TITLE XIX
PUBLIC RECREATION
Chapter 217-A
NEW HAMPSHIRE NATIVE PLANT PROTECTION
Section 217-A:1
217-A:1 Title. –
This chapter shall be known and may be cited as "The New Hampshire Native Plant Protection Act of 1987".
Source. 1987, 220:1, eff. May 18, 1987.
Section 217-A:2
217-A:2 Findings and Declarations. –
Because there are no laws protecting any of our native plants, every year hundreds of our native plants are dug up and removed without permission from public and private property. Many of these are taken out-of-state and sold for profit. Therefore, the legislature finds and declares that:
I. For human needs and enjoyment, the interests of science, and the economy of the state, native plants and natural communities throughout this state should be protected and conserved; and that native plant numbers should be maintained and enhanced to insure their perpetuation as viable components of their ecosystems for the benefit of the people of New Hampshire.
II. Native species of plants within this state and the nation that are endangered, threatened, or otherwise reduced in number or may become so because of loss, modification, or severe curtailment of their habitats, or because of exploitation for commercial, scientific, educational, or private use, should be accorded protection as is necessary to maintain and enhance their numbers.
III. This state shall assist in the protection of species of plants that are determined to be endangered or threatened by prohibiting the taking, possession, transportation, processing, sale or offer for sale, exportation from this state, or shipment within this state of such species without required and valid federal and state permits.
IV. The commercial sale of seeds, plants, and nursery stock is regulated by the New Hampshire department of agriculture, markets, and food under RSA 433.
Source. 1987, 220:1. 1995, 130:4. 2010, 343:1, eff. Sept. 18, 2010.
Section 217-A:3
217-A:3 Definitions. –
In this chapter:
I. "Commercial" means all types of activities, uses, and purposes of an industrial or trade nature including, but not limited to, the buying and selling or barter and exchange of commodities and activities conducted for the purpose of such buying and selling or barter and exchange.
II. "Commissioner" means the commissioner of the department of natural and cultural resources.
III. "Department" means the department of natural and cultural resources.
IV. "Endangered species" means any species of plant that is in danger of extinction throughout all or a significant portion of its range within the state, or any species determined to be an endangered species pursuant to the Endangered Species Act.
V. "Endangered Species Act" means the Endangered Species Act of 1973, Public Law 93-205, as amended.
VI. "Environmental review" means a natural heritage bureau review of potential impacts to protected species and exemplary natural community occurrences to enable planning, permitting, and funding.
VII. "Exemplary natural community" means a viable occurrence of a rare natural community type or a high quality example of a more common natural community type as designated by the natural heritage bureau based on community size, ecological condition, and landscape context.
VIII. "Fee" means a fee to cover the cost of services rendered or the cost of producing and providing publications and reports.
IX. "Natural area" means an area that is relatively unaffected by human activity and which contains plants, wildlife, natural communities, geological features, or scenic values of state, regional, national, or global significance.
X. "Natural Areas Council" means an association of representatives from state agencies and private conservation groups who meet every other month, or as often as necessary, to exchange information and discuss protection priorities for natural areas in New Hampshire. The administrator of the natural heritage bureau shall be a member and act as chairperson. Member organizations shall include:
(a) The division of parks and recreation.
(b) The fish and game department.
(c) The office of planning and development.
(d) The department of agriculture, markets, and food.
(e) The water resources council.
(f) The university of New Hampshire department of plant biology.
(g) The Audubon Society of New Hampshire.
(h) The New Hampshire Association of Conservation Commissions.
(i) The Society for the Protection of New Hampshire Forests.
(j) The Nature Conservancy.
(k) The New Hampshire Timberland Owners Association.
(l) The U.S. Forest Service.
(m) The U.S. Fish and Wildlife Service.
(n) The New Hampshire Association of Natural Resource Scientists.
XI. "Natural community" means a recurring assemblage of plants and animals found in a particular physical environment.
XII. "Natural heritage bureau" means the bureau, administered within the division of forests and lands of the department of natural and cultural resources which collects and analyzes data on the status, location, and distribution of native plant species and natural communities in the state, and develops and implements measures for the protection, conservation, enhancement, and management of native New Hampshire plants.
XIII. "Natural heritage inventory" means the list of protected species developed in accordance with RSA 217-A:5, I and II.
XIV. "Person" means an individual, corporation, company, association, society, firm, partnership, joint stock company, or any department or instrumentality of the federal government, of any state or its political subdivisions, or of any foreign government.
XV. "Plant" means any member of the plant kingdom, including seeds, roots, and other parts of plants.
XVI. "Protect" and "protection" means to use and the use of all methods and procedures that are necessary to bring any species to the point at which the measures provided pursuant to this chapter are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition, and maintenance.
XVII. "Protected species" and "listed species" means any plant species designated as endangered or threatened under this chapter.
XVIII. "Species" includes any species, subspecies, or variety of plant.
XIX. "Take" means to pick, collect, cut, transplant, uproot, dig, remove, damage, destroy, trample, kill, or otherwise disturb, or to attempt to engage in any such conduct.
XX. "Threatened species" means any species of plant likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range within the state, or any species of plant determined to be a threatened species pursuant to the Endangered Species Act.
Source. 1987, 220:1. 1993, 250:1-4. 1995, 130:4. 2003, 319:9. 2004, 257:44. 2005, 236:1, 2. 2009, 112:4. 2010, 343:2, eff. Sept. 18, 2010. 2017, 156:14, I, 64, eff. July 1, 2017. 2021, 91:198, eff. July 1, 2021.
Section 217-A:4
217-A:4 Investigation and Research. –
The department shall conduct investigations on all species of plants and natural communities indigenous to and throughout this state necessary to develop information relating to population, distribution, habitat needs, limiting factors, and other biological and ecological data, and to determine protective measures and requirements necessary for their survival. The department may, at its discretion, withhold from any person information about the location and population of a species or natural community if it determines that disclosures of such information would threaten the survival of that or another species or natural community in any way.
Source. 1987, 220:1. 2010, 343:3, eff. Sept. 18, 2010.
Section 217-A:5
217-A:5 Natural Heritage Inventory of Species Requiring Protection; Rulemaking. –
I. The commissioner of the department shall, on the basis of research and investigations and other available scientific data on plant species, and after public hearing, adopt, pursuant to RSA 541-A, an inventory of plant species occurring in the state which are threatened by the loss, drastic modification, or severe curtailment of their habitats, their over-collection for aesthetic, commercial, educational, recreational, or scientific purposes, the effect on such species of disease, pollution, or predation, or other factor or combination of factors, natural or manmade.
II. The department, with the advice of the Natural Areas Council, shall make determinations required by paragraph I solely on the basis of the best scientific and commercial information available and after appropriate consultation with federal agencies, other interested state agencies, other states which have a common interest in the species, and interested persons and organizations. In determining whether any species of plant shall be a protected species, the department shall consider any present or future actions by the federal government, other states, agencies or political subdivisions of this state, or by any other person that may affect the species under consideration.
III. The department shall, by September 1, 1994, publish the rules adopted under RSA 541-A, including the natural heritage inventory. Such a list shall refer to the listed species by scientific and common name or names, if any.
IV. Excepting those species of plants determined to be endangered or threatened pursuant to the Endangered Species Act, the department shall determine whether any plant species should be listed as a protected species upon presentation of substantial evidence in the petition of any interested party. The department shall review each species listed as an endangered species or as a threatened species every 5 years to determine if the conditions that led to the original listing are still present.
Source. 1987, 220:1. 1993, 250:5, eff. June 15, 1993.
Section 217-A:6
217-A:6 Conservation Programs. –
I. The commissioner shall establish programs for the protection of species listed under RSA 217-A:5 and for exemplary natural communities. These programs may include methods for the acquisition of land and interests in land that the commissioner determines is necessary for the protection of such listed species or exemplary natural communities.
II. To administer this chapter, the department may enter into agreements with federal agencies, other states, agencies or political subdivisions of this state, or individuals or private organizations for administration and management of any program established under this section or utilized for the protection of listed plant species or exemplary natural communities.
III. The department is authorized to receive and expend funds, donations, grants, or other moneys, gifts, or bequests not exceeding $5,000, or exceeding $5,000 with the approval of the governor and council, to accomplish the purposes of this chapter.
IV. The department is authorized to acquire, by purchase or gift and after the approval of governor and council, real property for the purposes of this chapter.
Source. 1987, 220:1. 1993, 250:6. 2010, 343:4, eff. Sept. 18, 2010.
Section 217-A:7
217-A:7 Cooperation with Other State Agencies. –
All state agencies, consistent with their authority and responsibilities, shall assist and cooperate with the commissioner to carry out the purposes of this chapter. To the extent possible actions funded or carried out by state agencies shall not jeopardize the continued existence of any protected plant species or exemplary natural community.
Source. 1987, 220:1. 1993, 250:7. 2010, 343:5, eff. Sept. 18, 2010.
Section 217-A:7-a
217-A:7-a Natural Heritage Bureau Fund Established. –
I. The commissioner may charge a fee for screening department records for instances of protected species or environmental review, for using inventory and information services, and for publications and reports to recover the costs of providing products and services and a reasonable portion of the costs associated with building and maintaining the database.
II. Fees shall be sufficient to cover the costs of providing services and producing and providing products authorized by this chapter.
III. Fees shall be fixed in a schedule prepared and revised as necessary by the natural heritage bureau, approved by the commissioner, and established in rules adopted pursuant to RSA 541-A. The fees charged under this paragraph shall be deposited in the fund established in paragraph IV.
IV. There is hereby established in the office of the state treasurer a fund to be known as the natural heritage bureau fund. Moneys collected under this section and RSA 217-A:6, III shall be deposited in this fund. The fund shall be nonlapsing and continually appropriated to the commissioner for the purposes of providing environmental reviews, for the costs of providing publications or reports to the public, for the costs of providing inventory and information services, and to accomplish the purposes of this chapter.
Source. 2005, 236:7. 2010, 343:6, eff. Sept. 18, 2010.
Section 217-A:8
217-A:8 Rulemaking. –
The commissioner of the department shall adopt rules, after public hearing and under RSA 541-A, relative to:
I. Criteria and procedures for listing endangered and threatened species under RSA 217-A:5.
II. Procedures for identifying exemplary natural communities.
III. Procedures for requests by persons or agencies for listing of plant species as endangered or threatened.
IV. Procedures for requests by persons or agencies for designating communities as exemplary.
V. Procedures for releasing information on listed plant species and exemplary natural communities.
VI. Conservation programs to protect endangered or threatened species and exemplary natural communities.
VII. Form and content of agreements with persons to protect endangered or threatened species and exemplary natural communities.
VIII. Procedures for application for and acceptance of funds for programs to protect endangered or threatened species and exemplary natural communities.
IX. Procedures for purchasing or accepting gifts of real property for purposes of this chapter.
X. Purposes for which exemptions may be granted under RSA 217-A:10, III.
XI. Administration of the fund established in RSA 217-A:7-a.
Source. 1987, 220:1. 1993, 250:8. 2005, 236:3. 2010, 343:7, eff. Sept. 18, 2010.
Section 217-A:9
217-A:9 Prohibited Acts. –
I. It shall be a violation of this chapter for any person, other than the owner of private property on which the species listed under RSA 217-A:5 is located to:
(a) Export any protected species from the state.
(b) Import any protected species into the state.
(c) Transport any protected species within the state.
(d) Take, possess, sell, offer for sale, deliver, carry, transport or ship, by any means, any protected species from public highways, public property, waters of the state or from property of another without required and valid state or federal permits.
(e) Otherwise violate any rule adopted under RSA 217-A:8, relative to the conservation or protection of any species listed under RSA 217-A:5.
II. Nothing in this section shall limit the rights of private property owners to take state protected species or exemplary natural communities on their own lands.
III. The natural heritage bureau, except as provided in RSA 217-A:9, I shall act as an information resource program to assist and advise state and local agencies, and private sector development projects upon request.
Source. 1987, 220:1. 1993, 250:9. 2005, 236:4. 2010, 343:8, eff. Sept. 18, 2010.
Section 217-A:10
217-A:10 Exemption. –
I. Nothing in this chapter or any rule adopted under this chapter shall interfere with any act authorized, permitted, or exempted by the Endangered Species Act or any regulation promulgated under that act.
II. Any protected plant species may be transported to, possessed at, and sold from a location certified by the New Hampshire department of agriculture, markets, and food under RSA 433:29, or a similar certification issued under the laws of another state.
III. The department may permit, under such terms and conditions as it may prescribe, any act otherwise prohibited by RSA 217-A:9 for scientific purposes, to enhance the propagation or survival of the affected species, or for the conservation of exemplary natural communities.
IV. No rule adopted by the department under the provisions of this chapter shall cause undue interference with normal agriculture or silvicultural practices.
Source. 1987, 220:1. 1995, 130:4. 2008, 9:1. 2010, 343:9, eff. Sept. 18, 2010.
Section 217-A:11
217-A:11 Penalty. –
Any person violating the provisions of this chapter or any rule adopted under this chapter shall be guilty of a violation. Each such prohibited act with respect to each plant shall constitute a separate violation.
Source. 1987, 220:1, eff. May 18, 1987.
Section 217-A:12
217-A:12 Enforcement. –
I. Any peace officer shall have the authority to enforce this chapter, and may:
(a) Conduct searches as provided by law, and execute a warrant to search for and seize any equipment, business records, merchandise, or plants taken, possessed, transported, sold, offered for sale, bartered, shipped, or otherwise used in connection with any violation of this chapter.
(b) Arrest any person, without a warrant, who the officer has probable cause to believe is violating this chapter or any rule adopted under this chapter.
(c) At the time of arrest of any person in connection with any violation, search the person, premises, or business records and seize any plants, records, or property taken or used in connection with any alleged violation.
II. Any warrant for the arrest of a person shall be issued upon sworn complaint as in other criminal cases, and any search warrant shall be issued only upon a written showing of probable cause, supported by oath or affirmation, describing the places to be searched and the persons or things to be seized.
III. Equipment, merchandise, plants, or records seized under paragraph I shall be held by any peace officer pending disposition of court proceedings, and thereafter shall be forfeited to the state for disposition as the department may deem appropriate. The department may direct the transfer of plants so seized to a qualified biological or to a botanical, educational, or scientific institution for identification, safekeeping, and preservation for court proceedings. Upon conviction of the person or persons from whom the seizure was made, the court shall assess the costs of transfer and safekeeping on the convicted person and shall declare all plant materials seized forfeited to this state. Such items shall be deposited in a herbarium approved by the department, or, if alive, shall be used for scientific, propagative, or educational purposes or returned to their wild habitat.
Source. 1987, 220:1, eff. May 18, 1987.