Protecting Florida’s Rare Plants from Extinction
& #x201c;I speak for the trees, for the trees have no tongues.”1
Dr. Seuss, The Lorax
There is increasing scientific, political, and legal concern about the loss of biodiversity and protecting species from extinction. This concern is manifested in a number of legislative efforts to protect species, many of which have focused on protecting animal species. There has been disproportionately little interest in the problems associated with the decline of plant species. Florida is an interesting case study because it contains a large number of rare plant species and its plant protection laws are typical in that they are weaker than the laws that protect animal species. Analysis of the problems associated with rare plant protection in Florida suggests the need to improve the existing legal framework and its implementation at both the federal and state level.
This article briefly explores the rationales for protecting plant species in general and describes the problems associated with the loss of rare plant species in Florida. The article examines the legal bases for rare plant2 p rotection in Florida and explores some of the obstacles that hinder plant protection and conservation efforts in the state, beginning with an overview of federal laws, focusing on §9 of the Endangered Species Act,3 a nd ending with a discussion of Florida laws regulating rare plant species.4
Importance and Difficulty of Protection
• Rationales for Protecting Plant Species
There is a complex relationship between plant and animal species, including humans.5 B ecause humans depend on plants for oxygen, food, shelter, and many other needs, there are many anthropocentric justifications for protecting plant species. In addition, there is increasing acceptance of the biocentric argument that plants have inherent value independent of humans and deserve to be protected.
Plants provide a number of ecological functionsupon which humans and other animals rely. Most of the oxygen in the earth’s atmosphere is a product of the photosynthetic activity of plants, which are usually the basis of the food chain. A single plant may support as many as 15 to 20 different species, including bacteria, fungi, insects, and other plants and animals.6 T hus, the destruction of a plant species may cause the destruction of many other organisms that depend on it. The maintenance of biological diversity, including plant species, enhances the ability of the biosphere to respond to changes in the world’s physical conditions.7
Plants offer a number of direct and indirect economic benefits to humans. They may represent future sources of food, medicines, or other useful products. Plants produce thousands of complex chemicals that have been profitably exploited for business and industrial uses. Throughout history the lives of humans have been intertwined with plants,8 a nd the extent of humans’ reliance on plants for survival and livelihood mandates the conservation of plant species.
• Florida’s Rare Plant Species
Florida is among the states with the greatest plant diversity, along with Hawaii, California, and Texas.9 T here are approximately 3,500 species of vascular plants in Florida, the majority of which are native.10 F lorida also has a high number of globally rare plant species.11 A number of these species are found nowhere else on Earth.12
Rare plant species typically require a particular set of environmental conditions, or microhabitat, in order to grow. The specific microhabitat requirements of rare plants increases their susceptibility to endangerment when humans alter particular habitats occupied by rare plants.
As is the case in many other parts of the U.S., the native plant species of Florida have been negatively affected by habitat disturbances. Development pressures have affected portions of Florida for over 400 years.13 T hese anthropogenic disturbances have included logging and agriculture in the northern portions of the state, conversion to citrus in central Florida, and drainage in southern Florida.14 A s a result, large portions of the habitats of Florida’s native plants have been lost.15
In addition, as a result of collecting, a significant number of rare plant species are being removed from undisturbed habitats.16 A n active trade exists in Florida, partly commercial but largely informal, by which plants are gathered from the wild and distributed to horticulturists and hobbyists for backyard and greenhouse cultivation. It has been exceedingly difficult to protect certain species from collectors.17 T hese species include orchids, bromeliads, cacti, ferns, and insectivorous species. Pressure from collecting may be more pronounced among plant species than animal species.
Exotic species pose another significant threat to Florida’s rare plant species. Hundreds of exotic plants have been introduced into Florida, a number of which are aggressively invasive. Such invasive species not only dominate disturbed sites, but they are capable of out-competing and supplanting native species. For example, Brazilian pepper ( Schinus terebinthifolius ) and melaleuca ( Melaleuca quinquenervia ) have overrun thousands of acres in Everglades National Park. As a result of these problems, there has been increasing recognition of the need for a statewide plan to deal with exotic species issues.
Existing Legal Protection for Rare Plant Species
• Distinction Between Plants and Animals at Common Law
Traditionally, there has been a legal distinction between plants and animals,18 w hich has shaped the existing legal protection for plant species. At common law, the legal characteristics of plants differed significantly from those of animals. Because of their mobility, wild animals were regarded as incapable of individual ownership. Although an individual might have had a temporary possessory interest in a wild animal, that interest was extinguished if the animal escaped from the individual’s control and moved to another person’s property.19 I n contrast, the ownership of plants accompanied title to the property on which they grew.20 I t seems that the most important reason for the distinction between plants and animals was the limited mobility of plants, rather than their classification as plants.21 A recognition that legal distinctions between plants and animals have traditionally existed helps explain the discrepancy of protection levels for plants and animals under statutes such as the Endangered Species Act (ESA).
• Federal Legal Protection for Rare Plants
The ESA is one of the primary sources of legal protection for rare plants within individual states,22 a nd thus is an important source of protection for rare plant species in Florida. Section 9 of the ESA provides protection for “endangered species”23 b y prohibiting certain actions by any “person.”24 1 6 U.S.C. §1538. Perhaps the most controversial aspect of the ESA from a plant conservation perspective is the fact that §9’s prohibition on “taking” is very limited with regard to plant species.25
Originally, the ESA did not prohibit the “taking”26 o f listed plants. A provision added in 1982 made it illegal to “remove and reduce to possession” or “maliciously damage or destroy” any listed plant on federal land.27 T he U.S. Fish and Wildlife Service (FWS) has interpreted the phrase “remove and reduce to possession” to proscribe the removal of an endangered plant only when combined with possession of the plant.28
With regard to plants not on federal land, the ESA makes it illegal to “remove, cut, dig up, or damage or destroy” a listed plant “in knowing violation of any law or regulation of any state or in the course of any violation of a state criminal trespass law.” 16 U.S.C. §1538(a)(2)(B). It may be difficult to prove a “knowing violation” occurred. In addition, if there is no state restriction, private landowners are free to destroy listed plants on their property.
The ESA even ignores landowners who intentionally destroy listed plants on their property. Destruction of endangered plant species and their habitats by owners who are resentful of the presence of the plants on their property has been observed in several instances.29 S imilarly, destruction by landowners that is incident to activities such as land development does not violate the regulations of the ESA.30 I n addition, the act does not address commercial or private collecting on private land for sale, home gardens, scientific research, or herbariums. These activities can be especially damaging to populations of rare plant species.31
One empirical study indicated that plants that depend on private property for their habitat do not fare well, and that they fare much worse in those states that do not restrict private landowners from destroying plants on their property.32 S uch results illustrate that legal distinctions between plants and animals under the ESA can have real world effects on the prospects of survival for rare plant species.
In terms of implementation of the ESA in Florida, the FWS has made substantial progress in documenting the distribution and habitats of the state’s rarest plants and has succeeded in developing recovery plans for species in some areas, most notably the Everglades. In the past, the FWS has been criticized for being slow to add new listings in Florida despite strong evidence of endangerment.33 U ntil recently, the FWS recovery plans were formulaic documents that provided little guidance for resource managers and funding for these plans was very limited.34
• State Protection for Rare Plant Species in Florida
The Preservation of Native Flora of Florida statute (PNFFS), F.S. §81.185, and the related Endangered Plant Advisory Committee statute (EPACS), F.S. §581.186, are the primary state legal protections for rare plants in Florida. Essentially, these statutes regulate the “harvesting”35 a nd commercial exploitation of protected plant species. This section highlights the key provisions of these statutes and explores their limitations.
The PNFFS was intended to “provide recognition of those plant species native to the state that are endangered, threatened, or commercially exploited.” F.S. §581.185(1). The statute provides for the goal of protecting native flora from unlawful harvesting on both public and privately owned lands. It also establishes a permitting system in an effort to “provide an orderly and controlled procedure for restricted harvesting of native flora from the wild, thus preventing wanton exploitation of native species of flora.” F.S. §581.185(1).
The Florida Department of Agriculture and Consumer Services administers the PNFFS. The department is authorized to adopt rules relating to the “listing, delisting, and changing from one category to another category any plant on the regulated plant index.” F.S. §581.185(4). The regulated plant index is the list of plant species that are designated as “endangered,”36 & #x201c;threatened,”37 o r “commercially exploited”38 b y the department.39
The Endangered Plant Advisory Council, a committee created by the EPACS, consists of seven members and has specified duties. F.S. §581.186. These duties include advising the department about proposals for revising the two statutes, reviewing the species on the regulated plant index, and considering native plants proposed for inclusion. F.S. §581.186(3).
Under the PNFFS, the prohibitions and permit requirements of harvesting activities vary with each level of protection. It is unlawful for any person to willfully destroy or harvest any plant listed as endangered on the regulated plant index that is growing on private or public land without first obtaining the written permission of the landowner or legal representative of the landowner40 a nd a permit from the department.41
Much like the ESA, the PNFFS does not prohibit landowners from destroying protected plants on their property.42 T hreatened species under the PNFFS are afforded less protection than endangered species because no permit is required.43 I n the case of plants designated as commercially exploited, permission from the landowner is required to harvest any plants, but a permit is only required if three or more plants are harvested. F.S. §581.186(3)(c). Thus, the protections available for commercially exploited plants are stronger than those for threatened plants.
The PNFFS limits the transport and sale of protected plants, and these limitations even apply to private landowners, but threatened species are exempt from this requirement. F.S. §581.185(3)(d). The fact that landowners must have a permit to sell endangered or commercially exploited plants from their land offers more legal protection than that afforded to plants under the ESA.
As is the case with the ESA, land development activities are exempt from the provisions of the PNFFS. The PNFFS specifically states that the regulated plant index is “not to be used to regulate construction or other land alteration activities on any property.” F.S. §581.185(12). The clearing or other disturbances of land for agricultural, silvicultural, mining assessment, or fire control purposes are exempt from the statute. F.S. §581.185(8). Thus, the statute provides no protection from many activities that destroy habitat and individual rare plants.
Perhaps the greatest limitation of Florida’s rare plant protection statutes is the fact that they regulate the harvesting and commercial exploitation of rare plants as opposed to providing comprehensive protection for rare plant species. The protected status afforded to plants listed on the regulated plant index can only be used for regulating the harvesting of plants. The EPACS states in F.S. §581.186(3):
The regulated plant index must be used solely for the purposes specified in §581.185 and may not be used for regulatory purposes by other agencies. However, this section does not preclude another agency authorized to protect endangered plants from including one or more species listed on the regulated plant index on a list developed by that agency under its own regulatory authority (emphasis added).
This language severely limits the use of the regulated plant index for conservation purposes by other agencies. Florida agencies typically involved with conservation programs, such as the Department of Environmental Protection or the Fish and Wildlife Conservation Commission, do not have authority to list plant species. Thus, these agencies cannot use the regulated plant index as a basis for decision-making or conservation programs. Although the statute provides for cooperation between relevant state agencies with the Endangered Plant Advisory Council,44 t he extent of this cooperation has been limited.
The department’s nursery inspection program is also involved in the enforcement of the statute by ensuring that nurseries that sell native plant species comply with the permitting program. However, in practice, enforcement actions regarding illegally harvested plants are rare.45 T here is currently no data available on whether the permitting program under this statute has contributed to the survival of Florida’s rare plants.46 M ore comprehensive legislation is necessary to protect rare plants in Florida from other threats such as habitat destruction and forms of taking not covered by existing legislation.
This article has provided an introduction to the issues associated with the decline of rare plant species and some of the legal obstacles to protecting rare plant species in Florida. The lack of attention devoted to issues with rare plants, especially among the legal community, is unfortunate. The increasing prevalence of conflicts between developers and existing legal protections for protected species may change this trend.47 A s the legal mechanisms that attempt to protect ecosystems evolve, an increased recognition of the importance of plant species and the need to protect them will be necessary.
An analysis of Florida’s existing protection for rare plant species illustrates that there are currently significant gaps that remain to be filled. Neither federal nor state protection for rare plants is as strong, comprehensive, or effective as it could and should be. Plants and animals are both integral parts of ecosystems that rely on each other for survival. A legal recognition of the value of plant species in the form of strengthened legislation would enhance existing legal efforts to preserve overall ecological integrity.
1 Dr. Seuss, The Lorax (Random House 1971).
2 In this article a rare plant is defined as a scarce plant species that may or may not have been designated protected status such as “endangered” or “threatened.” See Linda McMahan, Comment, Legal Protection for Rare Plants , 29 Am. U.L. Rev. 515, 515 n.1 (1980) (framing the issue broadly in terms of “rare plants,” rather than just “endangered” or “threatened” plants).
3 16 U.S.C. §1538 (2001).
4 Preservation of Native Flora of Florida, Fla. Stat . §581.185 (2001); Endangered Plant Advisory Council, Fla. Stat . §581.186 (2001). See infra . While other federal, state, and local laws may be useful for protecting plant species and their habitats, this article focuses on laws whose primary purpose is to regulate rare plants in danger of extinction.
5 This article provides only a brief overview of the main rationales for plant protection. For more in-depth analysis see McMahan, supra note 2, at 516-19; George C. Coggins & Anne F. Harris, The Greening of American Law?: The Recent Evolution of Federal Law for Preserving Floral Diversity , 27 Nat. Resources J. 247, 251-60 (1987).
6 Coggins and Harris, supra note 5, at 252.
7 McMahan, supra note 2, at 517.
8 See generally Anthony Huxley, Green Inheritance ( Anchor Press/Doubleday 1985). (examining the relationship between plants and human society).
9 George D. Gann and Noel L. Gerson, FOCUS: Rare Plant Mitigation in Florida , in Restoring Diversity: Strategies for Reintroduction of Endangered Plants 373, 373 (Donald A. Falk et al . eds., 1990).
10 Daniel B. Ward, Rare and Endangered Biota of Florida: Plants xi ( University Presses of Florida 1979). Ward classified 2,523 species (73 percent) as native and 925 species (27 percent) as introduced. Gann, supra note 9, at 374.
11 Larry Morse, Plant Rarity and Endangerment in North America , in Restoring Diversity: Strategies for Reintroduction of Endangered Plants 7, 9 (Donald A. Falk et al. eds., 1990).
12 See Gann, supra note 9, at 374. Estimates of the number of endemic species in Florida have varied from 234 to 427. Id .
13 Id . at 374-75.
14 Id . at 375.
15 Id .
16 Ward , supra note 10, at xiii.
17 Id .
18 For a more thorough treatment of this evolution see McMahan, supra note 2, at 526–33; s ee generally Michael Bean, The Evolution of National Wildlife Law (rev. & expanded ed., Praeger Publishers 1983) (a comprehensive treatise).
19 Coggins, supra note 5, at 271 n.173.
20 Id .
21 See McMahan, supra note 2, at 526 n.54. Sedentary animals, like oysters or mussels, have been held to belong to the owner of the property to which they are affixed. Id .
22 Indeed, most state legal protections for rare plants are modeled after the ESA. See Jeffrey J. Rachlinski, Protecting Endangered Species Without Regulating Private Landowners: The Case of Endangered Plants , 8 Cornell J.L. & Pub. Pol’y 1, 11 (1998).
23 An endangered species is a species that is “in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C §1532(6). A threatened species is a species which is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id . at §1532(20). The prohibitions of §9 regarding endangered species generally apply to threatened species, except as otherwise specified. Id . at §1538(a)(G).
24 The term “person” includes any corporation or government entity. Id . at §1532(13).
25 See Rachlinski, supra note 22, at 4.
26 The ESA defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect or attempt to engage in any such conduct.” 16 U.S.C. §1532(19). The FWS’s definition of “take” has also included any “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.” 50 C.F.R. §17.3 (2001).
27 See 16 U.S.C. §1538(a)(2)(A)-(E).
28 50 C.F.R. §§13, 17. Thus, only if a person removes an endangered plant from an area under federal jurisdiction and continues to possess it would the provisions of the ESA be violated.
29 For example, one developer deliberately destroyed one of the three known populations of the federally endangered San Diego mesa mint to ensure that subsequent requests for federal construction grants would not be delayed. Holmes Rolston III, Life in Jeopardy on Private Property , in Balancing on the Brink of Extinction 43, 48 ( Kathryn A. Kohm ed., 1991) .
30 Id . One author notes, “The distinction between directly killing a species and dramatically reducing its prospects for survival by destroying its habitat probably matters more for animals, which can temporarily abandon their nests or burrows, than it does for plants. Developing a plant’s habitat probably entails directly ‘taking’ the plant.” Rachlinski, supra note 22, at 8 n.43.
31 Coggins, supra note 5, at 297.
32 See generally Rachlinski, supra note 22.
33 Center For Plant Conservation, An Action Plan to Conserve the Native Plants of Florida (1995). This document can be accessed through the Everglades Digital Library available at fiu.edu/~glades/serp/action/community.html.
34 Id . For more information on recovery plans, see 16 U.S.C. §1533(f).
35 Under the PNFFS “harvest” means “to dig up, remove, or cut and remove from the place where grown.” Fla. Stat . §581.185(2)(c).
36 Endangered plants are defined as “species of plants native to the state that are in imminent danger of extinction within the state, the survival of which is unlikely if the causes of a decline in the number of plants continue.” Fla. Stat . §581.185(2)(b). This definition also includes “all species determined to be endangered or threatened pursuant to the federal Endangered Species Act of 1973, as amended.”
37 Threatened plants are defined as “species native to the state that are in rapid decline in the number of plants within the state, but which have not so decreased in such number as to cause them to be endangered.” Id . at §581.185(2)(h).
38 Commercially exploited plants are defined as “species native to the state which are subject to being removed in significant numbers from native habitats in the state and sold or transported for sale.” Id . at §581.185(2)(a). This category represents a broader level of protection than that of the ESA, regulating plants that are not yet designated as threatened or endangered.
39 Fla. Stat. §581.185(2)(f). This list of protected plants can be found at Fla. Admin. Code 5B-40.0055 (2001).
40 Florida requires permission when the landowner is the state. Florida is the only state that specifically requires such permission. Rachlinksi, supra note 22, at 13.
41 Fla. Stat . §581.185(3)(a). However, permits issued for federally listed species must be consistent with federal standards. Id.
42 It does, however, prohibit the landowner from harvesting plants on his or her property for sale without the appropriate permit. I d . §581.185(3)(d).
43 It is unlawful to willfully destroy or harvest any threatened plant growing on public or private land without first obtaining the written permission of the landowner or legal representative, but no permit is required. I d . §581.186(3)(b).
44 See id . at §581.186(4).
45 Telephone Interview with Joe Beckwith, Department of Agriculture and Consumer Services, Division of Plant Industry (March 15, 2002). This lack of enforcement could reflect the difficulty of identification of rare plant species and the fact that the primary purpose of nursery inspections by DACS is to inspect for contamination with insect pests and disease.
46 Id .
47 For example, in Florida there have been increasing conflicts regarding development projects that may impact the federally endangered Johnson’s seagrass ( Halophila johnsonii ). See, e.g. , Flynn v. Department of Envtl. Prot ., 775 So. 2d 293 (Fla. 1st D.C.A. 2001) (affirming the Department of Environmental Protection’s final order denying a permit to dredge in order to construct a dock and mooring for a large private vessel in seagrass habitat).
Kevin E. Regan is a third year law student at the University of Florida Levin College of Law, where he is pursuing a J.D. and an environmental and land use law certificate. He graduated summa cum laude with highest honors in biology from the University of Tennessee at Chattanooga in 2000.
This column is submitted on behalf of the Environmental and Land Use Law Section, George F. Gramling III, chair, and Robert Manning, editor.