Proposed National Forest Service Rules May Require Photography Permits

<p>The National Forest Service has proposed rules for requiring permits for still photography and video in Forest Service lands. The rules propose a Permit fee of $1,500 and fines at $1,000. The rules are broadly written and could be interpreted such that a picture taken by any one of us of the Grand Canyon or Yosemite and sold as a print, might be subject to fine.</p>

<p>Comment and clarity is needed. The public is invited to comment by November 4, 2014. Here's a broad article about the subject, which contains a link to the actual proposal, where you can see the invitation to comment:</p>

<p>http://petapixel.com/2014/09/24/us-forest-service-proposes-controversial-expensive-photo-permit-rules/</p>

<p>Shouldn't we in the Nature Forum be commenting and inviting others to send in their comments also?</p>

<p>Well, first of all, the Grand Canyon and Yosemite are National <em>Parks</em>, and not lands protected under the National Wilderness Preservation System and administered by the U.S. Forest Service. Wilderness areas are intended to be protected, as much as possible, from intrusions other than recreational visits. The preamble to the Wilderness Act of 1964 says it best:</p>

<p><em>A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.</em><em><br /></em><br /> <br /> <em><br /></em>I saw no mention of fee or fine amounts in the provided documents, but, since I feel that allowing <em>any</em> commercial enterprises to operate within a wilderness area would be a grave mistake, and they definitely should pay well for the privilege. Why? Because they will leave trash and damage behind, which FS personnel will have to clean up. Trust me: Been there, done that, have several T-shirts.</p>

<p>I'm still digging, trying to find the Permit Fee and fines referred to in the article.</p>

<p>Believe or not, Wilderness Areas and Forest Service lands are often trammeled by man. Colorado is covered by them and I often find myself shooting in them, using the roads and trails provided. In many cases, the Forest Service has built roads and trails throughout vast segments of these public lands and invites the public to recreate there. Photography can be a form of recreation that also has some commercial implications for many.</p>

<p>William, you say that you've been there. Did you take any pictures, print them and offer them for sale? Many of us do. Your proposed dis-allowance of "ANY commercial enterprise" is unreasonably restrictive. Trash may be left behind by some, but public awareness has greatly improved that situation. Those found leaving trash are indeed fined.</p>

<p>National Forest lands are indeed trammeled. They're supposed to be. The Forest Service was created to manage logging, mining and agricultural enterprises on those lands. Wilderness areas, those within the NWPS, are special. Those businesses operating within areas which became designated wilderness areas under the Wilderness Act of 1964 were slowly phased out over time, the mines being the last to go. The Forest Service was tasked with managing these areas because most of them were created on National Forest lands. That may cause some confusion in peoples minds because the boundaries are not always clearly marked.</p>

<p>Another issue is funding. I've worked in wilderness areas in California and Colorado (the Weminuche on the San Juan NF). Forests in California have to dump most of their annual budget into firefighting. On the San Juan NF, the fire threat is nowhere near as high, and they are able to field a sizeable seasonal crew of wilderness rangers to care for the Weminuche Wilderness. So, for forests in California with wilderness areas, it makes sense to go for restrictions and prevention rather than unavailable patrolling to corral problems. On top of this, of course, is the fact that Forest Service funding has been reduced across the board by budget cuts over the last several years.</p>

<p>Have I shot photos in wilderness areas? Oh, yeah. Have I tried to sell them? No. Most of them were taken years ago, when I first got back into photography, and they aren't very good. Would I do it again? Yep. Think about it: Enforcing any of the restrictions against a single photographer in a wilderness area (meaning no crew or assistant, no light reflector stands, etc.) is very unlikely simply because it's unrealistic to expect it. If you shoot a photo in a wilderness area and then sell it, who is going to track you down? As long as you're not violating any other prohibitions (no vehicles, etc.), I don't think you have a problem.</p>

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<p>Shouldn't we in the Nature Forum be commenting and inviting others to send in their comments also?</p>

</blockquote>

<p>Absolutely. Thanks for bringing this to our attention. These are places that many in this forum care about for many reasons. The way I see things we all have a stake in matters related to our National Parks, Forests, Wilderness, Seashores, etc. We need to be aware of rules and regs that pertain to photography in these places, or anywhere else for that matter. I have a recollection of something like this coming up awhile back. I want to look closely at "the rules" before making further comment. At least there is a way to file a public comment electronically instead of being required to show up at a meeting in person. </p>

<p>I would strongly encourage everyone here to read the actual <a href="/bboard/www.gpo.gov/fdsys/pkg/FR-2014-09-04/pdf/2014-21093.pdf">entry</a> (PDF) in the Federal Register, and submit comment. It also may be worthwhile to submit comment to Senator Ron Wyden of Oregon, who seems to have the good sense to see that this proposal is not a good one.</p>

<p>In the overall picture of still photography on federal lands, this proposal seems a minor issue. The proposal would affect a directive to agency personnel, so as such, it wouldn’t really have the force of law. But agency personnel would be essentially required to follow it, so it would seem to invite conflict between photographers and rangers who may have different understandings of what is required.</p>

<p>The proposed directive would exempt “noncommercial still photography” as defined in 36 CFR 251.51. Unfortunately, there is no such definition. That section does define a “commercial activity” as one “where the primary purpose is the sale of a good or service,” and it defines “still photography” as photography that “uses models, sets, or props that are not a part of the site’s natural or cultural resources or administrative facilities.” Whether an image that is sold is a “good or service” is open to interpretation, but it’s probably irrelevant.</p>

<p>Public Law 106-206, enacted in May 2000, would almost certainly trump any provisions of the Wilderness Act as applied to still photography because it is more recent and more specific. And under Pub. L. 106- 206, commercial intent is irrelevant as applied to still photography; the FS <em>cannot</em> require a permit unless the photography involves the use of models or props. Now, who is a model and what is a prop? I’m not sure anyone really knows. The most recent regulations issued by the NPS, BLM, and FWS may imply—though they don’t actually say—that a “prop” is anything other than a camera and tripod. One can only guess how this might be applied to an external flash, a monopod, a light meter, a camera bag ... The FS, of course, are not covered by other agencies’ regulations, but they’ve long had essentially the same provision in Chapter 45 of FSH 2709.11 (which probably was the basis for the DOI agency regulations).</p>

<p>A quick analysis by anyone with an IQ greater than that of a gerbil will show that the intent of Pub. L. 106-206 was to apply the requirements of then-extant 36 CFR 5.5(b), which required a permit for still photography only when the photography involved a “vehicle, or other articles of commerce or models for the purpose of commercial advertising,” but unfortunately, that’s not what the regulations seem to reflect. I think the regulations are accordingly invalid, but I just don’t have $100k+ to challenge them. So far, I haven’t heard of any significant problems, but it may be only a matter of time. And the new FS proposal certainly doesn’t help.</p>

<p>I submitted this comment today. Feel free to add your own thoughts and share with anyone willing to help our government understand the importance of unfettered access to wilderness for photographers, as long as they leave no trace:<br>

<br /> I am a photographer who takes pictures for personal and professional purposes. I sell my work as fine art, and also for publication. Some of it is newsworthy and has appeared in documentaries, books, and in the press. Most of my subject matter is nature, and often taken in wilderness areas. I am highly concerned about the proposed regulation for the following reasons:<br>

<br /> 1. The eventual use of an image (whether still or video) is often understood only after it has been taken and published. The proposed regulation assumes the image usage is known before it is taken, and even before the photographer travels to the site (any permit must be submitted well in advance of the visit.) Nearly every photographer has a story where an image taken for personal use became one that had commercial value, often unexpectedly.<br>

<br /> 2. Photography is very dependent upon weather, site conditions, vegetation growth, bloom time, and bloom quality. These conditions cannot be predicted in advance where a permit entails lengthy delays.<br>

<br /> 3. Permit fees and applications present an unnecessary barrier to free expression and the photographer's right to record nature. This is a form of speech and must not be hindered by governmental intrusion.<br>

<br /> 4. The permit process creates a bureaucracy that imposes additional expense and burden on taxpayers, as well as additional costs for anyone in business who photographs for art, journalism, or publication. Digital technology has reduced compensation to paper-thin margins. Permit expenses will effectively prevent photographers from taking wilderness images and being fairly compensated for them.<br>

<br /> 5. Video and still photography have essentially merged with new technology. Nearly all new cameras and cell phones can take either form of imaging. Regulations must not limit the ability to record video or stills, causing a person to be in violation of the law by the simple decision of taking a video during a still photo session.<br>

<br /> 6. While the proposed regulation applies to commercial filming, it creates a slippery slope toward placing the same restrictions on still photography. Many still photographers now shoot video as a means of promoting their work and supplementing their often meager income. Video is often done in conjunction with still photography. If enacted, video producers will seek to have the same restrictions applied to still photos out of fairness concerns.<br>

<br /> 7. The regulation is already inaccurate in its use of terminology. I'm not being flippant to note that "filming" isn't a valid description of today's motion-picture equipment. Film is seldom used, what happens today is almost always digital capture, either still or video. The technology is changing so fast that any attempt to regulate it will likely be obsolete as soon as it's written.<br>

<br /> 8. Photographers and journalists play an important role in watchdogging the government. The proposed regulation has the potential to limit that ability, depriving the public of important knowledge about wilderness management, impacts, and exploitation, whether by the government itself or by other parties seeking to benefit unfairly from a resource that belongs to the entire public. Documentation is a valuable purpose for citizens to record history and debate controversial topics. Documentation should not be restricted in any way as long as it is not impacting the wilderness resource.<br /> For these reasons, I recommend that the proposed directive be shelved permanently. Any directive to regulate photography and video in wilderness areas must not restrict the taking of images as long as the process is done in accordance with the existing guidelines of no-trace usage, non-motorized access, and keeping the party size below twelve people. The sole limitation requiring a permit should be impact to the wilderness resource. Existing restrictions not allowing models, props, or sets are enough and need not be changed as those items are external to the wilderness and make a clear separation between a for-profit commercial use that is planned in advance, versus spontaneous, creative use for journalism, artistic expression, publication, or documentation.<br /> Thank you for the opportunity to comment.<br>

<br /> Sincerely,<br /> Chris Carvalho</p>

<p>Chris,</p>

<p>Kudos! I raised many of these points in comments on the regulations issued to implement Public Law 106-206. But I was about the only one who did so; had a handful of others made similar comments, we might have avoided the ridiculous regulations that we now have. Comments to the FS must obviously be restricted to the proposal at hand, so they can’t address earlier problems. But they may help avoid making things worse, so please, folks, comment early and often.</p>

<p>You mention so many points that seemingly are self evident, yet have completely escaped the people who write regulations. In particular, you note that the distinction between still and moving images is no longer a valid consideration in determining whether permits are required. It’s not only unreasonable, but also unenforceable—how can a ranger determine whether a photographer is taking still or motion images without a normally illegal search of the camera?</p>

<p>The intent of the NPS regulations that were in effect from 1966 until last year was to regulate large-scale, potentially disruptive or damaging activities such as commercial filming and large-scale still photography done for commercial advertising. “Commercial filming” was intended to apply to activities that resulted in motion pictures that were to be shown in motion picture theaters, and whose making entailed large crews, sets, large props, numerous support vehicles, and considerable heavy equipment. Everyone knew what was meant because “commercial” motion pictures involving only camera, tripod, and a few other small items weren’t really an option. Changes in technology during the 13 years the NPS took to implement regulations have made this criterion obsolete.</p>

<p>What’s needed is a new way to describe this activity. It’s actually a bit more complicated, because now the NPS can collect location fees, so it’s not strictly a matter of resource protection.</p>

<p>I’ve been trying to convey this to the NPS for seven or eight years, and apparently have gotten nowhere. I suggested going back to the long- standing practice of requiring permits for photography that uses props or models for the purpose of commercial advertising, and treating motion pictures take with a still camera the same as still images. I’m not sure this is the final answer, and it invites questions such as “Why should a photographer working alone with a Red be treated differently than a photographer shooting motion pictures of the same scene with a Canon?” But it’s at least a starting point for discussion. Perhaps folks who tend more toward mition images can offer a better way of stating this.</p>

<p>Jeff and Chris. Thanks for your contributions and added clarity. I just came upon this issue yesterday and you've greatly accelerated my learning curve.</p>

<p>Designated Wilderness is managed by the US Forest Service, the US Fish and Wildlife Service, Bureau of Land Management and the National Park Service--these lands constitute the National Wilderness System.<br>

The US Forest Service currently does permit, and charge for, commercial activities in many Wilderness areas--outfitting and guiding associated with hunting and fishing, for example. <br>

One point people writing in to protest the law should make: if it was not for photography we would not have a Wilderness system! </p>

<p>Though I think the proposal is a bit confusing, I think we should keep it in perspective—the proposed section doesn’t impose any new requirements, and it only comes into play for still photography that requires a permit under §45.51a of the Forest Service Handbook—namely, when it involves the use of models or props. For many of us here, that may never come up, although it could depend on whether something like a collapsible reflector or diffuser is considered a “prop.” But the interpretation of “prop” isn’t up for discussion, and we need to limit comments to the issues that <em>are</em> up for discussion.</p>

<p>As I have said, I think the reference to the undefined “noncommercial still photography” invites confusion among enforcement personnel. If I read the proposal correctly, the language is without effect anyway, because what I think is meant by “noncommercial still photography” would never bring the proposed section into play. Accordingly, I think the FS should should eliminate this language.</p>

<p>I think there could be some serious First Amendment and Fifth Amendment issues for some journalists. But they seem issues for another forum.</p>

<p>Amid growing public outcry, the U.S. Forest Service announced Thursday it will delay finalizing restrictive rules requiring media to get special permits to shoot photos or videos in wilderness areas.<br /><br />The federal agency will allow public comment for an additional month, until Dec. 3, Forest Service spokesman Larry Chambers said, and set up meetings to answer questions from journalists, wilderness groups and the public.<br /><br />http://www.oregonlive.com/environment/index.ssf/2014/09/forest_service_delaying_media.html#incart_related_stories </p>

<p>Somehow the woods have survived for the 150 years of photography without these regulations. Just another imposition on our freedoms by an all powerful government who regulate just for the purpose of regulation. </p>

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<p><br />I saw no mention of fee or fine amounts in the provided documents, but, since I feel that allowing <em>any</em> commercial enterprises to operate within a wilderness area would be a grave mistake, and they definitely should pay well for the privilege. Why? Because they will leave trash and damage behind, which FS personnel will have to clean up. Trust me: Been there, done that, have several T-shirts.</p>

</blockquote>

<p>So impose heavy fines for littering. Those are already on the books. </p>

<p>There is a key point that seems to be missed. The proposal is for a change to the Forest Service Handbook, which directs the activities of FS personnel; activities of the general public are covered by 36 CFR 251.50 and the attendant definitions in §251.51. In §251.51, the definition of <em>commercial filming</em> specifically exempts breaking news as defined in FSH 2709.11, Chapter 40; there is no corresponding exemption for “still photography” involving breaking news. The definition of “sets and props” in FSH §45.5(2)(e) apparently attempts to address this by stating that items normally considered “sets and props” are not “sets and props” when used to report breaking news. But the definition of “sets and props” is not referenced in 36 CFR §§251.50–51 so it’s not even clear how it carries the force of law.</p>

<p>I’m certainly no First Amendment expert, but I never have understood it to be limited to breaking news. If indeed it is not, the problem needs to be addressed by revising the regulation rather than just the FSH. The FS regulations for filming and photography are a convoluted mess that really should get a major overhaul anyway. My guess is that this isn’t likely.</p>

<p>We’re a young nation and our attention span is limited. It has been so long since the effort that resulted in Pub. L. 106-206 began that many forget that the original purpose was simply to eliminate the prohibition of the NPS from collecting location fees for commercial filming (the real kind ...). We’d be far better off had Congress stuck to that objective.</p>

<p>This is the problem with a bureaucracy, Jeff, especially in all powerful and exceeding large government. Officials sit around thinking their job is to create regulations. What else do they have to do? </p>

<p>Instead, they should be trying to run a more effective department that serves the people better. But, of course, that's too much to be expected from the government and why it's so wasteful and freedom limiting.</p>

<p>I've hunted, fished, hiked and photographed in wilderness areas for years. I won't ask for permission to do photography, nor will I ever pay for a permit for photography, even if the forest service starts to claim that people must.</p>

<p>Aren't these essentially just the same rules that have been in place for years in National Parks?</p>

<p>Basically you need a permit for commercial photography <em><strong>with crews, props and/or models.</strong></em><strong> </strong>Individual photographers shooting on their own, either for personal or commercial use, don't require a permit. The permit is required by anyone who would disrupt the environment more than an individual photographer. Film crews etc. As always, News crews are excepted from the rules. Shooting a 4x4 commercial for TV would require a permit, as would shooting for a film, or shooting for an outdoor clothing company. Commercial Photo Tours would also need a permit to conduct workshops.</p>

<p>It does not matter (and never has re. National Parks) whether you're shooting with an iPhone, a 8x10 or an EOS 1D-X with an 800mm lens. Equipment is irrelevant re. amateur vs. commercial photography.</p>

<p>The National Parks clarified this issue years ago. The head of the park service at the time wrote a letter explicitly stating this position. I'd assume the Forest Service will eventually follow suit. In fact yesterday the FS said "<em>Generally, professional and amateur photographers will not need a permit unless they use models, actors or props; work in areas where the public is generally not allowed; or cause additional administrative costs.</em>"<br>

<br>

Of course it would be nice to have that perfectly defined in the regulations, but the tighter you make the regulations, the more loopholes there generally are! You might have to define "actor", "model", "props", "work", "generally" and "additional administrative costs", which would probably add another 100 pages to the bill.<br>

<br>

I don't think there is or ever has been a desire or intent to require a permit for individual photographers to shoot in the areas controlled by the NPS or FS, whether the images are intended for sale or not. Again, it would be nice if they could make this perfectly clear in the legislation rather than just stating it as NPS or FS policy, though that may be easier said than done.</p>

<p>I completely agree that this is getting blown out of proportion. If there is a problem, it is with the regulations themselves, and quibbling about the <em>Forest Service Handbook</em> isn’t going to fix anything.</p>

<p>As I mentioned, the rules that governed photography in national parks for 47 years were changed in August 2013. The former 36 CFR 5.5(b) required a permit when photography involved “articles of commerce” or “models” “for the purpose of commercial advertising.” I doubt they cared much about commercial intent, but rather wanted to control large-scale, potentially disruptive activities. The FS had essentially the same rules covered by policy in the <em>Forest Service Manual</em>; the BLM had the same policy as the FS, covered a published policy. The new rules, the result of finally implementing Public Law 106-206, dropped the “for the purpose of commercial advertising” qualifier. A big deal? Hard to say; because “models or props” was take from one of several NPS publications, a legal analysis would undoubtedly reveal that the meaning of these terms in Pub. L. 106-206 could not have been different than similar words in 36 CFR 5.5(b).</p>

<p>A legal analysis doesn’t always work with People with Guns. Unfortunately, the FS <em>did</em> define these terms in the FSH at 2709.11, Chapter 45. And the BLM, FWS, and NPS provided similar definitions in the new regulations at 43 CFR Part 5 last year. Suffice it to say that the definitions are novel. For the most part, they’re just weird, ultimately causing little harm. But the definition of “sets and props” in 43 CFR Part 5 states “The use of a camera on a tripod, without the use of any other equipment, is not considered a prop.” Grammatical problems aside, this could imply than <em>anything</em> other than camera and tripod is a prop. Anyone here ever use a flash? A handheld meter? A collapsible reflector or diffuser? A second tripod? A monopod? A laptop? A camera bag?</p>

<p>Ridiculous? Perhaps. But I once met BLM ranger who told me the one positive indication of “commercial photography” was a handheld meter ... And the fee schedule proposed when the DOI rule was issued last August distinguished between “camera and tripod only” and “more than a camera and tripod.” Ever since Pub. L. 106-206 was signed by President Clinton in May 2000, the NPS have assured me that nothing will really change. Perhaps that will be the case; so far, I’ve not heard of any serious hassles for using “more than a camera and tripod.” I hope it remains that way.</p>

<p>The regulations nonetheless read as they read, and I am always concerned when a reassuring stated intent is in conflict with statute, regulation, or formal written policy. If nothing else, it provides an opening for the very small fraction of field staff whose raison d’être is the exercise of petty authority. Hassles are probably a very small fraction of ranger–photographer interactions, but they nonetheless occur. There have been more than a few reports of photographers getting hassled for “commercial photography” when that never was a lawful criterion. Seems to me the last thing we need is an invitation to harass for a similar technicality.</p>

<p>Again, I think the panic about the proposed FS rule is essentially much ado about nothing. If there are problems, they lie elsewhere, and focusing on this serves only to distract.</p>