Environmental, Natural Resources, & Energy Law Blog

 

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President Biden has issued an executive order to develop guidelines and best practices for the deployment of safe and trustworthy artificial intelligence (“AI”) systems.[1] Shortly thereafter, representatives from twenty eight countries[2] met at the AI Safety Summit with the hopes of agreeing to the Bletchley Declaration, an agreement to establish global collaboration for managing the opportunities and risks posed by AI.[3] With these efforts, an international cohort seeks to regulate and control technology that impacts not only their individual countries, but all life on earth.

The pace of technological advancement challenges the legal and regulatory landscapes to keep up. In a proposed AI Bill of Rights,[4] the White House Office of Science and Technology recommends an AI regulatory framework focused on algorithmic discrimination protection, data privacy, and safe and effective AI systems. Work is being done to train AI systems to require diversity, equity and inclusion metrics in algorithms. These requirements provide risk management for some AI biases, but concerns over civil liberties and civil rights remain, and these technologies are not foolproof.[5] Inclusive AI frameworks using algorithms that correct for bias and discrimination are needed.[6]

In the rush to govern, the focus of AI regulation has been anthropocentric. Importantly, existing and proposed AI frameworks fail to consider harmful biases against trillions of other beings who share our planet: wild and domesticated animals. Animals must be considered in AI development not only because animals themselves matter, but because there are concerns about how AI may be used to directly harm animals or decrease animal welfare. AI technology and laws governing the use of AI are rapidly developing, therefore animal advocates and attorneys need to pay close attention to these changes. Creative application of AI technology and regulations can be employed to help animals. In this article, I illustrate one novel application of AI technology that could be used under The Wild Free-Roaming Horses and Burros Act[7] to benefit wild animal welfare.

The U.S. Bureau of Land Management and the U.S. Forest Service have struggled to manage American wild horse populations. A portion of agency population management relies on contraception administration to control herd sizes on public lands. AI technology can provide solutions to increase wild horse welfare while potentially decreasing taxpayer dollars spent on this issue. By using drones to track individuals and administer contraceptives, agencies could reduce the need for roundups, long-term animal holding pens, and adoptions, while managing public land ecosystems for multiuse purposes.

Current Population Control Methods for Wild Horses and Burros

America has a wild horse overpopulation problem. Overpopulation of wild horses and burros in the 1950s resulted in a law to prohibit the use of motorized vehicles to hunt these animals.[8] Later, a more robust law was enacted to help the U.S. Bureau of Land Management (“BLM”) and the U.S. Forest Service (“FS”) manage and protect wild horses and burros. The Wild Free-Roaming Horses and Burros Act (“the Act”) provides the basis for federal agency regulation and decision making regarding best practices to control populations while protecting these iconic species of the American west.[9]

The BLM[10] determines how many animals each wild horse and burro territory can sustain without degrading the range ecosystem. This number is called the Appropriate Management Level (“AML”).[11] As of March 2023, the AML total for all territories was 26,785 animals; however, the BLM estimated that 82,883 animals, including 68,928 wild horses and 13,955 wild burros existed on management territories.[12] This is over triple the AML, meaning that 56,098 animals are eligible for removal. Under the Act, animals in excess of the AML may be removed, destroyed, or controlled through other means such as sterilization.[13] The BLM uses various management techniques to control herd sizes. Management techniques include gathering and removal, adoption programs, contracted pasture grazing, and fertility control.[14] It is estimated that without herd management measures, herds may double within 4-5 years.[15]

Nevertheless, certain herd management techniques have met public criticism. For example, gathering animals for relocation is typically done through drive trapping or bait and water trapping.[16] Drive trapping involves the use of helicopters and horseback riders to herd the animals to the desired location.[17] Helicopter gathers may last for multiple days, with animals dying or being injured in the process. During bait and water trapping, wild horses are lured into corrals stocked with food and water.[18] Animals lured by bait and water trapping are often malnourished, making them susceptible to this trapping method. Wild horses and burros endure increased stress from the trapping process, and from being held in captivity.

Under the Act, 2023 appropriations for wild horse and burro management are $147,888,000.[19] The BLM exceeded this budget as of October 2023, with $157,828,000 spent on the program. This includes $108,512,000 spent to care for gathered horses removed from the range, and an additional $4,965,000 spent on the gather and removal process.[20] Gather and removal plus off-range wild horse and burro care consumed 72% of BLM’s entire budget for wild horse and burro management in 2023. It is estimated that each horse kept in a federal corral costs $2,000 taxpayer dollars per year to maintain.[21]

Another BLM wild horse and burro disposition method is private party animal adoption.[22] The BLM’s adoption program allows qualified applicants over 18 years of age to adopt a wild horse or burro.[23] Following adoption, each animal must be kept by their adopter for twelve months, at which time, following an inspection, title is transferred for ownership of the animal.[24] While an individual may adopt many animals in a single year, title to only four animals may be issued in any twelve month period.[25] This means that in a family of three, each person could adopt four animals, a total of 12, and after one year of abiding by the adoption rules gain full ownership of all 12 horses or burros.[26] The BLM provides an adoption incentive of $1,000 per animal, issued to the adopter within 60 days following title transfer.[27] While this program has potential for rehoming excess animals, there are many more animals than there are qualified adopters. In 2023 the BLM has spent $8,396,000 of its wild horse and burro management budget on adoption, which is 5% of the overall budget.[28] The BLM has indicated that adoptions cost less than providing for lifetime off-range care, saving an estimated $24,000 per horse or burro.[29]

Reducing Herd Populations by Using AI Powered Drones for Contraceptive Administration

Given the challenges and expenses of the herd management techniques described above, long term population management depends on contraception. Administering contraception to female wild horses in the form of Porcine Zona Pellucida (“PZP”) injections or other contraceptive drugs can help decrease populations to levels that do not disrupt their ecosystems.

In 2023 the BLM has targeted 826 animals for fertility control.[30] As of October 16, 2023, the actual number of wild horses and burros treated with contraceptives was less than half of that number, only 361. This low number may be due to the challenges of administering contraceptive filled darts to wild horse and burro populations. The agencies rely on employees or volunteers to track the animals and shoot the contraceptive laden darts, via dart guns, into the animals chosen for fertility management.[31] Darters must get within range of the animals. Some herds or individuals may be wary of people and vehicles, and may be increasingly skittish considering helicopter round ups. Weather can complicate the process. When weather impairs the ability to track animals, get close to animals, or even clearly see the animals, contraceptive darting becomes difficult if not impossible. Within the BLM’s 2023 budget for wild horse and burro management, $35,956,000 is earmarked for “Other Activities (monitoring, etc.)” which includes contraception.[32] This means that under 23% of the budget is earmarked for fertility control, as compared to 77% used for gathers, removal and adoption.[33] Furthermore, Congress appropriated an additional $11 million for reversible immunocontraceptive fertility management of wild horse and burro populations for 2023.[34] This appropriation presents an excellent opportunity to evaluate how new technology could help make this money well spent.

AI Drones Offer Superior Fertility Management Capabilities

The use of drones to administer contraceptives to wild horse and burro populations is one potentially positive application for leveraging AI technology to increase animal welfare. Most people think of drones as robots with limited capabilities such as video recording or data collection. However, AI enabled drones use machine learning to perform a wide variety of tasks.[35] Drones with AI technology can monitor herds and identify individual animals,[36] administer contraception through darting, and record the event for ongoing fertility management. Drone capabilities and costs are widely variable, ranging from an inexpensive drone that a child plays with, to military drones costing millions of dollars.[37] Fortunately, drones with the capability to dart wild horses and burros with contraceptives are available, and affordable.[38] The technology needs for drone use in wildlife darting include the capability to administer a dart, and to fly long enough distances to reach the target and return. Drones can be programmed to self-select a target, or the operator may select a target. Additionally, cameras and video can record targets and outcomes.

Drone use could increase fertility management program efficiency and potentially reduce program costs. Contraceptives administered by dart are not permanent and require employees or volunteers to track individuals to re-dart them once their medication runs its course. AI drones fitted with cameras or video can record which individuals are darted with contraceptives and on what dates, making individual fertility tracking and reapplication much easier.

This solution fits within the current BLM regulatory framework. First, existing drugs such as PZP and others are approved for fertility control use in wild horses and burros, lasting about one year following dosing.[39] Although PZP is considered an effective birth control method for wild horses and burros, widespread use was hampered by difficulties in gathering herds yearly and allowing people to get close enough to dart them.[40] However, a newer 2-year PZP-22 vaccine has been shown to reduce fertility by 89% in the first year, 74% in the second year, and even 41% in the third year following dosing.[41]

AI drones could administer the more effective PZP-22 vaccine, eliminating the physical proximity issue by allowing drone operators to dart animals while remaining far away, and documenting which individuals are successfully darted. Drone use is not new for these agencies; the BLM and FS have already adopted drones for application of AI in wildfire management, mapping, videography and other uses.[42] With the acquisition of darting drones, the BLM can train employees to administer contraception to wild horses and burros via drone.

Instead of relying on personnel and volunteers who must get close enough to administer contraception using dart guns, AI drones offer a less intrusive option, plus the added benefits of animal identification, and data recording capabilities. Wild animals can acclimatize to the sounds and movements of drones.[43] This means that over time, AI powered drones can be used to minimize wild horse and burro contact with humans, land vehicles, and helicopters. Decreased drives and trapping will reduce animal stress and potential injury.[44] This positively impacts wild horse and burro welfare because such program changes would minimize the human-animal conflicts that create stress due to confinement, or the horrific injuries and deaths that can happen during round ups. Furthermore, a more accurately and widely administered contraception program can serve to lower the number of animals on range in excess of the AML over time, eventually lowering the costs of management.

 

Conclusion

The solution proposed here is a limited overview of a difficult and longstanding problem. However, it highlights the capabilities of AI for addressing problems that impact the public, animals and the environment. AI has the power to influence not only how individual humans fare in the future, but how animal interests and our shared environment will be impacted. It is imperative to consider data inputs to AI and how those inputs will impact animals. Animal concerns do not outweigh human concerns, but they should be considered just as carefully. Although fears abound regarding the negative impacts of AI, we can creatively apply AI to benefit animals under the law. This article provides one creative solution for using AI powered drones to improve animal welfare and effect change. As the legal framework for addressing AI emerges, attorneys and advocates with interests in improving animal lives and making positive environmental impacts can apply their existing knowledge to think out of the box and develop new solutions for positive impacts using AI and the law.

 

[1]Proclamation No. 14110, 88 Fed. Reg. 75,191 (Oct. 30, 2023), https://www.whitehouse.gov/briefing-room/presidential-actions/2023/10/30/executive-order-on-the-safe-secure-and-trustworthy-development-and-use-of-artificial-intelligence/.

[2] Countries Agree to Safe and Responsible Development of Frontier AI in Landmark Bletchley Declaration, Gov.UK (Nov. 1, 2-23), https://www.gov.uk/government/news/countries-agree-to-safe-and-responsible-development-of-frontier-ai-in-landmark-bletchley-declaration. The countries represented were Australia, Brazil, Canada, Chile, China, European Union, France, Germany, India, Indonesia, Ireland, Israel, Italy, Japan, Kenya, Saudi Arabia, Netherlands, Nigeria, the Philippines, South Korea, Rwanda, Singapore, Spain, Switzerland, Turkey, Ukraine, United Arab Emirates, United Kingdom, United States of America.

[3] The Bletchley Declaration by Countries Attending the AI Safety Summit, Gov.UK (Nov. 1-2, 2023), https://www.gov.uk/government/publications/ai-safety-summit-2023-the-bletchley-declaration/the-bletchley-declaration-by-countries-attending-the-ai-safety-summit-1-2-november-2023.

[4] Blueprint For an AI Bill of Rights: Making Automated Systems Work for the American People, Whitehouse.gov (Oct. 2022), https://www.whitehouse.gov/wp-content/uploads/2022/10/Blueprint-for-an-AI-Bill-of-Rights.pdf.

[5] ACLU Statement on President Biden’s Executive Order on Artificial Intelligence, ACLU.org. (Oct. 30, 2023 5:03PM), https://www.aclu.org/press-releases/aclu-statement-on-president-bidens-executive-order-on-artificial-intelligence.

[6] See generally Safia Omoja Noble, Algorithms of Oppression: How Search Engines Reinforce Racism (2018) (providing a detailed analysis of how search engine AI reinforces racial bias through algorithms that are discriminatory to persons of color).

[7] 16 U.S.C. §§ 1331 et seq.

[8] See Wild Horse Annie Act, Pub. L. 86-234 (1959).

[9] 16 U.S.C. § 1333.

[10] While both the BLM and Forest Service have roles in wild horse and burro management, this article focuses on the BLM.

[11] How the AML is calculated is a controversial topic, with some advocacy organizations alleging that the sustainable number of horses and burros per territory is artificially low based on 1971 herd numbers, allowing for grazing permits for up to 1 million privately owned livestock animals. See A Costly and Cruel Federal Program Seeks to Wipe out Mustangs and Burros from Our Public Lands, Am. Wild Horse Campaign, https://americanwildhorsecampaign.org/problem (last visited Oct. 30, 2023). It has also been argued that the law calls for the AML to be expressed as a population range, not a set number. These controversies are not addressed here, and the numbers provided by the BLM are presumed valid for this analysis.

[12] Herd Area and Herd Management Area Statistics, BLM (March 1, 2023), https://www.blm.gov/sites/default/files/docs/2023-04/2023_HMA-HA_PopStats_4-3-2023_Final.pdf.

[13] 16 U.S.C § 1333(b)(1).

[14] Wild Horse and Burro Herd Size Relatively Unchanged Since Last Year, BLM (April 21, 2023), https://www.blm.gov/blog/2023-04-21/wild-horse-and-burro-herd-size-relatively-unchanged-last-year.

[15] Gathers and Fertility Control Operations, BLM, https://www.blm.gov/programs/wild-horse-and-burro/herd-management/gathers-and-fertility-control-operations (last visited Oct. 30 2023).

[16] FY2023 Tentative Wild Horse and Burro Gather and Fertility Control Schedule

as of October 16, 2023, BLM, https://www.blm.gov/sites/default/files/docs/2022-12/National%202023%20%20Gather%20Sched.pdf (last visited Oct. 30, 2023).

[17]This is a controversial method of gathering because horses often die in the process, helicopters frighten other local wildlife, and small animals and nests are disturbed or trampled by the fleeing horses. See Alexis Kenyon, Science and the Bureau of Land Management Disagree About the Origins of Colorado Wild Horses, WGNU (Oct. 1, 2023), https://kgnu.org/science-and-the-bureau-of-land-management-disagree-about-the-origins-of-colorado-wild-horses/.

[18] See BLM to Begin an Emergency Wild Horse, Water and Bait Trap Gather Within the Antelope Valle Herd Management Area, Am. Wild Horse Campaign (July 23, 2018), https://americanwildhorsecampaign.org/media/blm-begin-emergency-wild-horse-water-and-bait-trap-gather-within-antelope-valley-herd.

[19] Program Data, BLM, https://www.blm.gov/programs/wild-horse-and-burro/about-the-program/program-data (last visited Oct. 30, 2023).

[20] Id.

[21] Mark Scaglione & Erin McLaughlin, Wild Horses Put Up for Adoption By the Government Are Ending Up at Risk for Slaughter, NBC (Sept. 27, 2023, 4:00 AM PDT), https://www.nbcnews.com/news/us-news/wild-horses-adopted-at-risk-slaughter-rcna116913.

[22] 16 U.S.C § 1333(b)(2)(B).

[23] Adoption and Purchase Frequently Asked Questions, BLM, https://www.blm.gov/programs/wild-horse-and-burro/adoption-and-sales/adoption-faq (last visited Oct. 30, 2023).

[24] Id.

[25] Id.

[26] Reports have indicated that some private parties adopt the maximum number of animals for title transfer each year, and once title has transferred, resell those horses and burros, including to markets where animals are known to be transported over boarders to slaughter. The adopter receives the adoption fee plus any sales proceeds. See Mark Scaglione & Erin McLaughlin, Wild Horses Put Up for Adoption By the Government Are Ending Up at Risk for Slaughter, NBC (Sept. 27, 2023, 4:00 AM PDT), https://www.nbcnews.com/news/us-news/wild-horses-adopted-at-risk-slaughter-rcna116913.

[27] Wild Horse and Burro Adoption Incentive Program, BLM, https://www.blm.gov/programs/wild-horse-and-burro/adoptions-and-sales/adoption-incentive-program (last visited Oct. 30, 2023).

[28] Program Data, BLM, https://www.blm.gov/programs/wild-horse-and-burro/about-the-program/program-data (last visited Oct. 30, 2023).

[29] Wild Horse and Burro Management: Overview of Costs, CRS (July 13, 2022), https://crsreports.congress.gov/product/pdf/IF/IF11060.

[30] FY2023 Tentative Wild Horse and Burro Gather and Fertility Control Schedule

as of October 16, 2023, BLM, https://www.blm.gov/sites/default/files/docs/2022-12/National%202023%20%20Gather%20Sched.pdf (last visited Oct. 30, 2023).

[31] Top 5 Things to Know About Wild Horse and Burro Fertility Control, BLM Blog (Sept. 29, 2021), https://www.blm.gov/blog/2021-09-29/top-5-things-know-about-wild-horse-and-burro-fertility-control.

[32] Program Data, BLM, https://www.blm.gov/programs/wild-horse-and-burro/about-the-program/program-data (last visited Oct. 30, 2023).

[33] Id.

[34] Congress Releases Omnibus Spending Bill that Includes a Better Way to Manage Nation’s Federally-Protected Wild Horses, Am. Wild Horse Campaign (Dec. 23, 2022), https://americanwildhorsecampaign.org/media/congress-releases-omnibus-spending-bill-includes-better-way-manage-nations-federally.

[35] See generally Sam Daley & Jessica Powers, AI Drones: How Artificial Intelligence Works in Drones and Examples, BuiltIn (Nov. 22, 2022), https://builtin.com/artificial-intelligence/drones-ai-companies (providing examples of how AI powered drones can be used to solve problems in many sectors).

[36] Grace van Deelen, New AI-Powered Drone Technology Aids Elephant Conservation, TuftsNow (March 8, 2023), https://now.tufts.edu/2023/03/08/new-ai-powered-drone-technology-aids-elephant-conservation

[37] See How Much Does A Drone Cost in 2023? Here’s a Price Breakdown, JOUAV Unmanned Aircraft Sys. (Oct. 9, 2023), https://www.jouav.com/blog/how-much-does-a-drone-cost.html.

[38] See Our Darting Drone, James Madison Univ. X-Labs, https://sites.lib.jmu.edu/us4va/wasp-aviation/; Wasp Aviation, James Madison Univ. X-Labs, https://sites.lib.jmu.edu/us4va/wasp-aviation/; Drones & Conservation Dart Gun, Rotor Drone Pro, https://www.rotordronepro.com/dartgun-will-travel/; Michael Irving, Dart Drone Puts U.S. Farmers In Its Crosshairs, NewsAtlas (Nov. 10, 2016), https://newatlas.com/haevic-dart-drone/46363/.

[39] Wild Horses and Burros: Issues and Proposals, CRS 13 (Dec. 8, 2011), https://crsreports.congress.gov/product/pdf/RL/RL34690/10.

[40] Id.

[41] Ursula S. Bechert et. al, Fertility Control Options for Management of Free-Roaming Horse Populations, 16(2) Human–Wildlife Interactions 179, 187, https://digitalcommons.usu.edu/cgi/viewcontent.cgi?article=1765&context=hwi.

[42] BLM Employees Stretch Their Wings as UAS/Drone Operators, My Public Lands Tumblr, https://mypubliclands.tumblr.com/post/175341244112/blm-employees-stretch-their-wings-as-uasdrone (last visited Oct. 30, 2023); See also Unmanned Aircraft System Operations by the Bureau of Land Management for Training, Natural Resources, and Wildland Fire, in Fiscal Year 2019, BLM (Nov. 20, 2019), https://storymaps.arcgis.com/stories/769153f9e0974be09a2f008a1eada72a; DOI UAS Training, Office of Aviation Serv., https://www.doi.gov/aviation/uas/training (last visited Oct. 31, 2023).

[43] Mark A. Ditmer et al., Bears Habituate to the Repeated Exposure of a Novel Stimulus, Unmanned Aircraft Systems, 7:1 Conservation Physiology (2019), https://doi.org/10.1093/conphys/coy067.

[44] See Kenyon, supra note 19.