Introduction 1141 I. What is Foraging, Really? 1142 II. Idolizing and Idealizing Everything We Eat 1145 III. El-EAT-ism 1147 IV. The Political Consensus Around Foraging Is Too Good to Be True 1148 V. Less Government, More Government Land 1150 VI. Foraging Isn't Perfect 1151 Conclusion: On Dog Pee and Hog Poop 1153 INTRODUCTION
You have likely seen the bumper sticker, bold white text on a green background, reading "No Farms No Food." The sticker is a product of, and in fact a tagline for, the American Farmland Trust. (1) On the one hand, the point is obvious: As American Farmland Trust puts it, "[e]very meal on our plates [c]ontains ingredients grown on a farm. We all need farms to survive." (2) On the other hand, what seems like a plain statement on its face, "no farms no food," is not so simple. Farms produce affordable food, they produce vast quantities of food, they produce healthy and not so healthy food, but they are not the only source of food. Hunting is another obvious source of food. Foraging is a less obvious example.
In his writing on foraging, Baylen Linnekin reiterates this point about the diversity of food sourcing and offers the possibility of a food system more robust and welcoming than the system that dominates today. (3) Foraging is a source of food with an even longer historical shadow than traditional agriculture. Like the plain and simple promise that without farms we would have no food, the plain and simple appeal of foraging also masks important nuances, many of which Linnekin uncovers in his work, including the complexity of defining foraging at all, the potential ecological impacts of foraging, and the types of properties on which foraging takes place. Despite Linnekin's effort, some nuance remains.
This Response will evaluate the same issues that Linnekin's work addresses, in an attempt to add some additional insight. This Response will also highlight several complexities within foraging law and policy that deserve further attention. Part I will focus on the importance of a precise definition for foraging. Part II will consider society's essentialist approach to food and agriculture. Part III will then consider the way foraging, despite its populist overtones, may succumb to elitism. Part IV will dissect the apparent political and ideological consensus around the benefits of foraging. Part V will examine the property rights issues that are part and parcel of foraging. Finally, Part VI will look more closely at potential ecological issues that can arise from increased foraging. This Response will conclude by offering an alternative regulatory regime that borrows from Linnekin's proposal but combines it with other successful environmental regulatory strategies.
WHAT IS FORAGING, REALLY?
The first nuance is the very definition of foraging. As is the case with almost any environmental issue, a definition becomes even more challenging when it references dynamic environmental baselines. "Foraging," writes Linnekin, "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." (4) Linnekin is careful to point out that foraging is not hunting, trapping, or fishing, insofar as foraging does not involve chase or capture. (5) Foraging is not collecting food from cultivated fields such as a pick-your-own-apple trip to the orchard, nor is foraging the gathering of discarded food products known as dumpster diving. (6) Foraging is essentially collecting food that grows without human intervention.
However, it may be improper to assume there is no human intervention in the wild foods that people forage. We now live in the Anthropocene, an epoch in which nothing is without human intervention. The concept of the Anthropocene is that global and geological aspects of the natural world, once thought beyond the reach of human influence, are now subject to human behavior. (7) While climate change is perhaps the most obvious human-caused global aberration, planetary biodiversity loss and relocation, (8) ocean acidification, (9) and the appearance of microplastics in the world's water (10) are also among the significant human-caused global shifts.
The concept of the Anthropocene, while helpful in spotlighting the cumulative impact of what might seem like otherwise benign human endeavors, is, on first blush, more puffery than precision. The term does not really improve understanding of environmental problems. The too clever commentator is fond of reminding that there is no such thing as natural anymore and no such concept as wilderness. (11) But the impacts of humans on the Earth can still be easily categorized into intentional and unintentional, as well as primary and secondary. Thus, while the once wild area that is now a farm is no longer wild, the undeveloped stretches of mountain or forest that dominate our national parks, for instance, are still usefully called "wild." This designation is practical despite the existence of unintentional and secondary climate impacts from burning coal, for example, which leads to climate change even in these wild parks. (12)
One could argue that the very ideas of "wild" and "spontaneous" in Linnekin's definition of foraging offer little guidance in the Anthropocene. But foragers themselves are probably little troubled by a critique of this nature, or even the practical legal definitions that will become increasingly necessary as foraging becomes more popular. A forager knows when she is foraging, regardless of the origins of the plant from which she picks blackberries (Eurasia, not the Pacific Northwest where foragers usually find them) (13) or the impact of trace elements on the growth of that plant.
Rather than affecting the reality of foraging in any way, what we can learn from the Anthropocene is that our unintentional impacts on the world are at least as important and interesting as our intentional impacts. Foraging demands a precise definition because it is a growing pursuit that could have cultural, nutritional, and environmental impacts, and as Linnekin suggests, it is ready for a new regulatory regime. (14) When pursuing deregulation, there must be precise definition to prevent admission of unwanted conduct under a poorly or loosely defined practice of foraging. (15)
Failing to precisely define a term can have substantive legal effects. Vermont's state-wide land use permitting scheme, for example, exempts agriculture from its regulatory strictures. (16) Without a sufficiently tight and accurate definition of agriculture, bed and breakfasts, wedding venues, bakeries, and certain housing developments could conceivably escape coverage if they are growing or raising food along with their other commercial pursuits. In the realm of foraging, Linnekin explains that hunting, trapping, and fishing, among other outdoor activities, are not foraging. (17) But these activities are not a far cry from foraging. One could easily foresee a world of permissive foraging regulations in which hunters, trappers, and anglers claim the mantle of foragers to escape their own more restrictive governance regimes. Foragers are a growing, but still very small part of American society, while hunters, trappers, and anglers make up a much larger and more politically persuasive bloc. (18) One can imagine the political pressure that would persuade regulators to expand the definition of foraging to make it more welcoming to these powerful groups.
Linnekin has made headway in crafting an appropriate definition, but, as his work demonstrates, this is a challenging task with many variables. (19) As more regulators, from local to federal, adopt his recommendations, it will be increasingly important to maintain a dogged adherence to a strict and meaningful definition.
IDOLIZING AND IDEALIZING EVERYTHING WE EAT
The second nuance that Linnekin uncovers is the history of cultural and economic essentialism in American eating. Essentialism here is the idea that one specific form of growing or eating truly represents what is most important about food and agriculture. (20) From hunting and gathering to small-scale, and now industrialized, agriculture, it seems that we idolize and idealize the currently dominant practice. We do so at the expense of the prior, imagining that the winds of progress can only push us forward, away from our inefficient...