Land Access for Growing and Foraging Non-Timber Forest Products

Author: Brigitte A. Parsons, Graduate Researcher, Dept. of Wood Science and Forest Products; Michael J. Mortimer, Assistant Professor, Dept. of Forestry; and A.L. Hammett, Associate Professor, Dept. of Wood Science and Forest Products; Virginia Tech

Publication Number 420-131, Posted December 2002

Table of Contents

Introduction
Cultivation
Legal Assurances
Model Land Use License
Model Lease
Summary
References
Other Related References

During the last decade, there has been an increased interest in non-timber forest products (NTFPs) for economic development. NTFPs offer opportunities to maintain forest biodiversity, and to generate landowner income. During the 1980's, the domestic herbal market boomed, growing at an estimated 13-15 percent per year. In 1993, the United States exported about 77 tons of wild harvested ginseng alone, valued at more than $21 million. The overall market for medicinal herbs in the United States more than doubled in value from 1996 ($1.6B) to 1998 ($3.97B). Since the boom of the US herbal market in the 1980's, populations of some of these special plants have declined significantly. Ginseng, once a common understory species throughout the cove sites of the central Appalachian hardwood region, is less frequent in today's forests. While little data are available on population dynamics of certain NTFP species, anecdotal evidence suggests a reduced availability of these prized forest products. Over-harvesting of species has become a concern, and many question the sustainability of the resources.

Often, individuals involved in the wild harvest of NTFPs (wildcrafting) have gathered plants on properties they don't own, in some cases illegally. Wildcrafters hunt or poach on properties owned by coal and natural gas companies, the forest products industry, absentee landowners, local, state, and federal owned properties, and other landowners. In addition to lost revenue, these practices present a number of liability questions for landowners. According to the Convention for International Trade of Endangered Species, one of the most well known NTFPs, ginseng, is considered an internationally endangered plant species. Ginseng is a protected species in many states according to the Endangered Species Act of 1973. Many landowners are unaware that this species is on their property, and should take certain precautions to ensure the sustainability of the species.

Unsanctioned wildcrafting also causes losses of profit from a landowner's property. For example, while most landowners consider grapevine to be an invasive species that can overtake a stand, using this resource to create wreaths or baskets can prove to be valuable. What seems like a pest can bring revenue!

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Cultivation

Cultivating certain species under natural conditions can satisfy market demands while creating additional income opportunities for Appalachian households. This method can potentially provide a sustainable socio-economic resource for many individuals in this region.

Many species of NTFPs have very specific site requirements, and can only be cultivated under particular conditions, especially when attempting to grow them for commercial purposes. Most phytopharmaceutical (used for medicinal purposes) plants have profitable returns, but must be grown under natural conditions. The plants also need to be monitored, because poaching is a risk for the cultivator. Finding the best growing site can also be a challenge for cultivators if they don't own property or have the specific conditions on their property necessary to grow these plants.

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Legal Assurances

Establishing a written agreement is desirable for two parties to make a number of things clear, such as the property location, amount of consideration to be paid to the landowner, and specific instructions regarding the use of the land. Most importantly, it establishes a legally binding relationship between landless cultivators and landowners, allowing written understanding for both parties. In many states, lease agreements of land for more than a year's duration must be in writing to be enforceable. Lease agreements are not unusual in the Appalachian region. Many landowners lease their property to hunters or hunt clubs for the right to enter the property and harvest wild game, or to farmers for agricultural production of hay or pasture for livestock.

Two examples of written agreements are presented here: a land use license and a lease. One model may be more appropriate than the other depending upon the circumstances and landowner goals. The models can be used as examples or templates for landowners and cultivators, although they should be tailored to meet specific needs. The model agreements are designed differently than hunting and agricultural leases, and are more specific to NTFPs. Both are meant to be check-lists for landowners, cultivators, and collectors, depending on local conditions or individual needs.

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Model Land Use License

The first model is a land use license. A land use license is an appropriate legal document for landowners desiring to permit other individuals to cultivate NTFPs on their land, while maintaining current forest management goals and objectives. For example, an industrial forest landowner might wish to permit use of its property to gain added income from the land resource. This land use license model could be used to develop a program that would allow NTFP cultivators to use the land for a fee. The industrial forest landowner would most likely use this document because restrictions can be placed upon the cultivator that would not allow damage to the timber on the property, and would reduce liability for injuries on the property as well. Many industrial forest landowners already have land use licenses for hunting rights. Be sure to discuss the following document with a lawyer before entering a legal contract.

Please see form in the PDF version of this document.

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Model Lease

The second model is a lease for real property. A lease may be used between a landowner and NTFP cultivator. Leasing property has several benefits for the cultivator and landowner. The property would be totally surrendered to the cultivator, allowing them to monitor the property and their crop more closely. As with hunting leases, an increased presence on the property can contribute to protecting a multitude of resources. The cultivator would be the sole user of the property in a land lease. This model is similar to an agricultural lease and benefits the landowner by addressing the specific stewardship of the land. Some examples of NTFP cultivators that might use this type of lease include bee keepers, collectors of vines for crafts, or producers of floral greenery. This lease would be appropriate for several different types of landowners, including non-industrial private landowners, industrial landowners, and conservation easement holders. The lease may not be appropriate for federal or state owned properties. The following is offered as a template that could be adapted to local conditions. Before entering into this or a similar contract, it is important to learn about local laws and consult with a legal professional.

Please see form in the PDF version of this document.

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Summary

The land use license and lease models presented here may inspire development of relationships between NTFP cultivators and government agencies, industrial forest landowners, non-industrial private landowners, and conservation easement holders. These added income opportunities benefit both landowners and NTFP cultivators.

Before entering into any kind of legal agreement, both landowners and cultivators should seek the advice of local legal specialists. The landowner should clearly understand the intent of the NTFP cultivator or collector, and the cultivator should understand the landowner's goals for the land. Landowners should also be careful in selecting users or tenants to be sure that the tenants will be responsible users of the property. The intent of entering a legal agreement is to alleviate poaching pressure and to open up new avenues for sustainable forest management.

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References

Hammett, A. L. and J. Chamberlain. 1998. Sustainable Use of Non-traditional Forest Products: Alternative Forest-based Income Opportunities. In the proceedings the conference on Natural Resources Income Opportunities on Private Lands, Hagerstown, MD. April 5-7. pp. 141-147.

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Other Related References

For Hunting Leases
Allen, T.J., D.K. Smith, and A.F. Ferrise. 1985. Real Property: Leasing Land for Hunting and other Recreational Uses. West Virginia University Cooperative Extension Service. Publication no. 726. Morgantown.

Bromley, P.T. 1997. A Landowners Guide to Working with Sportsmen in Virginia. Virginia Cooperative Extension Service. Publication no. 420-035. Blacksburg. Also available online: http://www.ext.vt.edu/pubs/forestry/420-035/420-035.html.

Crane, B. 1989. Hunting Leases: Income for Woodland Owners. National Woodlands (October): 5-7.

Harper, C.A, C.E. Dixon, P.M. Jakus, and D.A. Barefield. 1999. Earning Additional Income through Hunt Leases on Private Land. The University of Tennessee Agricultural Extension Service. Publication no. PB 1627. Memphis. Also available online: http://www.utextension.utk.edu.

Marion, W.R., and C.A. Gates. 1988. Hunting Lease Arrangements in Florida and the Southeast. Florida Cooperative Extension Service. Circular no. 793. Gainesville.

Marion, W.R., and J.A. Hovis. 1985. Developing a Hunting Lease in Florida. Wildlife and Range Sciences. Florida Cooperative Extension Service. Publication no. WRS 1. Gainesville.

M.L. Duryea, ed. 1988. Alternative Enterprises for Your Forest Land: Forest Grazing, Christmas Trees, Hunting Leases, Pine Straw, Fee Fishing and Firewood. Florida Cooperative Extension Service. Circular no. 810. Gainesville.

Saxena, N.C. 1984. Leasing of Forest Lands to Industries. Wastelands News 1X(3):11-14.

Smith, M.D., R.B. Hazel, W.E. Gardner, and E.J. Jones. 1995. Liability and the North Carolina Landowner. Woodland Owner Notes. North Carolina Cooperative Extension Service. Publication no. WON-21. Raleigh. Also available online: http://www.ces.ncsu.edu/nreos/forest/woodland/won-21.html.

For Other Forest Products Extraction Contracts
Bick and H. Haney. 1995. A Landowner's Guide to Conservation Easements. Dubuque: Kendall/Hunt.

Ferrise, A., and W.N. Grafton, eds. Legal Issues. Natural Resource Management and Income Opportunity Series. West Virginia University Extension Service. Publication R. D. No. 744.

Gunter, J.E., ed. 1987. Georgia Forest Landowner's Manual. University of Georgia Cooperative Extension Service. Bulletin no. 950. Athens.

Gunter, J.E., and J. Szydzik. 1987. Timber Sale Contract. University of Georgia Cooperative Extension Service. Publication no. C773. Athens.

Iowa State University Cooperative Extension Service. 1986. Notice of Timber for Sale. Publication no. Pm-413a. Ames.

Iowa State University Cooperative Extension Service. 1986. Timber Sale Contract. Publication no. Pm-413b. Ames.

Izlar, B. 1988. There is No 'Standard Contract'. Georgia Forestry 41(1): 4-5.

Kays, J.S., and R.Tjaden. 1994. Marketing Forest Products: The Sales Contract. University of Maryland Cooperative Extension Service. Woodland Management Fact Sheet no. 628. College Park.

McEvoy, T.J. 1986. Plugging the Leaky Timber Sale Contract. The American Tree Farmer 5(5):14-16.

Sabin, G.E. 1980. Selling Timber: The Ultimate Forest Management Decision. Clemson University Cooperative Extension Service. Circulation no. 608. Clemson.

Wiant Jr., H.V. 1989. How to Estimate the Value of Timber in Your Woodlot. West Virginia University Agricultural and Forestry Experiment Station. Circular no. 148. Morgantown.

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