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Wildcrafting Non-Timber Forest Products — Legal Considerations

Introduction Non-timber forest products (NTFPs) or special(ty) forest products are plant materials other than timber that are harvested from the forest. The practice of collecting these products from their natural growing sites is referred to

as wildcrafting. Although often collected for Eggert’s Sunflower (Helianthus eggertii) is on personal use, many wildcrafted materials also Kentucky’s Threatened and Endangered Species list. have commercial value. Wood lot owners may choose to harvest NTFPs as a means of providing well as the possibility of imprisonment. These temporary income while waiting for their timber laws should not be taken lightly; they are being stand to mature or as a way to supplement enforced. their income. NTFPs can provide a means to diversifying and expanding an existing woodland The intention of this profile is to offer general enterprise. information on a number of the legal issues pertaining to wildcrafting; however, collectors Wildcrafters who want to harvest materials outside should personally investigate all pertinent their own property lines need to know there are federal, state, and local laws before the first plant laws that protect other privately owned property or plant part is collected. and public areas from unauthorized harvesting and trespassing. Poaching, the illegal taking of Federal Laws wild plants or animals, is a serious problem in Endangered Species Act Kentucky. Not only are there legal ramifications, Some plant species fall under the protection of but poaching is also responsible for the decline the Endangered Species Act of 1973 (ESA). in selected native Kentucky plant species, such Kentucky currently has nine plant species on the as lady slipper orchids. Some plant species are federal list of threatened and endangered species protected by state and/or federal laws. Even and one species that is in the process of becoming plant material collected and sold from personally listed. It is illegal to collect or destroy any of owned property is not without these plants on public lands. its legal restrictions. Violations to any of these local, state, and/ Threatened and endangered or federal laws can carry hefty plant species growing on fines of thousands of dollars, as private lands are under the

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Educational programs of the Kentucky Cooperative Extension Service serve all people regardless of race, color, age, sex, religion, disability, or national origin. ownership and care of the landowner. However, what constitutes a violation of this law, as well any collector who transports, sells, or trades a as resulting penalties, can be obtained from the threatened or endangered species may be subject U.S. Fish and Wildlife Service. to federal prosecution under The Lacey Act, even if the plant was collected on their own property. State Laws Additionally, if federal funds, a federal permit, Kentucky Rare Plant Recognition Act or a federal license have been used to develop The General Assembly passed the Kentucky the private land, any impacts to threatened or Rare Plant Recognition Act in 1994, recognizing endangered plants growing on the property will the importance of preserving the state’s rare plant be subject to regulation under the ESA. species for “human enjoyment, for scientific purposes, and to ensure their perpetuation” (KRS The list of Kentucky plants protected by the 146.600). This law cites more than 270 plant ESA, along with descriptive information, can species that have been designated by the state as be found on the Kentucky Department of Fish endangered or threatened, including those on the and Wildlife Resources, the U.S. Fish and federal list. The Kentucky State Nature Preserves Wildlife Service, and the Kentucky State Nature Commission (KSNPC), which is charged with Preserves Commission Web sites. For more protecting the Commonwealth’s natural heritage, information on federally listed plants, contact maintains the current plant list. Plants on this list the U.S. Fish and Wildlife Service Endangered should not be harvested or disturbed. Species Program. State Regulated Plant Material Severe penalties (fines and/or imprisonment) At this time, only ginseng falls under this may be imposed for violations of the Endangered category; both its harvest and sale are strictly Species Act. Fines can also be levied for regulated by the state. The harvest season for unintentional violations. Contact the U.S. Fish ginseng in Kentucky begins September 1 and and Wildlife Service Office of Law Enforcement ends December 1; ginseng may only be dug with questions pertaining during this period, even on the to these issues. harvester’s own private land.

The Lacey Act Harvesting ginseng on federally The Lacey Act of 1900 owned management areas is and The Lacey Act not allowed, with the exception Amendments (1981 and of the Daniel Boone National later) make it illegal to Forest (DBNF), where ginseng sell, purchase, acquire, can be dug for personal use transport, or export only; collectors must first wildlife that has been pay a fee and obtain a permit. taken, harvested, or Harvesting on other public possessed in violation of lands, such as state parks, is not state, federal, or tribal law. The harvest and sale of Ginseng (Panax permitted. Digging ginseng quinquefolius) is regulated by state law. The Lacey Act pertains to on private property does not native plants (including seeds, roots, or other require a permit; however, permission should be parts) that are on the federal list of endangered obtained from the landowner. species, on the Convention on International Trade in Endangered Species (CITES) of Wild All ginseng harvested in the state can only be Fauna and Flora list, or listed under a state sold through dealers who have been licensed by conservation statute. The details regarding the Commonwealth of Kentucky, regardless of where the ginseng is collected or how it is grown. should be obtained from the owner(s) before Fresh or “green” ginseng roots may be sold to entering their land for wildcrafting. In some dealers starting September 1; dry ginseng may be cases it may be beneficial for the collector sold to dealers from September 15 to March 31. and landowner to establish a land-use lease or Collectors may not take ginseng across state agreement. Before entering into any type of lines nor may they mail ginseng to an out-of- legal arrangement, both parties should seek the state dealer. Harvesters are required to sign a advice of a legal expert. “Ginseng Purchase Form” at the time they sell their roots to a state-licensed dealer; they must Wildcrafting on Public Lands also be able to provide information regarding the Public lands are those owned and managed by date and location of harvest. a federal, state, county, or city government agency. Kentucky has a cultural history of Selling or purchasing ginseng outside the collecting plants and plant parts from public parameters of state law is also a violation of The lands. However, in almost all cases, wildcrafting Lacey Act. Contact the Kentucky Department of on public lands is not allowed and it is illegal. Agriculture or the U.S. Department of Fish and The agency that has jurisdiction over the area Wildlife for additional information on ginseng should be contacted regarding its policies and regulations. laws pertaining to wildcrafting.

Wildcrafting on Private Lands City/County Parks and Nature Sanctuaries Landowner’s own property These areas, which are set aside for public Plants on private property, whether common or recreation and/or education, have restrictions on rare, belong to the landowner. However, there the types of activities permitted. They generally are several situations in which endangered or do not allow the removal of plants or other threatened species growing on private lands are natural materials. For more information, contact protected by the Endangered Species Act (ESA). the department managing the property. Endangered animals, however, always fall under the protection of the ESA whether on private Near Public Roads or public lands. Disturbing or destroying an Kentucky state law makes it illegal to remove endangered animal’s habitat can also have legal or injure plants on the right of way of any state ramifications. Contact the U.S. Fish and Wildlife highway or county road without first obtaining Service Endangered Species Program for specific written permission from the appropriate authority. regulations regarding these issues. Prior to collecting near public roads contact the department, agency, division, or engineer in Other private property charge of the road or highway. Harvesting on private land without the landowner’s permission is a violation of trespass State Forests laws, which are applicable even in the absence The Kentucky Division of Forestry owns and of a “no trespassing” sign or fencing on the manages seven state forests. “Free use permits” property. The removal of valuable plant material may be granted for the removal of downed or could be considered an act of theft. Unsanctioned dead woody material, but the amount that can be wildcrafting means the collector could be subject removed is limited. The collection of any plant to criminal and civil penalties. material for sale or profit is prohibited. Contact one of the nine Division of Forestry district Whether the land is owned by an individual, a offices or the state office in Frankfort for more business, or a corporation, written permission information. State Nature Preserves and State Natural Areas The Jefferson National Forest, which has Kentucky has more than 50 areas that have approximately 1,000 acres in eastern Kentucky, been designated as State Nature Preserves or also spans portions of Virginia and West Virginia. State Natural Areas. These sites, which have This area is administered by the U.S. Forest been identified for their natural significance, are Service in Virginia. Contact the main office in managed by the Kentucky State Nature Preserves Roanoke or the Clinch Ranger District Office in Commission. Nature preserves and natural areas Wise, Virginia for their wildcrafting policies. are protected by state law and can only be used for scientific, educational, and non-consumable National Parks recreational purposes. Wildcrafting is not National parks are managed by the National Park permitted on these lands. Service. Collecting plant materials is generally prohibited in national parks, such as Mammoth State Parks Cave National Park. Poaching is such a significant Kentucky’s 50 state parks have been designated problem in the Cumberland Gap National as wildlife sanctuaries. State law forbids the Historical Park that hidden cameras have been collection of any plant or other wildlife at these installed to protect some plant populations. parks. The Department of Parks does issue Nevertheless, in some cases, a national park will scientific permits for educational purposes. permit the gathering of certain plant materials Proposals can be sent to the state naturalist’s for personal non-commercial use only, as long office in Frankfort. as there is no adverse effect to the park’s natural resources. Contact the park’s superintendent for Army Corps of Engineers Projects more information. There are more than 20 Army Corps of Engineer projects in Kentucky. Federal regulations forbid National Recreation Areas the collecting of any wild plant material from The Land Between the Lakes National Recreation these lands for any purpose. Rare exceptions Area in western Kentucky is managed by the exist, but generally only in cases of research or U.S. Forest Service. A permit is required to other unique situations. gather or collect any forest product from this area for commercial use or resale. A permit is National Forests also required for most forest products gathered National forests are managed by the U.S. Forest for personal use only. There is a minimal fee and Service and there are two in Kentucky: the a per piece cost for any materials removed from Daniel Boone National Forest and the Jefferson this area. A permit is generally not required for National Forest. gathering fruits, berries, nuts, and mushrooms for personal use. No permit is required for A Forest Service permit is required to collect the collection of dead, fallen branches for or harvest any forest product from the Daniel firewood that will be used while camping. Boone National Forest (DBNF) in Kentucky. Harvesting ginseng or river cane is prohibited While ginseng can be harvested from the DBNF for any purpose. Contact the Environmental for personal use, collectors must pay a fee, as Stewardship Department at Land Between the well as obtain a permit. Forest Service permits Lakes for permits and information. can be obtained from one of the DBNF district offices or from the Forest Supervisors Office in Wild and Scenic Rivers Winchester. Harvesting fruits, nuts, and berries A 19.4-mile stretch of the Red River in Kentucky for personal use may not require a permit; is protected by the Wild and Scenic Rivers Act. however, collectors should contact one of these This area is located within the Daniel Boone offices for confirmation. National Forest and managed by the U.S. Forest Service. Natural materials cannot be removed Summary from areas protected by this federal act. Before collecting any plant material, either for personal or commercial use, first identify Wilderness Areas the owner of the property. Always contact the Kentucky has two federal wilderness areas landowner, whether a government agency or that are protected by the National Wilderness private owner, prior to collecting. Make sure Preservation Service. They are both located you understand the property owner/government within the boundaries of the Daniel Boone agency’s rules and regulations for wildcrafting. National Forest and are managed by the U.S. If a permit is required, carry it with you whenever Forest Service. The removal of plant materials you collect on that property. In the case of private from federal wilderness areas is not permitted. land, always obtain written permission from the owner to trespass and collect on their property. Wildlife Management Areas Never collect plants that are endangered, Kentucky Wildlife Management Areas are threatened, rare, or at risk. owned by various agencies of the state or federal government. While these lands have been Selected Resources acquired for public hunting, fishing, and related State & federal laws/regulations recreational activities, the collection or removal • Ginseng Marketing (Kentucky Department of of plants is prohibited. Contact the Kentucky Agriculture) Department of Fish and Wildlife Resources for http://www.kyagr.com/marketing/plantmktg/ more information. Ginseng.htm • Kentucky - Good Stewardship Harvesting of Wildlife Refuge Lands Wild American Ginseng (U.S. Fish and Wildlife National Wildlife Refuge Areas are set aside Service, American Herbal Products Association, for conservation purposes and wildcrafting for and United Plant Savers, 2006) either personal or commercial uses is prohibited. http://www.ahpa.org/portals/0/pdfs/Kentucky.pdf The Clarks River National Wildlife Refuge and • Kentucky Law (Kentucky Legislature) Reelfoot National Wildlife Refuge are both http://www.lrc.ky.gov/Law.htm located in western Kentucky and are protected • Forestry Law Reading Room (National by the U.S. Fish and Wildlife Service (USFWS). Agricultural Law Center, University of Contact one of Kentucky’s USFWS field offices or Arkansas, 2010) the station’s manager for additional information http://nationalaglawcenter.org/readingrooms/ on Clarks River; Reelfoot is managed by the forestry USFWS office in Union City, Tennessee. • The Lacey Act (U.S. Fish and Wildlife Service) Shipping Plant Material http://www.fws.gov/international/laws-treaties- A phytosanitary certificate from the Kentucky agreements/us-conservation-laws/lacey-act.html State Entomologist’s office is required to • The Lacey Act: America’s Premier Weapon in ship plants or plant parts across state lines or the Fight Against Unlawful Wildlife Trafficking internationally. Failure to do so is a breach of (Public Land Law Review, 1995) state law and could also constitute a violation of http://www.animallaw.info/articles/ federal law (e.g. The Lacey Act). In addition, arus16publlr27.htm plant material may require inspection even if it is • Lacey Act: Crimes and Criminal Procedure shipped only within the Commonwealth. Contact (U.S. Fish and Wildlife Service Office of Law the Office of the State Entomologist regarding Enforcement) the specific requirements. http://www.fws.gov/le/pdffiles/Lacey.pdf • Laws, Regulations, and Treaties (U.S. http://www.nps.gov/state/ky/ Fish and Wildlife Service Office of Law • National Wild and Scenic Rivers: Red River Enforcement) (U.S. Forest Service) http://www.fws.gov/le/LawsTreaties/ http://www.rivers.gov/rivers/red.php LawsTreatiesIndex.htm • National Wilderness Preservation Areas in Kentucky: Map (Wilderness.net) Protected species plant lists and regulations http://www.wilderness.net/NWPS/ • Kentucky Rare Plant Database (Kentucky stateView?state=KY State Nature Preserves Commission, 2006) • National Wildlife Refuge Area Locator Map http://eppcapp.ky.gov/nprareplants/index.aspx for Kentucky (U.S. Fish and Wildlife Service) • Threatened and Endangered Species http://www.fws.gov/Refuges/ (Kentucky Department of Fish and Wildlife refugeLocatorMaps/Kentucky.html Resources, 2006) • Wildlife Management Areas (Kentucky http://fw.ky.gov/More/Pages/Kentucky%27s- Department of Fish and Wildlife Resources) Threatened-and-Endangered-Species.aspx http://fw.ky.gov/Hunt/Pages/Public-Land- • Threatened and Endangered Species in Hunting.aspx Kentucky Organized by County (U.S. Fish and Wildlife Service, 2002) Obtaining permits http://www.fws.gov/frankfort/pdf/KY_te_list_ • Army Corps of Engineers Headquarters— by_county.pdf Locations http://www.usace.army.mil/contact/officelocator. Protected areas in Kentucky aspx • Daniel Boone National Forest (U.S. Forest • Kentucky Division of Forestry – Division Service) Offices http://www.fs.usda.gov/dbnf http://forestry.ky.gov/Kentuckysstateforests/ • Kentucky State Forests (Kentucky Division Pages/BigRivers.aspx of Forestry) • Kentucky Office of the State Entomologist http://forestry.ky.gov/Kentuckysstateforests/ (University of Kentucky) Pages/default.aspx http://www.uky.edu/Ag/NurseryInspection/ • Kentucky State Natural Preserve and State • Land Between the Lakes National Recreation Natural Area (Kentucky State Nature Preserves Area – Environmental Stewardship Department Commission) Phone: 270-924-2000 http://naturepreserves.ky.gov/naturepreserves/ • Passes and Permits: Non-Timber Forest Pages/preserves.aspx Products (Daniel Boone National Forest, 2005) • Kentucky State Parks http://www.fs.usda.gov/main/dbnf/passes- http://parks.ky.gov/ permits • Land Between the Lakes National Recreation • U.S. Fish and Wildlife Service Kentucky Area (U.S. Forest Service) Field Offices http://www.lbl.org/ http://www.fws.gov/southeast/maps/ky.html • National Parks in Kentucky (National Park System)

Reviewed by Thomas Barnes, Extension Wildlife Specialist (Issued 2008; Revised 2012) Photos by Thomas Barnes, University of Kentucky (pg. 1) and Anna Lucio, KDA (pg. 2) June 2012 For additional information, contact your local County Extension agent