Confusion, misspoken words, and fear mongering swept the public lands landscape this past week following word that the U.S. Forest Service was planning to squash your right to snap a photo in the woods if you didn't pony up $1,500 for a picture-taking permit.
The uproar stemmed from a poorly worded Federal Register notice, and was fanned by media worried about their First Amendment rights, and very possibly by federal government critics.
The flames continued to burn with U.S. senators -- who evidently hadn't looked too closely into the matter -- condemning the (misunderstood) proposal. Even after the Forest Service chief issued a press release to assure all involved that they could enjoy venture into the national forests without having to purchase a $1,500 permit so they could remember their visit with photos the vitriol flowed.
"Hey hikers, that scenic forest photo you just posted on Instagram may cost you a thousand dollar fine. According to a proposed update to U.S. Forest Service regulations, still photography or video taken in any of its 439 Federal Wilderness Areas is subject to permitting (costing up to $1,500) or you can face a $1,000 fine per photo," read a story on Yahoo! Travel the day after the chief issued his release.
Had those behind the initial erroneous reports done a little digging, they would have discovered that the permitting fees being addressed by the Forest Service had nothing to do with private citizens or news media outlets armed with cameras, still or otherwise. Rather, the proposal was aimed at commercial film productions in search of a wilderness setting.
Here's a pertinent section of the existing regulation pertaining to photography in wilderness areas in national forests:
A special use permit is not required for still photography when that activity involves breaking news (sec. 45.5). A special use permit:
1. Is required for all still photography (sec. 45.5) activities on National Forest System (NFS) lands that involve the use of models, sets, or props that are not a part of the natural or cultural resources or administrative facilities of the site where the activity is taking place.
2. May be required for still photography activities not involving models, sets, or props when the Forest Service incurs additional administrative costs as a direct result of the still photography activity, or when the still photography activity takes place at a location where members of the public generally are not allowed.
The Forest Service proposal that sparked this uproar is intended to reauthorize that directive, which expires at the end of October, and to more clearly apply to commercial filming. "The previous directive," Forest Service officials said in their notice of updating the provision, "addressed still photography in wilderness and did not provide adequate guidance to review commercial filming in wilderness permit proposals."
Nowhere did the proposal say it was going to require news media or the general public to purchase permits. Yet that didn't stop the outrage from fomenting across the country. Even U.S. Sen. Mark Udall, a Colorado Democrat in a tight re-election campaign, jumped in, issuing a release to proclaim his support for the First Amendment and, presumably, reporters.
"A picture is worth a thousand words, but the U.S. Forest Service's proposed rule on wilderness photography conjures only one: Wrong," the senator said in a release. "As we mark the 50th anniversary of the Wilderness Act, we should be encouraging all visitors to share photos of these special places — not imposing erroneous red tape on journalists and other visitors whose tourism drives our local economies. This proposed rule defies common sense, and I urge all Coloradans to stand with me and voice their concerns with this misguided rule."
Of course, the common sense approach of investigating exactly what the Forest Service was trying to do before condemning the agency was apparently overlooked by the senator's staff.
The outrage was enough to make Smokey Bear turn his back on national forests, and finally prompted the chief of the Forest Service, Tom Tidwell, to go public on September 25 with this statement:
“The US Forest Service remains committed to the First Amendment,” said U.S. Forest Service Chief Tom Tidwell. “To be clear, provisions in the draft directive do not apply to news gathering or activities.”
The proposal does not apply to news coverage, gathering information for a news program or documentary. However, if a project falls outside of that scope and the filming is intended to be on wilderness land, additional criteria are applied to protect wilderness values. In that case, a permit must be applied for and granted before any photography is permitted.
The agency issued a Federal Register notice on Sept. 4 seeking public comment on a proposal to formally establish consistent criteria for evaluating requests for commercial filming in wilderness areas as it has on national forests and grasslands. The proposed directive on commercial filming in wilderness has been in place for more than four years and is a good faith effort to ensure the fullest protection of America’s wild places.
“The fact is, the directive pertains to commercial photography and filming only – if you’re there to gather news or take recreational photographs, no permit would be required. We take your First Amendment rights very seriously,” said Tidwell. “We’re looking forward to talking with journalists and concerned citizens to help allay some of the concerns we’ve been hearing and clarify what’s covered by this proposed directive.”
Nevertheless, some media reports continued to stir the pot after Chief Tidwell's mea culpa. Now, let's hope some of those media outlets offer their own mea culpas.
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Comments
I read stuff like this Federal Register notice for a living. Having read this one, I wouldn't be too quick to judge anybody who misunderstood it. The repeated differentiation between "still photography" and "commecial filming" certainly makes it sound like there are going to be new restrictions on non-commercial still photography. A good reporter would have followed up with a call or email, but that wouldn't have guaranteed a response, or a clear answer if a response was forthcoming. That a respected environmental advocate like Udall reached the same conclusion -- or at least his staff did -- says something about the problem with the notice (and maybe about how scared he is in his re-election campaign). So, yes, I wish reporters and politicians were more careful. But I wish even more that government officials who are tasked with providing information to the press and the public could make themselves understood.
Exactly John, no matter the "intent" the wording suggests otherwise and those that are interpreting the "intent" today may not be the ones interpreting it tomorrow. We have become overwhelmed by evidence of imprecise language no matter the intent being misused in the future
I read the directive itself on Friday. I consider myself a pretty intelligent individual (heck, I can usually decipher insurance "language") and the way the directive was written absolutely *could* be interpreted as requiring a permit for private photography. That is the problem -- laws are based on wording and if the wording is imprecise the law is the up to the interpreter.
Your exerpt proves my point. "Breaking news stories" do not require a permit. Ok, fine, what is the definition of a "breaking news story?" What is considered a "prop?" Is a tripod a prop? What is a "model?" Is someone posing for a picture a "model?" What is a "set?" Is a picnic blanket and basket spread out in a meadow with a person posing on it considered a "set" with a "model?"
The forest service and NPT can laugh and say OF COURSE we don't mean that private individuals need a permit to take a picture of a flower or your kid on vacation. However if you read the directive as it stands it does not explicitly say that the permit only pertains to "commercial still and film photography." It also doesn't address exactly what is considered "commercial." If someone posts their photo on Instagram or Flickr and a travel magazine reaches out to them to license to the photo for a story, is that photo now considered commercial?
If the forest service really means to only direct this to commercial ventures, they need to write the directive so that explicitly says "commercial," and then define exactly what those are. The sad fact is that the public lands agencies need money (hence the fight over NPS fees) and leaving such an open-ended directive could prove very tempting to the next forest service chief looking for revenue.
Thought readers would be interested in the original story published in the Oregonian. Reporter quoted USFS spokesman, First Amendment advocates and even cited a case in Idaho in which USFS used those temporary rules to block access to a public television crew until Idaho governor got involved. www.oregonlive.com/environment/index.ssf/2014/09/forest_service_says_med...
I knew if I waited long enough, there would be an article in the Traveler that I could understand, pertaining to this subject. Thanks!
All the uproar indicates the wording of the new regulations could have been clearer; the definitions of things like "models, props and breaking news" as applied to Dept. of Interior lands is found elsewhere in the Federal Register at this link. Those definitions seem pretty logical, and clearly don't apply to visitors taking vacation photos.
Unfortunately, quite a few media outlets simply copied and repeated incorrect information from other stories. As is common, some stories also failed to distinguish between national "forests" and "parks" when they quoted the Forest Service news releases. Here's just one example, which claims [incorrectly] that the new Forest Service regulations would "exclude millions of Americans from being allowed to take photos in our national parks."
One more example of the double-edged sword of today's electronic communications: it's easy to access and spread lots of information in a hurry...but not all of it is accurate.
Kurt - National Parks Traveler: Your article is WELL DONE, very clear and concise. Exactly what needed to be said. I appreciate your efforts to address the premature, unwarranted reaction to the U.S. Forest Service's policy update. Well done & appreciated.
Jim,
Is there significane that the Forest Service isn't one of the defined parties in that link?
"Agency, we, our, or us means the National Park Service, the Bureau of Land Management, and the U.S. Fish and Wildlife Service, as appropriate."
Yes, ec. The significance is that the link to a Department of Interior publication. The Forest Service is under the Department of Agriculture.
So the linked definitions don't provide any cover for the Forest Service - the target of the concerns under discussion. Are their similar definitions that do cover the FS?
ec - Somewhere in the process of opening links from various Forest Service documents, I was taken to the list of definitions on this subject for Interior. The FS apparently referenced the Interior list somewhere in their documents, but I wasn't keeping good notes and lost track of where I was in the land of Google :-)
Perhaps my point should have been that clear definitions on this subject already exist for other federal land management agencies, and the Forest Service may have already adopted those same definitions. If not, they could easily do so, either by reference, or by duplicating them in their own regs. They then need to provide a clear and easy-to-find link to that information.
Sorry for any confusion.
Thanks Jim. In reality, you are not the one creating the confusion. As Acadia has pointed out, even the FS doesn't seem to know how to interpret the rules.
I think we can all agree that licensing should not be required for non-commercial activites that are non disruptive/destructive or otherwise don't interfere with the visitor experience. Some of us would go even further and say licensing should not be required for commerical activites as long as those activities meet the same non-interfering criteria.
Might as well read it for yourself? (begins on page 55) http://goo.gl/4EokuO
You can now continue to this website, or go back to the page you were on before.
Remember, only follow links from sources you trust.
Hmm, works for me. Here is is in full:
http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5109390.pdf
(Pertinent data begins on page 55...)
This is actually a decent rule change if you are a professional documentary filmmaker. It allows for indy filmmakers to be able to create films in the wilderness that were basically impossible before this ruling back in 2010. This isn't going to affect Joe Tourist with his camera taking snapshots of the wilderness for vacation. And it's not going to affect the coffee table book/calendar creators. What it's going to affect are filmmakers that can now shoot documentaries in the wilderness on wildlife and ecology. Before, you could shoot those things, but you couldn't make anything back on it.. So it was a losing proposition. The road blocks are actually a little less stringent with this. In the future, youll see Nat Geo, documentary films similar to those old Marty Stouffer wild america type productions, or more PBS productions on wilderness lands that you couldnt see before. It's not all bad, and the hysteria was so overblown due to bad journalism that distored the directives. Eventually, youll see good productions on the Wind Rivers, Alpine Peaks Wilderness etc. Currently you can't, because it's a losing proposition for film companies. This opens it up a tiny bit more, although within reason. If you're going to haul a giant crane back into the wilderness, then that's going to come with some big time oversight, etc. National Parks have allowed filming pretty much since their creation, although with similar type regulations.
That last one worked, RW. Seems to say exactly what the DOI page Jim linked to said regarding props, models, news gathering, and tripods...
OMG, is Gary calling for people to make money off of Wilderness? I thought it was purely for public enjoyment and not for the greedy profit seeking individuals. [/SARCASM]
While the fear might be overblown, the onus is on the rule maker to make the rule clear. Obviously, they failed.
Hunting guides, rock climbing guides, hiking guides, fishing guides, calendar and snapshot photographers, and horse/mule guides already make money off the wilderness areas. Also, it can be said that restaurants, gas stations, and hotels that live on the boundary of wilderness, along with countless retailers that sell outdoor equipment make money just simply for the fact that wilderness exists.
And the rules are pretty clear to those of us that work in "the industry". And yes, I see filmmaking as non-intrusive to wilderness values, if performed by ethical filmmakers that use non-intrusive techniques. The work also helps bring a greater appreciation and understanding to people about what is in that wilderness, and it might spur them to put on a pair of hiking boots..