We’ll dispense with the obvious first: the United States Forest Service does not want to charge hikers $1,500 to take family photos, no matter what headline you may have seen lighting Facebook afire last week.
However, a temporary regulation that has been in effect for four years and is on the verge of becoming permanent does pose some issues that I (and many others) believe cross the line of constitutional protections that we all enjoy in this country.
The Forest Service proposed a directive that requires permits for commercial filming in designated wilderness areas. As with most rules proposed by federal agencies, not only was it posted at the Federal Registry for public comment, it sat there for some time mostly unnoticed by the general public, save for a few legislation geeks who spend their free time tracking such things down.
But it also has been in effect for much of that time, and the manner in which it was being enforced caught the eye of a reporter from The Portland Oregonian, which published an article that got much of the controversy rolling.
That article made the rounds online, and The Seattle Times followed up with another article that detailed what it called “wildly unequal” enforcement by the Forest Service.
While on one hand USFS Chief Tom Tidwell released a statement that the Forest Service “remains committed to the First Amendment,” some of his own employees’ actions indicated something else entirely. And if you have to release that kind of statement, you’re already in danger of losing the battle.
Among the examples cited by the two newspapers:
* Idaho Public Television was forced to get a permit to film a documentary on the 50th anniversary of the Wilderness Act, not because of potential harm to the wilderness, but because it had to convince the Forest Service that the content of their documentary would be in keeping with USFS interpretation of the “values of the wilderness.”
Or, as acting USFS Wilderness Director Liz Close told The Oregonian: “If you were engaged in reporting that was in support of wilderness characteristics, that would be permitted.”
* A radio reporter in Yellowstone National Park was forced per purchase a permit, wait weeks for an application to get processed and buy liability insurance before being allowed to interview a biologist about wolf reintroduction.
The intent seems to be to keep large filming companies from trampling over protected wilderness areas. However, what is being put into effect goes beyond that. A couple of problematic passages from the rule highlight where this furor is coming from.
* “A special use permit is required for all use of motion picture, videotaping, sound recording or other type of moving image or audio recording equipment (for commercial purposes) … Creation of a product for sale includes motion picture films, feature films, videotaping, television broadcasts, or documentary … when created for the purpose of generating income.”
My problem? It doesn’t really define what a commercial enterprise is other than something that generates income. A newspaper … that is a commercial enterprise. So is a solitary videographer, even if it is a leave-no-trace backpacker who might happen to make some money off of a video filmed in the backcountry. And a fee schedule (ranging from hundreds to $1,500) for wilderness filming does include a cost for a one-to-nine person crew.
* “Commercial filming in Congressionally designated Wilderness … may be allowed if the activity or storyline contributes to the purposes for which Wilderness was established.”
First Amendment, anyone? A federal agency setting up a fee schedule for permits, which may then be denied if the storyline doesn’t meet someone’s approval? What happened in the Idaho would seem to be in the spirit of this portion of the regulation. Certainly it is within the letter of that law.
Considering the proliferation of smartphones and their video capability, that could mean just about anyone.
* Personal photos and reporters engaged in reporting “breaking news” were to be exempted. However, it defines that as any event that “arises suddenly, evolves quickly, and rapidly ceases to be newsworthy.”
It does not say who decides what is newsworthy for how long. Was the Carlton Complex fire newsworthy for just one day, or is it still newsworthy? Most of what burned was not wilderness, but the USFS could require (or deny) a permit for a journalist wishing to report on mop-up efforts, which would certainly not be considered “breaking news.”
* Still photography doesn’t seem to concern USFS as much, though it requires a permit if the photography is to “promote or advertise a product or service using actors, models, sets or props that are not part of the site’s natural or cultural resources or administrative facilities.”
So, what is an actor (a friend pretending to be someone they are not?) What is a prop (trying to sell a lightweight camp stove)? What is a set?
Here’s the kicker for me: while the USFS says its intent is to limit the activities of large production companies in Wilderness areas (which I wholeheartedly agree with), I am trying to figure out how such a company would even operate in the Wilderness on a scale any differently than anyone else.
Wilderness areas such as the Pasayten do not allow motor vehicles, boats, hang gliders, bicycles, the landing of aircraft, or the picking up or drop off of materials by helicopter.
It does not allow parties to travel in large groups, as a youth pastor friend of mine discovered a few years back when he took a group of 20 high school students on a hike in the Pasayten.
Large commercial filmmaking, while staying withing the guidelines already in place for Wilderness areas, would require hauling everything in by hand or animal, staying in small parties, not using combustion generators, and likely keeping a troupe of actors from rebelling while subsisting on dehydrated camp food.
I joked online about forest rangers showing up in troop transports to raid art shows for images or videos taken that violate the numerous “commercial sale” clauses. A couple of people took that seriously and chided me for overreacting. Fair enough.
In the end, it doesn’t matter what the intent of the rules are. It matters how they are written, how they are enforced, and what happens when lawyers get hold of them and stretch them beyond the bounds of rationality.
In an era of ever-decreasing federal government transparency, it’s not a trail the U.S. Forest Service would be wise to travel.
(The full text of the proposed directive, and the opportunity to comment, can be found online HERE)