The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) was touted as a major means to curtail the exploitation of wild plants (and animals) which could lead to their extinction. Though it has been a major pain in the side of many orchid enthusiasts and businessmen for many years, not to mention other plantsman as well, the real consequence has been that it has neither encouraged the production of artificially propagated material nor provided a means to save many of the hundreds of thousands of plants being destroyed daily in literally every country of the world. The paperwork and other red tape involved continues to lead to needless destruction and loss of valuable species material in the wild, in addition to causing unnecessary and counter-productive interference with the production of artificially propagated species and hybrids.
Many commercial and private individuals have complained about the way CITES has been implemented, and difficulties in getting their permits even when plant sources are clear cut and legal. When questioned or challenged, the response from Fish and Wildlife Service, who is in charge of administering the treaty, is often that the problem could be readily resolved if the party would provide the necessary documentation. Thus, the complaining party appears to be the one at fault.
What, in reality, is the case? Over the last ten years or so, I have built up a file of documentation which shows exactly the kind of nonsense we must put up with in "providing adequate documentation", and how the Office of Scientific Authority (OSA), as consultant to the Office of Management Authority (OMA) which issues the permits, makes unwritten laws of which you are not aware until you come up against them, and how these "rules of the game" are entirely at their whim. Most importantly, this documentation does not apply to foreign material, but relates to our own native orchids and the attempts to conserve and provide alternatives to wild collected material of uncommon and rare species. The references noted here are taken from written correspondence on file in my home and with the Office of Management Authority in their permit number US 688006 file.
To adequately understand this complex and convoluted issue, it is necessary to provide some background information. The permit which I hold is the "Permit for Artificially Propagated Plant Material" and is issued for Appendix II (Threatened) plants, specifically orchids. Appendix I plants are Endangered, and the list includes some orchids, but not any of the ones spoken to here. I grow and artificially propagate several native American orchid species and produce artificial hybrids thereof.
To include a plant or plants on my permit, it must first be shown that they were legally removed from the wild and that the removal was not detrimental to the existence of the species in the wild. It must also be shown that the plants are being grown successfully, and maintained in a manner that their long-term maintenance is assured. If applicable, none of the original wild collected material (i.e. back portion of the rhizome or similar material originating while the plant was in the wild) may be included for export under this permit. Likewise, the OSA has determined that to assure that the plants are maintained indefinitely, at least five plants of each species (or three plants if in general cultivation) must be maintained as a base population.
The determination that five plants must be maintained indefinitely of artificially propagated material is of major consequence. Because of its importance, it will be addressed now and its derivation presented. It is one of those unwritten requirements which appears nowhere in the regulations and for which we have had no input.
CITES Conference Resolution 2.12 (c) (see attachment 1) defines the term "artificially propagated" as plants grown by man from seeds, cuttings, callus tissue, spores or other propagules under controlled conditions. However, they must be established in a manner not detrimental to the survival of the species in the wild, and "ii) managed in a manner designed to maintain the artificially propagated stock indefinitely." Controlled conditions for plants is under an environment intensively manipulated by man for the purpose of producing selected species. However, this is also applied to hybrids, whether of natural or artificial origin. Part ii) is interpreted to mean that artificially propagated stock must also be maintained indefinitely. To do so, it is necessary to maintain a stock of five plants of each species, and unless you have five plants of the species, they do not qualify for listing under the permit (OSA, Sept 11, 1986, item 2, Minimum Propagation Stock and in Further Discussion attachment). This interpretation has been determined by the OSA. It is not written down, nor a regulation, but it is a requirement for plants to be listed on the permit. Their interpretation does not take into consideration that "managed in a manner designed to maintain..." is the key phrase here.
What is the impact of this interpretation? Artificial propagated material is determined by the number of plants one has, not the manner in which they were obtained vegetatively nor how they are maintained. Example 1: If you have five plants this year, they are "artificially propagated"; if for some reason the next year you only have three, they are not "artificially propagated". Example 2: If you have 500 different rare species plants from which you are producing propagations for export, you must now increase your population to 2,500 (5 of each) before you can export any. Or, if you don't have the space, it will be necessary to reduce the number of rare species to 100, in order to be able to then increase to the 5 plants of each so that you can export them.
But, what is most interesting is the relationship between artificially propagated plants and wild collected plants of the same species. You can send hundreds of wild collected plants out of the country without being required to maintain any of them, but if you decide to only collect one of them instead and then propagate it by division or seed, you are required to maintain it indefinitely and have in excess of five plants before any can be exported. Is this any incentive to propagating the plants artificially?
As noted, it is under this Conference Resolution that minimum propagation stock for artificially propagated stock, species or hybrids, is established. This Resolution has been superseded by the Conference Resolution 8.17 in defining "artificial propagated". It will be addressed later.
I don't think anyone would have difficulty with the requirement that the parental species material must be removed in a way which is non-detrimental to the existence of the species in the wild. Unfortunately, the criteria for determining this is a different matter, and one which is literally at the whim of the OSA. I can't think of a better example of the frustrations which must be faced than one involving Cypripedium kentuckiense and how the implementation of CITES is misdirected.
In the Jan.-March, 1977, issue of The Mid-American, Dr. Victor Soukup wrote an article on "Cypripedium daultonii, sp. nov." (now called Cyp. kentuckiense) which described a "new" species, its history of being found in Kentucky, and the efforts by Mr. Jim Daulton to have it properly identified by competent botanists. Being interested in propagating and breeding the Cypripediums, I called Dr. Soukup for information. He provided me with Mr. Daulton's address and I called and talked with him. In the summer of 1979, I had business in Washington, D.C., and with the family drove there. On the return trip, we stopped at Daulton's. He was kind enough to show me the area where the plants grew. The population of plants had been dramatically reduced over the years, and he believed it was due primarily to "diggers" (individuals digging plants for their roots), and additionally by severe flooding which had occurred in the last couple of decades. We were able to find only a few plants left in the area. However, one plant was being washed out, part of its roots were bare, and it was clearly evident that in the next flood, its would be gone. (Daulton described to me how an exceptionally good form of the species, along with numerous other clones, had been washed away several years previous from the site across the creek.) Therefore, this one plant, with a ball of soil, was removed and I took it home with me. (It should be noted that Daulton had been given permission by the owner of the property previously to collect plants in this area, thus it was legally collected.) When I got home, the soil was rinsed from the plants roots prior to planting it, and a small, approximately one year old seedling was found in the soil. It was also carefully planted.
On October 2, 1982, I applied to have Cyp. daultonii included on my Certificate of Artificially Propagated Plants. It was denied (OMA, Jan 20, 1983) because it was a rare and recently discovered taxon from Kentucky. There was nothing about the plants removal being detrimental or non-detrimental. Several other species were denied as well because "these plants are generally rare or restricted in distribution throughout their range." It is presumed that this means their removal was determined by OSA as detrimental to the survival of the species in the wild, or else it was not legal justification to refuse to list the plants on the permit.
I continued requesting the inclusion of these two plants on my permit and appealing when it was refused. On December 6, 1984, I sent in my renewal and included Cyp. kentuckiense. On March 22, 1985, a request from OMA for additional information was received because "It is questionable that the following orchids (which included Cyp. kentuckiense) can be maintained in the Iowa climate." Additional information was provided on April 4th. However, it was denied (OMA, November 6, 1985) "because you have recently (1983) supplemented your stock with wild-collected material. This occurred even after being informed by this office of the rarity of the species." Apparently, adding any additional plant material determines that the original collection was detrimental to the existence of the species in the wild.
On September 11, 1986 (OMA) the response was a reiteration of the fact that additional plants had been collected, but also they now wanted additional information that the collection was legal and removed in a manner not detrimental to the species in the wild. On December 22nd additional information was sent to the OMA which included a signed statement from Mr. Daulton clearly describing the collecting of the plants, the reason why, and the permission which he had. The article from The Mid-American detailing the site and history was also included. Nothing happened.
On 24 March 1988, the inclusion of Cyp. kentuckiense was again denied because they did not believe the removal of the plants were non-detrimental. However, they had a suggestion: "Another consideration might be obtaining a few stock specimens removed by an appropriate conservation official from suitable populations for propagation purposes." This plant is so rare as to have been denied for several years, they were critical of any other additional material being collected, and now they suggest that I get more plants from other sites removed by "approved" collectors - conservation officials!
Following an appeal again, OMA (August 8, 1988) responded "... this is a flood plain species capable of surviving floods ..." and thus denied the plants again. The species is indeed a floodplain species, and as such the species is generally maintained. Individual specimens are washed out in the course of the streams changing. The species remains through new seedlings coming up in the area. In other words, the denial by the OMA was based on a factor which supports that the removal was not detrimental to the species existence in the wild!
Again on September 20, 1989, the OMA noted the OSA as stating in their advise, "...While it is stated that the mature plant removed in 1979 might have been washed out, there is not sufficient information that it would have been, that it might not have flowered and dispersed its seed before being washed away, or that it would not have become established at another site (since it is a flood plain species). Even the seedling inadvertently collected with the mature plant may might have survived at the site downstream." What is sufficient information? How much do I have to provide? The entire history of the event and the area was provided to them. And, I have to accept the all but non-existent probability that the plants will reestablish downstream as justification. What are their suggestions - a couple of books to read. It does not take a genius to observe and determine that a plant is eminently in danger. Though miracles do sometimes happen, the OSA seems to expect them to.
The August 12, 1993, OMA response, I think says it all. "... the Office of Scientific Authority (OSA) determined that the plants collected did not meet the Service definition of salvage (the removal of specimens from areas or habitats targeted for destruction) and were therefore detrimentally removed from the wild." The OSA and OMA have put paperwork and definitions before the value of the plants. They are more than willing to allow this, by their own definition, rare plant to be destroyed than try to find a way to allow its introduction into cultivation where a minimum of five plants would have to be maintained.
That is but one of the episodes with Cyp. kentuckiense. Here is another. For plants which have been brought under cultivation prior to CITES, their removal from the wild does not have to meet the non-detrimental survival rule. In 1983, I removed two back divisions from plants Jim Daulton had planted in his yard in the 1950's. These developed plants and were requested to be included on my permit as artificially propagated plants.
You guessed it - denied (OMA, 24 March 1988.) "These two stems are not pre-CITES since they were acquired by the applicant in 1983, and we expect they were propagated in the late 1970' or early 1980's from the original specimens; therefore, the artificial propagation criteria in Resolution Conf. 2.12 ... must be applied with no pre-CITES limitation. We believe that the removal of the specimens in the 1950's ... may have been detrimental to the species' survival, so the propagation stock has not been established in a nondetrimental manner as Resolution Conf. 2.12 requires." On appeal, this was overturned, for a change. But, it shows the lengths to which OSA will go to prevent the inclusion of this species on the permit. But, most interestingly, I had a choice. I could get an additional permit and export the plants now - without being required to maintain any material, or, if I wanted to propagate them, I would first have to maintain five specimens before any could be exported.
But, this gets better. On January 22, 1993, the OSA was still recommending denial of the pre-CITES stocks - "We therefore recommend denial to export specimens from the pre-CITES stock until the applicant had provided appropriate assurances that adequate specimens at least from the denied (Cyp. kentuckiense) stock were being preserved in cultivation." In other words, if I don't do what they want me to with those plants which they denied and have no jurisdiction over, I don't get what is legally mine - the pre-CITES plants listed on the permit. Fortunately, OMA did list the species.
In this last renewal, two specimens of Cyp. kentuckiense from Oklahoma were also requested to be added to the permit. These had been collected by a well-known scientist and with the authority to do so. Since he also was studying this population, the OSA finally did approve of this addition. But, what was most interesting is that I now have to maintain, not five specimens of this species, but TEN of them! Since these come from two different areas, there must be five from each area or any combination equalling 10! Where did this come from?
And what of artificial hybrids? "The criteria for artificial propagation are the same for hybrids and species... If a taxon is to qualify, we must have some assurance that the artificial propagation stock will be maintained indefinitely: thus there must be sufficient stock either of the hybrid (whether natural or artificial) or of its parents ... " (OSA, January 9, 1990). In other words, for a hybrid to be artificially propagated you must maintain five plant of each of the parents or five of the hybrid. With the hundreds of hybrids, how many thousands of plants must be maintained to meet this criteria by all those holding permits? But, that is not all. For some species which are so important, as Cyp. kentuckiense is, you must have five plants of the parent before you can export any of the hybrids (OSA May 14, 1993). Thus, if your parent stock should die, none of the hybrids, of which you may have hundreds, would qualify as artificial propagated, nor could they be listed for export.
Apparently, we have more than three Appendices under CITES. In addition to Appendix I and Appendix III, we have "Appendix II-a" which is for those species which the OSA has defined as rare to the point that unless you have five of the parent plants from each area none of the progeny are allowed to be exported. We have "Appendix II-b" which the OSA has defined as those where five plants must be maintained. "Appendix II-c" is where the parent plants are not important enough to maintain as long as five of the hybrids are maintained. We finally get down to "Appendix II-z" where the species or hybrids really aren't important enough, so we can overlook this completely. So, the OSA can apply CITES in about any way they want. And what do you have to say about it? Literally nothing. These are not regulations, they are at best "guidelines" which OSA has set up. Your recourse? Appeal, then, ever expensive, Court.
The new Conference Resolution 8.17 is very clear in its definition regarding artificially propagated plants (see attachment 2); "that with regard to the definition of "artificially propagated": i) the term "artificially propagated" shall be interpreted to refer only to plants grown from seeds, cuttings, divisions, callus tissue or other plant tissues, spores or other propagules under controlled conditions;", then follows the definition of controlled conditions. This is followed by "ii) the cultivated parental stock used for artificial propagation must be:" then A) which is the same as in Resol. Conf. 2.12 (c) (i), and B) which has been rewritten to emphasize the way they are managed and for "long-term", not indefinite maintenance. The distinction here is that there is NO REQUIREMENT for maintenance of artificially propagated material, only of cultivated parental stock.
Cultivated parental stock is not necessarily artificially propagated. Wild non-detrimentally collected material cannot be exported under the Certificate for Artificially Propagated Plants, only the propagations are eligible. As for most orchids, after several years, none of the original cultivated parental stock exists, due to natural attrition and the nature of the plants growth.
When this was brought to the OSA's attention by appealing the denial for the removal of all requirements for maintaining any minimum stocks of material which meets the artificially propagated definition, their reply (OSA, August 6, 1993) was "the Resol. Conf. 8.17(a)(ii)(A) concern to have nondetrimentally established parental stock in cultivation does not die out, but remains germane." In other words, though the material is artificially propagated and clearly meets the definition, they still consider it as cultivated parental stock and that it must be maintained indefinitely. So, even though the Conference Resolution is very clear in definitions and for artificially propagated plants does not require any maintenance, the OSA says that it does and that is a requirement of the permit. Again, they can do what ever they want, make whatever definitions they desire, and we have to live with them. We have to follow the law, they apparently don't. That is unless you wish to take them to court.
I have asked for written rules and regulations which specify the interpretation, the number of plants which must be maintained, the criteria for that determination, and have received none. We are under regulations which we do not know and have no input into. In other words, we are in the game, but they aren't telling us the rules. They change them at their whim. Whether they make sense or not, is really irrelevant. CITES concerns wild plants and animals. Why should they be regulating artificial propagation of plants in the first place and especially hybrids? Their only authority to do so arises from their own interpretation of the definition of "artificially propagated". And that is self-serving. The only reason for the definition of artificially propagated plants is to make sure that wild plants are not misrepresented, purposely or mistakenly, as artificially propagated, not as a basis for regulating artificially propagated material. And why have these rules not gone through the appropriate process to become regulations, instead of being only advise from OSA? Why is Cyp. kentuckiense so important and valuable that it must be maintained in cultivation at the level of five plants for each area, but so unimportant as to allow it to be destroyed in the wild? There is too little accountability in these agencies!
I have said before that I support the concept of CITES. However, the way it is being administered is accomplishing little to nothing. It does not encourage artificial propagation or research into it, nor does it discourage wild collection. In fact, it does the opposite. Unfortunately, the outgrowth is that it has encouraged smuggling, with the resultant circumvention of the Agricultural Inspection system which protects all our plants and animals.
What can we do? We can take this matter to our Congressmen and Senators and demand action. We have to make them aware of the nonsense that is perpetrated on us, under the guise of conservation and preserving our valuable plants and animals. This article documents the OSA's and OMA's actions and provides, not hearsay, but evidence of what takes place. We need to know the rules - all of them. We need some mechanism to review OSA determinations to assure they are reasonable, not expecting miracles to happen.
I cannot support CITES as the system is now. As it stands, it provides a perfect blueprint for how to bring about the extinction of our valuable wild resources.
12/31/93
Attachment 1
Conf. 2.12
CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES
OF WILD FAUNA AND FLORA
Second Meeting of the Conference of the Parties
San Jose (Costa Rica), 19 to 30 March 1979
RESOLUTION OF THE CONFERENCE OF PARTIES
Specimens Bred in Captivity or Artificially Propagated
CONSIDERING that the Convention provides for special treatment of
wildlife that are bred in captivity and plant specimens that are
artificially propagated;
RECOGNIZING the need for the Parties to agree on a standard
interpretation of those provisions;
RECOGNIZING also the need to apply these provisions in a way that
will not be detrimental to the survival of wild populations;
RECALLING that in the case of wildlife these provisions were
intended to apply only to captive populations sustained without
augmentation from the wild;
THE CONFERENCE OF THE PARTIES TO THE CONVENTION RECOMMENDS
a) that the provisions of Article VII, paragraph 4, of the
Convention be applied
separately from those of Article VII, paragraph 5. Specimens
of animal species
in Appendix I bred in captivity for commercial purposes or
plant species of
Appendix I artificially propagated for commercial purposes
shall be treated as
if they were bred in captivity or artificially propagated;
b) that the term "bred in captivity" be interpreted to refer only
to offspring,
including eggs, born or otherwise produced in a controlled
environment, either
of parents that mated or otherwise transferred gametes in a
controlled
environment, if reproduction is sexual, or of parents that
were in a controlled
environment when development of the offspring began, if
reproduction is
asexual. The parental breeding stock must be to the
satisfaction of the
competent government authorities of the relevant country:
i) established in a manner not detrimental to the survival
of the species in the
wild;
ii) maintained without augmentation from the wild, except for
the occasional
addition of animals, eggs or gametes from wild
populations to prevent
deleterious inbreeding, with the magnitude of such
addition determined by
the need for new genetic material and not by other
factors, and
iii) managed in a manner designed to maintain the breeding
stock indefinitely.
A controlled environment for animals is an environment that is
intensively
manipulated by man for the purpose of producing the species in
question, and
that has boundaries designed to prevent animals, eggs or
gametes of the
selected species from entering or leaving the controlled
environment. General
characteristics of a controlled environment may include but
are not limited to
artificial housing, waste removal, health care, protection
from predators, and
artificially supplied food. A parental breeding stock shall
be considered to be
"managed in a manner designed to maintain the breeding stock
indefinitely"
only if it is managed in a manner which has been demonstrated
to be capable
of reliably producing second-generation offspring in a
controlled environment;
c) that the term "artificially propagated" be interpreted to
refer only to plants
grown by man from seeds, cuttings, callus tissue, spores or
other propagules
under controlled conditions. The artificially propagated
stock must be:
i) established and maintained in a manner not detrimental to
the survival of the
species in the wild, and
ii) managed in a manner designed to maintain the artificially
propagated stock
indefinitely.
Controlled conditions for plants is under an environment that
is intensively
manipulated by man for the purpose of producing selected
species. General
characteristics of controlled conditions may include but are
not limited to tillage,
fertilization, weed control, irrigation, or nursery operations
such as potting,
bedding, or protection from weather; and
d) that the competent government authorities of countries
exporting live animals,
parts and derivatives of specimens bred in captivity of
species listed in
Appendix I endeavor, where possible, to ensure that these be
made identifiable
by means other than documentation alone.
Attachment 2
CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES
OF WILD FAUNA AND FLORA
Eighth Meeting of the Conference of the Parties
Kyoto (Japan), 2 to 13 March 1992
RESOLUTION OF THE CONFERENCE OF PARTIES
Conf. 8.17
Improving the Regulation of trade in Plants
AWARE that the Convention provides measures for the international
co-operation for
the protection of certain species of wild plants against
over-exploitation through
international trade;
AWARE that the text of the Convention and several of the
Resolutions of the
Conference of the Parties on plants may not or could not have been
drafted in the
light of modern developments in plant propagation and of the trade
in artificially
propagated plants;
RECALLING the many specific problems the Parties to the Convention
have faced and
still face in implementing the Convention for plants:
RECOGNIZING that there are unique aspects of the trade and plant
biology, such as
those related to flasked orchid seedlings, that are nor considered
analogous to those
for animals and that a different approach for plants is sometimes
necessary;
NOTING that Resolution Conf. 2.12, adopted at the second meeting of
the Conference
of the Parties (San Jose, 1979), does not mention all forms of
artificial propagation;
OBSERVING that artificial hybridization is readily and often
accomplished in some
plants groups and that the resulting hybrids and their progeny may
be extensively
traded;
AWARE of the charge in the Summary Report of the CITES Working
Group (document
Doc. TEC. 1.11) to improve and simplify the regulation of trade in
artificially
propagated plants;
RECOGNIZING the guidance of Resolution Conf. 2.13, adopted at the
second meeting
of the Conference of the Parties (San Jose, 1979), in regulating
the trade in hybrids
under the Convention;
NOTING that the intentions of document Doc. 6.23 are not fully
reflected in the
wording of Resolution Conf. 6.19, adopted at the sixth meeting of
the Conference of
the Parties (Ottawa, 1987);
RECOGNIZING that the control of the trade in flasked seedlings of
orchids in not
considered to be relevant to the protection of the natural
populations of orchid
species;
CONSIDERING that uniform implementation of the provisions of the
Convention is
necessary for it to function well;
THE CONFERENCE OF THE PARTIES TO THE CONVENTION
DETERMINES
a) that with regard to the definition of "artificially
propagated":
i) the term "artificially propagated" shall be interpreted to
refer only to plants
grown from seeds, cuttings, divisions, callus tissues or other
plant tissues,
spores or other propagules under controlled conditions;
"under controlled conditions" means in a non-natural
environment that is
intensively manipulated by human intervention for the purpose
of producing
selected species or hybrids. General characteristics of
controlled conditions
may include but are not limited to tillage, fertilization,
weed control, irrigation,
or nursery operations such as potting, bedding, or protection
from weather;
ii) the cultivated parental stock used for artificial propagation
must be:
A) established and maintained in a manner not detrimental to
the survival of the
species in the wild; and
B) managed is such a way that long-term maintenance of this
cultivated stock
is guaranteed; and
iii) grafted plants be recognized as artificially propagated only
when both the root-
stock and the graft have been artificially propagated;
b) that, with regard to artificially propagated hybrids of
Appendix-I species, the
application of Resolution Conf. 2.13, decision c), shall be
restricted in such a way
that:
i) plant species or other taxa listed in Appendix I shall be
annotated (in
accordance with Article XV) if compliance with Resolution
Conf. 2.13, decision
c), is required for artificially propagated hybrids in order
that the provisions
relevant to the most restrictive appendix apply;
ii) if a plant species or other taxon listed in Appendix I is
annotated, an export
permit (or re-export certificate) is required for trade in
specimens of all
artificially propagated hybrids derived from it; but
iii) artificially propagated hybrids derived from one or more
unannotated Appendix-i
species or other taxa are regarded as being included in
Appendix II and entitled
therefore to all exemptions applicable to artificially
propagated specimens of
species listed in Appendix II; and
c) that flasked seedlings of orchid species listed in Appendix I
shall be interpreted as
being exempted from CITES control, taking into account the
provisions of Article
VII, paragraph 4, and Article I, paragraph (b)(iii), and the
recommendations of
Resolution Conf. 6.18, and agreeing to a derogation from
Resolution Conf. 5.9 for
this exemption; and
DECIDES that the Resolutions, or parts thereof, listed hereunder be
repealed:
a) Resolution Conf. 2.12 (San Jose, 1979) - Specimens Bred in
Captivity or
Propagated - recommendation c); and
b) Resolution Conf. 6.19 (Ottawa, 1987) - Additional
Considerations for Artificially
Propagated Hybrids of Appendix-I Plants.
The above appeared in The Orchid Hunter Newsletter 7(4):30-35, and in The Mid-American, Part 1, Summer 1994; Part 2, Fall 1994; Part 3, Winter 1994.