Just about everyone reading this article has a camera of some type. And more likely than not, they will want to use it on federal land including National Forests. About three-fourths of the US population visits National Forests every year.
One of the biggest responsibilities for the USFS is for controlling forest fires, but in September the Forest Service created a new kind of firestorm when they released for comments a proposed new policy concerning requirements for permits to photograph on National Forest lands.
Requiring permits to take pictures on public lands can be traced back over a century to the Organic Administration Act of 1897, the Wilderness Act of 1964, and the Federal Land Policy and Management Act (FLPMA) of 1976. In those earlier times things were a lot simpler. Permits were required only for commercial photography—stills and film. The number of commercial photographers was limited. In those days there was no such thing as the Internet. The Internet opens the door for anyone to become a journalist and a photographer. And so, as the numbers of people filming increased, changes began to occur in policies on filming on federal lands.
A notable change in policy on filming on federal lands took place on May 26, 2000, when President Clinton signed Public Law 106-206, allowing the Secretaries of Interior and Agriculture to establish a fee system to manage filming for commercial filming on Federal Land.
This legislation gave the National Park Service and the US Fish and Wildlife Service new authority to require permits for commercial filming. The Forest Service and the Bureau of Land Management already had authority to do so.
The policy proposed by the Forest Service on September 4 would require permits for up to $1,500 for taking still pictures of filming in wilderness, filing an application at least 60 days prior to photography, having liability insurance which indemnifies the USFS, and can cost at least $3,000, and fines up to $1,000 per day for failing to comply. The firestorm from journalists, outdoor writers, photographers, and constitutional rights folks that has ensued was not expected. A Google search for articles concerning photo permits on USFS land comes back with almost 17 million results—and none favor the new rules.
Permitting for a feature film production makes sense. On a location shoot there may be a hundred or more people on the set, and taking care of food, toilet, waiting areas, equipment trucks, trailers, stunts, aerial cameras, electricity, etc. is a major logistics challenge that could easily cause damage to the land. A Forest Service ranger should probably be present during the shoot and security guards become necessary. But the September 4 proposed policy seemed like the USFS wanted to make everyone with a camera get a permit if money was involved, unless it was for breaking news. And that’s what touched off the outcry.
On September 24, USFS Chief Tom Tidwell released a clarification that the new policy is not intended to interfere with First Amendment protection, and “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.” Tidwell extended the deadline for comments from November 4 until December 3.
Before the comment period was over, permits that USFS officials originally said could cost up to $1,500 were revised down to just $10 to $30 per day and, “generally, professional and amateur photographers will not need a permit unless they use models, actors or props” Tidwell said.
Tidwell then sent out another clarification on November 4 that states:
Journalism is not to be considered a commercial activity for purposes of the regulations or our permit policies on any NFS lands. Journalism includes, but is not limited to: breaking news, b-roll, feature news, news documentaries, long-form pieces, background, blogs, and any other act that could be considered related to news-gathering.
To further help differentiate between journalism and other activities, the following question should be asked: Is the primary purpose of the filming activity to inform the public, or is it to sell a product for a profit? If the primary purpose is to inform the public, then no permit is required and no fees assessed. …. commercial photography only requires a permit if the photography takes place at locations where members of the public are not allowed, or uses models, sets, or props.
Commercial film and photography permit fees should be primarily viewed as land-use fees. If the activity presents no more impact on the land than that of the general public, then it shall be exempt from permit requirements.
Tidwell’s November 4 communication definitely helps, but questions remain. What is “news” is more difficult to determine than ever before. For example, what about a journalist who wants to write a story about a subject that is opinion and may not be “breaking news?” Is a reality TV show “breaking news?” It’s shot in real time, there are no models, and there is no way to predict what will happen when you are in the field, but people may be asked to do re-enactments. Outdoor TV shows have needed permits in the past. Will this continue even if there is only one person with a camera?
What about people who make videos of hunting and fishing trips and charge for their services? Do they need a permit? They are doing the same thing as a person who films a hunting show for TV and there have been cases already where hunting shows venturing onto USFS have been told they need permits.
One sentence in Tidwell’s November clarification letter is crucial: “If the activity presents no more impact on the land than that of the general public, then it shall be exempt from permit requirements.”
The Forest Service took comments on the latest proposal through December 3. Just what the final policy remains to seen. For now, if you are going to be taking photos or shooting video for money on USFS lands, check in with USFS and get an opinion. Make sure you contact them at least 60 days’ notice before you plan to start shooting.