AUGUSTA, Maine — Opponents and supporters of a proposed law that would put restrictions on foraging on private land agree on one thing: An important part of the Maine way of life is at risk.
But that is where the agreements seem to stop on the bill that is likely to be scheduled for a work session in the Maine State Legislature sometime this week. Sen. Thomas Saviello, R-Wilton, said he decided to draft LD 128, An Act to Prohibit Foraging on Private Land Without Permission, after he heard last summer from two irate constituents. One enjoyed harvesting the fiddleheads off their land, and the other always looked forward to gathering mushrooms. But last summer, that didn’t happen.
“Both of them had come to me very upset,” Saviello said this week. “When they went to harvest their own products, they already had been harvested by someone else. The landowners had had it. They were going to post their land. I asked them not to post their land and told them we’ll get something through the legislature. This, to me, is a no-brainer. … If you own the land, it’s not my right to go onto your property and take something that belongs to you.”
But it was far from a no-brainer to the community of folks who forage in Maine’s fields and forests for fun, for food or even for their livelihood, who strongly objected to the broad reach of the proposed legislation.
“The biggest problem I have with the bill is that it’s going to change a whole way of life,” John Gibbs, a Belfast police officer who also is an avid hunter and forager, said. “You ought to be able to pick raspberries and strawberries and blackberries, and you ought not to worry about being written a ticket.”
He shook his head at the idea that three convictions for illegal strawberry picking in a 10-year period would give a hungry hiker a new label: felon.
“It’s just ridiculous,” Gibbs said. “I wouldn’t want to write a ticket, but I guess you’d have to if a complaint was made.”
Saviello acknowledged the initial wording of the bill was too broad, prohibiting the harvesting of any edible wild food, Christmas trees or evergreen boughs from another person’s land. He’s not trying to catch the folks who can’t resist stuffing their faces with blueberries on a hot July day or the ones who gather enough fiddleheads to make for supper. It’s the commercial harvesting without landowner permission he wants to curtail, adding that in the past four or five years he has noticed more and more of foragers selling wild foods like mushrooms and fiddleheads for a profit.
Toward that goal, before the bill is debated by the Maine House and Senate in two weeks or so, it likely will be modified so it only affects commercial foragers, who would be identified by the amount of produce they are taking out of the woods. Saviello is expecting to put a 40-pound limit on produce such as fiddleheads, ramps and mushrooms, and he doesn’t think this should be controversial.
“I live in an old apple orchard. I prune the trees. I spray them, and I give away every apple on my property. I sell none of them,” Saviello said. “How would I feel one day if I came home and my orchard was stripped? It wouldn’t be long before I’d say nobody picks my apples.”
What he’s hoping to do with his bill is prevent angry landowners from posting their property so nobody can use it. Maine has a robust tradition of “permissive trespass” or “permissive access,” wherein people can easily access unposted private property with the informal permission of the landowner. Among the beneficiaries of this tradition — not always adhered to in other parts of the country — are snowmobilers, hunters, canoers, fishermen, cross-country skiers and hikers.
“What’s sad is that there’s more people who are posting their land,” Saviello said, adding he doesn’t see an issue with asking foragers to ask landowners before harvesting. “People believe they have the right to go onto anybody’s property and forage for commercial purposes, but to me the definition of stealing is taking what doesn’t belong to you.”
But to people who think the bill is unenforceable and unnecessary, such as forager David Spahr of Washington, the bill smacks of regulatory overreach. Foraging is hardly a big business in Maine, he said, and the proposed law would do more harm than good. Spahr founded the Public Edible Landscape Project in Washington, and he wants to encourage more people to forage for nutritious, free food — not discourage them.
“We’ve gotten crazy with writing laws in Augusta these days as far as I can see,” he said. “How much overreaching can everybody stand? And anybody saying this is good for business — anybody’s business — sorry, it’s not in there. There’s nothing that improves anything in Maine, as far as I can see, from this bill.”
Still, Spahr and other foragers said they themselves ask permission from landowners before foraging on private property, who are generally happy to comply with the request though not particularly interested in sampling the fruits of their labor.
“Almost everyone you ask says, ‘oh sure, fine. No problem,’” Spahr said. “If you offer them some of the mushrooms that you pick, they pretty much decline 100 percent of the time. ‘No thanks. All set with that.’”
But one supporter of the bill said in his testimony that landowners should be given the chance to benefit from what is being taken from their land. Bill Davis, the deputy executive director of the Maine Woodland Owners, which until January was known as the Small Woodland Owners Association of Maine, told the Agriculture, Conservation and Forestry Committee in a public hearing on Jan. 31 that there is a burgeoning industry based on the sale of wild mushrooms at farmers markets, restaurants, food co-ops and even out of the back of pickup trucks. He said he has heard there are about 200 commercial wild mushroom harvesters in Maine who can make as much as $1,000 per day, though some foragers say this sum is an exaggeration.
“If money is being made from foraging, we think the landowner should at least have the opportunity to benefit too,” Davis said. “Some may not care about any financial benefit, but most certainly do not want something taken from their land without their knowledge.”
Another foraging expert, Tom Seymour of Waldo, said that if the bill is walked back to target only commercial harvesters instead of all harvesters, he believes it could pass into law.
“What reasonable person could object to that?” he said of the requirement to ask a landowner’s permission before commercial harvesting. “I don’t see how. If you’re going to go on someone’s land and harvest something for sale, certainly you should get landowner permission.”
Otherwise, the permissive trespass idea has served Mainers — including the ones who want to augment their dinner tables with some seasonal specialities — robustly in the past, he said, and he hopes it will last into the future.
“It’s worked out pretty well for the last couple hundred years,” he said. “I don’t see any reason to change it.”