Forest Service attempts to clarify wilderness photography rules

Alaska mountains
Photo by Bill Gabbert

After a public outcry about a very poorly written and ambiguous proposed rule that would govern the use of still and video photography in U.S. Forest Service wilderness areas, the agency attempted to clarify the draft rule, issuing a press release at 8:45 p.m. on Thursday, stating in part:

“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.”

The proposed rule, the way it was explained to the Oregonian’s reporter, would have required permit fees of up to $1,500 for reporters who took photographs in wilderness areas, unless they were covering breaking news. Many critics of the Forest Service’s rule said it violated the first amendment to the Constitution — freedom of the press.

There are several other provisions in the written version of the draft rule that are troubling and give Forest Service employees far too much discretion about what could and could not be photographed or reported on in a wilderness area.

The proposed rule states several times that permits are required for “still photography and commercial filming”. It does not specify that still photography for non-commercial uses does not require a permit. In fact, it implies the opposite.

The application for a permit for photography can be denied if a USFS official decides that there is a “suitable location outside of a wilderness area”. Employees in the local National Forest get to use their photographic editing skills to make that determination.

A permit can also be denied if a Forest Service official decides that the project does not 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”. That is a lot of subjective criteria to put in the hands of a Forest Service employee. And it appears to be an attempt to control the thoughts and motives of photographers and film makers. Exactly WHY a person, commercial photographer or not, WANTS to take a photo or make a film should NOT be subject to review by a Forest Service employee. Their only concerns should be to prevent physical damage to the natural resources and to not interfere with the ability of other citizens, also the owners of the public land, to enjoy the wilderness. If the Forest Service is going to incur costs during the filming, such as having a minder there to insure there is no physical damage from a large crew, then the agency is within their rights to charge a permit fee.

The details about this rule are to be found, not in the published draft rule, but in multiple USFS manuals that are referenced, which then refer you to another manual, which then says, for example, the price of the photography permit fees are to be determined by each individual National Forest. So, it’s very confusing and time consuming to attempt to find out what the rules really are. There are 155 national forests and 20 national grasslands. Navigating that jungle of bureaucracy could be a challenge. And I say that as a former employee of the Forest Service and Park Service.

The Forest Service needs to rewrite the poorly written draft rule to clearly say what it covers and what it does not cover. If more details or requirements are in other publications, those important passages should be included in the rule, rather than forcing a person to go off on multiple scavenger hunts in an attempt to discover what the Forest Service is really trying to say.

The Forest Service also needs to remind their staff, who are employees of the citizens of our great nation, that Forest Service lands are not solely the property of USFS employees. The land belongs to the people of the United States. The Forest Service should be working on ways to make it easier, not more difficult, for the people to enjoy their National Forests.

Author: Bill Gabbert

After working full time in wildland fire for 33 years, he continues to learn, and strives to be a Student of Fire. Google+

11 thoughts on “Forest Service attempts to clarify wilderness photography rules”

  1. Well said, Mr. Gabbert, well said indeed!

    Bet the Chief and his Staff are enjoying this first week of Fall in their “District of Columbia” offices.

    There’s a religious right question “WWJD?”; as a retired USFS employee, I’ve got to paraphrase it to reflect my hero of the USFS: “WWCJWTD”: What Would Chief Jack Ward Thomas Do?”

  2. How is this different from other agencies managing photography on lands they have responsibility for? Example being the NPS?

  3. I read the draft rule. The 8:45 pm Thursday press release from the USFS completely misstates what the draft rule says. The draft rule clearly applies to ALL STILL PHOTOGRAPHY. There are then specific provisions that then apply to only commercial filming. The USFS is not being honest about what it has been trying to do. I also note that journalism IS a commercial activitiy (for the most part) and journalists filming are engaged in commercial filming. So, the draft rule does clearly apply to journalists as well as, say, people shooting a Pepsi commercial.

    Certainly they can always redraft the rule to not be blatantly unconstitutional. In the meantime, it would be good if the USFS began trying honest communication as a first step to showing that it does recognize both what good conduct in general is, and the fact that it is employed by the people of the U.S. Engaging in doublespeak to your boss about what one is trying to do is employee misconduct. Particularly when you are trying to jam that boss up legally in the process.

  4. The National Parks and National Forests are there for the PEOPLE of this country. We pay the taxes to maintain these lands so that generations can enjoy these set aside lands. I can’t believe that the US Forest service would charge someone to take photographs in these areas! Commercial or not. These are our lands!

  5. Why do the Forest Service double-speakers remind me of…

    Out in the country, far from a highway
    There is this land here, and it is my way
    Don’t ever come here, or you’ll be sorry
    This land was made just for me

    This land is my land, it isn’t your land
    I got some big guns, and you don’t got none
    If you don’t get off, I’ll blow your head off
    This land is private property….

  6. This is just another means of restricting the use of “OUR” lands. This parallels the Travel Management Plan (TMP) that is now in place to close off roads and trails to motor vehicles of all types which will limit access for all. In addition, they are putting in place rules and regulations that will allow private contractors to charge for use of Forest facilities that in the past were free to the people. We need to wake up and address this slow growing cancer or learn to love the outdoors by a virtual tour on our computers.It all boils down to who is in charge and that needs to change!

  7. Agree with Ray. Who’s in charge needs to change. As far as the TMP goes the Forest Service has been closing roads off for quite sometime now to limit access to the public with regards to motorized vehicles. What they don’t get is that in the event of a wildfire it would take time to get equipment into these areas in order to bulldoze the earthen works they put up to restrict that access on the roads.

  8. First off, thanks for all the good coverage of CA wildfires. You are my go to source.

    Second, I have to say that I don’t share your concern about this rule. To the degree that “still photography” is regulated under the rule, those terms are defined as follows at 36 CFR 251.51:

    Still photography—use of still photographic equipment on National Forest System lands that takes place at a location where members of the public generally are not allowed or where additional administrative costs are likely, or uses models, sets, or props that are not a part of the site’s natural or cultural resources or administrative facilities.

    So in order to need a permit to take a picture, you either have to be some where where the general public is not allowed or you need to create extra administrative costs in some way or you need to be using models sets and props. The same sort of language is set out in multiple places for video, where the concern is clearly motion pictures and tv commercials.

    The rule is meant to cover (and hopefully standardize) how much vig the NFS can charge people when they want to make soap commercials in front of Yellowstone Falls – not to require a permit from Ansel Adams or Galen Rowell – let alone the likes of you or me. I actually think standardizing this thing at the central office rather than delegating to various parks to make their own idiosyncratic policies might not be a totally bad idea. But in any case, given that the draft rule states that the policy has been in place on an informal basis for 48 months, I’d want to learn about the last 4 years of experience with it before I pass judgment.

    Warm regards,
    Michael Wara

  9. To add to Brian’s last comments….The King fire on the Eldorado N.F. had at it’s peak 101 dozer’s for line construction. This is the same organization that worries about our 140 lb two wheel motorcycle or 400 lb quad destroying the Sierra Nevada’s. Just like someone using a camera is going to change the wilderness. My God is common sense dead?

  10. You bring up some good points Michael. Filming a commercial would take some time and effort on the part of the Forest Service and would cost the tax payers money so a fee should be charged for film crews to go into those areas. Researching what has been done in the past in cases of this kind is also a good idea.

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