The case for legal foraging in America’s National Parks

But if foraging is a popular and growing obsession, it’s also oftentimes controversial.

Recently, while perusing the Mushroom Identification Page, a private Facebook group I joined a few months ago, I came across a post that featured a heated debate over the legal status of mushroom foraging. The author of the post—which was ultimately removed by site administrators because it didn’t focus specifically on identifying mushrooms in the wild—was aghast that people on the page had been discussing their opinions about the legalities of foraging without, in his opinion, having any factual knowledge about the relevant law.

If you’re like me, then you find it tough to ignore a contentious discussion, such as this one, of the varying regulations that apply to foraging. I discuss foraging regulations in my recent book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable. I also presented my ongoing research into foraging regulations at a Fordham Law School conference in New York City in October, as part of a long article I’m writing for the law school’s Fordham Urban Law Journal.

Okay, maybe you’re not like me. But even if you’re not, chances are you’ve probably come across some of the same aforementioned articles and restaurant menus that highlight foraging, and even engaged in a bit of happenstance berry picking while on a summer stroll.

As the Mushroom Identification Page Facebook post rightly noted, regulations pertaining to foraging vary dramatically. State and local governments have their own rules. Many states—including Arkansas and California—prohibit nearly all foraging on state-owned lands. But other states—such as Alaska and Hawaii—tend to allow the practice. New York City, like many municipalities, prohibits all foraging in city parks. People have been fined in Manhattan, Chicago, and elsewhere for violating such bans, including an elderly Windy City resident who was fined $75 for picking dandelions in a local park. Other cities, including Seattle, take a far less authoritarian approach.

As my research for the Fordham article has determined, the only set of rules pertaining to foraging that are consistent across the country are those implemented by the National Park Service (NPS), an agency within the cabinet-level Interior Department that is responsible for regulating, among other things, visitor activity within America’s designated National Parks—including Joshua Tree—and other NPS units (including national battlefields, historic parks, monuments, and the like).

Those NPS rules are found in the Code of Federal Regulations—known as the “C.F.R.”—at 36 C.F.R. § 2.1, under the header “Preservation of natural, cultural and archeological resources.” One subsection of that rule prohibits possessing, destroying, removing, digging up, or disturbing “plants or the parts or products thereof.” That language would seemingly prohibit all foraging in our National Parks. But the rules also contain an exception, which is addressed in another subsection of the rules. The sole authority to trigger that exception rests in the hands of an individual park superintendent, who may either by default choose to keep the ban in place or may act to allow as little or as much foraging as they’d like in the park they manage.

If a park superintendent chooses the latter—to allow some level of foraging—then the rules give the superintendent wide leeway to regulate five facets of foraging in the park they manage: 1) type, 2) method, 3) use, 4) quantity, and 5) location. The superintendent may enumerate the type of wild foods a park visitor may or may not harvest (i.e., by allowing the gathering of categories of wild foods like “fruits and nuts” or specific types of wild foods, such as coconuts, or by specifically prohibiting mushroom gathering). A superintendent may mandate a particular method or methods of foraging (e.g., banning the use of ladders to harvest wild foods). He or she may also regulate the use of foraged foods (e.g., for consumption only while within the park). A superintendent may cap the quantity of wild foods a visitor may gather (i.e., a bushel or a handful). Finally, the superintendent may choose to exclude foraging in a particular location(s) within a park.

The place where a park superintendent typically communicates these regulations is known as the “Superintendent’s Compendium,” a collection of rules governing all facets of park visitation and use that is unique to each park. Individual park superintendents are required to update their compendiums each year, NPS spokesman Jeffrey Olson tells me, and to make them available to the public.

I reached out to Scot, the man who created the original Facebook post on the laws pertaining to mushroom foraging. Scot is a mushroom forager on the East Coast who works for a state conservation department. He agreed to speak with me on the condition that I not use his full name.

He largely agreed with Rabins. “In regards to foraging on federal land, the law varies and it can seem like it is deliberately complicated,” Scot says.

Other foragers I’ve spoken with in recent years echo these sentiments.

“These berry bushes bring people out to the park,” said Greg Visscher, who was fined for picking berries in a county park in Maryland in 2015, in comments that appear in my book. “I thought that was the whole point!”

It is! In part, at least.

The dual mission of the National Park Service—and the language used in the very 1916 law that led to creation of the agency—is “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” While a central purpose of 36 C.F.R. § 2.1 is, as the name of the section suggests, to preserve natural resources—which fits nicely into the former half of the mission of the NPS to conserve natural objects and wildlife—that’s only half the agency’s mission. If it’s true—as Visscher, Rabins, and Scot argue—that a host of unclear and conflicting foraging rules and information deficits discourage visitors from using and enjoying our National Parks, then that’s a serious problem, and one that strikes at the latter half of the agency’s mission.

So is this problem real, or is it just the anecdotal grumblings of a select handful of foragers? According to a 2009 technical report published by the NPS itself on conflicting rules that apply to mushroom foraging in parks in the Washington, D.C. area—two of those parks administered by the NPS, and subject to the same C.F.R. rules as the designated National Parks—conflicting park rules do in fact discourage visitor use and enjoyment of parks.

“Substantial confusion surrounds the current status of morel [mushroom] regulations [in these] parks,” the report concludes. “This confusion generates resentment and causes some local residents to avoid the parks altogether.”

The NPS technical report, Protecting Resources: Assessing Visitor Harvesting of Wild Morel Mushrooms in Two National Capital Region Parks, details the conflicting rules in C&O Canal National Park, which follows the eponymous canal as it winds nearly 200 miles from Washington, D.C. into Western Maryland, and Rock Creek Park, which runs through Northwest Washington, D.C. and which, like the C&O Canal Park, is administered by the NPS.

The C&O Canal begins at the mouth of Rock Creek—the namesake of Rock Creek Park—in Washington, D.C.’s Georgetown neighborhood. But these parks’ foraging rules vary wildly. Rock Creek Park rules prohibit visitors from harvesting any “fruits, nuts, berries, seeds, [or] mushrooms” whatsoever, while C&O Canal Park rules allow visitors to gather those exact same wild foods.

Such divergent policies among adjacent parks can’t help but breed visitor confusion, or simply encourage some visitors to—as the NPS’s own report claims—“avoid the parks altogether.”

However, the NPS suggests this problem simply doesn’t exist.

“No,” Jeffrey Olson, the NPS Spokesman, told me succinctly in response to my inquiry into whether the NPS believes that different rules for foraging in National Parks—particularly in neighboring parks—may discourage visitors.

Just how much conflict is there around the rules in our 59 National Parks? A sampling of my findings from my forthcoming Fordham Urban Law Journal article shows that 13 National Parks ban all foraging for wild foods, while 46 allow at least some foraging. Thirty-two of the 46 parks that allow at least limited foraging place some sort of restrictions on the quantity of wild foods a visitor may harvest. And 11 National Parks enumerate at least one specific wild food that visitors are prohibited from harvesting.

Sometimes, a park visitor only learns the rules once they’ve broken them.

“I found out about the fines when I was called into the park detective’s office and given a stern talking to,” Rabins tells me, of a foraging expedition in the Presidio, part of the NPS-administered Golden Gate National Recreation Area in San Francisco, where, it turns out, foraging is illegal. And the law has teeth. Anyone else who violates the provisions of 36 C.F.R. or of a park superintendent’s compendium is could face fines and up to six months’ prison time.

Since these rules are so confusing and varied and can serve to discourage visitors, in contravention of a key part of NPS’s mission, there must be a better way for the agency to regulate foraging in our National Parks while also meeting the other key part of the agency’s mission to conserve natural objects and wildlife. I believe there is.

NPS should move immediately to allow any and all foraging in our National Parks as a default position. The agency could likely do so on its own, though it’s possible Congress may first have to act.

But wouldn’t indiscriminate foraging harm the environment in our National Parks? No, because respective park superintendents would still have the power to place any and all restrictions on foraging—including on type, method, use, quantity, and location—in their annual Superintendent’s Compendium. The possibility of stiff fines and possible jail time for violating the compendium or associated regulations would remain in place.

The difference—the shift I propose—would be from the default ban that exists under the current rules—which mandate that all foraging in a given park is illegal unless a superintendent allows it—to something like much more permissive, akin to all foraging in a park is legal unless a superintendent prohibits it.

“I feel like what you propose makes sense,” says Rabins, the Bay Area forager. “There of course needs to be some regulation to protect vulnerable ecosystems, and it seems that the park superintendent would be the person most intimately aware of what was going on in their specific park.”

Echoing Rabin (and quoting NPS spokesman Jeffrey Olson), I agree that park superintendents “are best positioned to understand the park resources” and to make decisions about foraging based on their unique position and knowledge.

“The current ad hoc approach to foraging neither promises environmental protection nor foraging recreation,” says Joshua Galperin, a lecturer at Yale Law School who directs the school’s Environmental Protection Clinic and who’s also writing an article on legal issues pertaining to foraging for the Fordham Urban Law Journal. “A system with more explicit guidance to park managers, which recognizes the importance of foraging while also relying on science and careful monitoring to protect ecosystems, would go further in protecting liberty interests alongside the wild landscape of our National Parks.”

Interestingly, Rabins, whose pursuit of “the sport” of foraging has been applauded by the Sierra Club as “eco-friendly” and who cares deeply about the environment, believes that enhancing visitors’ use and enjoyment of our National Parks will also help the NPS protect flora and fauna in those same parks.

“I personally feel like more open rules around foraging would actually help protect the environment more than the blanket prohibition we have now,” he says. “Instead of letting the public get out into nature and see what it has to offer, we’re forced to keep it at arm’s length, which doesn’t lend itself to caring for the resource as much as we should. A public that eats from the park will protect that park. To call everyone who wants to forage a poacher doesn’t help anyone.”

America’s National Parks have been called our best idea. They’re amazing, no doubt. But our best idea could be better. Getting more people to enjoy the National Parks and the amazing bounty of wild foods they offer is an idea worth embracing.