Foraging Bill Angers Pickers Who Feel Entitled to Crops on Private Lands

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 My bill to require permission from landowners before we pick their mushrooms, fiddleheads, or other crops has drawn a strong and angry response from people who feel entitled to do this without permission.

Senator Tom Saviello sponsored LD 128 at my request and has taken a lot of flack for it. I have spent much of my life advocating for more respect for private landowners and better relationships between those of us who recreate on private land and the owners of that land. We’ve made a lot of progress, but still have constant complaints and problems.

It is very irritating to find that someone has grabbed the fiddleheads or mushrooms off my woodlot before I got to them. And clearly, anyone who is on my land to commercially harvest something ought to be required to have my permission.

Some critics have suggested any landowner who feels this way should post their land No Trespassing. But that is exactly what I don’t want to encourage, because it would hurt those of us who hunt, fish, and otherwise enjoy privately owned property.

At the public hearing on LD 128, all the major groups representing landowners testified for the bill, while those who feel entitled testified against it. Senator Saviello is focusing an amended version of the bill on commercial harvests, but that is still not enough for the critics who are blistering us on Facebook.

Recently, I tried to educate some of those critics on the foraging situation on public lands and state parks. They insisted it is legal, and it is not. It is a Class E crime to remove anything natural from public lands “except as authorized by the Bureau or allowed by laws and rules relating to hunting, fishing, and trapping.”

Here’s a memo from Laren Parker in the Attorney General’s office on this hot topic.

Parker’s Memo

The Department of Agriculture, Conservation, and Forestry, Bureau of Parks and Lands has requested an opinion from the Office of the Attorney General regarding whether the Bureau may allow the public to harvest wild edibles (e.g., mushrooms, blueberries, fiddleheads) from public lands.  The short answer is yes, the Bureau may allow the public to harvest wild edibles on public lands.  My long answer follows.

The Bureau and its Director have broad control over public lands.  12 M.R.S. §§ 1802, 1803(1) (granting the Bureau “jurisdiction, custody and control over and responsibility for managing,” among other things, state parks, public reserved lands, and non-reserved public lands).  The Bureau manages different types of public lands for different purposes.  Compare 12 M.R.S. § 1801 (defining “park” as an area managed primarily for public recreation and conservation purposes), with 12 M.R.S. §§ 1833 & 1847 (requiring the Bureau to manage non-reserved public lands and public reserved lands pursuant to multiple use principles).  No statute explicitly prohibits the Bureau from allowing the harvesting of wild edibles from public lands.  It is a Class E crime, however, to remove anything natural from public lands “except as authorized by the Bureau or allowed by laws and rules relating to hunting, fishing, and trapping.”  12 M.R.S. § 1806(4)(A).  Thus, the Bureau may authorize public harvesting of wild edibles from public lands if it determines that such activities are consistent with the respective purposes for which it manages state parks, public reserved lands, and non-reserved public lands.

The Bureau has determined that harvesting wild edibles is not consistent with the purposes for which it manages state parks and therefore prohibits such harvesting. 01-670 C.M.R. ch. 1, § 1.  The Bureau has also determined that public harvesting of wild edibles is consistent with the principles of multiple use pursuant to which it manages public reserved lands and non-reserved public lands.  See 12 M.R.S. §§ 1831 & 1875 (defining “multiple use” to mean, among other things, “the management of all the various renewable surface resources” of public reserved lands and non-reserved public lands).  Wild edibles (e.g., blueberries and fiddleheads), if harvested responsibly, are renewable surface resources.  As such, the Bureau’sexisting policy (posted on the DACF website) authorizes the public to harvest without a permit berries, fiddleheads, and mushrooms with the instruction that the public “leave enough to reseed and feed wildlife.”  If the Bureau determines that public harvesting is occurring to the detriment of the resource, it may revoke its authorization or adopt a rule expressly prohibiting such harvesting.  See 12 M.R.S. § 1803(6)(A) (authorizing the Bureau to adopt rules to protect and preserve public reserved lands and non-reserved public lands).

There are some statutes that specifically address harvesting of wild edibles.  12 M.R.S. §§ 1834, 1848.  Sub-sections 1834(1) and 1848(1) authorize the Bureau to sell any wild edibles that the Bureau harvests from non-reserved public lands and public reserved lands.  Sub-sections 1834(2) and 1848(2) authorize the Bureau to grant permits and enter into contracts to allow others to “cut timber, harvest grass and wild foods, tap maple trees for sap and cultivate and harvest crops.”  In the event that the Bureau issues a permit or enters into a contract, 12 M.R.S. §§ 1835(1) and 1849(1) require that any money received by the Bureau from such a permit or contract be deposited into a dedicated fund. 

Because the language of 12 M.R.S. §§ 1834(2) and 1848(2) is permissive (“may grant”), the Bureau does not interpret those sub-sections as requiring a Bureau-issued permit or contract for any and all harvesting of wild edibles.  (Those sub-sections do not say, for example, “no harvesting of wild edibles may take place on public reserved lands without a permit issued by the Bureau.)  Rather, sub-sections 1834(2) and 1848(2) give the Bureau the authority to do something—issue a permit or enter into a contract granting someone an exclusive right to harvest natural resources from a particular area of public lands—that it likely could not do absent specific legislative authorization because it limits public access and use of those lands. See 12 M.R.S. §§ 1832(1), 1846(1) (“[F]ull and free public access [to those lands] . . . together with the right to reasonable use of those lands, is the privilege of every citizen of the State.”).

So long as the Bureau determines that allowing public harvesting of wild edibles from public reserved lands and non-reserved public lands is being undertaken without detriment to those natural resources, the Bureau may continue to allow such harvesting pursuant to the multiple use principles that govern its management of public reserved lands and non-reserved public lands.

 

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