2007 Oregon Code - Chapter 564 :: Chapter 564 - Wildflowers - Threatened or Endangered Plants
Chapter 564 —
Wildflowers; Threatened or Endangered Plants
2007 EDITION
WILDFLOWERS; THREATENED OR ENDANGERED PLANTS
AGRICULTURE
GENERAL PROVISIONS
564.010Â Â Â Â Definition
WILDFLOWERS
564.020Â Â Â Â Wildflower
protection
564.030Â Â Â Â Enforcement
564.040Â Â Â Â Department
to compile list of additional protected wildflowers
THREATENED OR ENDANGERED PLANTS
564.100Â Â Â Â Definitions
for ORS 564.100 to 564.135
564.105Â Â Â Â Responsibility
to protect and conserve native plants; rules
564.110Â Â Â Â Listing
threatened or endangered species; procedure; notice; periodic review; rules
564.115Â Â Â Â Protection
and conservation programs; action by state agencies; alternatives; findings
required if agency fails to adopt alternatives
564.120Â Â Â Â Transactions
in threatened or endangered species; restrictions; prohibition
564.125Â Â Â Â Director
of Agriculture authorized to acquire plant habitat
564.130Â Â Â Â Confidentiality
of information regarding threatened or endangered species; circumstances
564.135Â Â Â Â Effect
of law on commercial forestland or private land; effect on other laws
PENALTIES
564.991Â Â Â Â Penalties
564.994Â Â Â Â Penalty
for violation of ORS 564.120
GENERAL PROVISIONS
     564.010
Definition. As used in this
chapter, “department” means “State Department of Agriculture.”
WILDFLOWERS
     564.020
Wildflower protection. (1) It
is the duty of all citizens of this state to protect the wildflowers of this
state referred to in this section from needless destruction and waste.
     (2) It shall be unlawful for any person in
this state to willfully or negligently cut, dig up, trim, pick, remove,
mutilate or in any manner injure or mar any plant, flower, shrub, bush, fruit
or other vegetation growing upon the right of way of any public highway within
this state, or upon public lands, or upon the land of another, within 500 feet
of the center of any public highway, without the written permit of the owner,
signed by the owner or the authorized agent of the owner.
     (3) It shall be unlawful for any person to
export from this state, or to sell or offer for sale or transport bulbs, corms,
rhizomes, roots or plants of native wildflowers 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 the bulbs, corms, rhizomes, roots or parts
of any of the plants or shrubs mentioned in subsections (2) and (3) of this
section which have been dug, pulled up or gathered upon any highway, or within
500 feet thereof, or public lands in this state, or upon the land of any other
person without written permission from the owner of such land.
     (5) The provisions of this section shall
not be construed to apply to any employee of the federal government or of the
State of Oregon or of any political subdivision of the state engaged in work
upon any state, county or public road or highway while performing such work
under the supervision of the federal government, the state or any political
subdivision thereof.
     (6) The provisions of this section shall
not be construed to apply to the owner of any tract or tracts of land, or to
agents or employees of the owner, as to such tract or tracts, or to any shrub,
plant or other vegetation which is declared by 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 the State Department of Agriculture
may approve, any commercially propagated plants or shrubs mentioned in subsections
(2) and (3) of this section, provided the permission of the department for so
doing is first obtained.
     564.030
Enforcement. It shall be the
duty of the State Department of Agriculture and of all its officers and
employees to see that the provisions of ORS 564.020 are enforced and to present
evidence of any violation of the provisions of ORS 564.020 to the district
attorney of the county in which any such violation occurs. Such district
attorney shall prosecute any person guilty of a violation of the provisions of
ORS 564.020. Such prosecution may be brought in any of the justice courts of
this state.
     564.040
Department to compile list of additional protected wildflowers. In order to further protect native
wildflowers and shrubs from needless destruction and waste, the State
Department of Agriculture may, after investigation and public hearing and in
accordance with the provisions of ORS chapter 183, establish and amend 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 take into
consideration:
     (1) The laws and regulations of the
     (2) The effect on the scenic beauty of
public roads and public land. [1963 c.461 §30; 1987 c.686 §17]
THREATENED OR
ENDANGERED PLANTS
     564.100
Definitions 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 of extinction throughout any significant portion
of its range.
     (b) Any native plant species listed as an
endangered species pursuant to the federal 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 or parts thereof, native to this state.
     (5) “Species” means any species or its
subspecies or variety, whichever is the first taxonomic subspecific category
for the plant in question.
     (6) “Take” means to collect, cut, damage,
destroy, dig, kill, pick, remove or otherwise disturb.
     (7) “Threatened species” means:
     (a) Any native plant species the director
determines by a finding of fact is likely to become an endangered species
within the foreseeable future throughout any significant portion of its range.
     (b) Any native plant species listed as a
threatened species pursuant to the federal Endangered Species Act of 1973 (P.L.
93-205, 16 U.S.C. 1531 et seq.), as amended. [1987 c.686 §8]
     564.105
Responsibility to protect and conserve native plants; rules. The Director of Agriculture has the
responsibility to protect and conserve the native plants of this state that are
threatened species or endangered species. In carrying out that responsibility,
the director:
     (1) Shall conduct investigations of plant
species native to this state and determine 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 list of plant species that are threatened
species or endangered species.
     (3) By rule, shall establish programs for
the protection and conservation of plant species that are threatened species or
endangered species. As used in this section, “conservation” means the use of
methods and procedures necessary to bring a species to the point at which the
measures provided under ORS 564.105 to 564.120 are no longer necessary. Such
methods and procedures include, but are not limited to, activities associated
with scientific resources management such as research, census, law enforcement,
habitat acquisition and maintenance, propagation and transplantation.
     (4) By rule, shall establish a system of
permits for scientific taking of threatened species and endangered species
under such terms and conditions as the director determines will minimize the
impact on the species taken.
     (5) Shall cooperate with the State Fish
and Wildlife Commission in carrying out the provisions of ORS 496.172.
     (6) Shall adopt administrative rules to
carry out the provisions of ORS 564.105 to 564.120.
     (7) Shall set priorities for establishing
programs under this section after consideration of available funds and the
immediacy and seriousness of the threat to any listed species. [1987 c.686 §9]
     564.110
Listing threatened or endangered species; procedure; notice; periodic review;
rules. (1) The lists of
threatened species or endangered species established pursuant to 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 federal Endangered
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 from either list, or change the status of
any species on the lists, upon a determination that the species is or is not a
threatened species or an endangered species.
     (3) A determination that a species is a
threatened species or an endangered species shall be based on documented and
verifiable scientific information about the speciesÂ’ biological status. To list
a species as a threatened species or an endangered species under ORS 564.100 to
564.130, the director shall determine that the natural reproductive potential
of the species is in danger of failure due to limited population numbers,
disease, predation or other natural or man-made factors affecting its continued
existence. In addition, the director shall determine that one or more of the
following factors exist:
     (a) That most populations are undergoing
imminent or active deterioration of their range or primary habitat;
     (b) That overutilization for commercial,
recreational, scientific or educational purposes is occurring or is likely to
occur; or
     (c) That existing state or federal
programs or regulations are inadequate to protect the species or its habitat.
     (4) Determinations required by subsection
(3) of this section shall be made on the basis of the best scientific and other
data available to the State Department of Agriculture, after consultation with
federal agencies, other interested state agencies, the Natural Heritage
Advisory Council, other states having a common interest in the species and
interested persons and organizations.
     (5)(a) Any person may petition the
department to, by rule, add, remove or change the status of a species on the
list.
     (b) A petition shall clearly indicate the
action sought and shall include documented scientific information about the
speciesÂ’ biological status to justify the requested action.
     (c) Within 90 days of receipt of a
petition, the department shall respond in writing to the petitioner indicating
whether the petition presents substantial scientific information to warrant the
action requested.
     (d) If the petition is found to present
such information, the department shall commence rulemaking.
     (e) If the petition is denied, the
petitioner may seek judicial review as provided in ORS 183.484.
     (6)(a) Notwithstanding subsections (1) to
(5) of this section, the department shall take emergency action to add a
species to the list of threatened species or endangered species if it
determines there is a significant threat to the continued existence of the species.
     (b) The department shall publish notice of
such addition in the Secretary of StateÂ’s bulletin and shall mail notice to
affected or interested persons whose names are included on the departmentÂ’s
mailing list for such purposes.
     (c) Such emergency addition shall take
effect immediately upon publication in the Secretary of StateÂ’s bulletin and
shall remain valid for a period no longer than one year, unless during the
one-year period the department completes rulemaking procedures as provided in
subsections (1) to (4) of this section.
     (7)(a) The director shall periodically
review the status of all threatened and endangered 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 determine whether substantial, documented
scientific information exists to justify its reclassification or removal from
the list, according to the criteria listed under 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 status of the species. [1987
c.686 §10; 1999 c.59 §177; 2003 c.14 §350]
     564.115
Protection and conservation programs; action by state agencies; alternatives;
findings required if agency fails to adopt alternatives. (1) In developing protection and
conservation programs pursuant to ORS 564.105 (3), the State Department of
Agriculture shall consult with other states having a common interest in
particular threatened species or endangered species and with other affected
state agencies.
     (2) In furtherance of programs to conserve
or protect threatened species or endangered species under ORS 564.105 to
564.115, state agencies shall consult and cooperate with the department and any
other state agency that has established programs to conserve or protect
threatened species or endangered species. Before a state agency takes,
authorizes or provides direct financial assistance to any activity on land
owned or leased by the state, or for which the state holds a recorded easement,
the state agency, in consultation with the department, shall:
     (a) Determine that the action on land
owned or leased by the state or for which the state holds a recorded easement
is consistent with a program established by the department pursuant to ORS
564.105 (3); or
     (b) If no program has been established for
the listed species, determine whether such action has the potential to
appreciably reduce the likelihood of the survival 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 by the state, or for which the state
holds a recorded easement, has the potential to appreciably reduce the
likelihood of the survival or recovery of any species that is a threatened
species or an endangered species, it shall notify the department. Within 90
days, the department shall recommend reasonable and prudent alternatives, if any,
to the proposed action which are consistent with conserving 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 make findings to demonstrate that:
     (a) The potential public benefits of the
proposed action outweigh the potential harm from failure to adopt the
alternatives; and
     (b) Reasonable mitigation and enhancement
measures shall be taken, to the extent practicable, to minimize the adverse
impact of the action on the affected species.
     (5) When an action under this section is
initiated by a person other than a state agency, the agency shall provide final
approval or denial of the proposed action 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 the standards or mitigation requirements of a
federal agency for a particular species under the federal Endangered Species
Act of 1973 (P.L. 93-205, 16 U.S.C. 1531 et seq.), as amended, shall be deemed
to meet the requirements of ORS 564.100 to 564.130.
     (7) The provisions of this section do not
apply to lands acquired through foreclosures of loans made pursuant to programs
of the Department of Veterans’ Affairs. [1987 c.686 §11]
     564.120
Transactions in threatened or endangered species; restrictions; prohibition. (1) Except as otherwise 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 endangered species without first having obtained
permission from the person who owns or leases the land upon which the species
is growing. When land is owned by the State of
     564.125
Director of Agriculture authorized to acquire plant habitat. The Director of Agriculture is authorized,
on behalf of the State of
     564.130
Confidentiality of information regarding threatened or endangered species;
circumstances. (1)
Notwithstanding ORS 192.410 to 192.505, the director of the appropriate agency
may hold confidential, and refuse to disclose, information concerning the
location of a threatened or endangered wildlife or plant species upon a
determination that, based on prior experience, unlawful taking is likely to
occur if the location is disclosed.
     (2) In no instance shall the director of
the appropriate agency refuse to disclose information concerning the location
of a threatened or endangered wildlife or plant species to the owner of lands
on which the species is known to exist. [1987 c.686 §15]
     564.135
Effect of law on commercial forestland or private land; effect on other laws. (1) Nothing in ORS 564.100 to 564.130 is
intended, by itself, to require an owner of any commercial forestland or other
private land to take action to protect a threatened species or endangered
species, or to impose additional requirements or restrictions on the use of
private land.
     (2) Notwithstanding any other provision of
law, nothing in ORS 496.004, 496.171 to 496.192, 498.026, 564.040 and 564.100
to 564.135 or ORS 527.610 to 527.770 and 527.992 shall be interpreted to
require protection of a species listed under ORS 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 privately owned forestland shall not require
protection of its habitat as a biological site under ORS 527.610 to 527.770 and
527.992. However, if other elements exist that qualify such habitat as a
biological site, such habitat may be protected as 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 under ORS chapters 195, 196 and 197 provided that
the full process of inventory and analysis required by any open spaces, scenic
and historic areas and natural resources goal is fulfilled and included in any
acknowledged land use plan or amendment. [1987 c.686 §16]
     564.910 [Repealed by 1953 c.488 §2]
PENALTIES
     564.990 [Repealed by 1963 c.461 §34]
     564.991
Penalties. Subject to ORS
153.022, violation of this chapter and regulations authorized by ORS 564.040 is
a Class A violation. [1963 c.461 §31; 1999 c.1051 §200]
     564.994
Penalty for violation of ORS 564.120. Violation of ORS 564.120 is a Class A misdemeanor. [1987 c.686 §13]
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