[Senate Report 105-115]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 229
105th Congress                                                   Report
                                 SENATE

 1st Session                                                    105-115
_______________________________________________________________________


 
              SHACKLEFORD BANKS WILD HORSES PROTECTION ACT

                                _______
                                

                October 28, 1997.--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. 765]

    The Committee on Energy and Natural Resources, to which was 
referred the Act (H.R. 765) to ensure maintenance of a herd of 
wild horses in Cape Lookout National Seashore, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the Act, as amended, do pass.
    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Shackleford Banks Wild Horses 
Protection Act''.

SEC. 2. MAINTENANCE OF WILD HORSES IN CAPE LOOKOUT NATIONAL SEASHORE.

    Section 5 of the Act entitled ``An Act to provide for the 
establishment of the Cape Lookout National Seashore in the State of 
North Carolina, and for other purposes'', approved March 10, 1966 
(Public Law 89-366; 16 U.S.C. 459g-4), is amended by inserting ``(a)'' 
after ``Sec. 5.'', and by adding at the end the following new 
subsection:
    ``(b)(1) The Secretary, in accordance with this subsection, shall 
allow a herd of free roaming horses in Cape Lookout National Seashore 
(hereinafter referred to as the Seashore).
    ``(2) Within 180 days after enactment of this subsection, the 
Secretary shall enter into an agreement with the Foundation for 
Shackleford Horses (a non-profit corporation established under the laws 
of the State of North Carolina), or another qualified non-profit 
entity, to provide for management of free roaming horses in the 
seashore. The agreement shall--
          ``(A) provide for cost-effective management of the horses 
        while ensuring that natural resources within the seashore are 
        not adversely impacted; and
          ``(B) allow the authorized entity to adopt any of those 
        horses that the Secretary removes from the seashore.
    ``(3) The Secretary shall not remove, assist in, or permit the 
removal of any free-roaming horses from Federal lands within the 
boundaries of the seashore--
          ``(A) unless the entity with whom the Secretary has entered 
        into the agreement under paragraph (2), following notice and a 
        90-day response period, fails to meet the terms and conditions 
        of the agreement; or
          ``(B) unless the number of free-roaming horses on Federal 
        lands within Cape Lookout National Seashore exceeds 110; or
          ``(C) except in the case of an emergency, or to protect 
        public health and safety.
    ``(4) The Secretary shall annually monitor, assess, and make 
available to the public findings regarding the population structure and 
health of the free roaming horses in the national seashore.
    ``(5) Nothing in this subsection shall be construed as creating 
liability for the United States for any damages caused by the free 
roaming horses to property located inside or outside the boundaries of 
the seashore.''.

                         Purpose of the Measure

    The purpose of H.R. 765 is to ensure maintenance of a herd 
of wild horses in Cape Lookout National Seashore, and for other 
purposes.

                          Background and Need

    Cape Lookout National Seashore was authorized March 10, 
1966. The National Seashore, with its headquarters at Harkers 
Island, North Carolina, stretches approximately 55 miles along 
the Outer Banks from Beaumont Inlet in the south to Ocracoke 
Inlet at its northernmost reach. The Seashore encompasses 
approximately 28,243 acres, of which 25,173 acres are Federal 
and the remaining 3,069 are non-Federal.
    Horses have inhabited the Core Banks of North Carolina, 
including the area within the National Seashore for between 100 
and 300 years. When the National Seashore was established in 
1966, there were approximately 100 wild horses on the barrier 
island. There were also free-roaming cattle, sheep and goats. A 
Park Service study in 1978 noted 108 horses, 89 cattle, 144 
sheep, and 121 goats. In 1981, a NPS-funded resource study 
concluded that removal of the feral cattle, sheep and goats 
would restore native vegetation on the island. As a result, all 
other livestock was removed from the National Seashore in 1986, 
leaving a herd of 90 to 100 wild horses. The 1982 general 
management plan for the Seashore provided for the maintenance 
of a representative free-roaming herd of horses and reflected 
public input gathered in the late 1970's.
    In 1995, the Park Service initiated an environmental 
assessment to determine alternatives for managing the wild 
horse herd. In February 1996, the Service selected an 
alternative that required rounding up the horses and 
eliminating those from the herd that tested positive for equine 
infectious anemia and for the continued maintenance of 50 to 60 
animals in the herd. This decision resulted in the round-up of 
185 wild horses in November, 1996. Because there were no state-
approved quarantine horse farms available to receive and care 
for the infected horses, 76 animals carrying equine anemia 
virus were euthanized.
    Equine infectious anemia is a viral disease found in horses 
for which there is no vaccine or cure. The large horsefly is 
the primary vector for the disease. However, the virus does not 
live long within the horsefly carrier. For the disease to 
spread through insect bites, animals must be within close 
proximity of each other. This is why quarantine measures are 
successful for horses that survive the milder forms of the 
disease. Clinical signs range from fever, depression, no 
appetite and death for seriously ill horses; to weight loss, 
swelling and anemia in lesser cases. Approximately one third of 
horses with the acute form die within one month.
    During the week of March 10, 1997, a second round-up and 
testing program was conducted. During this round-up, 103 horses 
were gathered and tested. Of that number, 5 tested positive for 
equine anemia. The Foundation for Shackleford Horses had by 
this time developed a state-approved quarantine site and the 
horses were transferred there. The Park Service is developing a 
Memorandum of Understanding with the Foundation to cooperate in 
the management of the horses. In the meantime the two entities 
are cooperating under the terms of a special use permit issued 
to the Foundation.
    The Park Service established the Shackleford Banks Horse 
Council in December 1996 in an effort to capture the view of 
the wider public. The Council was developed to organize the 
input of the various stakeholders in the community with an 
interest in the horses and to assist the Service in the 
development of horse management policy at the Seashore.
    Wild horses have become an emotional national issue since 
the passage of the Free Roaming Wild Horse and Burro Act of 
1971. Feral horse management within the National Park Service 
varies from park to park. At Assateague Island National 
Seashore, Maryland and at Cumberland Island National Seashore 
in Georgia, the Park Service actively manages wild horse herds. 
Currently, the management policy of the Park Service 
administered areas is to remove or actively manage herd size if 
environmental assessments conclude native vegetation is 
impacted.

                          Legislative History

    H.R. 765 was introduced by Congressman Walter B. Jones, Jr. 
on September 3, 1997 (NC). On July 22, 1997, H.R. 765 passed 
the House of Representatives by a recorded vote of 416 to 6.
    The Subcommittee on National Parks, Historic Preservation 
and Recreation held a hearing on H.R. 765 on October 1, 1997.

                        Committee Recommendation

    The Committee on Energy and Natural Resources, in open 
business session on October 22, 1997, by a unanimous voice vote 
of a quorum present, recommends that the Senate pass H.R. 765, 
if amended as described herein.

                          Committee Amendment

    During the consideration of H.R. 765, the Committee adopted 
an amendment in the nature of a substitute, which would have 
the effect of ensuring the National Park Service and a non-
profit cooperative horse-management entity manage the herd of 
free-roaming horses so as not to adversely impact park 
resources and would have the additional effect of removing an 
absolute minimum number of horses in the herd (which was 100 
animals in the original language). The amendment further 
conforms the provisions to similar legislation reported by the 
Committee and passed in the 104th Congress.

                      Section-by-Section Analysis

    Section 1 entitles the bill the ``Shackleford Banks Wild 
Horses Protection Act''.
    Section 2 amends 16 U.S.C. 459g-4 by adding ``(a)'' to 
section 5 and by adding at the end of section 5 a subsection 
(b) within the five following paragraphs:
    Subsection (b)(1) directs that the Secretary of the 
Interior (Secretary) shall allow a herd of free-roaming horses 
within the Cape Lookout National Seashore (National Seashore).
    Paragraph (b)(2) directs the Secretary to enter into an 
agreement with the Foundation for Shackleford Horses 
(Foundation) or other qualified non-profit entity within 180 
days of enactment to provide cost effective cooperative 
management of the wild horses while ensuring natural resources 
within the National Seashore are not adversely impacted by the 
horses, and to allow the non-profit entity authorization to 
adopt any of the horses removed from the national seashore.
    Paragraph (b)(3) directs the Secretary not to remove any 
horses, permit or assist in their removal from Federal lands 
within the national seashore unless the non-profit entity in 
paragraph (b)(2) after notice and a 90 day period fails to meet 
the terms of the agreement in paragraph (b)(2); or unless the 
number of free-roaming horses within the national seashore 
exceeds 110 animals; or except in cases of emergency or threats 
to public health and safety.
    Paragraph (b)(4) directs the Secretary to perform annual 
monitoring, assessment and to make available to the public his 
findings regarding the population structure and health of the 
free-roaming herd of wild horses at the national seashore.
    Paragraph (b)(5) states that nothing in this subsection 
shall create liability for the United States for any damages to 
property that might be caused by Cape Lookout National 
Seashore's free-roaming horses, whether those damages to 
property are within or outside the boundaries of the national 
seashore.

                   Cost and Budgetary Considerations

    The Congressional Budget Office estimate of the costs of 
this measure has been requested but was not received at the 
time this report was filed. When the report is available, the 
Chairman will request it to be printed in the Congressional 
Record for the advice of the Senate.

                      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. 765. 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. 765, as ordered reported.

                        Executive Communications

    On October 24, 1997, 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. 765. These 
reports had not been received at the time the report on H.R. 
765 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 of the 
Department of the Interior at the Subcommittee hearing follows:

 Statement of Maureen Finnerty, Associate Director for Park Operations 
    and Education, National Park Service, Department of the Interior

    Mr. Chairman, it is a pleasure to appear before this 
subcommittee to present the Department's views on H.R. 765. 
This bill is intended to ensure maintenance of a herd of not 
less than 100 feral horses in Cape Lookout National Seashore. 
The bill also would prohibit the removal of any horses unless 
their numbers exceeded 110 and would require the Secretary to 
enter into an agreement with the Foundation for Shackleford 
Horses, Inc. to provide for the management of the horses.
    We support enactment of H.R. 765 with two suggested 
modifications discussed below.
    The National Park Service is committed to maintaining a 
representative population of free-roaming horses on Shackleford 
Banks. We intend to have a herd that is genetically viable at a 
population level that will minimize adverse impacts on the 
natural resources of the barrier island.
    In fact, there is currently a management program at Cape 
Lookout NS that has the same purpose as this bill--to ensure a 
permanent population of free-roaming horses on Shackleford 
Banks. The program provides for the removal and public adoption 
of surplus horses through the Foundation for Shackleford 
Horses, Inc. (Foundation) and permits a horse management 
partnership between the non-profit Foundation and the National 
Park Service.
    H.R. 765 addresses a specific resource management decision 
that park managers make daily. Park superintendents make these 
decisions based on a myriad of interrelated factors, including 
the mission of the park; the best available scientific 
information; input from local, state, and national interests; 
the policies of the National Park Service; and other 
considerations too numerous to list here. Although we continue 
to believe that such decisions are best made at the individual 
park level due to their complexity, we are willing to support 
this legislation because it has the same broad objectives as 
our current management program. We do have, however, the 
following suggested modifications, (1) that the requirement for 
keeping a specific herd level be removed, and (2) any adverse 
impact that the horses might have on the natural resources of 
the Seashore be considered.
    The enabling legislation for Cape Lookout National Seashore 
did not foresee the issue of free-roaming feral horses on 
Shackleford Banks. Through public input to our General 
Management Plan in the late 1970s, we recognized the public 
concern and interest in the horses. Accordingly, in our 1982 
General Management Plan, we stated that we intend to maintain a 
representative herd of free-roaming horses on Shackleford 
Banks. We have reaffirmed that commitment in responses to 
Congressional inquiries, letters to State and local elected 
officials, special interest groups, and the general public. We 
have also confirmed that commitment as a preferred alternative 
in the Environmental Assessment (EA), which was produced to 
specifically address the horse management issues on Shackleford 
Banks.
    In 1996, following a series of public meetings, discussions 
with members from the scientific community, and other 
professional managers of feral horse herds, the park developed 
a draft EA with alternatives for managing the Shackleford Banks 
horse herd. Following additional public meetings, the National 
Park Service prepared a final EA and a horse management plan. 
The Service's preferred alternative called for a one-time 
roundup of horses on the island, removing all but 50 to 60 
horses and offering the surplus horses for public adoption. 
Immunocontraception would then be used for future population 
control. That plan, while acceptable to the general public, 
brought very vocal opposition from certain groups who opposed 
any management intervention. Some of the opposition was based 
on the opinion that these horses were descended from stock off 
Spanish ships wrecked along the coast and had roamed the island 
for over 400 years without interference and had adapted and 
survived in a harsh environment on limited forage and water 
supplies.
    The National Park Service has recently received a 
preliminary report entitled the ``Genetic Analysis of the Cape 
Lookout National Seashore Feral Horse Herd'' from Dr. Gus 
Cothran at the University of Kentucky, Department of Veterinary 
Science. The results of the report are based on 142 blood 
samples collected during the roundups conducted at Cape Lookout 
National Seashore in the past 11 months. Dr. Cothran was asked 
to address the issues of genetic diversity as it relates to 
possible inbreeding problems and to determine the genetic 
makeup of the herd. He also made recommendations concerning 
managing the population size. Dr. Cothran reported that the 
``genetic variation within the Shackleford Banks herd is near 
the average for horse populations'' and expressed no concern 
for inbreeding problems at this time. Measures of genetic 
resemblance of the herd showed that the closest resemblance was 
to the Welsh Pony followed by the Percehron, Posavina, Cheilean 
Criollo, and Belgian Halfblood breeds. Highest mean similarity 
to breed groups was with the saddle and light harness breeds 
and heavy draft breeds. The statistical analysis provided no 
evidence of ancestry with a particular group of horse breeds. 
Dr. Cothran indicated some evidence of ``Spanish'' ancestry 
based on particular genetic variants found in the herd. One 
particular variant indicated that the horses have 4 percent 
``old'' Spanish blood. Dr. Cothran summarizes this issue by 
stating that there is evidence to support the idea that the 
Cape Lookout horses have Old Spanish ancestry, but it is not 
possible to quantify this ancestry or to determine how far in 
the past the herd was established.
    A 1993 report by Dr. Cothran showed that there was evidence 
that all the feral horse populations on the Outer Banks of 
North Carolina shared a common origin or that there had been 
exchange and interbreeding of these island horses at some time 
in the past. He states that this evidence for relationship 
among the Outer Banks feral horse population has implications 
for the management of these populations. This relationship of 
Outer Banks feral populations means that individuals from one 
population could be introduced into another to maintain genetic 
variability.
    Based on the current information, Dr. Cothran recommends 
the horse herd be maintained with an adult population size of 
65 to 90 horses. When reductions are necessary, removals should 
focus on very young individuals and older horses that are no 
longer reproductively fit. He states that the smaller 
population size could be maintained for a time, but the 
population should be allowed to expand periodically.
    The health of the horse herd is unknown at this time. 
Veterinarians from the North Carolina Department of Agriculture 
Veterinary Division, who conducted the recent roundups for the 
Service, observed that except for the stud horses, which were 
in reasonably good health, the remaining herd could best be 
categorized as in fair to poor condition. They noted the herd 
was generally stunted in growth and had short life spans. This 
suggests a poor diet and probably a heavy internal and external 
parasitic load. A young colt that died in February 1997 was 
necropsied and found to have died from malnutrition although 
there was fresh grass in its stomach. A heavy parasite load 
contributed to its condition.
    On November 11, 1996, state veterinarians from the North 
Carolina Department of Agriculture, through a Memorandum of 
Agreement with the National Park Service, initiated a roundup 
of the Shackleford horses. The original plan was to round up 
the island horses, remove them to a stockyard on the mainland, 
test them for Equine Infectious Anemia (EIA) and euthanize 
infected horses. The rest of the herd would be retested for EIA 
after 60 days. If the herd was clean, surplus horses would be 
offered for adoption and the remainder of the herd returned to 
Shackleford Banks. Because the issue became controversial, the 
plan was modified by securing all the blood samples while the 
horses were corralled on Shackleford Banks rather than moving 
the horses to the mainland. The Service also agreed to increase 
the island resident population of horses from the original 
proposal of 50-60 to between 75-100 horses as an initial level 
until the genetic diversity of the herd could be established 
and the carrying capacity of the range studied. The state 
veterinarians also agreed to consider a quarantine site on the 
mainland if such a site could be identified in a timely manner.
    Based on information developed by an independent 
researcher, we had anticipated a herd population of 220 to 230 
horses, but found only 184. Of this number, 76 horses tested 
positive for EIA and were removed to the mainland for temporary 
quarantine. The Foundation had offered to take EIA positive 
horses and quarantine them for life. The Service had agreed to 
transfer the horses to the foundation if it could secure a site 
that met State of North Carolina Veterinary Division 
requirements. When no site was found, the EIA positive horses 
were euthanized and disposed of in an approved landfill. The 
108 EIA negative horses were released to the island.
    Realizing the park would need professional services and 
public support for a long-term horse management program, in 
December 1996 the National Park Service established the 
Shackleford Banks Horse Council as a working committee to 
assist the park with plans for managing the horses. A wide 
variety of interests and stakeholders are represented on the 
council. I will be glad to provide a list of members of the 
record. The council has met five times and has initiated action 
on reviewing a number of broad issues regarding the management 
of the horse herd. In August, the Service advised the council 
that it would have to withdraw from the committee's work 
because of a possible conflict of interest with the Federal 
Advisory Committee Act. The council has decided to continue, 
even without Service participation.
    During the week of March 10, 1997, a second roundup and 
testing program was conducted on Shackleford horses. The 
Service rounded up 103 horses. Five horses from the first 
roundup apparently died over the winter. Of the 103 horses, 
five horses tested positive for EIA. By this time, the 
Foundation had secured a state-approved quarantine site and the 
five EIA positive horses were transferred to it. In the 
transfer document, the Foundation and the Service committed to 
develop a long-term Memorandum of Agreement (MOA) to cooperate 
in the management of the Shackleford Banks horses. On an 
interim basis, the Service issued a special use permit to the 
Foundation to allow it to assist with the management of the 
herd. Since the House hearing on the bill last April, the 
National Park Service has been meeting with the Foundation to 
develop a Memorandum of Agreement for the management of the 
horses on Shackleford Banks. Several discussions and exchanges 
of a draft MOA have occurred, but no agreement has been reached 
to date.
    The Service has demonstrated a commitment to maintaining a 
permanent horse herd at Cape Lookout National Seashore. The 
Service has demonstrated its commitment to involve the local 
community, local and State Governments, the private sector, the 
Foundation, and the professional community, in caring for the 
long-term needs of these horses. Since the studies that have 
been completed to date suggest a range within which a viable 
herd population can be maintained, we believe it is more 
appropriate to eliminate the requirement for a specific number 
of horses to be kept at the Seashore. This will allow the Park 
Service and the Foundation to continue to manage a herd while 
allowing for the uncertainty of natural processes which might 
develop. This will enable the Park Service to continue 
monitoring of the herd, to assess additional scientific 
information that may be discovered about the herd, and to take 
into consideration other natural conditions that may affect the 
viability of the herd population.
    Mr. Chairman, that concludes my prepared remarks. I will be 
glad to answer any questions you may have.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill H.R. 765, as 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):

                 SECTION 5 OF THE ACT OF MARCH 10, 1966

   AN ACT To provide for the establishment of Cape Lookout National 
    Seashore in the State of North Carolina, and for other purposes

          * * * * * * *
    Sec. 5 (a) The Secretary shall administer the Cape Lookout 
National Seashore for the general purposes of public outdoor 
recreation, including conservation of natural features 
contributing to public enjoyment. In the administration of the 
seashore and the administrative site, the Secretary may utilize 
such statutory authorities relating to areas administered and 
supervised by the Secretary through the National Park Service 
and such statutory authorities otherwise available to him for 
conservation and management of natural resources as he deems 
appropriate to carry out the purposes of this Act.
    (b)(1) The Secretary, in accordance with this subsection, 
shall allow a herd of free roaming horses in Cape Lookout 
National Seashore (hereinafter referred to as the 
``Seashore'').
    (2) Within 180 days after enactment of this subsection, the 
Secretary shall enter into an agreement with the Foundation for 
Shackleford Horses (a non-profit corporation established under 
the laws of the State of North Carolina), or another qualified 
non-profit entity, to provide for management of free roaming 
horses in the seashore. The agreement shall--
          (A) provide for cost-effective management of the 
        horses while ensuring that natural resources within the 
        seashore are not adversely impacted; and
          (B) allow the authorized entity to adopt any of those 
        horses that the Secretary removes from the seashore.
    (3) The Secretary shall not remove, assist in, or permit 
the removal of any free-roaming horses from Federal lands 
within the boundaries of the seashore--
          (A) unless the entity with whom the Secretary has 
        entered into the agreement under paragraph (2), 
        following notice and a 90-day response period, fails to 
        meet the terms and conditions of the agreement; or
          (B) unless the number of free-roaming horses on 
        Federal lands within Cape Lookout National Seashore 
        exceeds 110; or
          (C) except in the case of an emergency, or to protect 
        public health and safety.
    (4) The Secretary shall annually monitor, assess, and make 
available to the public findings regarding the population 
structure and health of the free roaming horses in the national 
seashore.
    (5) Nothing in this subsection shall be construed as 
creating liability for the United States for any damages caused 
by the free roaming horses to property located inside or 
outside the boundaries of the seashore.