Cultivating Native Plants: The Legal Pitfalls

Linda R. McMahan

By knowing and observing plant-protection laws and determining the origins of native plants offered for sale, collectors can aid conservation efforts-and avoid the legal and ethical pitfalls of collecting as well

If you purchase native plants you might break More than one hundred of the taxa are now the law and, at the same time unknowingly protected by the Act, and others currently are contribute to the demise of wild plant popu- proposed for protection. In practical terms lations, since collection from the wild is sel- this means that the interstate trade or collec- dom adequately licensed or controlled. By tion of those taxa is prohibited on lands following a few simple rules, however, you owned by the United States Government, can avoid the legal and ethical pitfalls of unless one has a permit issued by the United buying (and collecting) native plants for use States Fish and Wildlife Service or another ap- in a garden, for scientific research, or for horti- propriate agency, such as the Bureau of Land cultural display. Management, the Park Service, or the Forest In the United States, many laws protect Service. species of plants or regulate activities that in- Some of the endangered and threatened volve them. The laws range from strict prohi- species on the Federal list are available bitions of the collection and sale of protected through legitimate sources. Only propagated species to local regulations aimed at main- plants may be sold legally, and their sale must taining scenic beauty. It is important to know be licensed by the Fish and Wildlife Service. what these laws are. The Tennessee purple coneflower (Echinacea tennesseensis) is an example of a species Plant-Protection Laws in the United States grown from seed. (According to the Fish and In 1973, the United States Congress passed Wildlife Service, only two nurseries were the Endangered Species Act, which for the licensed to sell the species in 1985.) Species of first time granted Federal protection to plants Pediocactus, a genus of endangered diminu- under the terms of a major law. Congress tive cacti, are sometimes propagated by seeds, directed the Smithsonian Institution to draw cuttings, or tissue culture. Chapman’s rhodo- up a list of the endangered and threatened dendron (Rhododendron chapmanii), endan- plants of the United States. The gered in the wild, is available as plants raised Smithsonian’s list, which was published in from seeds or cuttings. book form (Ayensu and DeFilipps, 1978), Other Federal laws protecting plants in- included about three thousand plant taxa of clude more-general ones, such as those that the continental United States and Hawaii. prohibit commercial collecting on Park Serv- This number, which represents one out of ev- ice lands, and the requirements that permits ery ten native plant taxa, astounded the scien- be obtained for collecting on most other Fed- tific community. eral lands. 21

State Laws from the United States Fish and Wildlife Ser- In addition to the Federal laws, many states vice (e.g., United States Fish and Wildlife have laws conserving plant species. About Service, 1980, 1981 and from many state- half of the fifty states have passed endangered government offices. species laws that help to conserve plants (McMahan, 1980; McMahan, 1984), for ex- The Threats of Trade in Wild Species ample. There are as many types of provisions Trade in wild plants can affect more-common as there are states; they provide various de- species as well, among them the Venus’s-fly- grees of protection, from outright prohibi- trap (Diona?a muscipula), which is native to tions against collection and sale to the crea- the Green Swamp of North Carolina and tion of licensing systems. Some states do not South Carolina. Although it has a restricted regulate collecting at all, but instead, focus on habitat, the Venus’s-flytrap is locally abun- preserving the habitats of rare plants. dant where conditions are favorable (Sutter, Despite the efforts of some states to protect 1985/. Its removal from the wild is monitored their rare plants, it remains a sad fact that by the North Carolina Department of Agri- . most of the plants at risk of extinction in the culture, but several nurseries and botanical United States are not yet protected by either gardens propagate Venus’s-flytrap from seeds Federal or state laws (see, for example, or by plant divisions. Propagated specimens Manheim and Bean, 1984). Conservation- provide the buyer with a choice, making it conscious horticulturists and botanists will unnecessary to remove Venus’s-flytraps from learn which native plants are rare and will wild populations. proceed with extreme caution to purchase Another example, the yellow lady’s-slip- only propagated plants. Publications listing per /Cypripedium calceolus), is commonly plants at risk of extinction can be obtained offered through mail-order garden catalogs in

The Venus’s flytrap (Dionaea muscipula) being propagated in flats at the North Carolina Botanical Garden. Photograph by the author. 22

the United States. Unless the company states mative booklet, Nursery Source List: Wild- that they are propagated, the plants are al- flowers and Native Plants (New England most certainly of wild origin. One catalog Wild Flower Society, 1984), is very useful. refers to its stock as "specially selected," It is important to realize that, with few perhaps in an effort to mislead the customer exceptions, wild collection is not adequately about the source of the plants. The Garden in controlled or licensed by either state or Fed- the Woods in Framingham, Massachusetts, eral agencies. One of a handful of states li- the botanical garden of the New England Wild censing the removal of wild plants is Arizona. Flower Society, is propagating the yellow Wildlife officials dubbed "cactus cops" give lady’s-slipper on a limited basis, as are a few permits and tags for collecting wild saguaro others. These sources offer propagated plants (Cereus giganteus) and other large cacti used that are more likely to survive transplanting in outdoor landscaping. Collecting certain to the garden than are most wild-collected rare species is strictly prohibited unless it is plants. done by the landowner. In this way, the state At least the yellow lady’s-slipper and some monitors the removal of wild cacti and can other wildflowers can sometimes survive better assess the effect of collecting on the transplanting from the wild. Others, such as wild population. Whenever possible, state many other species of Cypripedium, are not officials encourage collectors to remove so lucky. They usually die after one or more plants from lands about to be developed years, leaving the gardener or horticulturist rather than from wild lands. wondering what he or she did wrong. For those interested in learning sources of nurs- The Legal Requirements ery-propagated native plants, the New Eng- Knowing that what you purchase is both legal land Wild Flower Society’s small but infor- and not detrimental to wild populations can

Chapman’s rhododendron (Rhododendron chapmani~, The yellowlady’s slipper (Cypripedium calceolus). This a popular horticultural species endangered in its wild species sometimes survives transplantation but is also habitat in Florida. Photographed by E. LaVerne Smith of being offered on a small scale as propagated specimens. the Office of Endangered Species, United States Fish and Photographed by William Krebs. Wildlife Service. 23

be difficult. It is perhaps safest to purchase mine that they originated as propagated only material that you know is of propagated plants. origin. Here are a few simple rules to follow: D Obtain information about the site from D Learn about the laws that protect native which the plants came if, for scientific rea- plants. Write to a conservation department in sons, you must purchase plants collected in a state to which the plants are native to find the wild. The information may be valuable out about local laws. You are presumed to some day. know what the laws are, in any case. D Do not, in general, buy wild plants un- D Follow all requirements of the state or less their collection and sale are licensed and Federal government, such as obtaining per- the wild population is monitored by a govern- mits if you must use wild plants. Be aware ment agency. that even the sale of propagated plants of ~ Be particularly careful when you buy some species is regulated so as to increase from mail-order catalogs. Many rare and wild- protection of the wild resource. collected specimens of cacti and insectivo- rous plants are sold in this way, perhaps ille- Other Considerations gally. In addition to being aware of the legal require- ~ Be aware that most "wildflowers" of- ments and pitfalls, you should: fered for sale in the United States through D Find out whether the native plants you mail-order catalogs were collected from the buy are wild or propagated. The best way to do wild. These include bloodroot, ferns, and tril- so is to ask the supplier. liums. ~ Find out which species are rare, either in D Never buy lady’s-slipper orchids (Cyp- the state or nationally, and be particularly ripedium spp.) unless you know that they careful when you buy these species to deter- were artificially propagated.

Echinacea tennesseensis, the Tennessee purple cone- A pincushion cactus, Pediocactus peeblesianus var. pee- flower.This species is available legally from nurseries blesianus. Endangered pincushion cacti are popular licensed by the United States Fish and Wildlife Service. among cactus collectors. Photograph by the Desert Botanical Garden. 24

References Ayensu, Edward S., and Robert A. DeFilipps, 1978. Endangered and Threatened Plants of the United States. Washington, D. C.: Smithsonian Institu- tion and World Wildlife Fund. Manheim, Bruce S., and Michael J. Bean, 1984. Undermining the plant-protection effort. Garden (July-August): 2-5. McMahan, Linda R., 1980. Legal protection for rare plants. American University Law Review 29(3): 515-569. 1984. What is protection? Tennessee Conservationist 50 March-April): 5-7. New England Wild Flower Society, 1984. Nursery Source List: Wildflowers and Native Plants. Framing- ham, Massachusetts: New England Wild Flower Society [Hemenway Road, Framingham 01701].] . Sutter, Robert, 1985. Venus flytrap threatened primarily by habitat loss. TRAFFIC (U.S.A.) 6(2): 13. Umted States Fish and Wildlife Service, 1980. Endangered and Threatened Wildlife and Plants: Review of Plant Taxa for Listing as Endangered or Threatened Species. Federal Register 45(242): 82,480-82,569 (December 15).). 1984. Endangered and Threatened and 1984. A stand of saguaros (Cereus giganteus) in the Saguaro Wildlife Plants, July 20, Washington, National Monument, near Tucson, Arizona. Saguaros D. C.: Department of the Interior [18th and C often are used in outdoor landscaping. Streets, NW, Washington 20240].

Linda R. McMahan is Senior Program Officer for Botany, Center for Plant Conservation, Jamaica Plain, Massachusetts. She received her doctorate in botany from The University of Texas at Austin in 1972 and her law degree from the American University in 1981. In addition to having taught for several years, she has worked for the United States Environmental Protection Agency, the United States Department of the Interior, and the World Wildlife Fund-U.S. before coming to the Center for Plant Conservation.