HerbalEGram: Volume 11, Issue 2, February 2014

“To make laws that man can not and will not obey, serves to bring all law into contempt.”
         —Elizabeth Cady Stanton (1815-1902)

Nineteenth century political activist Elizabeth Cady Stanton made the above assertion more than 100 years ago, yet it still rings true today. I think it is time to reexamine some of the laws and regulations that well-intentioned people have put in place regarding the conservation of wild American ginseng (Panax quinquefolius), and perhaps other wild plants that are or may become “at risk” due to commercial exploitation.

This article was prompted by a reality television series broadcast on the History Channel called “Appalachian Outlaws,” which premiered on January 9, 2014. As the title suggests, the show presents behavior that is clearly illegal, in this case regarding the harvest and sale of wild American ginseng roots, yet it actually glorifies such behavior as part of Appalachian culture. The “outlaws” are well aware that their behavior is forbidden by conservation regulations and numerous laws regarding theft and trespassing on both private and pubic lands, but the promise of significant financial rewards, as well as ignorance of the intentions of conservation regulations, appears to be of far greater importance.

I believe it is time to acknowledge that there is no set of regulations anywhere that can fully protect natural populations of ginseng (or other wild and potentially at-risk medicinal plants), and even if there were, there is no possible way to realistically enforce said regulations without posting law enforcement officers for five or six months each year on virtually every hill and hollow where ginseng naturally grows.

If ginseng has inherent and/or monetary value — as it surely does — conscientious human beings will find a way to preserve it for their own self-interests. Most poachers don’t think they are stealing the source of future income or threatening the existence of a rare plant; rather, they are merely stealing something from a government entity (when harvesting from national forests and other public property), or, in the poachers’ mind, they are robbing a landowner of something the landowner could care less about. Is stealing really such an onerous crime if the person being robbed is not aware of it, or does not care? If private landowners have ginseng on their property and care about it, is it not their responsibility to protect it, just as they would presumably protect their timber from theft?

I believe a large part of the problem is that many regulations simply do not make sense to the average person. The US Fish and Wildlife Service (USFWS) is the federal agency charged with ensuring that the harvest of wild ginseng will not be detrimental to the long-term survival of the species. This role is conferred to this agency via the CITES treaty, of which the United States is a signatory nation. CITES — the Convention on International Trade in Endangered Species of Wild Fauna and Flora — aims to preserve and protect many species of plants and animals considered “at risk” by the international community. This includes such well-known animal species as rhinoceros, elephants, and tigers but also includes wild North American medicinal plants such as ginseng and goldenseal (Hydrastis canadensis). No one questions the need to preserve endangered wild species, but what exactly is considered “wild” when referring to plants? North America exports well over 3.5 million pounds of ginseng each year, of which all but an average of 40,000 to 50,000 pounds is considered “artificially” propagated (i.e., farmed or field-grown ginseng, which is grown under artificial shade and tightly controlled environmental conditions). Artificially propagated ginseng is threatened only by the economics of the industry, yet it is also tightly regulated.

The US Fish and Wildlife Service now acknowledges that they have no way to distinguish intentionally grown “wild simulated” ginseng from actual “wild” ginseng; therefore, what exactly are they trying to protect? The USFWS cannot say what percentage of “certified” wild ginseng is really wild. Their regulations are protecting only the language of a treaty that the US has signed and nothing more. Are they trying to protect something that I have been growing intentionally for the past 30 years? If so, I don’t want their help. The sidebar contains the precise language of the CITES agreement regarding artificially propagated plants. I challenge readers to explain to me — or to the ginseng digger who has been growing patches of ginseng for generations — precisely what he is doing.

My point is that the very basis for such regulations has been muddled to such an extent that it is now meaningless. The real solution is to encourage enough woodland cultivation to lower the price to a level where it would not be profitable for anyone to hike five miles through public land to find and poach from a wild patch.

Many of us have heard the proposition that wild Asian ginseng (P. ginseng) was hunted to extinction in China generations ago because it was unprotected. The facts, however, are quite different. Hunting ginseng in China at times carried a death penalty. Ginseng disappeared in China due to loss of suitable habitat. That also happened in the northeastern United States, where 85% of the forestland was removed a century ago. Today that forestland is returning and so can ginseng, if we would just give it a chance. “Wannabe” ginseng growers need to understand the CITES language quite precisely if they are to avoid “breaking the law.”

Greedy poachers are not the only serious threat to the survival of wild ginseng. According to Professor James McGraw, PhD, of West Virginia University, a leading ginseng population biologist, “Without more effective deer population control, ginseng and many other valuable understory herbs are likely to become extinct in the coming century.”²

Regulations and treaties do not address burgeoning deer populations. Unlike ginseng, for which there are no hard population data, deer populations are known, and they can be managed effectively by state natural resource agencies. Sadly, many of these agencies either are unaware of, or don’t care about this, causing the extirpation of herbaceous understory plants by allowing deer populations to wreak havoc.

Current USFWS guidelines strongly discourage planting cultivated seed near presumed wild ginseng populations due to fears of “genetic contamination” of the wild plants by cultivated plants of their own species. Most states that have legal ginseng harvest also prohibit removing seed from where the roots are harvested. This hinders the development of local seed banks to reestablish the native germplasm, and is yet another example of how a well-intentioned rule (i.e. maintenance of local populations by requiring all the seed to be replanted on site) can have serious negative consequences.

Another federal regulation requires that all exported ginseng roots must show at least five abscission scars on the rhizome, indicating that the root is at least five or six years old and presumably has reproduced. It makes perfect sense not to harvest plants before they have produced offspring, but ginseng reproduction is determined more by the size of the plant than the age. Indeed, almost all field-grown ginseng is reproductive by age three, whereas ginseng found in the forest may not be reproductive until age 10 or 12 or even older, depending on local growing conditions. Requiring an intact rhizome with the apical bud present also prohibits the formerly common practice of cutting off the rhizome and replanting it immediately on site, thus preserving the genetic integrity of any given population.

If the long-term solution to the threat of wild ginseng extinction is to replace the wild roots in the marketplace with “wild-simulated,” intentionally cultivated roots, thereby lowering prices as supply catches up with demand, the USFWS and state conservation agencies need to adapt policies to encourage this practice, not hinder it.

Currently, if I grow wild-simulated ginseng on my property, in order to legally export it from my state, I need to have it certified by the state conservation department as either “wild” or “artificially propagated.” This is based on the CITES definition and clearly does not represent what I am doing. My ginseng is neither “wild” nor is it “artificially propagated,” according to the definition in the sidebar. After obtaining state certification, I may then sell it to a dealer who must go through a grueling federal certification process to acquire a permit to sell it overseas. I contend that these layers of bureaucratic red tape and well-intentioned but counterproductive regulations present far more of a threat to the preservation of this plant than the benefits they are intended to confer.

I am not some right-wing extremist who thinks that regulations and government protection of natural resources is wrong. I am not a pure capitalist who believes the government should stay out of business, period. My argument is for ginseng conservation, with conservation defined as “wise use.” The current regulatory structure does not work. It is time to think outside of the box.


Robert L. Beyfuss retired in 2009 from Cornell University Cooperative Extension where he served as the New York State Specialist for American Ginseng. Mr. Beyfuss received his bachelor's degree in botany from Rutgers University in 1973 and his master's degree in agriculture from Cornell University in 1987, where he completed his thesis on “The History, Use and Cultivation of American Ginseng.” He is the author of numerous articles and books including “American Ginseng Production in New York State,” The Practical Guide to Growing Ginseng (a 65-page grower’s guide), “American Ginseng Production in Woodlots," and "The Economics of Woodland Ginseng Production.”

References

1.    Resolution Conf. 11.11 (Rev. CoP15): Regulation of trade in plants. Convention on International Trade in Endangered Species of Wild Fauna and Flora website. Available here. Accessed February 4, 2014.

2.    McGraw JB, Furedi MA. Deer browsing and population viability of a forest understory plant. Science. 2005;307(5711):920-922. Available here. Accessed February 4, 2014.