AMERICAN SEED TRADE ASSOCIATION

Position Statement on

INVASIVE SPECIES

On February 3, 1999, President Clinton signed Executive Order 13112 (EO 13112), creating the Invasive Species Council. The President's action is the most recent initiative consistent with a greater focus than ever before on regulation of invasive species at both the state and federal government levels.

The American Seed Trade Association (ASTA) has long recognized the need to identify, monitor and, when necessary, control or eradicate plant species that significantly adversely affect the environment, production agriculture, conservation efforts, or otherwise cause economic or environmental harm or harm to human health. ASTA is concerned, however, that state or federal agencies may take or may already have taken ill-considered or otherwise inappropriate measures to control so-called invasive species and that such measures could significantly harm the distribution and use of many beneficial crops that have long been used in production agriculture for forage and livestock feed, soil conservation and stabilization, and ornamental purposes.

Accordingly, it is appropriate that the federal government assert primary jurisdiction and assume a leadership role in this area. Pending full and proper federal implementation of the Executive Order, and harmonization of state and federal efforts in addressing the challenge of invasive species, however, a moratorium on the use of lists developed by the states outside of the EO process should be established.

The Invasive Species Council is composed of eight department and agency heads of the federal government. Among its duties is the preparation of a national Invasive Species Management Plan. The Management Plan, which the President has directed the Council to prepare within 18 months of the issuance of EO 13112, must "detail and recommend performance-oriented goals and objectives and specific measures of success for Federal agency efforts concerning invasive species."

The EO defines "invasive species" as a sub-category of "alien species." “Alien species” are “with respect to a particular ecosystem, any species, including its seeds, eggs, spores, or other biological material capable of propagating that species, that is not native to that ecosystem.” "Invasive species" are those "alien species whose introduction does or is likely to cause economic or environmental harm or harm to human health."

ASTA understands that, in the course of developing its Management Plan, the Invasive Species Council may prepare a list of invasive species. ASTA cautions that, under the terms of the EO, in order to be classified as an invasive species, an alien species must meet the criterion of causing or being likely to cause economic or environmental harm or harm to human health. Thus, before any plant species can be identified as "invasive" and placed on any list prepared pursuant to the EO, the Council should complete a risk assessment that identifies the ecosystem(s) in need of protection and the economic impact that the potentially invasive species might have on that system(s). It is the position of ASTA that the harm the species is likely to cause must far outweigh the economic and related losses that would be incurred by the seed industry and the public in general should an existing agricultural crop, turf, conservation, or ornamental be considered "invasive" under EO 13112.

ASTA also understands that several states have in existence local plant councils or committees that are engaging a limited constituency in the discussion of invasive/alien plants. Using criteria that are not altogether clear, some of these groups have developed lists of species that they assert could encroach on native areas. In some instances, these species are being listed as noxious weeds although the users have not followed proper procedure in the development of the lists. Many of the species on the lists, moreover, are mainstays of forage production for livestock feed, soil conservation and stabilization materials, and widely used turf producing cultivates. Examples of these economically indispensable crops include bahiagrass, barley, bermudagrass, birdsfoot trefoil, Castorbean, colonial bentgrass, crownvetch, Kentucky bluegrass, orchardgrass, red fescue, redtop, reed canarygrass, ryegrass, smooth bromegrass, sheep fescue, tall fescue, timothy, white clover, weeping lovegrass and yellow sweet clover.

These state "listing" procedures appear both procedurally and substantively deficient. First, the listing process continues in most instances without input from all interested parties, including state seed control officials, ASTA and state and regional seed industry associations, Land Grant University Extension personnel, state plant material specialists, turf specialists, or representatives from production agriculture. Second, the manner in which the state and local councils and committees are designating species indicates that they are failing to apply coherent, scientifically based criteria and may be ignoring the substantive law.

In fact, in many instances, they seem to be simply amalgamating various lists, developed on the basis of widely varying criteria. Indeed, some groups apparently are identifying as invasive any plant that meets the definition of an “alien species” or a plant that is foreign to a particular ecosystem. Of particular concern to ASTA are reports that some state and federal agencies may be using these poorly conceived lists as a basis for premature implementation of the Executive Order.

ASTA is committed to cooperating with the Invasive Species Council and all interested state and federal government agencies through the provision of technical support, economic data, and other means, in addressing the legitimate challenges posed by invasive species. That process must include the application of appropriate standards and take into account the full economic impact of a species' identification as "invasive." Failure to undertake this critical cost/benefit analysis will threaten the future availability of commercially useful species for farms, lawns, athletic fields, and conservation areas.

Of course, all efforts to address the question of invasive species must comply fully with applicable statutory and regulatory requirements. In particular, the Invasive Species Council must be careful to ensure that its Management Plan and any listing of species as "invasive" is consistent with the scope of its authority and with the procedural requirements of the Administrative Procedure Act. To the extent the Council relies on state designations of species as "invasive," where those designations are based on incomplete or ill-considered criteria, the Council's actions could be vulnerable to challenge. Likewise, failure by a state entity to observe principles of due process or to base its plans, lists, or other actions on a sound, science-based assessment of the relevant facts and evidence, would leave it vulnerable to legal action. Finally, the intentional disparagement of beneficial crops, through the use of state "invasive species" lists or other state invasive species initiatives, may give rise to civil liability in certain circumstances.

In sum, ASTA supports efforts to protect our nation and its agricultural industry from harmful invasive species and will cooperate with the Invasive Species Council and interested state agencies in the development of Management Plans and other tools to protect against unreasonable adverse economic or environmental harm or harm to human health. ASTA will oppose and challenge, however, any efforts to list as "invasive" or otherwise jeopardize the legitimate use and viability of species beneficial to agricultural crops, or when used for turf, conservation, or ornamental purposes.

October, 1999