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Fungi and the Law (a summary)

We thought it was time to review where fungi law is currently. With Autumn fully upon us, and a plethora of various understandings being put about, I’ve attempted to summarize (with extensive notes below).

The Theft Act 1968 makes it illegal to take fungi or plants from the wild for commercial purposes[*].  But the fines are low enough(£100-300) to be a wrist slap cost-of-doing-business for commercial foragers.

The Wildlife and Countryside Act 1981 makes it illegal to pick any rare (schedule 8 red data list) wild plant including fungi[†].  The CPS Guidance lists much stronger penalties, including up to £5k fine per item, six months jailtime, and forfeiture of vehicles used in the act or to transport goods[‡].  The same act makes it illegal to “uproot” any wild plant without authorisation, but there seems to be neither guidance nor history of prosecution for this.

Sites of Special Scientific Interest (SSSI) – both of the previous examples apply anywhere in the wild, the Wildlife and Countryside Act also provides extra protection for land designated as SSSI.  This makes it an offence on SSSI land to “intentionally or recklessly destroy or damage any of the flora, fauna, or geological or physiographical features by reason of which land is of special interest”[§].  The New Forest has one of the few SSSI designations that lists its fungi population as one of its special interest features.  The downside of this is that very few prosecutions have been brought under this part of the act, although the fines up to £20k would make a very useful deterrent.

So technically, picking fungi on the New Forest SSSI without authorisation, is completely illegal, but under two less enforced portions of legislation.  BUT Picking fungi for any commercial purpose, OR picking rare species for any purpose anywhere are both illegal and realistically arrestable, prosecutable offences.

Byelaws

The Forestry Commission byelaws make it an offence to do anything to a plant, and also lists as prohibited for removal “soil, turf, leafmould, moss, peat, gravel, slag, sands or minerals”[**], strangely this seems to omit fungi, but this is because fungi were originally within the definition of “plant”.  The loophole was created when taxonomists reclassified fungi to a separate Kingdom.  The Wildlife and Countryside Act and other primary legislation solve this with a codicil that defines their use of “plant” as inclusive of “fungi and algae”.  The loophole should be closed in the Byelaws.

But for taxonomists and pedantry, it ought to be illegal in the FC Byelaws.  It is due to the loophole that the FC last year publicly suggested that fungi foraging wasn’t strictly illegal, ignoring illegality under the W&C Act. Oddly enough, The Countryside and Rights of Way Act 2000 (CRoW), is widely perceived to have banned all foraging on the access land it created (not applicable to the Crown Lands); yet, it too has the same loophole, in that it prohibits taking of plants, but never explicitly includes fungi within that definition, and virtually all guidance you will find says that it does!

The National Trust Byelaws explicitly prohibit fungi foraging[††], the Wildlife Trusts prohibit on their Nature Reserves, and Epping Forest (whose model of enforcement we hoped to emulate) prohibits “Taking anything”, usefully all inclusive.

Natural England, under the Wildlife and Countryside Act, as modified by the NERC Act 2006, has powers to make Byelaws for SSSI land.  However, these have yet to be exercised (saving for existing byelaws on certain National Nature Reserves), and only just this year have DEFRA and NE begun a consultation on how they might formulate such Byelaws.  This could be used in future to protect the notified features of the New Forest SSSI, which would include fungi, and effectively cover their accidental exclusion from the FC Byelaws.

Personal use limit. 1.5kg – This was an amount suggest in FC publicity for many years.  It has no legal basis, and came from a misreading of guidance, The Wild Mushroom Picker’s Code of Conduct.  The Code suggested that amount for culinary forage as a per foray group total per visit, and should only be done with permission of the land owner/manager.  The Code deemed culinary forage as inappropriate on SSSI and/or National Nature Reserves.  The New Forest is both.

The supposed personal limit is moot and was never applicable, neither legally nor in guidance, on the Crown Lands, the New Forest SSSI.  The appropriate limit is 0.

I would prefer a complete ban on the New Forest SSSI in recognition of the precious, delicate and under pressure habitat, that should be protected, not just by on paper designations.  Foragers can go elsewhere, but our flora and fauna can’t.  Those pretending they care for the environment, but arguing their entitlement to its harvest, regardless of its protections, are raiding the larder of a burning house.

That said, in one stakeholder meeting I suggested a practical measure for enforcement that would let those genuinely taking a small amount for personal use off the hook, whatever you could comfortably hold within your two cupped hands, surely enough for an omelette without waste.

The Friends of the New Forest support the Forestry Commission’s “Look, Don’t Pick” policy for the New Forest SSSI under their stewardship. We would like to see the FC take a prosecution for picking of Red Data List species, which carries strong penalties capable of putting off commercial foragers.

 


ADDENDUM and FOOTNOTES (for those with more will power)

Also worth noting the Forestry Commission’s powers and designations on Crown Lands:

NCC Consent 25 January 1988

The Nature Conservancy Council issued the following consent to the FC regarding the above operation:-  “The collection of fungi as authorised by the Forestry Commission, subject to periodic review by the FC and the NCC.”

FC/Verderers/English Nature Declaration of Intent 25 July 1995

“The Forestry Commission will continue to manage the New Forest as an area with the status of a National Nature Reserve and to maintain the nature conservation interests for which it is designated under national and international legislation or agreements.”

FOOTNOTES

[*]

The Theft Act 1968 Section 4 “Property”.
(3) 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. For purposes of this subsection “mushroom” includes any fungus, and “plant” includes any shrub or tree.

This allows foraging activities for purely personal not any commercial use. Commercial use would include resale, but could be applied to those who run commercial foraging forays without permission of the landowner.

[†]

Wildlife and Countryside Act 1981 Section 13 Protection of wild plants
(1)Subject to the provisions of this Part, if any person—

(a)intentionally picks, uproots or destroys any wild plant included in Schedule 8; or
(b)not being an authorised person, intentionally uproots any wild plant not included in that Schedule,

he shall be guilty of an offence.

(2)Subject to the provisions of this Part, if any person—

(a)sells, offers or exposes for sale, or has in his possession or transports for the purpose of sale, any live or dead wild plant included in Schedule 8, or any part of, or anything derived from, such a plant; or
(b)publishes or causes to be published any advertisement likely to be understood as conveying that he buys or sells, or intends to buy or sell, any of those things,
COPY

he shall be guilty of an offence.
(3)Notwithstanding anything in subsection (1), a person shall not be guilty of an offence by reason of any act made unlawful by that subsection if he shows that the act was an incidental result of a lawful operation and could not reasonably have been avoided.
(4)In any proceedings for an offence under subsection (2)(a), the plant in question shall be presumed to have been a wild plant unless the contrary is shown

Unfortunately, fungi are not terribly well served here.  In fact, their inclusion in the act is a bit of an afterthought.  This is in part due to the reclassification of fungi into their own kingdom in 1969.  A codicil, section 71 subsection 2 “it is hereby declared that in this Act “plants” include fungi and algae.” was added to the bill in subsequent legislation, Natural Environment and Rural Communities Act 2006.  (The NERC Act 2006 also established Natural England, and Section 41 species)

[‡] The Crown Prosecution Service does not seem interested in the SSSI related offences, their  guidance on Wildlife Offences focusses on more straightforward criminality, mostly pertaining to offences in Sections 9 & 13.

Powers of Arrest, Search and Seizure

Under section 24(2) Police and Criminal Evidence Act, as amended by Schedule 12, paragraph 13 of the Countryside and Rights of Way Act, 2000 (the CROW Act,) the following are arrestable offences:

[INCLUDING] …

  • Any offence under sections 9, 13(1)(a) or (2) WCA 1981 (taking, possessing, selling etc of Schedule 5 wild animals or Schedule 8 plants). …

All offences under Part I WCA 1981 are summary only, except for offences under sections 14, 19ZA(7) and (8) which are either way. ….

Most offences are punishable on summary conviction by six month’s imprisonment and/or by a maximum fine of £5,000 (level 5). Where an offence is committed in respect of more than one bird, nest, egg etc the maximum fine shall be determined as if the person had been convicted of a separate offence in respect of each such item. See Section 21(5) WCA 1981.

Offences under section 14, 14A and 19 XB(4) are punishable on conviction on indictment to a term not exceeding two years imprisonment and/or a fine or both.

Powers of Forfeiture under WCA 1981 and generally

Wherever appropriate, courts should be reminded of their power to make such orders.

Under section 21(6)(a) WCA 1981 a court shall, following conviction for such an offence, order the forfeiture of any bird, egg, animal, plant etc in respect of which the offence was committed. Under s.21 (6) b a court may in the same circumstances order the forfeiture of any vehicle, animal, weapon or other thing used to commit the offence found in the offender’s possession. Forfeiture of a vehicle is often likely to be an effective means of deterring repeat offences relating, for example, to rare birds and eggs as well as of incapacitating an offender’s future ability to conduct such activities. ….

The Forfeiture guidelines are intriguing, adding a nice deterrent that in addition to the heavy fines for taking or selling Schedule 8 species, the vehicles used may be forfeited.

[§]Wildlife and Countryside Act 1981

Section 28 Establishment of SSSI’s Provision P Offences

(6)A person (other than a section 28G authority acting in the exercise of its functions) who without reasonable excuse—

(a)intentionally or recklessly destroys or damages any of the flora, fauna, or geological or physiographical features by reason of which land is of special interest, or intentionally or recklessly disturbs any of those fauna, and

(b)knew that what he destroyed, damaged or disturbed was within a site of special scientific interest,

is guilty of an offence and is liable on summary conviction to a fine not exceeding £20,000 or on conviction on indictment to a fine.

Natural England is the statutory body which determines which features, flora and fauna are key to any given SSSI, these are called notified features as NE, when they designate a SSSI, are required to notify landowners of their obligations to the SSSI.  On SSSI’s intentionally or recklessly destroying or damaging flora or fauna by reason of which land is of special interest is an offence under the Wildlife and Countryside Act 1981 Section 28 (P).  Whether or not the fungi harvested is one of the notified species, the ancillary consequences of the activity of foraging, including trampling and disturbance may be covered by this as well. Hefty penalties invoked here may give prosecutions considerable bite.

[**]

The Forestry Commission Byelaws 1982

  1. Acts Prohibited on the Lands of the Commissioners

No person shall in or on the lands of the Commissioners:

(vii) dig up, remove, cut or injure any tree, shrub or plant, whether living or not, or remove the seeds therefrom, or dig up or remove any soil, turf, leafmould, moss, peat, gravel, slag, sands or minerals of any kind;

The Forestry Commission byelaws list prohibited substances for removal which includes “plants” which may ambiguously refer to fungi (if we take into account inclusive definitions in Primary Legislation).  It may be worth removing this ambiguity by either seeking an inclusive interpretation of the existing byelaw – after all, it is likely that the original byelaws were drafted before fungi were reclassified, and it seems stingy when your list includes soil, turf, leafmold, moss and peat, to insist that plant does not include fungi.  Otherwise we could petition the FC to amend the byelaw, this is a long game move, though, and would take as much as five to ten years.

[††]National Trust Byelaws 1965

Soil and Vegetation
2. (a) No unauthorised person shall dig, cut or take turf, sods, gravel, sand, clay or any other substance on or from Trust Property.
(b) No unauthorised person shall dig up or remove, cut, fell, pluck or injure any flowers, plants, fungi, moss, ferns, shrubs, trees or other vegetation growing on Trust Property or remove any seeds thereof or injure any grass or climb any tree.

The National Trust Byelaws are quite clear, and here in the New Forest they have had to be vocal as they’ve had incidents, such as when their own organized educational fungi walk on one of the Northern Commons under their managagement could find none as the area had been stripped by commercial foragers.

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Presentment: Thanks to FC for continued Fungi policy / England Coast Path shortcomings

Fungi

The NFA hope the Verderers will join us in thanking the Forestry Commission for their continuing attempts to protect fungi vital to the habitat of the Crown Lands. As they did last year, the FC are still working to disrupt the illegal commercial picking and appealing to the public not to pick as well. In this, the Forestry Commission are fulfilling their legal duty as stewards of the Forest habitat.

The national code of conduct[*] says It is inappropriate to pick fungi from SSSI or National Nature Reserves – the Crown Lands have the Status of both. It is explicitly illegal on National Trust land under their byelaws, and would be illegal under the FC byelaws[†], but for the loophole created by reclassification of fungi as separate to the plant kingdom.  Under the Wildlife and Countryside Act 1981[‡] on SSSI’s “intentionally or recklessly destroying or damaging flora or fauna by reason of which land is of special interest” is an offence. The New Forest is one of the few SSSI’s so notified for the special interest of its fungi.

Picking any of the Red Band Rare Species of Fungi[§] is absolutely illegal by anyone, anywhere, and carries £5k fine per item with jailtime and vehicle forfeiture. The NFA believes that prosecution of these offenders would discourage commercial foragers more than lesser penalties under the Theft Act 1968.[**]

England Coast Path

I listed some of the England Coast Path’s shortcomings at the July Court, now a short update.

Currently the Natural England Coastal Team have offered a Sensitive Features Appraisal to determine exclusions for habitat, a very narrow consideration of features at risk. Unless this were to exclude the route, spreading and coastal margin from the highly protected areas out of hand, we should insist upon the more comprehensive, higher standards of a Habitats Regulation Assessment.

The new timeframe for the Consultation on the Highcliffe to Calshot stretch (set to begin between September 27th and October 19th ) unfortunately the majority of the consultation would fall before the next meetings of both the New Forest Consultative Panel, and the Local Access Forum, after next Monday’s meeting of the National Park’s Recreation Management Strategy Steering Group and with no planned meetings for the Advisory Group. This threatens to exclude any measured joint response from local stakeholders. As a member of the Steering Group, we hope the Verderers will join us in calling for an extraordinary joint meeting of both RMS groups to consider the consultation. Natural England are blaming their “parent” DEFRA for the time frame, and a looming March 2018 implementation date. We may need to remind both government departments that they should not be forcing a rush to judgement where disturbance to our most remote, isolated and protected coastal habitat is concerned.


[*] The Wild Mushroom Picker’s Code of Conduct 1998

[†] FC byelaws 1982, Section 5 Prohibited Acts: “No person shall in or on the lands of the Commissioners: … (vii) dig up, remove, cut or injure any tree, shrub or plant, whether living or not, or remove the seeds therefrom, …”

[‡] Wildlife and Countryside Act 1981 Section 28 (P)

[§] Schedule 8 Wildlife and Countryside Act 1981

[**] Given the indiscriminate harvesting by commercial pickers, it is likely that, if caught, their haul may include samples of rare species which may be used in evidence.

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“Look, Don’t Pick” – The Arguments

Over the months since the Forestry Commission announced their “Look, Don’t Pick” Policy for Fungi on The New Forest SSSI on the Crown Lands under their stewardship, we’ve heard a number of arguments against this move.  The NFA support the Forestry Commission’s policy as an important step to honouring the protections the habitat of the New Forest has, and ought to have in practice.  In that spirit we offer our rebuttals below:

Foraging is wonderful and magically connects people to nature.

Fine, just not fungi + here, please.

The New Forest is amongst the most highly protected habitat we have.  Would you challenge the existing prohibitions on fungi foraging on Wildlife Trust or National Trust land? The New Forest SSSI has the status of a National Nature Reserve.  

We could quibble that you shouldn’t need to ingest nature to enjoy and appreciate it, but then again Chris Packham once said he started his journey eating tadpoles he’d found.  No accounting for tastes. Foraging can foster a relationship for many with nature, but this is a protected habitat, we’re just asking those who actually care about nature, to respect its protection and find their fungi elsewhere. 

We’ve done this for thousands of years (Entitlement vs loss of habitat)

You speak of what’s been done for “thousands of years”, that includes loads of behaviours that are no longer appropriate in the face of unprecedented population growth, habitat loss and climate change.  Butterfly collectors once showed their appreciation of Lepidoptera by popping them in killing jars then mounting them on pins.

More than one in ten UK species is now threatened with extinction.  The house is burning, and you’re concerned with raiding the larder.

Where is your proof of the so-called gangs? (Denial)

They and their effects have been seen  by the Forestry Commission Keepers and Ecologists, the National Trust Rangers, the Hampshire Fungi Recording Group, other local surveyors, and many of our members.  Last Autumn the Forestry Commission intercepted 140 groups and/or individuals as part of their “disruption” campaign, seizing and destroying amounts over the then “personal” limit.

You’ll forgive us if those of us out walking don’t whip out our cameras and ask strangers engaged in illegal activities to pose nicely to satisfy your curiosity.  Or that we haven’t photographed every square fungi populated inch of the Forest ahead of time so that when it is subsequently stripped of fungi we could provide a before and after (hopefully recorded at exactly the same angle for the before and after).  The experiences and observations of many individuals, seem to count for nothing to those in denial.  

If you are that sceptical would a photo of a group of people holding bags in a wood convince you of anything? Or before and after pictures? If the FC put wildlife monitoring cameras by some patches of rare fungi, that would be rightly deemed too big brother (although police have said a private land owner doing this to catch similar acts would be perfectly legal).

You are criminalising ordinary people.

Similar bans already exist, the inclusive language of the Epping Forest byelaws have allowed the Keepers employed by the Corporation of the City of London to enforce its policy against fungi forage.  Meanwhile the CROW Act which opened up larger areas of countryside to Ramblers has an overarching ban on foraging on the nationwide network of Rights of Way, and the Right to Roam areas.

This is a SSSI, the FC already had the right to authorise picking of fungi under the consents they have from Natural England.  Their byelaws ban removal of a range of things that are not currently enforced, and it is only a trick of taxonomy that fungi are excluded (FC byelaws prohibit: dig up, remove, cut or injure any tree, shrub or plant, whether living or not, or remove the seeds therefrom, or dig up or remove any soil, turf, leafmould, moss, peat, gravel, slag, sands or minerals of any kind).  It is as much a policy decision to choose not to enforce all the elements of the byelaws as to restrict fungi foraging under their SSSI consents and the precautionary principle to protect the entire habitat.

The Wildlife and Countryside Act 1981 is the legislative instrument that defines the protections for wild animals and plants and defines Sites of Special Scientific Interest along with their extra protections and the statutory obligations of their landowners.  Rare species found on the Schedule 8 list, often referred to as the Red Band or Red List Species, are protected from being picked, uprooted or destroyed (section 13 subsection 1), and further from being sold, transported for sale, or even advertised for sale (subsection 2).  These are arrestable offences, the CPS guidance for prosecutions :

Most offences are punishable on summary conviction by six month’s imprisonment and/or by a maximum fine of £5,000 (level 5). Where an offence is committed in respect of more than one bird, nest, egg etc the maximum fine shall be determined as if the person had been convicted of a separate offence in respect of each such item.

In addition to offences being multiplied by number of items taken, the law also gives power of forfeiture: 

Under s.21 (6) b a court may in the same circumstances order the forfeiture of any vehicle, animal, weapon or other thing used to commit the offence found in the offender’s possession. Forfeiture of a vehicle is often likely to be an effective means of deterring repeat offences relating, for example, to rare birds and eggs as well as of incapacitating an offender’s future ability to conduct such activities. ….

The section 13 protections apply ANYWHERE in the Wild, not just SSSI.  The Red List includes fungi species such as the tasty, targeted and allegedly medicinal Hericium erinaceus (bearded tooth).

Hericium erinaceus in the New Forest

On SSSI’s intentionally or recklessly destroying or damaging flora or fauna by reason of which land is of special interest is an offence under the Wildlife and Countryside Act 1981 Section 28 (P).   The New Forest is one of the few SSSI which have fungi as one of these notified features of special interest. Whether or not the fungi harvested is one of the notified species, the ancillary consequences of the activity of foraging, including trampling and disturbance may be covered by this as well. Hefty penalties invoked here may give prosecutions considerable bite.  Damage to SSSI could be prosecuted, and yield realistically punitive fines (£10k-20k).  Of course the burden of proof is less straightforward than the section 13 offences, but I’m describing this to show the extent to which some fungi foraging activities were already criminal, and the legal basis which obligates the Forestry Commission to protect the notified features of the SSSI it manages.

This is Common Land – don’t we have the right to forage from it as part of rights of Common?

The Crown Lands are not actually registered commons as applies under the Commons Registrations Act, and so would not implicitly include any rights that may be extended to registered commons either under that act or in common law.

The modern legal framework for the Forest rights as applied to the New Forest are in the New Forest Acts which clearly defines rights of Common for the Crown Lands, these 1) don’t include Foraging 2) can only can be claimed by those occupying land with registered rights attached.

The ban is not scientific, because we have studies that show that harvesting fruiting bodies doesn’t have a detrimental effect.  (Selective research)

Compared to botany, mycology is positively medieval.  Not enough is known. We’re only just now coming to appreciate the complexity of the relationship between mycorrhizal fungi and the trees they service symbiotically.

There are only have a handful of studies on a few species, some not in comparable locations/habitats, that show negligible effect on individual fungi organisms of picking fruiting bodies, but not much on the long term viability of a given species and genetic diversity over time given the disruption to dispersal mechanisms.  

These studies do not consider the knock on effects on the rest of the ecosystem, putting aside the fruiting bodies as a food source, at least 600 (likely over 1000) species of invertebrate are reliant on them for their life-cycle (many are species specific).  Committed eggs don’t have the luxury of jumping to unpicked neighbours.  There are no studies showing ancillary effects on the rest of the ecosystem, therefore no substantial body of evidence for sustainability.  

Furthermore, the “sustainability” argument shouldn’t even apply on a SSSI with fungi as one of its notified features.  An attitude that recognises only supporting science in isolation, claims an absent weight of evidence, and ignores the bigger picture, is utterly self-serving.

Europe is a free for all.

This is simply not true.  France and Spain have no go areas.  There are licensing schemes in Italy and Poland and other eastern European Countries.  It is unlikely you would be allowed to pick fungi at all in Poland’s National Parks which include Strict Protection Zones, no go areas for any human interaction — reasons given include fungi conservation along with other habitat considerations, some parks even have buffer zones excluding people from an area outside the park.  Other European countries have similarly strict regimes if they have signed up to the level of habitat protection promoted by the IUCN and the Biosphere initiative.

Just because European cultures supposedly favour a tradition of fungi forage doesn’t mean they are blind to the need for conservation.  The Crown Lands of the New Forest have the highest levels of habitat and landscape protections and designations available in UK law.

And Finally, that old, ahem, chestnut: It’s just like picking Blackberries!

NO IT ISN’T (sorry for shouting):

  • Blackberry population is much greater and currently sustainable.
  • Blackberry pickers take only the fruit, not the entire visible portion of the plant.  In the protected landscape of a National Park the autumn display of fungi should be left for all to see.
  • Blackberry fruits are only harvested by pickers when they are ripe, they may be eaten by wildlife before this, and when pickers miss the optimal ripeness opportunity, after. Fungi are being removed when they are seen, not left for an optimal ripening.  If picked when still at “button” stage, they have not released spores.
  • The seeds in blackberry fruit are part of its distribution mechanism, the amount left unpicked, and fed upon by wildlife sustainably spreads the next generation.  Fungi fruiting bodies contain spores that go unreleased if they are picked, and may contain insect eggs, interrupting both distribution mechanisms, depleting the next generation of invertebrates.
  • Blackberries tend to conveniently, for pickers, grow on the sunny side of rides and paths, much blackberry picking is done from here, an inherently more robust location, without, or with much less disturbance to undergrowth.  Fungi are spread throughout the woodland floor. The trampling damage by harvesters alone is of grave concern, and contributes to potentially damaging operations which are restricted on SSSI.
  • The fruiting mechanism in plants is much better understood.  While there are studies that allege sustainability of picking based on individual mycellium continuing to produce the fruiting bodies, there is no body of work to show the extent to which this may stress the mycellium, or degree to which the organisms other ecosystem functions are altered by the energy and nutrient that must be expended in that process.

So again, NO IT ISN’T!!! (sorry for shouting, again).  To be glib (but no less right): no one is worried about the decline of the blackberry, get back to us if this changes.
 
If you are using the blackberry analogy, you are either willfully ignorant, or presume your audience is gullible. You should drop that line of argument, it makes you sound like an idiot or a con man.

Limited apologies if you feel we’ve oversimplified the case against (done for style, and attempted brevity).  We’ll welcome nuanced discussion, and well founded arguments, should they arise.

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The Forestry Commission’s New Forest Fungi Policy

The New Forest Association are pleased that the Forestry Commission are implementing a “Look, Don’t Pick” rule regarding fungi foraging on the New Forest Site of Special Scientific Interest under their stewardship. This affirms the protection our habitat deserves. This is consistent with their obligations to the protections of the SSSI, their management of the New Forest SSSI as a National Nature Reserve and their powers to authorise or deny picking of fungi under consent from Natural England.  This brings the FC policy in line with the ban on fungi foraging on the Commons the National Trust, and the Nature Reserves the Wildlife Trust manage within the Forest.

We hope that enforcement may be hard hitting on  pickers taking undue advantage of the forest whether commercial or not.  Enforcement may also be soft and educational for casual foragers.  The message is the same, this is a protected habitat and landscape, leave the fungi to nature and the autumn display for all to see.

It brings the FC back in line with the guidance 1998 Wild Mushroom Pickers Code of Conduct, the misreading of which was the source of the arbitrary 1.5 kg “limit”, which has absolutely no basis in law. The code clearly meant the limit for undesignated habitats, not SSSI  or National Nature Reserves.  An allowance should never have been implemented at all in this protected habitat.

NCC Consent 25 January 1988 (subsequently under Natural England)
The Nature Conservancy Council issued the following consent to the FC regarding the above operation:-  “The collection of fungi as authorised by the Forestry Commission, subject to periodic review by the FC and the NCC.”

FC/Verderers/English Nature Declaration of Intent 25 July 1995
“The Forestry Commission will continue to manage the New Forest as an area with the status of a National Nature Reserve and to maintain the nature conservation interests for which it is designated under national and international legislation or agreements.”

In July 2015 the NFA launched its campaign for a very specific ban on fungi harvest from the SSSI on the Crown Lands of the New Forest.  In doing this we’ve sought to bring about best practice under existing laws, byelaws and guidance.  After careful consideration we decided that calling for an Epping Forest style ban was the most clear cut solution, with its obvious precedent.  We’re taking the precautionary principle that on a SSSI, especially one including fungi amongst its notified features, under heavy pressure from recreation and other use, that the fungi should be protected, part and parcel with the whole of this habitat.

The NFA campaigns for the habitat and heritage of the Forest.  In entering into this campaign we consulted with our own ecologists and local mycologists. We’ve consulted with and had support from the British Mycological Society, the Fungi Conservation Trust, Natural England, Buglife, Plantlife and the National Trust, the Hampshire and Isle of Wight Wildlife Trust (the latter two had already banned fungi foraging on SSSI land they manage).  The fruiting bodies of the fungi are not merely food for other fauna, but are depended upon by at least 600 species of invertebrate using them as micro-habitats to fulfill their life cycles.

The New Forest Site of Special Scientific Interest is in one of the most densely populated National Parks, surrounded on many sides by conurbation with insufficient alternative greenspace, and mounting recreation pressure.   As open access land, it is easily accessible to all users, and an easy touch for volume foragers.  SSSI is a designation that confers habitat protection under UK law. The New Forest is also a Special Protection Area (SPA) and a Special Area of Conservation (SAC), Natura 2000 designations or initiatives under EU law, and a National Nature Reserve.  The Natural History Museum picked the New Forest as one of two biodiverse rich sites on which to base their ongoing climate change study.  It is a gem, one of the crown jewels of natural biodiversity in Britain, Europe and the World.  We ask all to understand importance of this ecosystem and the need for its protection, and that they respect its protection and find their fungi elsewhere.

For Immediate Release

We will be examining and addressing some of the counterarguments and myths surrounding this policy and fungi conservation in “Look, Don’t Pick – The Issues”. (available soon)

NFA Fungi Campaign 2015-16

With the upcoming NFA AGM this Saturday, we look back at some of this past years works. Here is an amended excerpt from our Habitat and Landscape Committee’s Annual Report

After years of increasing damage from commercial pickers, and more than two Autumns passing with much talk, but no subsequent action from the Forestry Commission and National Park Authority, the NFA Council took the lead and tasked our committee to develop the NFA’s policy and campaign to protect fungi from foragers.

At both the Verderers Court and National Park Authority meetings in July 2015 we called for the Forestry Commission to impose a ban on fungi harvest on the Crown Lands of the New Forest, the Site of Special Scientific Interest under their stewardship. This is in keeping with existing bans in Epping Forest and at many of the Wildlife Trusts’ Nature Reserves. A blanket ban will assist enforcement by removing the need to prove commercial intent and weigh amounts against the arbitrary allowance. With discretion Keepers could target those who are over harvesting, whether for personal or commercial use.

The National Trust imposed the ban on the Northern Commons that they manage within the Forest. The Forestry Commission stopped short of the ban, but did engage in a series of disruption events targeting commercial foragers, some harvests were seized and destroyed. We believe the FC missed a trick by not moving forward with prosecutions which should further deter commercial criminals. Foraging fungi for any commercial purpose is seen as theft in the Theft Act 1964. Under the Wildlife and Countryside Act 1981 if they have taken any rare protected species they face summary conviction for 6 months + £5k fine, or if Natural England determine that a group of pickers have engaged in potentially damaging operations on SSSI, fines of up to £20k may be levied.

The ban would also be in keeping with guidelines the FC itself subscribed to in 1998, the Wild Mushroom Pickers Code of Conduct published by English Nature, which says culinary foraging is inappropriate on SSSI and National Nature Reserves. That code is also the source of the supposed 1.5kg limit (which has no basis in law) which there is suggested “per foray” for culinary harvest, but which the FC have erroneously repeated as “per person / per day”, ignoring the code’s SSSI prohibition. The NFA have asked that all FC leaflets and posters compounding this error be withdrawn until a revised code is established.

The Forestry Commission’s latest The New Forest Essential Guide for 2016 has this more helpful message:

“Fungi: The New Forest is a Site of Special Scientific Interest with over two thousand varieties of fungi, many of which are rare and internationally-important species. We appeal to people to look, but don’t pick. Commercial harvesting is not permitted and foray leaders must obtain a licence. We’re reviewing the guidelines on picking for personal consumption. New restrictions will be trialled to lessen the impacts on this very special habitat, visit forestry.gov.uk/newforest or call 0300 067 4601 for the latest details.”

However, the website referenced above has yet to be updated and carries the unreviewed guidelines and leaflets. This includes the 1.5kg “personal limit” and noisome parenthetical congratulations to those treating it as a goal rather than a limit: ” (and if you’ve found this much you’ve done well!) “. This hardly gibes with the more welcome “look, but don’t pick”. Baby steps? Perhaps.

The NFA have continued to press for a new code of conduct, and with the full support of the members of the National Park Authority will be included in the stakeholders tasked with its development. We have stressed that a plan needs to be in place by the New Forest Show 2016 to have coordinated messages and actions for this Autumn. We will also campaign for improved protection when Wildlife laws are next revised (the Law Commission has published a draft, we do not know when it will be brought forward).

The display of fungi in the New Forest is as essential a part of the experience of Autumn in this protected habitat as the pannage pigs, and should remain for all to see and enjoy.

— excerpted with updates from the NFA Habitat and Landscape Committee Annual report, by Committee Chair, Brian Tarnoff, with permission.

Fungi Forage Ban on New Forest SSSI and Code of Conduct

NFA Presentment to September 2015 Verderers Court — The NFA reveal the source of the 1.5kg limit, and the flawed logic that allowed the FC to incorrectly apply this as a daily allowance on the protected habitat of the SSSI. This followed up the July 2015 Presentment calling for an Epping Forest style ban on culinary fungi foraging on the New Forest SSSI. [Annotations have been added below as here in square brackets]
500g punnet of mushrooms,
1/3rd of the daily amount suggested in erroneous advice.

Fungi Forage –clarification and update

The NFA are seeking a very specific Epping Forest style ban on fungi foraging on the Crown Lands of the New Forest, the Site of Special Scientific Interest which is in the stewardship of the Forestry Commission.  Epping Forest Keepers are empowered to seize harvests from fungi foragers and in 2013 brought twenty successful prosecutions.  The NFA believe a similar regime would make it easier to deter commercial foragers who would no longer have recourse to pretend they are picking for personal use.

Wild Mushroom Picker’s Code of Conduct

We are also concerned about out-dated and erroneous advice which the Forestry Commission continues to distribute about personal foraging on the New Forest.  Their leaflets and website suggest that everyone may collect up to 1.5 kg of fungi per person / per day.  This has absolutely no basis in law.  It is derived from a misreading of The Wild Mushroom Picker’s Code of Conduct Published 3rd September 1998 by English Nature developed in conjunction with Forestry Commission, the National Trust, the Woodland Trust, the Association of British Fungus Groups and the British Mycological Society.

In the section on Collecting for the pot:

Only collect from plentiful populations and take no more than you want for your personal consumption. In line with codes in most other European countries. we recommend that you pick no more than 1.5 kg per visit or no more than half of the fruit bodies of any single species present. whichever is the lower amount.

On some SSSIs. most nature reserves and other protected areas it is unlikely that culinary collecting is allowed. Always consult the site owner or manager before collecting.

[This is the source of the 1.5kg “limit”, note a lower amount may be taken, but requires an almost super human ability to scan the unspecified area and instantly calculate half, also leading to the you take half the next person takes half of what’s left and so on until little remains.  However the subsequent advice suggests that culinary collecting is not allowed on SSSI or Nature Reserves, this advice is ignored in the Forestry Commission’s version.]

In the section on Advice for Landowners & Managers:

If the land is a National Nature Reserve. other nature reserve or protected area. or an [sic] SSSI. it will probably be appropriate to limit picking to scientific collecting.

On SSSIs. picking fungi may require consent in writing from the statutory nature conservation body. [Natural England]

Keep taking half,
quickly approach zero

Ignoring the tentative language and the Zeno’s paradox baiting “take half” suggestion.  The 1.5kg limit is “per visit” which in context seems to cover a foray, but has been misapplied to mean “per person per day”.  This ignores the guidelines for SSSI which deems personal culinary use inappropriate and requiring consent from Natural England.  The 1.5kg “allowance” applicable to unprotected habitats is irrelevant.

[The code provides no lower alternative amount for culinary collecting on protected areas, because the default is none.  This provides a loophole for those who selectively read the code.]

Natural England have admitted the code “could [be] expressed more clearly and emphatically to avoid any misinterpretation.”  Both of the Fungi specialist organizations originally consulted for the code have withdrawn support.  The ABFG (now the Fungus Conservation Trust) characterise it as “ill conceived and unhelpful”.  The BMS have dropped it from their website, and now state that “a complete ban on [culinary] collection (except for scientific and educational purposes, which would require permission) should exist in the New Forest.”  All of the original consultees acknowledge that the rise in popularity of personal foraging and the uncontrolled growth of commercial picking require a clearer, stricter code.  This is in the process of being developed, in the meantime, the Forestry Commission need to stop promoting their erroneous interpretation.

Enforcement

The Deputy Surveyor has said it’s unrealistic to enforce a total ban.  Traffic enforcement doesn’t catch every motorist who speeds, but that doesn’t stop us having speed limits.  The NFA accept the limitations on enforcement, but suggest a blanket ban will assist enforcement by removing the need to prove commercial intent and weigh amounts against the discredited allowance.  Whether the FC would target everyone is up to them.  In practical terms this may only affect foragers who are overdoing it to the extent that they come to the notice of the Keepers regardless of commercial or personal use.  Having a ban in place will allow enforcement to evolve.

[To be fair Epping Forest have 9 Keepers who cover less than a tenth of the area.]

The NFA ask for the Verderer’s support in continuing to call for the blanket ban on culinary fungi forage on the Crown Lands.  We also ask for your support for our request that the Forestry Commission remove inappropriate advice including the erroneous daily allowance from all literature and websites pertaining to fungi collection from the New Forest SSSI.

We need to send the message that the Crown Lands of the New Forest are a protected habitat and landscape.  Foragers who claim to be environmentalists should respect that the Forest is different.  The rules here should favour this habitat, not commercial greed or personal entitlement.

Brian Tarnoff, New Forest Association (Chair, Habitat and Landscape Committee)

NFA Call to Ban Fungi Picking on the Crown Lands of the New Forest

Commercial picking on the New Forest is an unacceptable theft from the amenity of the autumn display, and damaging to the habitat. Commercial pickers harvest indiscriminately, taking every bit of fungi they find, and trampling everything in their way, leaving none for others or for nature. It has taken foraging to an unsustainable level.

The NFA demand an Epping Forest style ban on the Crown Lands of the New Forest, a habitat protected by law, with special designations including SSSI (Site of Special Scientific Interest). Under the Wildlife and Countryside Act 1981′ Section 13 any unauthorised removal of Fungi from SSSI is an offence and any removal of rare species is an offence. All commercial foraging of mushrooms / fungi, from the wild on any land, may be viewed as theft under The Theft Act 1968 Section 4 (3). which allows the activity for personal not any commercial use.

The Epping Forest byelaws do not specifically mention fungi, yet their policy and enforcement target its removal derived from an all inclusive prohibition. Their keepers are empowered to challenge pickers, seize and destroy harvests, and in some instances prosecutions are brought. A total ban would be much easier for the Forestry Commission keepers to enforce. They wouldn’t have to prove commercial intent, or weigh amounts to an arbitrary allowance, they could challenge anyone engaged in the activity. Whether, in practice, the FC targets everyone, is up to them. The message it sends is that the commercial pickers will not have recourse to pretend they’re just harmless gatherers for personal use.

We have asked the Forestry Commission for a policy of enforcement of a ban based on the model of Epping Forest. We have asked the National Park Authority and the Verderers of the New Forest to work with Natural England and rural Policing initiatives to help the FC devise ways to implement the ban suited to the management of the New Forest.

Foraging for fungi is no more acceptable on a SSSI and a National Park than carting away bushels of bluebells, or collecting butterflies or bird’s eggs. With an increasing population, and trends in cooking shows encouraging foraging, it is unclear how sustainable this activity would be in the future. It’s up to us to be responsible now and say that it’s inappropriate on the New Forest. We’re not entitled to simply take from nature in perpetuity and not be mindful of the consequences.

The display of fungi in the New Forest is as essential a part of the experience of Autumn in this protected habitat as the pannage pigs, and should remain for all to see and enjoy.

 
All images courtesy of Brian Tarnoff.