There’s a lot of outrage on the Internets these days about proposed plans by the U.S. Forest Service to gut the First Amendment by requiring permits for news media or nature photographers in Federally-designated wilderness areas on Forest Service lands. After reading a lot of the outrage, there are two things that come abundantly clear: None of the outraged have actually read the applicable Federal Register notice, and none of them are aware that this has been the status quo on Federal public lands for decades. Nothing on the face of the notice actually applies to the media. So, you have to look at the applicable proposed regulation in order to see how “unfairly” the media is “targeted.”
What the Federal Register Notice Actually Says
It’s always important when analyzing a law to go back to the original language, not how it has been interpreted. So, in this case, let’s go to the actual notice as printed in the Federal Register. The notice published by the U.S. Forest Service proposes changes to 36 C.F.R. 251, which currently requires a special use permit for any activity on Forest Service lands other than noncommercial uses and other exempted activities. The proposal at issue is to take interim guidance that has been in effect for four years and develop “permanent guidance for the evaluation of proposals for still photography and commercial filming on National Forest System Lands.” Noting the need for consistent, national criteria for evaluating applications for special use permits for such activities, the ultimate goal to develop “the criteria used to evaluate request for special use permits related to still photography and commercial filming in congressionally designated wilderness areas.” Most importantly, the Federal Register notice does not even propose new restrictions on activities at all – it merely proposes creating more evaluation criteria so that the Forest Service can consistently evaluate applications for special use permits. Let me make this clear – it does not propose any changes to what activities already require a special use permit under existing U.S. Forest Service regulations. The proposed evaluation criteria would allow the U.S. Forest Service to issue a special use permit for “commercial filming” and “still photography” if the application
[m]eets the screening criteria in 36 CFR 251.54(e); [w]ould not cause unacceptable resource damage; [w]ould not unreasonably disrupt the public’s use and enjoyment of the site where the activity would occur; [w]ould not pose a public health and safety risk; and [m]eets the following additional criteria, if the proposed activity, other than noncommercial still photography (36 CFR 251.51), would be in a congressionally designated wilderness area: a. Has a primary objective of dissemination of information about the use and enjoyment of wilderness or its ecological, geological, or other features of scientific, educational, scenic, or historical value (16 U.S.C. 1131(a) and (b)); b. Would preserve the wilderness character of the area proposed for use, for example, would leave it untrammeled, natural, and undeveloped and would preserve opportunities for solitude or a primitive and unconfined type of recreation (16 U.S.C. 1131(a)); c. Is wilderness-dependent, for example, a location within a wilderness area is identified for the proposed activity and there are no suitablelocations outside of a wilderness area (16 U.S.C. 1133(d)(6)); d. Would not involve use of a motor vehicle, motorboat, or motorized equipment, including landing of aircraft, unless authorized by the enabling legislation for the wilderness area (36 CFR 261.18(a) and (c)); e. Would not involve the use of mechanical transport, such as a hang glider or bicycle, unless authorized by the enabling legislation for the wilderness area (36 CFR 261.18(b)); f. Would not violate any applicable order (36 CFR 261.57); and g. Would not advertise any product or service.
In short, the permit application may be granted if the activity will not disrupt others’ enjoyment of the forest or cause any safety risks, and, for permits in wilderness areas, does not violate the Congressional mandates of the Wilderness Act of 1964. That is it – there are no new restrictions being considered, merely clarified guidelines as to how the agency will evaluate your permit application. Quite frankly, as a member of the public, I’d rather there be clear, specific guidelines rather than allowing the agency to exercise its own unfettered discretion.
Permitting for “Commercial Filming” and “Still Photography” on Federal Public Lands
The key terms in the Federal Register notice are “still photography” and “commercial filming, ” so, the smart place to go next is how those terms are defined in existing regulations. Currently, any use of Forest Service lands is considered a special use except “noncommercial recreational activities, such as camping, picnicking, hiking, fishing, boating, hunting, and horseback riding, or for noncommercial activities involving the expression of views, such as assemblies, meetings, demonstrations, and parades, unless … the proposed use is still photography as defined in [this regulation].” Additionally, the regulations note that travel on the Forest Service road system shall not require a special use permit unless the activity is “commercial filming, or still photography, as defined in [this regulation].”
So, how do the Forest Service regulations currently define “commercial filming” and “still photography”? That is the question that no one is asking. “Commercial filming” is defined as “use of motion picture, videotaping, sound recording, or any other moving image or audio recording equipment on National Forest System lands that involves the advertisement of a product or service, the creation of a product for sale, or the use of models, actors, sets, or props, but not including activities associated with broadcasting breaking news, as defined in FSH 2709.11, chapter 40.” The other key term, “still photography,” is defined as “use of still photographic equipment on National Forest System lands that takes place at a location where members of the public generally are not allowed or where additional administrative costs are likely, or uses models, sets, or props that are not a part of the site’s natural or cultural resources or administrative facilities.”
By their plain language, neither definition would apply to someone who was going in with a regular DSLR (digital single lens reflex) camera or iPhone to take wildlife, nature or landscape photos, unless models or props were needed. It also would not apply to any media reporter using still photography – DSLR or iPhone – to simply capture images for editorial purposes. It would require, however, a special use permit if a media organization wanted to bring in a film crew to work on a documentary or series. But in this case, what is being regulated is conduct – the type of activity and the number of people involved – not the speech of the press. And courts have routinely held that the government can regulate conduct without violating the First Amendment. Public land managers have an obligation to ensure that the organic acts governing those agencies, and where applicable, the Wilderness Act, are being followed. A large film crew – regardless of the intent of that crew (feature film or news organization) – can have an impact on public resources.
This approach is not unique, and is reflected in existing regulations on all other Federal public lands. The Department of the Interior also requires a permit for “commercial filming” and “still photography” for National Park Service, Bureau of Land Management and U.S. Fish & Wildlife Service lands. Under 36 C.F.R. §5.5, “commercial filming” and “still photography” activities require a permit, as stated in 43 C.F.R. Part 5. Under those regulations, all “commercial filming” requires a permit, and “still photography” requires a permit when “[i]t uses a model, set, or prop as defined in §5.12; or … [t]he agency determines a permit is necessary because … [i]t takes place at a location where or when members of the public are not allowed; or .. [t]he agency would incur costs for providing on-site management and oversight to protect agency resources or minimize visitor use conflicts.” “Commercial filming is defined as “the film, electronic, magnetic, digital, or other recording of a moving image by a person, business, or other entity for a market audience with the intent of generating income. Examples include, but are not limited to, feature film, videography, television broadcast, or documentary, or other similar projects. Commercial filming activities may include the advertisement of a product or service, or the use of actors, models, sets, or props.” Under these regulations, “still photography” is defined as “the capturing of a still image on film or in a digital format.”
Thus, existing regulations for NPS, BLM and USFWS lands incorporate pretty much the same elements as those under current Forest Service regulations. In both instances, the regulations recognize the special role of the media. The Interior regulations do not require a permit for any news-gathering activities – filming or still photography – unless it is determined that a “permit is necessary to protect natural and cultural resources, to avoid visitor use conflicts, to ensure public safety or authorize entrance into a closed area; and [o]btaining a permit will not interfere with the ability to gather the news.” The Interior regulation also exempts the news media from any applicable fees. The definition of “commercial filming” under the Forest Service regulations excludes “activities associated with broadcasting breaking news.” However, the Forest Service does not appear to exempt news-gathering from a special use fee.
Neither the Interior nor the Forest Service regulations set a specific fee for a special use permit application. In the Forest Service regulations, it notes a possible “rental fee” of $100 annually, plus “cost recovery” fees of an unspecified amount to “recover the agency’s processing costs for special use applications and monitoring costs for special use authorizations” and an unspecified “processing fee,” which varies based on numerous factors. Nowhere do the regulations provide for a $1,500 application fee as the various media accounts claim. Similarly vague, the Interior regulations require a “reasonable location fee that provides a fair return to the United States” and a “cost recovery fee” that covers “direct and indirect expenses including, but not limited to, administrative costs for application processing, preproduction meetings and other activities, on-site monitoring of permitted activities, and any site restoration.” In all cases, such fees are not set nationally, but by the regional land manager. For example, the Denali National Park Professional Photographer Special Road Travel permit requires an application fee of $100, plus $150 for the actual permit if awarded. The park’s commercial filming permit application fee is $200, with the permit fee itself varying from $150 to $750 per day, depending on how many people are involved in the shoot.
In short, the Forest Service is not proposing any new regulations that would require any additional types of activities to get a special use permit, and its regulations are consistent with the regulations that govern National Park Service, Bureau of Land Management, and U.S. Fish and Wildlife Service lands. You will not have to pay a special use permit fee to take nature or wildlife photos using a DSLR in Forest Service lands, wilderness or otherwise, unless you are using props and models like a commercial stock photographer would use. If you are a reporter, the same applies.
Getting to the Real Problem
Now, this discussion does highlight two problems, neither of which are related to the proposed Forest Service regulation. First, the existing regulations that define “commercial filming” are woefully out-of-touch with modern technology. You don’t need a massive film crew with lots of equipment and motorized transportation to do filming these days, whether with a HD digital video camera or a DSLR. It can be done with one person traveling on foot or non-motorized power. Anyone who has ever seen Survivorman knows this. Second, while the national regulations themselves are not terribly confusing, how they are often enforced or interpreted by local land managers has led to actions that are inconsistent with and contradictory to the plain language of the regulations. When local land managers stretch and abuse the regulations to enforce their own vision of how lands should be used, they violate public trust and create a serious Constitutional problem; that is, that we are supposed to be on notice of what the government expects of us. When their actions violate the plain language of that notice, then we have a real problem.