Archive for June, 2014

Let’s be honest, Park Service

Tuesday, June 24th, 2014
Let's be honest, Park Service

When I worked as a canoe guide in the Boundary Waters Canoe Area Wilderness (BWCAW) about 20 years ago, I came to realize that the concept of “wilderness” was a subjective one. Everyone experiences wilderness and wildness in different ways, and their perspective of what constitutes wilderness is often connected to noise level. For example, certain border lakes in the BWCAW allow for the operation of 25 hp or less motors (while almost all of the 2,000 or so lakes prohibit any motorized craft). For some people, even that was too much; but for others, 25hp or less meant no jet skis would be disturbing the serenity of a wilderness experience that involved fishing for walleye using a small trolling motor.

So I understand the desire to not have noise disturb the wilderness experience. But there is a right way to regulate that, and a wrong way.

On May 2, 2014, the National Park Service chose the wrong way in Yosemite National Park. We have all seen the increased use of drones to capture images from unique perspectives. I know of at least one professional nature photographer that has been increasingly using it in his landscape work. In response to such increased uses in one of its most-visited parks, the National Park Service issued a directive that any use of drones in Yosemite National Park was illegal. In doing so, the NPS cited to 36 C.F.R. §2.17(a)(3), which prohibits the use of aircraft in national parks for “Delivering or retrieving a person or object by parachute, helicopter, or other airborne means, except in emergencies involving public safety or serious property loss, or pursuant to the terms and conditions of a permit.”

Subsequent to Yosemite’s decision, the Director of the National Park Service issued a directive on June 20, 2014 in the form of a policy memorandum, which is not available publicly, that “directs superintendents nationwide to prohibit launching, landing, or operating unmanned aircraft on lands and waters administered by the National Park Service.” That includes all national parks, monuments, wild and scenic rivers, national seashores, national lakeshores, national historic sites, and others, for a total of 85 million acres and 401 units of Federal public land. In addition to the Yosemite reasons for banning the use of unmanned aircraft, the new system-wide prohibition cited “noise and nuisance complaints from park visitors, an incident in which park wildlife were harassed, and park visitor safety concerns.” The news release about the new policy cautions that this is a temporary measure until the Park Service can adopt regulations through a formal rule making process that addresses the use of drones in parks.

There are just a few problems with the National Park Service’s rationale to currently prohibit the use of drones. Anyone who knows how drones are used commonly knows that they are not used to deliver a person or an object, as cited in the Yosemite example. You may have someone do a backcountry drop of food supplies for you using a parachute, but you sure as heck wouldn’t using a drone. And if all a drone is doing is flying around or taking pictures, it is not delivering anything unless you can stretch the imagination to suggest that it is “delivering” photos to a compact flash card. But no, the NPS has stretched the imagination even further, claiming it is the “drone itself” that is the object being delivered. Apparently, the NPS thinks the egg can exist without the chicken. If the drone itself is the object being carried, then what is the aircraft carrying it? Perhaps it’s Wonder Woman’s invisible jet?

The agency that actually regulates drones – the Federal Aviation Administration – is split on the use of drones. The FAA lumps all types of unmanned aerial vehicles together under the term “Unmanned Aircraft” or UA (this includes Unmanned Aircraft (UA), a Remotely Operated Aircraft (ROA), a Remotely Piloted Vehicle (RPV), and an Unmanned Aerial Vehicle). The FAA has also has a series of questions and answers governing the use of drones or UAs, as they do not obviously fit into standard aircraft regulations. Current FAA regulations indicate that only two UA models (the Scan Eagle and Aerovironment’s Puma) have been certified for commercial use, and they are only authorized to fly in the Arctic. That means most professional photographers using drones for aerial imagery are breaking the law.

But the FAA does allow for the recreational use of airspace by hobbyists with small, radio-controlled, model aircraft for personal use so long as flights are below 400 feet above the ground and away from airports and air traffic. Thus, if you are a professional photographer, you may not take pictures using a drone under FAA rules, but there is no prohibition to a hobbyist photographer doing the same.  Thus, the FAA does not consider UAs and “aircraft” to be synonymous and subject to the same regulation, further undermining the NPS treatment of them as the same under their regulations. But you don’t have to look to FAA regulations to see that drones and “aircraft” are not the same. All you have to do is look at the Park Service’s own regulations, which define “aircraft” as “a device that is used or intended to be used for human flight in the air, including powerless flight.” See 36 C.F.R. §1.4(a).

But if you look at the full rationale behind Yosemite’s drone prohibition, and the new system-wide directive issued on June 20, you get back to the concept of spoiling the wilderness experience. You also possibly find a legal basis for the NPS to exclude the use of drones within any national park: The park has experienced an increase in visitors using drones within park boundaries over the last few years. Drones have been witnessed filming climbers ascending climbing routes, filming views above tree-tops, and filming aerial footage of the park. Drones can be extremely noisy, and can impact the natural soundscape. Drones can also impact the wilderness experience for other visitors creating an environment that is not conducive to wilderness travel…  Additionally, drones can have negative impacts on wildlife nearby the area of use, especially sensitive nesting peregrine falcons on cliff walls. 

There are regulations in place already that address a noise nuisance impairing the use and enjoyment of the park by visitors. Under 36 C.F.R. §2.12, the Park Service presently prohibits “[o]perating motorized equipment or machinery” that “exceeds a noise level of 60 decibels measured on the A-weighted scale of 50 feet” or, if lower than that, “makes noise which is unreasonable, considering the nature and purpose of the actor’s conduct, location, time of day or night, purpose for which the area was established, impact on park users, and other factors that would govern the conduct of a reasonably prudent person under the circumstances.” Drones are reputed to be loud, so either provision could prohibit their use around other people. But if the goal is to prohibit the use of drones so that it does not disturb the wilderness experience of other visitors, then someone could still use a drone so long as they are in a location where no other people are present under this regulation. This provision could not serve as the basis for an absolute prohibition. It also shows that there are currently regulations on the books that address the use of drones, so the current excuse to have a temporary ban in order to have time to craft new regulations is erroneous.

Yet relying on the provision that actually legally applies creates more work for the NPS. I can easily tell you that they probably looked at Section 2.12 and concluded not to push that provision to manage use of drones because it would be difficult to enforce. For the same reason that I stated that the concept of a wilderness experience is subjective, so too is what constitutes “unreasonable” noise “under the circumstances.” One little mosquito of a drone dwarfs in comparison to the white noise of background traffic for the 3.7 million visitors that Yosemite received in 2013. Mount Rushmore, which is cited in the June 20 news release for the new system-wide policy, enjoyed over 2 million visitors in 2012 and sits next to the major roadway through that portion of the Black Hills. Certainly that much traffic noise would be unreasonable to a person’s park experience. Or how about that annoying gaggle of children yelling and screaming at the top of their lungs for the entire length of a hike – certainly that would be unreasonable to some person’s enjoyment of the park. If the park really wanted to reduce the impact on the park experience by noise, it would cut down on vehicular traffic. But, obviously it lacks the fortitude to do that so it goes for the easier picking – drones.

The June 20 news release also cites as justification for the absolute ban a single incident of wildlife harassment due to drone activity. The incident involved a drone in Zion National Park that allegedly caused some youth to separate from adult Bighorn Sheep in the spring. According to local reporting, a Park Service volunteer confronted the drone operator and warned them of the potential consequences for harassment, but there was no mention in the article of a citation issued. Under 36 C.F.R. §2.2(a)(2), it is prohibited to engage in the “feeding, touching, teasing, frightening or intentional disturbing of wildlife nesting, breeding or other activities.” This is a very broad prohibition, and covers any activity that would lead to frightening or disturbing wildlife. If someone frightens or disturbs wildlife using a drone, the Park Service currently has the tools in regulation to engage in an enforcement action. There is no need to develop new regulations. 

So, Yosemite’s claim that drones somehow fit into regulations related to “delivering or retrieving a person or object” is completely baseless. The broader National Park Service concerns about drones causing noise disturbances is covered by existing regulations related to noise caused by mechanized objects. Concerns over drones harassing wildlife are covered by existing regulations. There is nothing that drones do that is not already covered by regulations. There is nothing in those regulations that would prevent a person from using a drone in a park if (1) they operated nowhere near anyone else to cause a noise disturbance or (2) nowhere near wildlife to cause any harassment. The Park Service simply has realized that applying those existing regulations to drones creates enforcement challenges that they don’t want to face. Saying “no” to drones is an easy bright line and easy to enforce. But it’s not an honest interpretation or application of existing regulations, and it’s not a good excuse to take a “time out” to create new regulations that are not needed.

For some of my photographs taken on the ground in national parks or from legally-operated manned aircraft, check out my National Parks collection.

The Making of a Photo: Aurora Over Wrangell Mountains

Thursday, June 12th, 2014
The Making of a Photo: Aurora Over Wrangell Mountains

Michelle and I decided to spend a long weekend at the end of March to get away and scout for locations to shoot for a future workshop, and to find a base of operations for that workshop. Unfortunately, the bed and breakfast we stayed at did not pan out as a potential workshop location – it lacked a central meeting space, had far too few rooms, and was too comingled with family spaces within the structure.

But along the way, we found a few good vantage points to capture the aurora borealis along the Richardson Highway north and south out of Glennallen. The weather forecast looked good for providing us clear skies during the trip, but the question remained as to whether the space weather would cooperate. The National Oceanic and Atmospheric Administration (NOAA), one of my more reliable forecast sources, did not have a good forecast for the time period. So, the only thing to do was to watch the real time data on and see if conditions would develop that were favorable to aurora photography.

When we went to bed, I set my alarm to go off once an hour so I could get up and check the Spaceweather data. In each instance, the data did not look conducive to producing an aurora borealis that would be worth shooting. But at 1:00 a.m., which is when the aurora had been “going off” recently, I decided to add a visual check in addition to my look online. I went to the front porch, went outside, and looked north – to see the aurora dancing in the sky. It was a dim display, but I went inside, grabbed the gear, and headed out to a pullout I had scouted earlier.

When I arrived, I set up the camera and took several test shots to check for focus and exposure. Even though the display was dim, I kept taking pictures occasionally to watch for increased activity. In many cases, the aurora can be doing things that are not visible to the naked eye, but will show up on a long exposure. After a while, it built enough to where it was dancing over the St. Elias Range, and spiking with peaks of reds. And while it was a moonless night, the aurora produced enough light to show silhouettes of the trees in the foreground and the mountains in the background.

Nikon D800E, Nikkor 24-70mm f/2.8, Gitzo tripod, Arca Swiss ballhead, ISO 3200, f/2.8, 10 seconds.


When Composites are Necessary

Thursday, June 12th, 2014
When Composites are Necessary

I am not generally opposed to composite photographs, although I have on occasion railed against them. My main problems with composites are (1) when they are not identified in the caption as a composite and (2) when they are used to create an image that could not be seen with the naked eye.

There are many times when composites are necessary. Stitched panoramic photos are technically a composite – they merge several images together into one in order to render a scene using a specific format (the panorama) and also allow the photographer to create a larger file for rendering larger prints. The HDR (high dynamic range) photo is also a composite – merging several images of the same scene but captured at different exposures – in order to render the full dynamic range of a scene. Our eyes can see that dynamic range but cameras cannot. (With the Nikon D800E, I find myself hardly using this technique because of that camera’s dynamic range and my steadfast loyalty to using graduated neutral density filters.)

But there are times when the exposure dynamics of the scene also require a composition in order to capture the image you want. A recent instance involved capturing the eclipsed full moon hovering over a peak in the Chugach Mountains above Anchorage. When you know how to photograph the moon, you know that the moon is a much brighter light source than you think. In order to expose it, you need to have a much shorter exposure to avoid blowing it out. But when you want to capture details in the nighttime landscape, even during an eclipsed full moon, you need a much larger exposure. Thus, to render this scene, I took two exposures – one for the moon and one for the mountain. This is not a HDR composite, because I am not trying to capture a dynamic range of several exposures; rather, I am seeking to balance two specific points in the scene.

Here, when I captured the moon, you could only see a few stars and the mountain lacked detail. When capturing the mountain, the moon is a blown-out, glowing orb with no detail. Separately, they do not work; but together, they capture a scene that I could see with my own eyes. While composites are often abused, this, for me, is a use of the technique that is not only appropriate, but was done regularly in the “old days” of the wet darkroom.

A Tale of Two Senators

Thursday, June 12th, 2014
A Tale of Two Senators

In May 2011, I had the pleasure of traveling to Washington, D.C. with my wife Michelle in order to attend the opening reception for the 2010 Windland Smith Rice International Awards Photo Exhibition, on display at the Smithsonian Institution’s National Museum of Natural History. In advance of that trip, I made sure to schedule visits with both of my U.S. Senators – Mark Begich and Lisa Murkowski. As part of the scheduling process, I explained to them why I was going to be in the District of Columbia – my winning image in the “Environmental Issues” category of a set of snow-impacted wolf prints on the frozen North Fork of the Koyukuk River in Gates of the Arctic National Park & Preserve, a piece entitled “Wolf Tracks on Ice.” I did not tell them the story of why this image was submitted in the Environmental Issues category – that these wolf tracks were a metaphor for disappearing wolf populations as a result of aggressive predator control measures – because I thought it would be too political for either of their comfort.

As the timing turned out, my visits with both Senators were scheduled for the same day – the day of the reception. I met first with Senator Begich in the late morning. When I arrived, at least three of the staff engaged me and Michelle, asking questions about my award and talking about Alaska. They offered us some coffee and invited us to a tour of the Capitol building following the meeting with Senator Begich. And while we had to wait a little while  – the Senator was off voting on something – they made us feel welcome and continued to engage us. When the Senator arrived, we went into his conference room and sat down with another Alaskan and her family who were visiting. We all sat around the table and chatted a while about why each of us was in D.C. After a while, we each took turns taking photos with the Senator. Following the meeting, as promised, one of the staff took us on a tour of the Capitol building. He even gave us tickets so that we could sit in the galley of the Senate and watch the proceedings. Later, staff visited the Smithsonian to see my photo on display there and even posted it to the Senator’s Facebook page (and they were cognizant and considerate enough to ask my permission to post an image of my photo).

Our meeting with Senator Murkowski was later in the afternoon. We arrived at her office, I identified myself and that I had an appointment with the Senator, and then we sat down in the reception area. We looked at the art on the walls, we looked at what kind of books were on the shelves, what sort of magazines were on the table. Occasionally the receptionist looked up at us, then back to what she was doing. No one asked us questions. No one engaged us. No one offered us something to drink. No one explained to us why we were waiting well past the appointment time with the Senator. As it turned out, she was meeting with a gaggle of lobbyists. After waiting for a while, the door to the inner sanctum opened and out poured a group of five or six lobbyists in suits, chuckling and chatting away with Senator Murkowski as she emerged with them. Parting words and sentiments were shared and they were on their way. Michelle and I were then invited back to join the Senator, we had a brief chat (with little or no discussion of my photo), and took pictures – one set with just me and one with me and Michelle. They only took one shot of each – and the one with Michelle is no good because her eyes were closed. We were then sent on our way. The only follow up to the meeting was delivery of the prints of the photos.

These two experiences understandably left me with a very different perspective on the values, interests and concerns of these two Senators.

These personal interactions highlighting differences between the Senators have also been replicated in a key Alaskan policy issue that is important to me: the fate of the Bristol Bay region. Bristol Bay is an amazing watershed that provides 50% of the world’s sockeye salmon and has been a focus of mine for the last three years, where I have been doing fieldwork for my upcoming book Where Water is Gold: Life and Livelihood in Alaska’s Bristol Bay. When several regional Tribes petitioned the EPA to protect the area under the Clean Water Act, Section 404(c), the people of Alaska waited to see how its U.S. Senators would respond. People pushed Senator Begich to take a stand to protect the Bristol Bay watershed from the development of the Pebble Mine. He delayed, noting that he wanted to wait for the results of the EPA’s scientific watershed assessment (which began in 2011) before taking a position. But once that final watershed assessment was published in January 2014, he came out in opposition to the development of the mine. In contrast, when the final watershed assessment was released, Senator Lisa Murkowski issued a statement asserting that the EPA’s involvement was a “preemptive veto” that would set a “terrible precedent.”

To be clear, however you phrase it, a “preemptive veto” is precisely what the Clean Water Act, Section 404(c) authorizes. Here is Section 404(c) in full:

The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Before making such determination, the Administrator shall consult with the Secretary. The Administrator shall set forth in writing and make public his findings and his reasons for making any determination under this subsection.

So, the key phrases to notice are “authorized to prohibit” and “deny or restrict” using an area as a disposal site … when the “discharge of such materials” would have an “unacceptable adverse effect on … fishery areas.” The law also requires notice and opportunity for public hearings. The EPA conducted numerous public hearings in 2012 and 2013, and has even given additional notice to the Pebble Limited Partnership of additional public hearings following the release of the final watershed assessment.

Sometime after Senator Murkowski complained that it would be improper for the EPA to issue a “preemptive veto” of the Pebble Mine, someone on her staff must have actually read Section 404(c) and realized that, yes, Congress did authorize the EPA to do such a thing. Well, if Congress has authorized an agency to do a specific thing, how do you stop the agency from doing what Congress has authorized? You get Congress to de-authorize it. Hence, Senator Murkowksi became a co-sponsor of the Orwellian “Regulatory Fairness Act of 2014.” The bill, if passed, would strip the EPA of the specific authority granted in Section 404(c). From 1980 to 2010, the EPA has invoked Section 404(c) only 13 times – 11 times during Republican administrations (Carter’s EPA invoked it once and Obama’s EPA invoked it in 2010). Given that no effort was made to strip the EPA of its Section 404(c) power in its prior uses, it’s clear that the purpose of the “Regulatory Fairness Act” is to ensure the development of the Pebble Mine.

But these are just my own observations, based on personal experience and reflecting on a specific policy choice where I have invested time and energy. Don’t just take my opinion that these two Senators have vastly different world views, take it also from the League of Conservation Voters. On their National Environmental Scorecard, the LCV viewed votes on 13 different bills in the Senate and gave the two Senators very divergent scores. For Senator Begich, both his 2013 score and his lifetime score are 77% – that’s consistency. But for Senator Murkowski, her most recent score was 38%, a dramatic improvement from her lifetime 21% score. In either case, it’s still a failing grade and her votes went against several issues that impact Alaskans – climate change, clean water (no-show on the vote), the confirmation of the EPA Administrator, and subsidizing the oil industry.

And some people say that all Senators are alike.