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.