FOOD LAW GONE WILD: THE LAW OF FORAGING.

Author:Linnekin, Baylen J.
Position:Colloquium: Taking a Bite out of the Big Apple: A Conversation About Urban Food Policy
 
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I tend to believe that most laws limiting foraging manifest a conscious or unconscious racial or class bias, although not everyone agrees with me. --Professor Karl Jacoby (1) TABLE OF CONTENTS Introduction 996 I. Foraging in America Today 999 A. What Is (and Isn't) Foraging? 999 B. Foraging Is a Growing Trend in America 1000 C. Who Forages in America? 1002 D. Why Americans Forage 1005 II. Foraging in Pre-Modern America: From Practice to Prohibition 1008 A. Foraging from Pre-Colonial to Early-Modern America 1008 B. Development and Spread of American Anti-Foraging Law 1010 1. Anti-Foraging Laws Targeting Native Americans 1011 2. Anti-Foraging Laws Targeting African Americans 1011 3. Anti-Foraging Laws Targeting Rural Americans 1013 III. Modern American Foraging Regulations 1014 A. Urban Foraging Laws 1015 B. State Foraging Laws 1019 C. Federal Foraging Laws 1022 1. Federal Foraging Regulations 1022 2. Data on Foraging Rules in NPS National Parks 1028 IV. Toward an Ideal Foraging Law 1030 A. Legalize All Foraging in All National Park Service Units 1031 B. End the "Museumification" of City Parks 1033 C. Eliminate Discouraging and Confusing Rules 1034 D. Recognize that Foragers Are Conservationists 1035 E. Lightly Regulate Foragers 1037 Conclusion 1039 APPENDICES Appendix A. National Park Service Policies Pertaining to Foraging Edible Foods in Our Nation's Fifty-Nine National Parks 1040 Appendix B. National Park Service's Enumerated List of Wild Foods Open to Foraging in Our Nation's Fifty-Nine National Parks 1050 INTRODUCTION

Foraging is the act of searching for and harvesting wild foods for sustenance. (2) Humans began and evolved as hunter-gatherers. (3) For nearly all of our species' history, foraging--the practices of the "gatherer" in "hunter-gatherer"--was a necessary activity that sustained mankind as we spread across the globe. With the rise of agriculture and, much later, commercial food production--particularly in developed countries such as the United States--the necessity of foraging has waned. Today's humans subsist on a startlingly small percentage of the edible plants available to them. And, save for a dwindling number of societies across the globe, mankind no longer subsists on hunting and gathering alone, or even chiefly. (5)

Yet it would be grossly inaccurate to suggest that foraging as a human practice ever left us. I have eaten blackberries and mushrooms I harvested in state and local parks; rose hips, pawpaws, and blueberries I gathered in national parks; and apples, figs, cherries, pears, and chives I picked while strolling city streets. As a forager, I'm an amateur. True foragers--those who regularly and actively seek out food to gather and eat, and who can recognize a broad variety of wild foods beyond those that resemble typical fruits and vegetables sold in a grocer's produce section--are legion. And those legions are growing, as scholarly and mainstream articles make clear.

Today, though, laws at all levels of government in America increasingly target foragers. (6) In a few cases, these restrictions are smart policy. But many foraging rules at the federal, state, and local level are wrongheaded and draconian. (7) In recent years, for example, an elderly Illinois man was fined for picking dandelion greens in a Chicago-area park. Another forager was fined for picking edible berries in a suburban Washington, D.C. park.

Laws pertaining to foraging reflect the ongoing tension between dueling policy goals. On the one hand, many people wish to protect and defend public and private ecosystems. On the other hand, many people long to spend time in nature and enjoy the fruits of those aforementioned ecosystems. Despite the growing number of regulatory issues pertaining to foraging, legal and other social science scholarship on this issue is virtually nonexistent. (8) This lack of guidance is particularly problematic because foraging is increasingly popular and because federal, state, and local foraging rules vary wildly, and often conflict.

This Article seeks to address and eradicate this scholarly deficit. Part I provides a narrow definition of foraging, discusses American foraging demographics and the growing popularity of foraging, and describes the benefits of foraging and some potential risks. Part II provides a brief history of foraging traditions in the United States and discusses the factors behind the development of America's anti-foraging laws. Part III provides a detailed look at current federal, state, and local anti-foraging laws in the United States, with a special focus on select state and local rules, regulations at all fifty-nine National Park Service National Park units, and caselaw. Part IV assesses the impacts of foraging rules and proposes foraging rules that cities, states, and the federal government should adopt. The Article concludes that the ancient and valued practice of foraging deserves legal primacy that protects both foragers and the lands upon which they choose to forage.

  1. FORAGING IN AMERICA TODAY

    1. What Is (and Isn't) Foraging?

      Foraging is as old as--and has been essential to--human life itself. It is separate and distinct from all other pursuits for necessaries. The eminent English jurist William Blackstone referred to foraging as the gathering of the "spontaneous product of the earth[.]" (9) Other typical definitions of the term, a verb, describe it as the act of seeking or searching for food in the wild. (10) More specifically, foraging is the practice of gathering vegetables, fruits, fungi, herbs, nuts, seaweed, and other edibles where they appear naturally in the wild.

      That definition, while accurate, is incomplete. Foraging refers to the harvest of foods which are not cultivated by man but that grow spontaneously in the wild, regardless of whether the "wild" is an urban, suburban, rural, or wilderness area." It is therefore distinct from farming and gardening and--both in scope and definition--from agriculture itself. Hence, when as a child I picked and ate crab apples that grew on two cultivated trees in my own suburban backyard, I was not foraging. But wandering by or through one's own (or another's) property in search of a wild apple tree or other food source is foraging. (12)

      Foragers might harvest edibles from a bush or tree to eat on the spot, such as a handful of blackberries. Or they may harvest foods to cook, dry, smoke, pickle, or otherwise preserve or consume at some point in the future. Picking up foods that have fallen from a tree or bush in the wild--from apples to pawpaws to walnuts--is foraging. Foragers need not, but sometimes do, use some sort of tool or aid to locate or obtain wild foods. Such tools can include a rake, ladder, or a trained pig, in the case of truffles.

      While foraging is distinct from agriculture, it also differs fundamentally from hunting, trapping, and fishing. Foraging involves no chase. Hence, gathering snails, mussels, clams, or seaweed is foraging, though snaring a squirrel or spearing a lobster is not. Harvesting roadkill or dead animals in a forest, though outside the scope of this Article, is also foraging. Intentionally driving a vehicle into an animal for the purpose of killing that animal for food, however, is not.

      Foraging is also distinct from so-called "dumpster diving." (13) Ergo, picking and eating wild foods that grow in an urban convenience store's parking lot is foraging. Searching through a dumpster in that same urban convenience store's parking lot and harvesting a discarded corn dog, banana, Slurpee, or bag of Doritos--none of these a "wild food"--is not foraging.

    2. Foraging Is a Growing Trend in America

      The 1962 novel Stalking the Wild Asparagus, written by foraging advocate Euell Gibbons, helped revive interest in the practice of foraging among everyday Americans. (14) That interest has only grown in recent years. By any reasonable measure, foraging is increasingly common in the United States today. In fact, foraging displays several of the hallmarks of a burgeoning modern cultural phenomenon, including growing acceptance by the media, adoption by businesses (here, chefs), and embrace by Internet culture and technological developers.

      Today's mainstream media regularly highlights and discusses foraging. (13) Highbrow publications like Saveur and the New Yorker have focused on foraging with increasing frequency. (16) Both Edible Manhattan and the New York Times now boast foraging blogs. And national publications have run features on foraging, such as a 2012 USA Today piece on the best places to forage in the United States. (18) Foraging has also been in the news recently for other reasons. Last year, an Alabama woman who became lost in the woods allegedly survived for nearly a month on foods she foraged there. (19)

      Foraging and serving foraged ingredients is also a growing culinary fad. (20) Today, some of New York City's top restaurants serve foraged foods. (21) Several employ "professional foragers" who obtain wild ingredients these restaurants serve to customers. (22) Moreover, foraging wild foods for top restaurants has grown into a highly competitive--if not particularly glamorous--industry. (23)

      Finally, websites and mobile apps devoted to foraging are growing in number and popularity. In 2017, one of the world's top chefs, Rene Redzepi of Denmark's Noma, launched a foraging app, VILD MAP, which helps teach people how to forage. (24) Searchable websites like Falling Fruit map public and private sites in cities across the country and world where fruits, vegetables, nuts, and other food may be available for the picking. (25) Falling Fruit lists more than 150 fruit trees in the heart of Seattle's Wallingford neighborhood (where the author of this Article lives) (26) and dozens of fruit-bearing trees near Fordham University Law School. (27) And for those who wish to be educated about foraging using more traditional means, foraging classes are also increasingly common. (28)

    3. Who...

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