[Senate Report 109-154]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 246
109th Congress                                                   Report
                                 SENATE
 1st Session                                                    109-154

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    CAPE LOOKOUT NATIONAL SEASHORE FREE-ROAMING HORSE LAW AMENDMENT

                                _______
                                

               October 19,  2005.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                        [To accompany H.R. 126]

    The Committee on Energy and Natural Resources, to which was 
referred the Act (H.R. 126) to amend Public Law 89-366 to allow 
for an adjustment in the number of free roaming horses 
permitted in Cape Lookout National Seashore, having considered 
the same, reports favorably thereon without amendment and 
recommends that the Act do pass.

                         Purpose of the Measure

    The purpose of H.R. 126 is to amend the enabling 
legislation for Cape Lookout National Seashore in North 
Carolina to increase the number of free-roaming horses 
permitted within the park boundaries.

                          Background and Need

    Cape Lookout National Seashore stretches along 56 miles of 
the Outer Banks of North Carolina, running from Ocracoke Inlet 
on the northeast to Beaufort Inlet on the southeast. The park 
includes three undeveloped barrier islands--North Core Banks, 
South Core Banks and Shackleford Banks. A herd of wild horses, 
known as the ``Shackleford Ponies,'' resides on the Shackelford 
Banks. They are decedants of domestic horses left on the island 
after residents abandoned it late in the 19th century.
    In 1998 Congress enacted legislation (Public Law 105-229) 
which directed the National Park Service to enter into an 
agreement with the Foundation for Shackleford Horses, Inc., a 
non-profit organization, to provide for the management of the 
wild horses living within the national seashore. The purpose of 
the 1998 law was to ensure that a viable population of free 
roaming horses remained within the park. The management plan at 
the park preserves the herd's wild lifestyle and allows 
visitors to see the horses in their natural state. Human 
contact, socialization, and intervention are strictly limited.
    In the wild, the horse population would grow and either the 
herd's territory would expand or grazing would be compromised. 
Because these are not viable alternatives, the Park Service and 
the Foundation periodically remove selected horses for adoption 
and use immunocontraceptive (birth control) drugs on others. 
Genetics and herd lineage scientists help identify suitable 
candidates and the herd is periodically reviewed for 
population, structure and health. Adoptions are handled by the 
Foundation according to a strict screening process. The short-
duration contraceptive drug, given to mares, inhibits 
fertilization but does not affect current pregnancies or 
behavior. Thus, pregnancies can be limited and the population 
will remain at a reasonable level.
    The 1998 law required the park to maintain a free-roaming 
horse population of between 100 and 110 horses. H.R. 126 
increases the number of free roaming horses the Secretary of 
the Interior is required to permit in Cape Lookout National 
Seashore to 110, with a target population of between 120 and 
130. The need to set a target population for the herd is 
necessary to ensure genetic viability and habitat integrity for 
the continued health of the horses and the island.

                          Legislative History

    H.R. 126 was introduced by Representative Jones on January 
4, 2005, and passed the House of Representatives by a voice 
vote on March 14, 2005.
    Similar legislation, H.R. 2055, was introduced by 
Representative Jones in the 108th Congress. That bill passed 
the House of Representatives by a voice vote on June 14, 2004. 
The Subcommittee on National Parks held a hearing on the 
measure on September 21, 2004, although no further action 
occurred in the Senate.
    The Subcommittee on National Parks held a hearing on H.R. 
126 on April 28, 2005, (S. Hrg. 109-74). At its business 
meeting on September 28, 2005, the Committee on Energy and 
Natural Resources ordered H.R. 126 favorably reported without 
amendment.

                       Committee Recommendations

    The Committee on Energy and Natural Resources, in open 
business session on September 28, 2005, by a voice vote of a 
quorum present, recommends that the Senate pass H.R. 126 as 
described herein.

                      Section-by-Section Analysis

    Section 1(a) amends section 5 of Public Law 89-366 to 
increase the population of free-roaming horses at Cape Lookout 
National Seashore to a minimum of 110 horses, with a target 
population of between 120 and 130 horses. The section adds a 
new requirement that the Secretary not remove or assist in the 
removal of free-roaming horses from the national seashore 
unless removal is carried out as part of a plan to maintain the 
viability of the herd. Finally, the subsection amends paragraph 
(b)(5) of section 5, which clarifies that the Secretary is not 
required to replace horses in the national seashore where the 
population falls below a minimum threshold as a result of 
natural causes. The amendment increases that minimum threshold 
from 100 to 110 horses. While the amendments made by this 
section establish minimum and target free-roaming horse 
populations, the Committee does not intend that they supersede 
the National Park Service's obligation to manage the national 
seashore in accordance with applicable law, including the 
National Park Service Organic Act of 1916. The Committee 
intends that allowable adjustments to the herd population be 
accomplished in a manner that retains the viability of the herd 
while protecting other park resources, consistent with 
applicable law and the national seashore's general management 
plan.
    Subsection (b) repeals a duplicate section.

                   Cost and Budgetary Considerations

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

H.R. 126--An act to amend Public Law 89-366 to allow for an adjustment 
        in the number of free-roaming horses permitted in Cape Lookout 
        National Seashore

    H.R. 126 would raise the existing ceiling on the number of 
free-roaming horses that the National Park Service may maintain 
at Cape Lookout National Seashore. Based on information 
provided by the agency, CBO estimates that allowing the herd to 
increase from the current limit of 100 animals to a maximum of 
130 would have no significant effect on the cost of operating 
the national seashore.
    H.R. 126 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Deborah Reis. 
This estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

                      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. 126. 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. 126, as ordered reported.

                        Executive Communications

    The views of the administration on H.R. 126 were included 
in testimony received by the Committee at a hearing on the bill 
on April 28, 2005 as follows:

   Statement of Michael Soukup, Associate Director, Natural Resource 
   Stewardship and Science, National Park Service, Department of the 
                                Interior

    Mr. Chairman, thank you for the opportunity to present the 
Department of the Interior's views on H.R. 126, a bill to 
adjust the number of free-roaming horses within Cape Lookout 
National Seashore.
    The Department supports H.R. 126, with an amendment 
regarding the population range of the horses that incorporates 
recommendations from a panel of scientists and others 
interested in the Shackleford Banks. This bill passed the House 
on March 14, 2005. The Department testified before the House 
Subcommittee on National Parks and the Senate Subcommittee on 
National Parks in the 108th Congress in support of an identical 
bill, H.R. 2055.
    The Department is strongly committed to conserving, 
protecting, and maintaining a representative number of horses 
on the Shackleford Banks portion of the Seashore, as Congress 
has directed. The Department believes that the number of horses 
on Shackleford Banks should be determined by the ecology of the 
island and with a strong focus on means that protect the 
genetic viability of the Shackleford Banks horses. Without this 
legislation, NPS would manage this herd consistent with P.L. 
105-229 that provides for a herd of 100 free-roaming horses.
    H.R. 126 amends P.L. 89-366 by changing the number of free-
roaming horses at Cape Lookout National Seashore from 100, to 
not less than 110, and establishes a target population of 
between 120 and 130 horses. The bill also changes one of the 
criteria that the Secretary of the Interior may use to remove 
free-roaming horses from the Seashore, allowing removal as part 
of a plan to maintain viability of the herd.
    Congress established Cape Lookout National Seashore 
(Seashore) on March 10, 1966. Encompassing more than 28,000 
acres of land and water about 3 miles off the mainland coast, 
the Seashore protects one of the few remaining natural barrier 
island systems in the world with excellent opportunities for 
fishing, shellfishing, hunting, beachcombing, hiking, swimming, 
and camping in a wild and remote setting.
    The enabling legislation for the Seashore did not address 
the issue of free-roaming wild horses on Shackleford Banks. 
Public comments on the Seashore's 1982 Draft General Management 
Plan demonstrated widespread concern about, and interest in, 
the future of the horses on Shackleford Banks. The Final 
General Management Plan stated that a representative number of 
horses would remain on Shackleford Banks after the privately 
owned land on the island was purchased by the United States.
    In 1996, following a series of public meetings, as well as 
discussions with scientists and professional managers of wild 
horse herds, the Seashore developed an Environmental Assessment 
(EA) with alternatives for managing the Shackleford Banks horse 
herd. The plan proposed to maintain a representative herd of 
horses by using a combination of contraceptive drugs and 
periodic roundups and removal of horses.
    On November 11, 1996, the National Park Service (NPS), with 
assistance from state veterinarians from the North Carolina 
Department of Agriculture, initiated a roundup of the 
Shackleford horses. State law required testing the horses for 
Equine Infectious Anemia (EIA). Out of the 184 horses on the 
island, 76 tested positive for EIA and were removed to the 
mainland for temporary quarantine. On the advice of the North 
Carolina Department of Agriculture, these horses were 
euthanized.
    In December 1996, the NPS established the Shackleford Banks 
Horse Council, representing a wide variety of interests and 
stakeholders, as a working committee to assist the park with 
plans for managing horses. In 1997, a second roundup and 
testing program was conducted on the Shackleford horses. Of the 
103 horses on the island, five tested positive for EIA. By this 
time, the Foundation for Shackleford Horses, Inc. 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.
    On August 13, 1998, Congress passed P.L. 105-229, ``An Act 
To Ensure Maintenance of a Herd of Wild Horses in Cape Lookout 
National Seashore.'' This act directed the NPS to maintain a 
herd of 100 free roaming horses and to enter into an agreement 
with the Foundation for Shackleford Horses, Inc. or another 
qualified nonprofit entity, to provide for the management of 
free-roaming horses in the Seashore. In April 1999, a 
Memorandum of Understanding with the Foundation for Shackleford 
Horses, Inc. was signed.
    Public Law 105-229 requires an annual Findings Report that 
provides the public with information regarding the population, 
structure, and health of the horses on Shackleford Banks. 
Research, monitoring and record-keeping, with the goal of 
informed decisions for removal and immunocontraception, is 
ongoing, as is consultation with internationally recognized 
advisors in the fields of equine behavior, genetics, virology, 
immunocontraception, management, humane issues, and island 
ecology. The NPS continues to work with the Foundation under 
the MOU and management decisions regarding the horses are 
reached jointly with the Foundation and with the advice of 
scientists.
    On October 29 and 30, 2002, the NPS hosted a roundtable 
meeting with the aim of reaching a consensus on the free-
roaming horse population range and the strategy for achieving 
that range. Participants included the Seashore Superintendent 
and staff, staff from Representative Jones' office, and 
representatives from the Foundation for Shackleford Horses, 
Inc. Three leading scientists considered experts in their 
respective fields also participated: Dr. Dan Rubenstein of 
Princeton University, Dr. Gus Cothran of the University of 
Kentucky, and (by telephone) Dr. Jay Kirkpatrick of ZooMontana.
    Included in the discussion was the value of occasional herd 
expansion to maintain genetic variability in the population. 
The conclusion reached was that the population should be 
allowed to fluctuate between 110-130 individuals. The 
methodology of conducting removal and contraception toward this 
goal was also discussed and agreed upon. The range of 110 to 
130 horses is based on sound science and provides the 
population changes, which are necessary for maintaining the 
genetic viability of the herd.
    Based upon the October roundtable discussion, we recommend 
an amendment to the bill that is attached to this testimony. We 
believe that this amendment will more clearly reflect the need 
to allow the population bloom necessary for maintaining the 
genetic viability of the herd.
    Mr. Chairman, that concludes my statement. I would be 
pleased to answer any questions you or other members of the 
subcommittee may have.

                     SUGGESTED AMENDMENT, H.R. 126

    On page 2, line 9-10, delete ``with a target population of 
between 120 and 130'' and insert, ``allowing periodic 
population expansion of the herd to a maximum of 130 horses''.

                        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 
H. R. 126, as ordered reported, are shown as follows (existing 
law proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                     Public Law 89-366, as Amended


 AN ACT to provide for the establishment of the 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 
the conservation and management of natural resources as he 
deems appropriate to carry out the purpose of this Act.
    (b)(1) The Secretary, in accordance with this subsection, 
shall allow a herd of [100 free roaming horses] free roaming 
horses, with a target population of between 120 and 130 free 
roaming horses, in Cape Lookout National Seashore (hereinafter 
referred to as the `Seashore'): Provided, That nothing in this 
section shall be construed to preclude the Secretary from 
implementing or enforcing the provisions of paragraph (3).
    (2) Within 180 days after enactment of this subsection, the 
Secretary shall enter into an agreement with the Foundation for 
Shackleford Horses (a nonprofit corporation established under 
the laws of the State of North Carolina), or another qualified 
nonprofit 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]
    (B) unless removal is carried out as part of a plan to 
maintain the viability of the herd;
    (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 to 
require the Secretary to replace horses or otherwise increase 
the number of horses within the boundaries of the seashore 
where the herd numbers fall below [100] 110 as a result of 
natural causes, including, but not limited to, disease or 
natural disasters.
    (6) 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.

                                  
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