to meet the 
        terms and conditions of the agreement; or
          ``(2) the number of free-roaming horses on Federal 
        lands within the Ozark National Scenic Riverways 
        exceeds 50; or
          ``(3) in the case of an emergency, or to protect 
        public health and safety.''

                         Purpose of the Measure

    The purpose of H.R. 238 is to provide for the protection of 
free-roaming horses at Ozark National Scenic Riverways.

                          Background and Need

    Wild horses have inhabited the Missouri Ozarks for at least 
40 years and were certainly present in 1964 when Ozark National 
Scenic Riverways was authorized as a unit of the National Park 
System. Historians speculate that the feral horses were 
introduced into the area by the local residents in the 1940's. 
The size of the herd has fluctuated over the years and 
currently numbers between 15 and 22, ranging over an area of 
20-30,000 acres both inside and outside of the park.
    The National Park Service, (NPS) took no action to manage 
the horses for nearly 25 years after the park was authorized. 
In 1990, the NPS began a program to remove all horses. Due to 
substantial public opposition, the NPS prepared an 
environmental assessment on the project, after which the agency 
determined that removal was necessary.
    When the NPS again initiated removal efforts, local 
citizens sued. Eventually the court of appeals court ruled that 
it was within the discretion of the agency to remove the 
horses. While the NPS has temporarily ceased its removal 
efforts, absent legislation, the removal program can be 
reinstated at the discretion of the NPS.
    The NPS maintains that allowing feral horses to range 
uncontrolled at Ozark National Scenic Riverways is contrary to 
the purposes of the park. This is but one of a number of exotic 
species issues with which the NPS is dealing in park areas 
across the United States. A few examples where the NPS has been 
very active in removing exotic species from parks include 
burros from Grand Canyon, Bandelier, and Death Valley; pigs 
from Great Smoky Mountains, Hawaii Volcanoes and Haleakela; and 
goats from Haleakela and Hawaii Volcanoes. While the Wild Free-
Roaming Horses and Burros Act of 1971 gives special status to 
horses on western public land, NPS lands were specifically 
excluded from that Act.
    As ordered reported, H.R. 238 would prohibit the NPS from 
removing the horses except in the case of an emergency, if the 
local citizens group fails to meet the terms of an agreement 
with the NPS for the management of the horses, or if the number 
of horses at the Scenic Riverway exceeds 50.

                          Legislative History

    Representative Emerson introduced H.R. 238 on January 4, 
1995. The bill passed the House by voice vote on November 7, 
1995 and was referred to the Senate on November 8, 1995.
    Similar legislation, S. 796, was introduced in the Senate 
by Senators Bond and Ashcroft. A hearing on both bills was held 
by the Senate Subcommittee for Parks, Historic Preservation and 
Recreation on March 7, 1996.
    At the business meeting on June 19, 1996, the Committee on 
Energy and Natural Resources ordered H.R. 238 favorably 
reported, as amended.

                        Committee Recommendation

    The Committee on Energy and Natural Resources, in open 
business session on June 19, 1996, by a unanimous voice vote of 
a quorum present, recommends that the Senate pass H.R. 238 if 
amended as described herein.

                          Committee Amendments

    During the consideration of H.R. 238, the Committee adopted 
clarifying and conforming amendments. The amendment makes clear 
that the free-roaming horse population within the park is 
limited to no more than 50 horses. The amendment also 
authorizes the National Park Service to remove the horses to 
protect public health or safety, or in an emergency.

                         Summary of the Measure

    H.R. 238 amends the Ozark National Scenic Riverways 
Enabling Act to direct the National Park Service (NPS) to 
manage an existing herd of free-roaming horses on Federal 
lands. The bill directs the NPS to enter into an agreement with 
the Missouri Wild Horse League to allow the League to carry out 
the management of the horses, and to issue a permit which 
provides adequate land for pasturing up to 50 horses. The NPS 
may not remove the horses except in case of an emergency, if 
the Missouri Wild Horse League substantially fails to meet the 
terms of its agreement with the NPS, or if the number of free-
roaming horses at the Scenic Riverway exceeds 50.

                   Cost and Budgetary Considerations

    The following estimate of the cost of this measure has been 
provided by the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 25, 1996.
Hon. Frank H. Murkowski,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed H.R. 238, an act to provide for the protection of wild 
horses within the Ozark National Scenic Riverways and prohibit 
the removal of such horses, as ordered reported by the Senate 
Committee on Energy and Natural Resources on June 19, 1996. We 
estimate that enacting this legislation would have no 
significant impact on the federal budget. H.R. 238 would not 
affect direct spending or receipts; therefore, pay-as-you-go 
procedures would not apply.
    H.R. 238 would prohibit the National Park Service (NPS) 
from removing or allowing the removal of wild horses from 
federal lands within the Ozark National Scenic Riverways. The 
act would direct the NPS to enter into an agreement with a 
nonprofit group to provide for management of the horses at no 
cost to the federal government other than expenses related to 
monitoring the agreement. We expect that those expenses would 
not be significant.
    H.R. 238 contains no intergovernmental or private-sector 
mandates as defined in Public Law 104-4, and would impose no 
direct costs on state, local, or tribal governments.
    On October 26, 1995, CBO prepared a cost estimate for H.R. 
238, as ordered reported by the House Committee on Resources on 
August 2, 1995. The two estimates are identical.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Deborah Reis.
            Sincerely,
                                         June E. O'Neill, Director.

                      Regulatory Impact Evaluation

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out H.R. 238. The bill is not a regulatory measure in 
the sense of imposing Government-established standards or 
significant economic responsibilities on private individuals 
and businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of H.R. 238, as ordered reported.

                        Executive Communications

    On June 20, 1996, the Committee on Energy and Natural 
Resources requested legislative reports from the Department of 
the Interior and the Office of Management and Budget setting 
forth Executive agency recommendations on H.R. 238. These 
reports had not been received at the time the report on H.R. 
238 was filed. When these reports become available, the 
Chairman will request that they be printed in the Congressional 
Record for the advice of the Senate. The testimony provided by 
the Department of the Interior at the Subcommittee hearing 
follows:

     Statement of John J. Reynolds, Deputy Director, National Park 
                  Service, Department of the Interior

          Mr. Chairman and members of the committee, thank you 
        for the opportunity to appear before you today to 
        discuss the views of the Department of Interior on 
        bills relating to the management of the National Park 
        Service (NPS).
          S. 796 and H.R. 238, provide for the protection of 
        wild horses within the Ozark National Scenic Riverways 
        and prohibit the removal of such horses. The National 
        Park Service opposes these bills for the reasons 
        discussed in detail below.
          We oppose the enactment of S. 796 and H.R. 238, bills 
        to provide for the protection of wild horses within the 
        Ozark National Scenic Riverways and to prohibit the 
        removal of such horses. These bills would amend Public 
        Law 88-492, which established the Ozark National Scenic 
        Riverways. The enabling legislation states, in part, 
        that the purpose of the park is for ``conserving and 
        interpreting unique, scenic and other natural values 
        and objects of historic interest.'' This includes the 
        sections of two rivers, the associated riparian zone, 
        and wildlife.
          S. 796, if enacted, would change the park's original 
        purpose by adding ``protection and preservation of 
        free-roaming horses.'' The bill would further amend 
        P.L. 88-492 by prohibiting the Secretary from removing, 
        allowing, or assisting in the removal of any free-
        roaming horse from federal lands within the boundaries 
        of the Ozark National Scenic Riverways (ONSR), except 
        in the case of medical emergency or natural disaster.
          H.R. 238 requires NPS to ``enter into an agreement 
        with the Missouri Wild Horse League'' or other entity 
        to manage the wild horses. The NPS would also have to 
        issue permits ``for adequate pastures to accommodate'' 
        a herd of not more than 50 horses. This legislation 
        prohibits the NPS from removing horses unless the 
        managing entity does not adhere to the terms of their 
        agreement or in case of ``emergency as defined in the 
        agreement.'' H.R. 238 also prohibits the United States 
        from incurring any additional liability as a result of 
        this agreement for any damages ``to property'' caused 
        by the horses inside or outside the boundaries of park. 
        However, this appears to hold the United States liable 
        for any bodily injury to persons caused by the feral 
        horses.
          We should emphasize at the beginning that these 
        horses are not wild horses, but feral horses--an animal 
        that has returned to an untamed state from 
        domestication--that was introduced by the local 
        population in the 1940s. Therefore, feral horses are an 
        exotic species--not native to the area. NPS policy is 
        to remove exotic species from park units ``whenever an 
        exotic plant or animal species threatens park resources 
        or public health and when control is prudent and 
        feasible.''
          We also note that in the state of Missouri domestic 
        animals are prohibited from running at large. In 
        addition, the Wild Free-Roaming Horses and Burros Act 
        of 1971, which gave special status to horses on western 
        public land, specifically excluded NPS lands from the 
        Act.
          NPS Management Policies based on laws affecting the 
        Service state that the NPS ``will manage the natural 
        resources of the National Park System to maintain, 
        rehabilitate, and perpetuate their inherent 
        integrity.'' Much of the terrain within ONSR boundaries 
        where the horses roam is classified as a ``natural 
        zone'' under the 1984 General Management Plan (GMP). 
        NPS Management Policies state that ``within natural 
        zones, natural resources and processes will be 
        preserved and will remain largely unaltered by human 
        activity.'' This GMP was developed with public 
        involvement and the preparation of a draft and final 
        environmental assessment.
          The herd of feral horses does not contribute to any 
        element of the park's mandate from the enabling 
        legislation. Although there are visible signs of the 
        presence of the horses in the areas where they roam, 
        there have not been any definitive in-depth studies 
        done to document resource damage. A 1985 Status and 
        Proposed Management Report by a member of the park 
        staff states that most of the visual impact was caused 
        by the horses grazing in fields that have been leased 
        by the NPS to local farmers. At least one permittee 
        gave up his lease due to the impact of the horses. The 
        horses also have caused damage to fields and fences on 
        property belonging to landowners adjacent to the park. 
        They are known to frequent springs and wet areas in the 
        range. Springs are very delicate ecosystems, and the 
        fact that the horses are attracted to them for water 
        concentrates the impact on these sensitive areas. The 
        size of the herd has fluctuated over the years and 
        currently numbers between 15 and 22. At the present 
        small population level, substantial impacts have not 
        been observed. However, if the herd receives protected 
        status and is allowed to grow, the potential for 
        serious impact over a greater range is very high. The 
        NPS had intended to address the feral horse issue 
        before serious damage occurred, not afterward.
          Removal of the horses was proposed, bids were 
        solicited, and one was accepted. However, in February 
        1991, citizens concerned about the horses attempted to 
        stop the NPS from removing feral horses from the ONSR 
        by filing suit against the Department of the Interior. 
        The case was tried on June 14, 1991, by the U.S. 
        District Court in Cape Girardeau, Missouri. On June 17, 
        1992, the Court issued a permanent injunction to enjoin 
        the removal of the horses. On August 14, 1992, the 
        Secretary appealed the case to the U.S. Court of 
        Appeals for the Eighth Circuit. On June 15, 1993, the 
        Court of Appeals reversed the judgment of the District 
        Court, vacating the permanent injunction. The 
        Plaintiffs then filed a motion for rehearing or 
        transfer to the Full Court, which was denied on July 
        28, 1993. The Supreme Court denied Plaintiff's petition 
        for certiorari on June 1, 1994.
          The NPS, under current law, many remove the horses at 
        any time, but has no immediate plans to do so. The 
        Missouri Wild Horse League has united to fight the 
        removal of the horses. The NPS has stated that we are 
        willing to meet with the League to work out a strategy 
        for removal of the horses to a suitable place. However, 
        the League continues to oppose the removal of the 
        horses from park lands.
          Mr. Chairman, we oppose S. 796 and H.R. 238 because, 
        if enacted, they would amend the original purpose of 
        the park and would conflict with NPS management 
        policies, setting a dangerous precedent for park 
        management. If the horses are allowed to remain, and 
        increase in number, park resources will be impacted. I 
        wish to emphasize that we would be pleased to work with 
        the community to find an amicable solution to the 
        removal of the feral horses.
          This concludes my prepared testimony. We would 
        welcome the opportunity to work with members of the 
        Committee on our recommended changes to these bills. At 
        this time, I will be pleased to respond to any 
        questions you may have.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee, changes in 
existing law made by the Act H.R. 238, as ordered reported, are 
shown as follows (existing law proposed to be omitted is 
enclosed in black brackets, new matter is printed in italic, 
existing law in which no change is proposed is shown in roman):

``AN ACT To provide for the establishment of the Ozark National Scenic 
Riverways in the State of Missouri, and for other purposes'' (16 U.S.C. 
                                460m-6)

    [Sec. 7. (a) There is hereby established an Ozark National 
Scenic Riverways Commission. The Commission shall cease to 
exist ten years after the date of establishment of the area 
pursuant to section 4 of this Act.
    [(b) The Commission shall be composed of seven members each 
appointed for a term of two years by the Secretary as follows:
          [(1) Four members to be appointed from 
        recommendations made by the members of the county court 
        in each of the counties in which the Ozark National 
        Scenic Riverways is situated (Carter, Dent, Shannon, 
        and Texas), one member from the recommendations made by 
        each such court;
          [(2) Two members to be appointed from recommendations 
        of the Governor or the State of Missouri; and
          [(3) One member to be designated by the Secretary.
    [(c) The Secretary shall designate one member to be 
chairman. Any vacancy in the Commission shall be filled in the 
same manner in which the original appointment was made.
    [(d) A member of the Commission shall serve without 
compensation. The Secretary shall reimburse members of the 
Commission for travel, subsistence, and other necessary 
expenses incurred by them in the performance of the duties 
vested in the Commission.
    [(e) The Secretary or his designee shall from time to time 
consult with the members of the Commission with respect to 
matters relating to the development of the Ozark Wild and 
Scenic Riverways, and shall consult with the members with 
respect to carrying out the provisions of this Act.
    [(f) It shall be the duty of the Commission to render 
advice to the Secretary from time to time upon matters which 
the Secretary may refer to it for its consideration.]
    ``Sec. 7. (a) The Secretary, in accordance with this 
section, shall allow free-roaming horses in the Ozark National 
Scenic Riverways. Within 180 days after enactment of this 
section, the Secretary shall enter into an agreement with the 
Missouri Wild Horse League or another qualified nonprofit 
entity to provide for the management of free-roaming horses. 
The agreement shall provide for cost-effective management of 
the horses and limit Federal expenditures to the costs of 
monitoring the agreement. The Secretary shall issue permits for 
adequate pastures to accommodate the historic population level 
of the free-roaming horse herd, which shall be not less than 
the number of horses in existence on the date of the enactment 
of this section nor more than 50.
    ``(b) The Secretary shall not remove, or assist in, or 
permit the removal of, any free-roaming horses from Federal 
lands within the boundary of the Ozark National Scenic 
Riverways unless--
          ``(1) the entity with whom the Secretary entered into 
        the agreement under subsection (a), following notice 
        and a 90-day response period, fails to meet the terms 
        and conditions of the agreement; or
          ``(2) the number of free-roaming horses on Federal 
        lands within the Ozark National Scenic Riverways 
        exceeds 50; or
          ``(3) in the case of an emergency, or to protect 
        public health and safety.''
    ``(c) Nothing in this section shall be construed as 
creating additional liability for the United States for any 
damages caused by the free-roaming horses to property located 
inside or outside the boundaries of the Ozark National Scenic 
Riverways.''.