It’s January and that means Chickweed in this part of the world. During a foraging class last weekend we saw two patches of Chickweed, one near blossoming and one just starting out.
There are many species of Chickweed within the genus Stellaria. At least five are edible raw or cooked though one, the Mouse Ear Chickweed, is usually cooked because it is quite hairy. There are several easy identification elements to Chickweed, particularly S. media. It has a five-petaled blossom that looks like ten petals because they are deeply incised. The main stem has a single line of hair which changes sides at every node. The species when carefully broken has a stretchy inner core and the plant tastes like cornsilk. One usually finds them in lawns or other mowed or low-grass places. You can read about chickweed here.
Natal Plums are among the most ignored introduced species and among the tastiest. As they are salt tolerant, drought tolerant and wind tolerant Natal Plums are favored landscaping plants in coast and dry areas. Armed with double sets of thorns they are also used as protective hedges and barriers to home windows and the like. The ripe fruit does have latex which leaves a slight stickiness on the palate. Plant latex is often a huge warning sign but a few plants with latex are edible. The seeds are also edible and they grow easily. Only the totally ripe fruit of the shrub is edible, however. The rest of the plant is toxic and is closely related to the deadly Oleander. There are also varieties of the species sold for fruit production as a commercial crop. To read about Natal Plums go here.
No member of the mustard family is toxic no matter where you are on earth. And in fact they have a chemical that activate enzymes in humans (sulforaphanes) that reduce the opportunity for various cancers. Broccoli seeds top the list. As it is cool weather locally several “mustards” are growing. In northern climes they are spring and summer crops. So far this season we’ve found Swine Cress, Bitter Cress, Poor Man’s Pepper Grass, Wild Radishes and Wild Mustards. The latter two grow rather large and look similar but some easy identification elements can help you key out the differences. They are used interchangeably. Wild Radishes would be as tall as Wild Mustards but they soon begin to bend and twist reducing their height. Wild Radishes also have clearly jointed seed pods, meaning you can see the seeds easily though the pod. Radish blossoms also tend to be distributed along the plant’s stem where as mustards have most of the blossom on the end.
Foraging Classes: Except for hurricanes foraging classes usually are held as scheduled. We’re hungry when we are cold and wet so foraging classes are held when it is wet and when it is cold. This past weekend we held a class in 38 degrees with a stiff breeze. The day before we had a class in the rain.
Saturday January 14th, Dreher Park, 1200 Southern Blvd., West Palm Beach, 33405. 9 a.m. We meet north of the science center.
Sunday, January 15th, Wickham Park: 2500 Parkway Drive, Melbourne, FL 32935-2335. 9 a.m. We meet at the dog park inside the park.
To learn more about the classes, go here.
Now’s the time to make sure you have a place at the sixth Florida Herbal Conference in February. Because you are a reader of this newsletter you can get $30 off your registration if you use the registration code GREENDEANE by January 15th. To read more about the conference and to register go here. This will be my sixth year attending the festival teaching about wild edible plants. There will be many herbal teachers from around the state and nation. Featured keynote speakers are Deb Soule and Guido Mase. The conference’s numerous classes range from Clinical Herbalism to Garden Medicine. Recreational activities at the Lake Wales site include yoga, singing, drumming, and canoeing. Ms. Imani and Beautiful Chorus will provide music. A wide array of artisans and crafters will also have booths at the conference. Camping is included in registration, and indoor cabin lodging and weekend meal plans are also available. Proceeds of the conference will benefit United Plant Savers. Again, to read about and register go here.
Want to identify a plant? Looking for a foraging reference? Do you have a UFO, an Unidentified Flowering Object you want identified? On the Green Deane Forum we chat about foraging all year. And it’s not just about warm-weather plants or just North American flora. Many nations around the world share common weeds so there’s a lot to talk about. There’s also more than weeds. The reference section has information for foraging around the world. There are also articles on food preservation, and forgotten skills from making bows to fermenting food. You can join the forum by clicking on the button on the upper right hand side of this page.
All of Green Deane’s videos are available for free on You Tube. They do have ads on them so every time you watch a Green Deane video I get a quarter of one cent. Four views, one cent. Not exactly a large money-maker but it helps pays for the newsletter. If you want to see the videos without ads and some in slightly better quality you can order the DVD set. It is nine DVDs with 15 videos on each. Many people want their own copy of the videos or they have a slow service and its easier to order then to watch them on-line. They make a good gift for that forager you know. Individual DVDs can also be ordered. You can order them by clicking on the button on the top right of this page or you can go here. If that link is not working — there have been some site issues — you can use a donation link and email me your order and address.
Below is a long article on the legal elements of foraging in Great Britain. They touch upon issues in the United States. In some states foraging off public land is illegal, in some legal, or legal on federal vs. state land. Conservationists, always willing to expand their authority, are worried, too, about foraging. And there there is the nuts and bolts of foraging.
What if you took a dandelion off a neighbor’s yard, a neighbor who in fact tries to get rid of weeds. If there were to be a charge it would most likely be trespass (and first offenders usually get a warning.) Theft has a greater legal threshold to meet. When you breathe while on a neighbor’s lawn are you stealing his air? Are you stealing his weed when you take the dandelion? Also theft usually requires that the object stolen have value. A song has value, a bicycle has value, but does a dandelion have value? What if it were a choice mushroom the picker then sold to a restaurant?
One change I do know is this: When I googled “foraging” as little as two years ago all I got was pictures of animals. Now I get pictures of people foraging. Whether foraging harms the environment generally or selectively it’s a growing issue even if it isn’t a problem. Here is an article about said in England where they have had a long tradition of foraging.
Has Foraging Gone Too Far by Daniel Butler.
Man first began collecting wild food in Britain at least 33,000 years ago, well before the last Ice Age. Over the centuries, first agricultural advances and then industrialisation saw its dietary importance steadily decline. Indeed, by the 19th century living on ‘weeds and toadstools’ was a humiliating badge of poverty. Worse, it was frighteningly reminiscent of the starving revolutionary French peasantry.
However, in the 1970s the pendulum began to swing back as Richard Mabey and Roger Phillips wrote pioneering books championing wild produce, notably Mabey’s seminal “Food for Free”. John Seymour’s books inspired an alternative culture that aspired towards self-sufficiency in defiance of inescapable urbanisation. And during the 1990s television chefs such as Antonio Carluccio and Hugh Fearnley-Whittingstall popularised the pursuit of wild foods even further.
Whether we are now collecting far more wild produce than ever before is debatable, but many conservation bodies have become increasingly alarmed at what they feel is a growing trend. They fear widespread collection could damage delicate ecosystems and even drive some plants or fungi to extinction. There have been particular issues with mushroom collecting in the New and Epping Forests, for example, while protected Roman snails are apparently being harvested on the North Downs, and seaweeds are being over-exploited along some coasts, on a scale inconsistent with domestic consumption.
Free Food Mongers?
The suggestion of ‘commercialism’ triggers particular sensitivities, reflected, for example, in lurid accounts of gangs of East Europeans damaging delicate ecosystems by stripping woods bare of valuable fungi which are then sold for huge sums to top London restaurants. How much this actually occurs is questionable. Issues of food traceability and food safety mean that few chefs would risk their reputations by sourcing from anywhere other than reputable wholesalers who generally find it far cheaper to import cleaned and graded wild produce. Any such “gangs” are more likely to be picking for home consumption, following the custom of their original countries.
Nevertheless, some bodies such as the Forestry Commission, Natural England and the National Trust are concerned enough at the perceived scale of current “hunting and gathering” to want to impose restrictions on foraging. The problem for the protectionists is that this aim falls between two legal stools – property and environmental legislation. The Theft Act specifically states: “A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose.” This is sometimes cited as prohibiting harvesting for sale, but it is notable that the only successful prosecution on these grounds in the past half century was overturned on appeal (see below). Likewise the Criminal Damage Act is obstructive. It defines property as: “not including mushrooms growing wild on any land or flowers, fruit or foliage of a plant growing wild on any land.”
Nor is the Wildlife and Countryside Act particularly helpful. This focuses mainly on habitats, although it does give specific protection to threatened animals, plants and a handful of fungi. Other than prohibiting the harvesting of such species, the only specific provision made in environmental law regarding foraging is the prohibition of ‘digging or uprooting any plant without prior consent from the landowner’.
In fact, if anything foraging is a long-established right under common law. Collecting wild plants and mushrooms has been decriminalised since at least the 1217 Charter of the Forest. This laid down that wild plants and mushrooms grew without man’s help, so therefore belong to no one. (Incidentally, it didn’t say the same about deer.)
Sanctions on Seakale
Despite this, last summer problems flared up in Kent. Miles Irving has been collecting the common, abundant and unprotected sea kale on the shingle banks at Dungeness since 2003. His company, Forager Ltd, collects a range of plants to supply top restaurants such as Heston Blumenthal’s Dinner, and Roast in London’s Borough Market. In August 2014 Natural England served a Stop Notice on Irving and his seven employees.This is a civil sanction to prevent activities which risk harming the environment. The notice claims that picking sea kale is harmful because it threatens the ability of other plants to colonise the shingle banks which give Dungeness its status as a Site of Special Scientific Interest (SSSI).
Irving appealed against the notice (which applies only to the eight people who work for Forager). He argued there was a lack of scientific evidence and the list describing other plants supposedly present was inaccurate. Most importantly, he claims the notice is incompatible with both UK and EU law. Despite this, the judge ruled against him at the first hearing. Miles is now appealing, but says this is mainly to maintain 800 years of common law which says that wild produce belongs to no one.
The case does, however, illustrate the legal muddle when it comes to gathering wild produce. In theory the Wildlife and Countryside Act confers nominal ownership of plants and animals on the landowner, but the reality is more complicated. A rabbit, flower or mushroom may belong to the landowner and anyone else requires permission to remove them. But doing so is not criminal – in other words it’s not theft. In theory an irate landowner could sue the miscreant for what are effectively damages. To be successful, however, they would have to establish that they had sustained a real loss because wild fungi or fruit have a genuine value to them. Such cases are extremely rare, but as the Forager Ltd. case and recent rumblings from the New Forest demonstrate, once again there is a gathering groundswell of protectionism.
There are additional legal stumbling blocks for the protectionists. The law changes if one is in a place where one has a right to be. This is because although 19th century legislators made strenuous efforts to exclude the public from their sporting estates, in an 1887 prosecution of a mushroom forager under the Malicious Injuries to Property Act 1861, the court held that, as the mushrooms were not cultivated, they did not constitute property. This is now generally accepted even by major conservation bodies.
Under common law it is not an offence to pick the “Four F’s”; fruit, foliage, fungi or flowers which are growing wild if they are for personal use and not for sale. This provision does not apply if the species in question is specially protected, say by listing in Schedule 8 of the Wildlife and Countryside Act. This means that anyone can pick blackberries, take ivy and holly for Christmas, gather sloes, and pick mushrooms for themselves. However, this right can only be exercised where there is a legal right of access, in other words alongside a public footpath or in a public place.
What makes this particularly awkward for protectionists is that most of the areas they are anxious to protect are in fact open to the public — even those that are not, are frequently criss-crossed by foot- and bridlepaths. In theory collecting in such areas must still be restricted to personal use, but even this proviso was shaken by a case from the New Forest.
This is managed by the Forestry Commission which has long been worried by ‘commercial’ picking. Once again, while there is plenty of anecdotal evidence of heavy exploitation in some areas, there is little proof of actual damage and when pressed, the authorities cite the ‘precautionary principle’ defence. Thus for the past 20 years the Commission has tried to warn off ‘professionals’ by imposing a limit of 1.5kg of mushrooms per person on each visit.
A local woman, Brigitte Tee-Hillman, had been openly picking and selling wild mushrooms gathered from the Forest since the 1970s. In 1998 she was told to stop and, after repeated brushes with wardens, in November 2002 she was arrested for collecting too many trumpet chanterelles. When the case came to court she was convicted under the Theft Act because her activities were ‘commercial’. She immediately appealed. Thirty two court hearings followed before, in 2006, the case was eventually thrown out by a judge who angrily complained that his role was to try cases of grievous bodily harm, not waste public money persecuting elderly ladies for picking mushrooms. Costs were awarded to Tee-Hillman and the Commission was faced with costs of almost £1 million. With considerable ill-grace the Commission issued her a unique harvesting licence, but it still sticks sulkily to its position that commercial mushroom picking is forbidden because it may damage fungal reproduction.
Actually, the only academic study in 50 years to suggest any detrimental impact from mushroom collecting, tentatively suggests this is not from harvesting per se, but from footfalls damaging the delicate mycelia beneath the leaf mould. In other words, harvesting is harmless, but mammalian activity in the woods might – theoretically – be harmful. As a senior advisor to Natural Resources Wales told me some years ago: “The evidence is very flimsy, but even if it were conclusive, this is not a route we want to go down. Logically we would have to ban all humans and exclude or cull all deer and livestock too.’
But back to the New Forest case: the repercussions have been far-reaching because it set a damaging precedent. Tee-Hillman was undoubtedly helped by the fact that picking mushrooms is almost certainly harmless, but she was still flagrantly breaking a bye-law by openly picking for sale. Despite this, she could not be stopped.
For the next ten years the protectionists remained relatively subdued. There have been a few successful prosecutions in Epping Forest, but most of the the miscreants have been foreign nationals who pleaded guilty and just paid the fine.
Can of Worms
Then came the 2015 Stop Notice served on Forager Ltd. last summer. This leaves Miles with a major headache, but actually the authorities may be opening up their own nasty can of worms. The reasons given for banning Miles and his team from collecting sea kale seem based in part on questionable assertions of damage to the ‘succession of vegetation’, but it also suggests that foragers venturing onto the shingle banks could cause damage. If this is a serious threat, why can anyone else wander around on the same banks? More importantly, if harvesting sea kale threatened the banks, why did Natural England raise no objection to a planning application (since granted) to extract 560,000 cubic metres of shingle from one end of the banks?
Turning back to focus just on the principles involved in blanket restrictions on foraging, stopping the collection of plants and fungi presents complex legal problems. How can it be illegal to pick with a view to selling, yet permissible for a professional botanist to collect samples? There are dozens of foragers who lead educational forays, but in most it is the participants that pick the produce, not the group leader. Is this commercial? Certainly the tutor may charge for their expertise, but a teacher taking pupils to collect materials for a science or art class is also paid. Meanwhile scores of Womens’ Institutes collect blackberries to make jams to raise money for charity. Can this be legal while the small business next door is barred from selling bilberry liqueur or elderflower champagne? Is it possible to draft legislation banning the active harvesting of seaweed while allowing the public to pick up flotsam along the tide line? And what about a parent who plucks a dock leaf to rub on their child’s nettle sting?
It is certainly possible that foraging may cause genuine problems in some particularly delicate ecosystems and with a handful of identifiable species, but credible scientific proof of such damage is rare. As Dr Jennifer Lee of Liverpool University1 and author of several studies on foraging law points out:
The theme of ambiguity is one that permeates the application of all law surrounding foraging – and I maintain this is intentional. The judicial system (both in its civil and criminal forms) does not want to set precedent on any issue surrounding foraging if it can avoid doing so and would rather leave the resolution of such matters to negotiation at the lowest level possible. Politicians are, as ever, pretty slow at figuring this out and continuously draft legislation without fully thinking through the consequences. We cling to our fissiparous and faintly ridiculous ancient laws because, through application and sometimes benign neglect – they seem to have worked (as for Brigitte Tee-Hillman).
In the wake of the Stop Notice against Forager Ltd, the informal national network of foray-leaders and other foragers which has been communicating with the authorities since at least 2006 has now cohered into the Association of Foragers (AoF) and is working on a Code of Conduct to counteract efforts by Natural England to introduce its own. Apparently NE has also commissioned five universities to embark on a five-year study of the impacts of hunter-gatherer activities in Britain. Meanwhile, Miles Irving has now been given leave to appeal against the Stop Notice – but any ensuing court case may take years to come to fruition. It is probably safe to assume in the meantime that picking the Four Fs for home consumption on publicly accessible land will continue to be a healthy, sustainable and practical way to enjoy the bounty of nature, as has been the custom in common law for centuries past.
This is Newsletter 240.
If you would like to donate to Eat The Weeds please click here.