ORS Chapter 564
Chapter 564 — Wildflowers;Threatened or Endangered Plants
2009 EDITION
WILDFLOWERS;THREATENED OR ENDANGERED PLANTS
AGRICULTURE
GENERALPROVISIONS
564.010 Definition
WILDFLOWERS
564.020 Wildflowerprotection
564.030 Enforcement
564.040 Departmentto compile list of additional protected wildflowers
THREATENEDOR ENDANGERED PLANTS
564.100 Definitionsfor ORS 564.100 to 564.135
564.105 Responsibilityto protect and conserve native plants; rules
564.110 Listingthreatened or endangered species; procedure; notice; periodic review; rules
564.115 Protectionand conservation programs; action by state agencies; alternatives; findingsrequired if agency fails to adopt alternatives
564.120 Transactionsin threatened or endangered species; restrictions; prohibition
564.125 Directorof Agriculture authorized to acquire plant habitat
564.130 Confidentialityof information regarding threatened or endangered species; circumstances
564.135 Effectof law on commercial forestland or private land; effect on other laws
PENALTIES
564.991 Penalties
564.994 Penaltyfor violation of ORS 564.120
GENERALPROVISIONS
564.010Definition.As used in this chapter, “department” means “State Department of Agriculture.”
WILDFLOWERS
564.020Wildflower protection. (1) It is the duty of all citizens of this state toprotect the wildflowers of this state referred to in this section from needlessdestruction and waste.
(2)It shall be unlawful for any person in this state to willfully or negligentlycut, dig up, trim, pick, remove, mutilate or in any manner injure or mar anyplant, flower, shrub, bush, fruit or other vegetation growing upon the right ofway of any public highway within this state, or upon public lands, or upon theland of another, within 500 feet of the center of any public highway, withoutthe written permit of the owner, signed by the owner or the authorized agent ofthe owner.
(3)It shall be unlawful for any person to export from this state, or to sell oroffer for sale or transport bulbs, corms, rhizomes, roots or plants of nativewildflowers or shrubs of the state of any of the following genera:
(a)Lilium (including all wild lilies).
(b)Calochortus (mariposa tulip or butterfly lily).
(c)Fritillaria (mission bells or snake lily).
(d)Erythronium (adder’s tongue, dog-tooth violet or avalanche lily).
(e)Cypripedium (lady’s slipper).
(f)Calypso (purple lady’s slipper).
(g)Lewisia (bitter root).
(h)Douglasia or native Rhododendron or azalea.
(4)It shall be unlawful for any person to sell or transport or offer for sale thebulbs, corms, rhizomes, roots or parts of any of the plants or shrubs mentionedin subsections (2) and (3) of this section which have been dug, pulled up orgathered upon any highway, or within 500 feet thereof, or public lands in thisstate, or upon the land of any other person without written permission from theowner of such land.
(5)The provisions of this section shall not be construed to apply to any employeeof the federal government or of the State of Oregon or of any politicalsubdivision of the state engaged in work upon any state, county or public roador highway while performing such work under the supervision of the federalgovernment, the state or any political subdivision thereof.
(6)The provisions of this section shall not be construed to apply to the owner ofany tract or tracts of land, or to agents or employees of the owner, as to suchtract or tracts, or to any shrub, plant or other vegetation which is declaredby law to be a public nuisance.
(7)Nothing in this section shall be construed as prohibiting the digging, pulling,gathering or sending out of this state, in such quantity and at such times theState Department of Agriculture may approve, any commercially propagated plantsor shrubs mentioned in subsections (2) and (3) of this section, provided thepermission of the department for so doing is first obtained.
564.030Enforcement.It shall be the duty of the State Department of Agriculture and of all itsofficers and employees to see that the provisions of ORS 564.020 are enforcedand to present evidence of any violation of the provisions of ORS 564.020 tothe district attorney of the county in which any such violation occurs. Suchdistrict attorney shall prosecute any person guilty of a violation of theprovisions of ORS 564.020. Such prosecution may be brought in any of thejustice courts of this state.
564.040Department to compile list of additional protected wildflowers. In order tofurther protect native wildflowers and shrubs from needless destruction andwaste, the State Department of Agriculture may, after investigation and publichearing and in accordance with the provisions of ORS chapter 183, establish andamend a list of wildflowers and shrubs in addition to those listed in ORS 564.020(3). The provisions of this chapter apply to such list. The department may takeinto consideration:
(1)The laws and regulations of the United States and other states.
(2)The effect on the scenic beauty of public roads and public land. [1963 c.461 §30;1987 c.686 §17]
THREATENEDOR ENDANGERED PLANTS
564.100Definitions for ORS 564.100 to 564.135. As used in ORS 564.100 to 564.135:
(1)“Department” means the State Department of Agriculture.
(2)“Director” means the Director of Agriculture.
(3)“Endangered species” means:
(a)Any native plant species determined by the department to be in danger ofextinction throughout any significant portion of its range.
(b)Any native plant species listed as an endangered species pursuant to thefederal Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531 et seq.),as amended.
(4)“Plant” means any member of the plant kingdom, including the seeds, roots orparts thereof, native to this state.
(5)“Species” means any species or its subspecies or variety, whichever is thefirst taxonomic subspecific category for the plant in question.
(6)“Take” means to collect, cut, damage, destroy, dig, kill, pick, remove orotherwise disturb.
(7)“Threatened species” means:
(a)Any native plant species the director determines by a finding of fact is likelyto become an endangered species within the foreseeable future throughout anysignificant portion of its range.
(b)Any native plant species listed as a threatened species pursuant to the federalEndangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531 et seq.), asamended. [1987 c.686 §8]
564.105Responsibility to protect and conserve native plants; rules. The Director ofAgriculture has the responsibility to protect and conserve the native plants ofthis state that are threatened species or endangered species. In carrying outthat responsibility, the director:
(1)Shall conduct investigations of plant species native to this state anddetermine whether any such species is a threatened species or an endangered species.
(2)By rule, shall establish and publish, and from time to time may revise, a listof plant species that are threatened species or endangered species.
(3)By rule, shall establish programs for the protection and conservation of plantspecies that are threatened species or endangered species. As used in thissubsection, “conservation” means the use of methods and procedures necessary tobring a species to the point at which the measures provided under ORS 564.105to 564.120 are no longer necessary. The methods and procedures include, but arenot limited to, activities associated with scientific resources management suchas research, census, law enforcement, habitat acquisition and maintenance,propagation and transplantation.
(4)By rule, shall establish a system of permits for scientific taking ofthreatened species and endangered species under terms and conditions that thedirector determines will minimize the impact on the species taken.
(5)Shall cooperate with the State Fish and Wildlife Commission in carrying out theprovisions of ORS 496.172.
(6)Shall adopt administrative rules to carry out the provisions of ORS 564.105 to564.120.
(7)Shall set priorities for establishing programs under this section afterconsideration of available funds and the immediacy and seriousness of thethreat to any listed species. [1987 c.686 §9; 2009 c.11 §77]
564.110Listing threatened or endangered species; procedure; notice; periodic review;rules.(1) The lists of threatened species or endangered species established pursuantto ORS 564.105 (2) initially shall include those species listed as of May 15,1987, as a threatened species or an endangered species pursuant to the federalEndangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531 et seq.), as amended.
(2)The Director of Agriculture, by rule, may add or remove any plant species fromeither list, or change the status of any species on the lists, upon adetermination that the species is or is not a threatened species or anendangered species.
(3)A determination that a species is a threatened species or an endangered speciesshall be based on documented and verifiable scientific information about thespecies’ biological status. To list a species as a threatened species or anendangered species under ORS 564.100 to 564.130, the director shall determinethat the natural reproductive potential of the species is in danger of failuredue to limited population numbers, disease, predation or other natural orman-made factors affecting its continued existence. In addition, the directorshall determine that one or more of the following factors exist:
(a)That most populations are undergoing imminent or active deterioration of theirrange or primary habitat;
(b)That overutilization for commercial, recreational, scientific or educationalpurposes is occurring or is likely to occur; or
(c)That existing state or federal programs or regulations are inadequate toprotect the species or its habitat.
(4)Determinations required by subsection (3) of this section shall be made on thebasis of the best scientific and other data available to the State Departmentof Agriculture, after consultation with federal agencies, other interestedstate agencies, the Natural Heritage Advisory Council, other states having acommon interest in the species and interested persons and organizations.
(5)(a)Any person may petition the department to, by rule, add, remove or change thestatus of a species on the list.
(b)A petition shall clearly indicate the action sought and shall includedocumented scientific information about the species’ biological status tojustify the requested action.
(c)Within 90 days of receipt of a petition, the department shall respond inwriting to the petitioner indicating whether the petition presents substantialscientific information to warrant the action requested.
(d)If the petition is found to present such information, the department shallcommence rulemaking.
(e)If the petition is denied, the petitioner may seek judicial review as providedin ORS 183.484.
(6)(a)Notwithstanding subsections (1) to (5) of this section, the department shalltake emergency action to add a species to the list of threatened species orendangered species if it determines there is a significant threat to thecontinued existence of the species.
(b)The department shall publish notice of such addition in the Secretary of State’sbulletin and shall mail notice to affected or interested persons whose namesare included on the department’s mailing list for such purposes.
(c)Such emergency addition shall take effect immediately upon publication in theSecretary of State’s bulletin and shall remain valid for a period no longerthan one year, unless during the one-year period the department completesrulemaking procedures as provided in subsections (1) to (4) of this section.
(7)(a)The director shall periodically review the status of all threatened andendangered plant species listed under ORS 496.004, 496.171 to 496.192, 498.026,564.040 and 564.100 to 564.135.
(b)Each species shall be reviewed at least once every five years to determinewhether substantial, documented scientific information exists to justify itsreclassification or removal from the list, according to the criteria listedunder subsection (3) of this section.
(c)If a determination is made to reclassify a species or remove it from the list,the department, within 90 days, shall commence rulemaking to change the statusof the species. [1987 c.686 §10; 1999 c.59 §177; 2003 c.14 §350]
564.115Protection and conservation programs; action by state agencies; alternatives;findings required if agency fails to adopt alternatives. (1) Indeveloping protection and conservation programs pursuant to ORS 564.105 (3),the State Department of Agriculture shall consult with other states having acommon interest in particular threatened species or endangered species and withother affected state agencies.
(2)In furtherance of programs to conserve or protect threatened species orendangered species under ORS 564.105 to 564.115, state agencies shall consultand cooperate with the department and any other state agency that hasestablished programs to conserve or protect threatened species or endangeredspecies. Before a state agency takes, authorizes or provides direct financialassistance to any activity on land owned or leased by the state, or for whichthe state holds a recorded easement, the state agency, in consultation with thedepartment, shall:
(a)Determine that the action on land owned or leased by the state or for which thestate holds a recorded easement is consistent with a program established by thedepartment pursuant to ORS 564.105 (3); or
(b)If no program has been established for the listed species, determine whethersuch action has the potential to appreciably reduce the likelihood of thesurvival or recovery of any species of plant that is threatened or endangered.
(3)If a state agency determines that a proposed action on land owned or leased bythe state, or for which the state holds a recorded easement, has the potentialto appreciably reduce the likelihood of the survival or recovery of any speciesthat is a threatened species or an endangered species, it shall notify thedepartment. Within 90 days, the department shall recommend reasonable andprudent alternatives, if any, to the proposed action which are consistent withconserving and protecting the affected species.
(4)If a state agency fails to adopt the alternatives identified under subsection(3) of this section, after consultation with the department, it shall makefindings to demonstrate that:
(a)The potential public benefits of the proposed action outweigh the potentialharm from failure to adopt the alternatives; and
(b)Reasonable mitigation and enhancement measures shall be taken, to the extentpracticable, to minimize the adverse impact of the action on the affectedspecies.
(5)When an action under this section is initiated by a person other than a stateagency, the agency shall provide final approval or denial of the proposedaction within 120 days of receipt of a written request for final determination.
(6)An action initiated by a person other than a state agency that has met thestandards or mitigation requirements of a federal agency for a particularspecies under the federal Endangered Species Act of 1973 (P.L. 93-205, 16U.S.C. 1531 et seq.), as amended, shall be deemed to meet the requirements ofORS 564.100 to 564.130.
(7)The provisions of this section do not apply to lands acquired throughforeclosures of loans made pursuant to programs of the Department of Veterans’Affairs. [1987 c.686 §11]
564.120Transactions in threatened or endangered species; restrictions; prohibition. (1) Except asotherwise provided pursuant to ORS 564.105, no person shall take, import,export, transport, purchase or sell, or attempt to take, import, export,transport, purchase or sell any threatened species or endangered species.
(2)No person shall take or attempt to take any threatened species or endangeredspecies without first having obtained permission from the person who owns orleases the land upon which the species is growing. When land is owned by theState of Oregon and leased for private use, permission to take or attempt totake a threatened species or endangered species must first be obtained from theDirector of Agriculture. [1987 c.686 §12]
564.125Director of Agriculture authorized to acquire plant habitat. The Director ofAgriculture is authorized, on behalf of the State of Oregon, to acquirehabitat, or interests therein, the State Department of Agriculture considersnecessary for the protection of threatened species or endangered species.Acquisition may be by gift, grant, devise, purchase, exchange or any othermethod by which the department is authorized to acquire real property. [1987c.686 §14]
564.130Confidentiality of information regarding threatened or endangered species;circumstances.(1) Notwithstanding ORS 192.410 to 192.505, the director of the appropriateagency may hold confidential, and refuse to disclose, information concerningthe location of a threatened or endangered wildlife or plant species upon adetermination that, based on prior experience, unlawful taking is likely tooccur if the location is disclosed.
(2)In no instance shall the director of the appropriate agency refuse to discloseinformation concerning the location of a threatened or endangered wildlife orplant species to the owner of lands on which the species is known to exist. [1987c.686 §15]
564.135Effect of law on commercial forestland or private land; effect on other laws. (1) Nothing inORS 564.100 to 564.130 is intended, by itself, to require an owner of anycommercial forestland or other private land to take action to protect athreatened species or endangered species, or to impose additional requirementsor restrictions on the use of private land.
(2)Notwithstanding any other provision of law, nothing in ORS 496.004, 496.171 to496.192, 498.026, 564.040 and 564.100 to 564.135 or ORS 527.610 to 527.770 and527.992 shall be interpreted to require protection of a species listed underORS 564.100 to 564.130 or its habitat on private forestland.
(3)The existence of a species listed under ORS 564.100 to 564.130 on privatelyowned forestland shall not require protection of its habitat as a biologicalsite under ORS 527.610 to 527.770 and 527.992. However, if other elements existthat qualify such habitat as a biological site, such habitat may be protectedas a biological site under ORS 527.610 to 527.770 and 527.992.
(4)Species listed under ORS 564.100 to 564.130 may be subject to protection underORS chapters 195, 196 and 197 provided that the full process of inventory andanalysis required by any open spaces, scenic and historic areas and naturalresources goal is fulfilled and included in any acknowledged land use plan oramendment. [1987 c.686 §16]
564.910 [Repealed by1953 c.488 §2]
PENALTIES
564.990 [Repealed by1963 c.461 §34]
564.991Penalties.Subject to ORS 153.022, violation of this chapter and regulations authorized byORS 564.040 is a Class A violation. [1963 c.461 §31; 1999 c.1051 §200]
564.994Penalty for violation of ORS 564.120. Violation of ORS 564.120 is a Class Amisdemeanor. [1987 c.686 §13]
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