Cover the lens: Forest Service photography regulation sparks First Amendment concerns

by Fallon Rowe, photos by Nick Carpenter

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Signs warn against removing pieces of obsidian from an ancient lava formation. Guardrails keep tourists at a safe distance to prevent damage to artifacts at a historical site. Flags lining trails warn hikers to stay on established paths. Outdoor enthusiasts follow their mantra: “Take only photos; leave only footprints.” But what if Forest Service rangers could fine people for taking photographs on federally regulated lands without a permit?

A recent proposed update to the Forest Service regulation on commercial photography and filming raised public concerns about First Amendment rights and potential government overreach. According to an article by Gabe Rottman with the American Civil Liberties Union, the photography proposal will “tack on additional criteria to the current framework for deciding whether to issue a permit.”

Section 45.5 of the current Forest Service Special Uses Handbook outlines the rules and fees associated with still photography and commercial filming. The handbook explains the requirements for special use permits, including any involvement with “models, sets, or props.” It also mentions that permits are “required for all commercial filming activities on National Forest System lands” and “Congressionally designated wilderness” areas, but special use permits are “not required for broadcasting breaking news.”

The original regulation was temporary but will become permanent with the update announced on Sept. 4. Permits will cost up to $1500 for the largest productions, with $1000 fines for failure to receive a permit. The American Civil Liberties Union explains how “the permitting regulation has been on the books for about four years but some reports suggest it was unenforced, or at least selectively enforced.”

According to FederalRegister.gov, content proposals for permits must have “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.” Proposals containing material or intentions different from these guidelines will not be permitted.

Discrepancies in initial news coverage of the proposed update have caused confusion. For example, The Washington Times initially reported “anyone with a camera would be subject to a fee,” while other news providers claimed only those making a profit from photography and filming would be required to obtain a permit. Regardless, students don’t need to worry about being fined for a a selfie posted on Instagram from a hike to the Wind Caves.

The conflicting coverage contributed to disagreements about the proposed regulation update. Areas of controversy include regulation enforcement, implications on First Amendment rights, unclear language, potential discrimination by local Forest Service districts and high fees. The copious amounts of feedback resulted in an extension of the public comment period, now open until Dec. 3. It also prompted U.S. Forest Service Chief Tom Tidwell to clarify on Sept. 25 that the organization remains “committed to the First Amendment.” The Forest Service also announced that the proposal will not affect recreational photography or news activities, despite previous permit denials to organizations such as Idaho Public Television.

Many in favor of a permit and fee system say stricter regulation will positively impact the environment and ensure land protection and maintenance. Joe Blakemore studies fisheries management at Utah State and loves photography. He understands the importance of the proposed system. “We are in an outdoor mecca. I’m pretty sure that any student here has enjoyed an outdoor experience,” Blakemore said. “With these permit fees imposed, the quality of the areas can only go up and improve our facilities in these places.”

Blakemore also mentioned the significance of fees for commercial use in these areas, revealing the dilemma of the situation. “On one hand, permits are a hassle and could be costly,” he said. “However, as a fisheries student, I understand that the more funding coming in means more money to spend on these areas.”

Even those who aren’t directly involved with photography hold opinions on the issue. Aggies for Liberty President Zachary Volin provides another student perspective. Volin says this regulation is an example of government overreach, and thinks the government being “hands-off” is better to prevent micromanagement of issues like photography.

Mike Johnson, a photographer and Utah State alumnus, runs a small business in Logan called Endless Photography. He worries more permit regulation will limit the locations he uses to photograph engagements and family events. He is also concerned about the impact the fees will have on small businesses, explaining that the future “is really what worries me the most because at some point they may be requiring a permit for any area, and if you’re charging a thousand dollars or more, that’s a good chunk of change.”

One argument supporting the regulation acknowledges that it will stay in line with the Wilderness Act by keeping areas untrammeled. “I understand they’re trying to protect it [the environment], but I feel like there should be some sort of distinction between your small businesses versus your large Hollywood commercial ventures,” Johnson said. He also feels there should be no fee for photographing in these areas because “they’re known as public lands and I feel like they should be open for public use.”

An editorial from the Wallowa County (Ore.) Chieftain presents a similar stance on the issue: “If anything, the Forest Service should be making it easier for news operations to tell other citizens about the amazing splendors of these public assets and the serious challenges they face.”

Much of the media hype about this regulation is a result of the vague, contradictory language in the law that leaves many specifics up to interpretation, according to Scott Stuntz from Teton Valley News. Johnson explained that the nature of photography is complex, and it may be difficult to enforce the regulation in a practical manner. His opinion is that “the enforcement would really be up to the park ranger or whoever you run into, which is worrisome.”  He thinks people will try to go around the law and risk getting the fine because people already get around regulations in other government land areas.

Blakemore suggested clarifying the language since “a vague law only creates gray area for people to get caught up in trying to find loopholes. A clearly-defined law will not only answer questions faster, but it will cut down on wasted time in court battles over people not paying for permits.”

An article from The Statesman Journal (Ore.) quoted Forest Service public affairs specialist Glen Sachet, who thinks the language is now clear because of the organization’s response to the confusion during the public comment period, which is still open. “We believe the Chief’s letter speaks for itself and supersedes any other language in our regulations that might conflict,” Sachet said.

Some disagree with the specific content requirements outlined in the regulation. Volin thinks they are a problem because of the potential inability of media to get a permit to investigate the government on lands affected by the regulation, which is a First Amendment issue. He argues people “should be allowed the right to check the government” and the right “to publish this information for the public to know because we have freedom of speech and the press.”

As a photographer, Johnson acknowledges public lands do need guidelines “to make sure that people aren’t trampling them and ruining them, so that other people can enjoy them.” He thinks Utah State University students should care about this issue because it’s “just another law you have to watch out for, and it’s regulating where you can go.”

The Uinta-Wasatch-Cache National Forest, which includes Logan Canyon near Utah State’s Logan campus, is a popular destination for both recreational and commercial interests and will be affected by the proposal.

To have your voice heard, click “Submit a Formal Comment” before Dec. 3 here.

 

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