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The Government’s Ginseng Circus: A Microcosm of Regulatory Insanity

This month police officers with West Virginia’s Division of Natural Resources (DNR) “conducted two weeks of multiple raids on illegal diggers and dealers” of wild ginseng (a type of herbal root), according to a DNR media release. DNR states:

A year-long investigation . . . in southern West Virginia has resulted in 11 arrests and the seizure of 190 pounds of dry ginseng that was illegally harvested before the ginseng digging season began Sept. 1. The estimated market value of the ginseng is $180,000. In addition to the ginseng, officers also seized multiple stolen guns, illegal drugs and pills, and $30,000 in cash.

“Other states also are reporting more ginseng busts,” the Wall Street Journal reports.

That “ginseng police” are raiding root diggers for possessing ginseng at the “wrong” time of year speaks to the insanity of the government’s ginseng regulations—and indicates how regulations in any area of business violate people’s rights, disrupt the free exchange of goods and services, and lead to myriad seemingly irresolvable conflicts.

What role should government play in regard to ginseng? Government should play the same role in this area that it properly plays in every area: It should protect people’s rights by enforcing property rights, upholding people’s rights to contract freely, and outlawing fraud (as by prohibiting the labeling of farm-grown ginseng as “wild” ginseng or the like). But that is not what government is doing here.

Rather than focus on protecting people’s rights, government has imposed a swath of rights-violating policies and regulations, some of which are breathtakingly ridiculous.

According to DNR Lieutenant W. W. Brogan (with whom I spoke by phone), most of the illegally harvested ginseng is taken from private lands without the permission of the owners—in other words, stolen. But, remarkably, many of the property owners don’t care much about this theft and don’t make much if any effort to stop the thieves or profit by cutting deals with people who want to harvest the coveted root on their lands. Given the substantial value of ginseng on the world market (it “can fetch as much as $1,000 a pound,” the Journal reports), why do property owners and ginseng diggers not simply negotiate land-use deals?

A large part of the answer is that, rather than focusing on whether ginseng harvesters are pulling the roots out of grounds on private property without permission from the owners and thus violating property rights, government is focusing on issues concerning the possession of ginseng, regardless of where it was harvested, as mandated by certain regulations pertaining to the root.

One of the main regulations at issue in the recent DNR raids forbids possession of ginseng from April 1 through August 31 unless one has obtained a government-issued weight stamp, which makes it legal to possess the root during that period. (The rationale for the rule is that harvesting ginseng too early does not allow the seeds to mature.)

If government focused on protecting people’s property rights rather than on busting people for “possessing” an undocumented root at the “wrong” time of year, the marketplace would solve all of the (genuine) problems that the regulations purport to solve. The thieves would have less incentive to steal the root and conceal it from the police. Those who want to acquire the root from private property would have to seek permission from the property owners. The property owners might see some economic value in contracting with harvesters to everyone’s advantage. The more-widely recognized economic value of the root would give everyone involved greater incentive to ensure the long-term viability of the crop (e.g., by allowing the ginseng seeds to mature). And so on. But no. The government wants to dictate who can possess the root and when.

And then there is the fact that the root also grows on “public” property. Part of the illegal ginseng harvesting takes place on government-owned lands, where government prohibits the harvesting of the root (except when and where government issues permits). Because these lands are “public,” and therefore no individual or private party owns the lands or the resources on them, no one other than government has any legal authority or incentive to manage those lands or resources. This is a classic case of the “tragedy of the commons.”

Another problem is that government actively discourages the cultivation of ginseng by erecting regulatory burdens to cultivate it. Robert Beyfuss, a former New York State Specialist for American ginseng who cultivates the plant, discusses this problem in an op-ed. Under international treaty (the Convention on International Trade in Endangered Species of Wild Fauna), the U.S. Fish and Wildlife Service tightly regulates not only wild ginseng but ginseng that is “‘artificially’ propagated (i.e., farmed or field-grown ginseng, which is grown under artificial shade and tightly controlled environmental conditions).” Government regulations discourage the cultivation of ginseng, thereby driving up the price of wild ginseng and the incentive to poach it.

Other regulations make replanting wild ginseng harder, Beyfuss points out. For example, government requires that harvesters leave the “rhizome”—the upper part of the root—attached to the harvested root, so that regulators can determine the plant’s age. “Requiring an intact rhizome with the apical bud present also prohibits the formerly common practice of cutting off the rhizome and replanting it immediately on site,” where often it would regrow, explains Beyfuss. And many states “prohibit removing seed from where the roots are harvested,” thereby hindering “the development of local seed banks to reestablish the native germplasm.”

What’s more, as Beyfuss explains, by allowing the deer population to grow out of control (by restricting hunting), government is “causing the extirpation of herbaceous understory plants,” including ginseng, because deer eat it.

If government protected rather than violated individual rights in this area, people who cared about harvesting or preserving wild ginseng would be free to negotiate with landowners—or to buy lands themselves and implement the land-use policies they deem best. We don’t need “ginseng police” enforcing ginseng regulations. We need a government that protects people’s rights and does only that.

The ginseng market, like every other market, will thrive to the extent the government protects rights and otherwise keeps its hands off.

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