Habitat Restoration in the East Bay Regional Park District

1. Preserving habitat is the primary goal of environmental law.

2. Invasive non-native species are one of the major threats to native habitat. By out-competing native plants, they destroy the habitat of native plants and animals.

3. California Penal Code Section 384a is one of the major tools for dealing with invasive non-native plants. It says that invasive non-native plants which are considered public nuisances are not considered plants, but rather weeds (= pests = noxious weeds; biologically, of course, they are plants or fungi, but under California law, they are considered a separate category: weeds). It also exempts plants removed for fire suppression.

https://codes.findlaw.com/ca/penal-code/pen-sect-384a/:

"(2) A person shall not willfully or negligently cut, destroy, mutilate, or remove plant material that is growing upon public land or upon land that is not his or hers without a written permit from the owner of the land, signed by the owner of the land or the owners authorized agent, as provided in subdivision (c).

(3) A person shall not knowingly sell, offer or expose for sale, or transport for sale plant material that is cut or removed in violation of this subdivision.

(b) For purposes of this section, plant material means a tree, shrub, fern, herb, bulb, cactus, flower, huckleberry, or redwood green, or a portion of any of those, or the leaf mold on those plants. Plant material does not include a tree, shrub, fern, herb, bulb, cactus, flower, or greens declared by law to be a public nuisance."

4. California Penal Code Section 384a was passed unanimously by the California Assembly & Senate. I believe that you voted for it.

5. It's not being enforced. Who is responsible for enforcing California Penal Code Section 384a? Why was the law created, if it's not going to be enforced???

6. So far I've asked the Attorney General of California (he passed the buck to the counties), Alameda County D.A. (they refuse to do anything), Contra Costa County D.A. (they refuse to do anything), Alameda & Contra Costa Councils, California Food & Agriculture Department, and the East Bay Regional Parks (their lawyers, General Manager, & Board of Directors refuse to respond by either phone or email), to no avail. So I hope you can help me!

7. The East Bay Regional Park District's Ordinance 38 Section 804 prohibits anyone from removing any plant from the parks and says that they can be arrested or cited according to California Penal Code Section 384a. But they ignore the fact that invasive non-native plants are exempted, and are not considered plants. Doesn't California law take precedence over a local ordinance such as their Ordinance 38?

https://library.municode.com/ca/east_bay_regional_park_district/codes/ordinance_38_-_rules_and_regulations?nodeId=CHVIIIPAFERO_S804PLIM:

"SECTION 804. - PLANTS. (I/M)

No person shall damage, injure, collect or remove any plant or tree or portion thereof, whether living or dead, including but not limited to flowers, mushrooms, bushes, vines, grass, turf, cones and dead wood located on District parklands. In addition, any person who willfully or negligently cuts, destroys or mutilates vegetation shall be arrested or issued a citation pursuant to Penal Code Section 384a."

8. The EBRPD arrested me for removing Italian thistles from Claremont Canyon Regional Preserve. But I was never charged with anything - probably because I wasn't doing anything wrong! Then they gave me a ticket. But the ticket was dismissed. However, I don't want this to happen to me or anyone else. It makes no sense to punish someone for doing something beneficial to the parks. For example, you can't be arrested or ticketed for removing trash from a park, because trash is a public nuisance. Invasive non-native plants (per the California Department of Food and Agriculture) are also a public nuisance, because they are harmful to agriculture or the environment.

11. What is the solution? a. You could convince the EBRPD that they are in violation of California Penal Code Section 384a and should stop arresting or ticketing people who are removing invasive non-native plants form the parks. b. You could get the EBRPD to clarify their Ordinance 38 to exempt invasive non-native plants. c. You could convince the District Attorneys of Alameda and Contra Costa counties to enforce California Penal Code Section 384a by punishing EBRPD or convincing them to stop breaking the law. d. I suggest that you schedule a meeting of everyone involved, including the California Department of Food and Agriculture, to come up with a solution that respects the law.