New Forest Service Rules

[Coffee]

I don't see how this possibly gets past first amendment challenges. Unfortunately that might require several years of legal limbo. Hopefully the government isn't stupid enough to conditionally grant permits based on the message the photographer wants to convey in his work. The fee is bad enough but granting it or denying based on the content of a photographers work is just plain unconstitutional.

[Another Kevin]

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[Alligator]

I don't see how this possibly gets past first amendment challenges. Unfortunately that might require several years of legal limbo. Hopefully the government isn't stupid enough to conditionally grant permits based on the message the photographer wants to convey in his work. The fee is bad enough but granting it or denying based on the content of a photographers work is just plain unconstitutional.

The stipulations on commercial services were written into The Wilderness Act in 1964 by Congress. Meaning, in place for 50 years. Please take a few minutes and read the Act.

I haven't found when the permit fees were introduced, but as far back as 2000 they were assessed because there was a change in how the fees were spent. The proposed final rule follows several interim versions of FSH 2709.11 Chapter 40. The fees mentioned in 40 are detailed in Chapter 30, which cites the 2000 law.

The fees are not new for photography and generally do not apply to photography because the phrase still photography has legal definition in the code + specific conditions need to be triggered to require the permit. Still photography is defined in public law 106-206 and can be found in 16 U.S.C. 460l-6d. Some conditions are listed in that 45.1c section in the proposed final rule and some linked to 36 CFR 251.51 which has the definition.

Commercial filming is where the changes are and the initial statements about news gathering.

[Coffee]

I am not an expert in the fine print of the Wilderness Act. However, if there are any provisions in the act or elsewhere that permit the government to conditionally accept or decline permit applications based on the content of the speech involved rather than the impacts to the wilderness and preservation of the resources, then I am completely against it and hope that the provisions are challenged on first amendment grounds up to the Supreme Court if necessary.

I am not against permit requirements, nor am I against the fees which seem reasonable (it is not a flat $1500 as reported in some places), but not in favor of giving discretion of any sort to authorities regarding the motives behind a project. Permit applications should be evaluated based on the impacts to the wilderness resource and approved if they fall within acceptable use constraints and declined otherwise irrespective of the motives or plans of the applicants. I cannot see how any discretion over speech could survive a first amendment challenge.

[Tuckahoe]

They're already backing down.


The proposal has already been criticized on the floor of Congress on constitutional grounds, from both sides of the aisle, including Oregonians Earl Blumenauer (D) and Greg Walden (R). Walden wrote in a letter to Forest Service Chief Tom Tidwell:

Maybe semantics, but I don't read this so much as backing down, but rather, "oh $#!@ we got caught in the open, so lets fall back to a more defensible position and hold until we can advance again." And the Forest Service current defense is merely that "well these rules have already been in place for 48..."

[Another Kevin]

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[Pedaling Fool]

Gotta love 'em government bureaucrats

[Tuckahoe]

http://www.oregonlive.com/environmen...elated_stories

1. These rules are already in place. The Forest Service says they've been in place for 48 months and are now being chaptered in law.The agency adopted the rules shortly after it refused to allow an Idaho Public Television crew into a wilderness area in 2010 to film student conservation workers because the show sold DVDs of its episodes. Idaho's governor intervened and the Forest Service caved to pressure.

With an example such as this being the catalyst for creating these rules, its not a difficult stretch to see the Forest Service going after a cottage gear maker because a customer took a picture in a wilderness area using the maker's gear and it was posted to the maker's website.

[Coffee]

http://www.oregonlive.com/environmen...elated_stories


With an example such as this being the catalyst for creating these rules, its not a difficult stretch to see the Forest Service going after a cottage gear maker because a customer took a picture in a wilderness area using the maker's gear and it was posted to the maker's website.

Exactly. The rules are so vague maybe by design. The criteria should be what impact the proposed use has on the wilderness, not how the photographs are used.

[Alligator]

But these regulations are about the designated wilderness lands as opposed to "just" USFS lands.

From https://www.federalregister.gov/arti...alregister.gov

1. “…for still photography and commercial filming in wilderness.”
45.1c.5.g “Would not advertise any product or service.”Unless I am missing something, the new proposal specifically mentions still photography in addition to film.

Furthermore, Liz Close, a high ranking USFS person to say the least, confirmed as such. Finally, your link mentions "news gathering" as not needing such a permit. All the articles mention that. But, again, we are on a slippery slop as to what is news gathering vs a media production.

From your article: "but reporters and news organizations would not need to get a permit to shoot video or photographs in the nation's wilderness areas", Who defines this? The same govt peeps who proposed the new permit fee?

At worst, we have yet another bureaucratic onus on the American people. At best, we have a law with no teeth that is just wasting a lot of time for many people.

I know it is confusing and that is because of the still photography definition. Sorrow I do not have time to put links on those laws and directives above. That 45.1c.5.g stipulation in your quote is for still photography as defined in the law. Don't use models, sets, or props not found on the site, stay in public areas, don't do anything destructive, don't unreasonably disrupt the public, don't create a public health or safety risk and it doesn't apply. Mainly yahoo restrictions. You're not a yahoo. I'm not seeing any models in our users' uploads.

Unless Secretary Tom Vilsack or the President chimes in, I'd go with what Chief Tidwell said. Barring legislation from Congress or a court ruling.

I don't see in the Federal register anything about the media though. I did see something about that breaking news clause but it was yesterday. Couldn't find it today. Will check again maybe tomorrow. Seems moot but it was mainly the cause for the uproar. That and some exaggeration in the fee assessments.

[rocketsocks]

[QUOTE=Alligator;1911018]The stipulations on commercial services were written into The Wilderness Act in 1964 by Congress. Meaning, in place for 50 years. Please take a few minutes and read the Act.

I haven't found when the permit fees were introduced, but as far back as 2000 they were assessed because there was a change in how the fees were spent. The proposed final rule follows several interim versions of FSH 2709.11 Chapter 40. The fees mentioned in 40 are detailed in Chapter 30, which cites the 2000 law.

The fees are not new for photography and generally do not apply to photography because the phrase still photography has legal definition in the code + specific conditions need to be triggered to require the permit. Still photography is defined in public law 106-206 and can be found in 16 U.S.C. 460l-6d. Some conditions are listed in that 45.1c section in the proposed final rule and some linked to 36 CFR 251.51 which has the definition.

Commercial filming is where the changes are and the initial statements about news gathering.[/QUOTE]ah...Thanks Alligator. My world has been restored, now you directors out there have some work to do, I'll stand with ye.

[Mags]

From ​http://www.fs.fed.us/news/releases/u...ncy-commercial

The proposal does not apply to news coverage, gathering information for a news program or documentary. However, if a project falls outside of that scope and the filming is intended to be on wilderness land, additional criteria are applied to protect wilderness values. In that case, a permit must be applied for and granted before any photography is permitted”

Photography is specifically mentioned with nothing about props or models. So now the USFS gets to decides what is reporting and what is a wilderness value?

[Another Kevin]

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[Alligator]

That's a fuzzy definition, too. Once a person in a photograph is used to endorse something, he or she becomes a model. Thus, my daughter was not a model when I took the picture on the back cover of http://viewer.e-digitaledition.com/i/343298 - because at the time the picture was simply there to document a lovely time that we had on a lovely summer day. But when I sold the picture, and her image became her implicit endorsement of hiking as a healthy pursuit, the photograph became commercial (despite being carried by a nonprofit - nonprofits, too, engage in commerce) and she became a model (and to cover my nether regions, I got her to sign a model release). Would the Forest Service look back in time and decide after the fact that we were engaging in commerce when we went for that hike and I took out my camera? I surely don't know, and the decision is in the hands of Forest Service chief Tidwell and the unelected staff in his employ.

It's a moot question in this case, since the land in question was State forest rather than Federal, but I raise it only as a hypothetical. Moreover, there are certain bureaucrats in the Executive Branch in New York that I could easily imagine trying to pull just such a stunt.


As dysfunctional as they are, I'd prefer that the creation and interpretation of the law - particularly in its constitutional implications - be performed by the branches of government to which the Constitution assigns the power to do so. A promise from an unelected bureaucrat not to enforce a law is an invitation to his successor to begin enforcing it.

Incidentally, this is one case where I'd happily advance the argument that the clause in the WB ToS prohibiting the discussion of unlawful activity ought not apply. A law that contravenes the Constitution is no law, and the only way to achieve standing to challenge the non-law is to break it, openly and notoriously. Where we have elected representatives on both sides of the aisle raising a constitutional question, it strikes me that the question of whether the proscribed activity is lawful is entirely open to debate.

Given your arguments, you will probably feel a lot better about Public Law 106 - 206. That's the law passed by Congress on May 26, 2006. Section 1.2 is where the still photography needing a permit for using a model applies. From that law I don't know what Congress felt a model was, but you should blame Congress for not completely defining it as they wrote the law. Don't blame the FS nor NPS, BLM, F&WS, or even Reclamation.

As well, your interpretation of how government functions is off. While most of the rank and file of the executive branch agencies are not elected, leadership is appointed by the President of the United States. So while the Chief of the Forest Service is not a cabinet level position, he or she does serve at the discretion of the President, who is elected. That's one place you are afforded some say in agency leadership, your vote affects that. Further, Congress passes laws and then in most cases passes enforcement off to the executive branch, leaving the details of developing the rules to the agency (rulemaking). The rulemaking phase is the second place a citizen has a say in the process. The agency will publish its proposed rules in the Federal Register and a comment period will follow. Those comments need to be analyzed and responded to because it's the law and if they don't the courts can get involved.

Now to illustrate. Congress passed Pubic Law 106-206 back in 2000. "To allow the Secretary of the Interior and the Secretary of Agriculture to establish a fee system for commercial filming activities on Federal land, and for other purposes." Note the two Secretaries involved, they have jurisdiction--in my estimation--over all the places you hike in the US, in particular the AT and Wilderness areas. Then a direct assignment to both Secretaries to require permits and fees for commercial filming,

"The Secretary of the Interior and the Secretary of Agriculture (hereafter individually referred to as the "Secretary'' with respect to lands under their respective jurisdiction) shall require a permit and shall establish a reasonable fee for commercial filming activities or similar projects on Federal lands administered by the Secretary." Plus further direction to not, let me repeat that NOT require a fee or permit for still photography "(c) Still Photography.--(1) Except as provided in paragraph (2), the Secretary shall not require a permit nor assess a fee for still photography on lands administered by the Secretary if such photography takes place where members of the public are generally allowed. The Secretary may require a permit, fee, or both, if such photography takes place at other locations where members of the public are generally not allowed, or where additional administrative costs are likely. (2) The Secretary shall require and shall establish a reasonable fee for still photography that uses models or props which are not a part of the site's natural or cultural resources or administrative facilities. (d) Protection of Resources.--The Secretary shall not permit any filming, still photography or other related activity if the Secretary determines-- (1) there is a likelihood of resource damage; [[Page 114 STAT. 315]] (2) there would be an unreasonable disruption of the public's use and enjoyment of the site; or (3) that the activity poses health or safety risks to the public." There are exceptions to the NOT. Then what? Well, Congress passes it off to the agencies and leaves it up to them to enforce it. The agencies propose rules, listen to comments, testify before Congress. [Check that url out. It's way cool, the section labelled 2 notes where the media restriction comes from. See, Congress did not want the fee to affect "newsreel or television news activities". Then in 7 the Dep Asst Dir. discusses how some news is really just entertainment and that Congress did not define news, and well read it if you really want to. The lack of definition created some ambiguity that led to the media as a commercial film crew. That testimony was for the Interior rules BTW. They ended up taking public comments and responding to those. Here is the Dept. of the Interior's final rule. Check out the responses to comments, hey the first one is about still photography. Hey seems like they are sticking right to PL 106-206. Hey they have a definition of model "Model means a person or object that serves as the subject for commercial filming or still photography for the purpose of promoting the sale or use of a product or service. Models include, but are not limited to, individuals, animals, or inanimate objects, such as vehicles, boats, articles of clothing, and food and beverage products, placed on agency lands so that they may be filmed or photographed to promote the sale or use of a product or service. For the purposes of this part, portrait subjects such as wedding parties and high school graduates are not considered models, if the image will not be used to promote or sell a product or service." So that sort of illustrates the process with the end description showing Interior's rule.

As far as regulating commercial filming, I wasn't sure about what was permitted prior to 2000 and PL 106-206. But BLM states that "The Forest Service and the Bureau of Land Management already had authority to do so, via the Organic Administration Act of 1897 and the Federal Land Policy and Management Act (FLPMA) of 1976, respectively." On Wilderness, FS had authority to regulate commercial filming with the Wilderness Act (1964).

Given your did not take the photo on FS lands, I will also pull a little switcharoo and place you on Interior lands, as there is a final rule there. Now your hypothetical case sounds like you went on a hike and took a picture of your daughter and had no intent to sell it when you photographed her. You did not have an intent to promote a product or service. Doesn't sound like an issue. If on the other hand, you regularly sell photos of wilderness and the people in the pictures are signing model release forms, well sounds like you might have a business going on. You as the business owner need to know the laws that apply to your area of commerce. If the photo was from a time period before the law or rule you might be grandfathered anyway. The IRS talks about the difference between a hobby and a business for instance.

The final rule hasn't been written, place your comments now.

The big brouhaha was the part about the media as a commercial entity. Like I said, that looks moot. Regarding whether or not the additional regulations on commercial services in the wilderness apply, that comes out of the 1964 law. There's been 50 years to settle that. As far as politicians making statements about Constitutionality, I'll look to your suggestion about separation of powers and rely on the courts to make that determination, it's what the Constitution intended.

I am not seeing a problem we have to worry much about. Nearly all photos on WB were taken for personal use. The intent was not to promote WB. People share their photos as a hobby. WB has no agreements which direct members to photograph scenes using sets, props, or models to promote or sell WB. I'm pretty confident we can say that without even needing the sets, props, or models restrictions. Personally I see the media having blown this up as they were being affected. The fee law was passed in 2000, they are just now reporting on it? They don't even mention how most of the still photography is not actually restricted. How come they didn't mention the Interior final rule passed last year? Might have been an objective report if they did.

So if we are not discussing the media as commercial enterprise, let's be fair and note that other agencies have commercial filming fees and the fees and permits come out of laws already passed by Congress.

[Alligator]

From ​http://www.fs.fed.us/news/releases/u...ncy-commercial

The proposal does not apply to news coverage, gathering information for a news program or documentary. However, if a project falls outside of that scope and the filming is intended to be on wilderness land, additional criteria are applied to protect wilderness values. In that case, a permit must be applied for and granted before any photography is permitted”

Photography is specifically mentioned with nothing about props or models. So now the USFS gets to decides what is reporting and what is a wilderness value?

You are selectively quoting. The entire release is below. Now, the part you quoted should, and this is my opinion, say videography not photography because the sentence preceding it says filming or it meant still photography. The release says further down, "The proposal does not change the rules for visitors or recreational photographers. 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." This is the still photography definition that is in the notice in the Federal Register. I went through that in a previous post.

News Release

Contact Email:
Contact Phone: (202) 720-4623

Twitter Address: https://twitter.com/USDA


Contact Email: [email protected] (link sends e-mail)

Contact Phone: (202) 205-1005

Twitter Address: @forestservice










US Forest Service Chief: I will ensure the First Amendment is upheld under agency commercial filming directives



Washington




September 25, 2014 at 8:45pm




The U.S. Forest Service today released information to clarify the agency’s intentions regarding a proposed directive for commercial photography and filmmaking in congressionally designated wilderness areas.
“The US Forest Service remains committed to the First Amendment,” said U.S. Forest Service Chief Tom Tidwell. “To be clear, provisions in the draft directive do not apply to news gathering or activities.”
The proposal does not apply to news coverage, gathering information for a news program or documentary. However, if a project falls outside of that scope and the filming is intended to be on wilderness land, additional criteria are applied to protect wilderness values. In that case, a permit must be applied for and granted before any photography is permitted.
The agency issued a Federal Register notice (link is external) on Sept. 4 seeking public comment on a proposal to formally establish consistent criteria for evaluating requests for commercial filming in wilderness areas as it has on national forests and grasslands. The proposed directive on commercial filming in wilderness has been in place for more than four years and is a good faith effort to ensure the fullest protection of America’s wild places.
“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.”
Congressionally designated wilderness areas are protected by the Wilderness Act of 1964 and must remain in their natural condition. This is achieved in part by prohibiting certain commercial enterprises, and the agency is responsible for ensuring its policies adhere to that standard.
The public originally had until Nov. 3, 2014, to comment on the proposal. Based on the high level of interest, the agency will extend the public comment period to Dec. 3, 2014.
The proposal does not change the rules for visitors or recreational photographers. 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.

Currently, commercial filming permit fees range around $30 per day for a group up to three people. A large Hollywood production with 70 or more people might be as much as $800. The $1,500 commercial permit fee cited in many publications is erroneous, and refers to a different proposed directive.
The Forest Service has long required permits according to statute for various activities on agency lands, from cutting a Christmas tree to filming a major motion picture, such as the 2013 Johnny Depp movie “The Lone Ranger.” The Disney production obtained a permit to film part of the movie on the Santa Fe National Forest in New Mexico.

[fiddlehead]

"Leave nothing but footprints. Take nothing but pictures"
They'll have to change a lot of signs. (if this BS goes through, which I highly doubt)

[rickb]

Everything discussed I this thread has to do with National Forests and Wilderness areas, correct?

But similar regulations have been in place within our National Parks for decades, right?

[Coffee]

The clarification still seems to allow rejection or acceptance of permits based on the contents or intent of the commercial permit holder rather than solely based on the impact to the resource. This is unacceptable and will no doubt subject to judicial review. Just because the rule doesn't impact most of us as recreational users doesn't mean the rule is benign.

[Another Kevin]

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[Alligator]

Indeed.

Let me lay out my contentions more simply, because we share common ground.

The efficacy of the rule in achieving the goal of wilderness protection is not at issue, and I do not reach arguments based on the rule's utility.

The issuance or denial of production permits based on the position that the proposed production advocates offends against the First Amendment. Either the rule is misinterpreted, or it is misdrafted, or the agency that is making the rule is usurping power that the statute does not grant, or the statute delegates powers that are not the Congress's to delegate. You may disagree that the rule offends. That's part of the political process, and we can disagree in conscience. It is telling, though, that it has attracted the attention of legislators of both parties.

Right now, we have an NPRM before the public that is something of a red herring, in that it amends an interim rule that has the problem, without reaching or intending to reach the offending clause. It just so happens that the issue of fees has brought public and legislative attention to the greater issue of content-based restriction of speech. The possible outcomes that will push the issue back down:

(1) "That's not what was intended, here's an executive interpretation to exclude that outcome." This may be good enough for you. It raises my hackles, because it is usually so narrowly drafted that the same problem can simply arise again with the next case, because the facts will be subtly different. That's why I don't want to see that outcome here: it invites capricious enforcement in the future.

(2) "The rule is misdrafted, and here is an amendment." Significantly better, particularly if the rulemaking proceeding demonstrates a history that the rule is weaker than it could be because the agency was subject to constitutional restraint.

(3) "The authorizing legislation is misdrafted to convey unintended powers to the Forest Service." The Congress fixes it, through the usual political process. It leaves, not only a (hopefully) clearer statement, but records of the process giving evidence of legislative intent for future cases.

(4) "The agency is acting beyond the authority of the authorizing legislation." Something that a District Court can often settle, but it's a painful process. In most cases, it's faster to vote out the runaway executive.

(5) "The authorizing legislation delegates powers that are not the Congress's to delegate." This becomes a constitutional law case that will grind through the courts for years. This is mostly a safety valve against the public voting away its own rights.

I think the situation has escalated to somewhere between (2) and (3), which is still still maybe fixable with letters to both the executive agency and the Congresscritters. Involving the courts is a last resort. (The four boxes must be used in order: soap, ballot, jury, ammo. The issue at hand approaches the tipping point between the first and second.)

And remember through all this that you and I agree that the rule is directed to a laudable purpose. And we both agree that the current rulemaking is not the source of the problem, since earlier regulations suffered from the same problem. Any of the three branches of government can fix the problem, but now that it's got the legislature's attention, we may see a legislative repair.

If we disagree that there is a problem with the rule, fine, that's politics.

I do not think the proposed rule offends the 1st amendment and I am not arguing from a personal conviction. It's more about observations. The Department of the Interior has already arrived at a final rule that addresses PL106-206. That rule added in specifically that permits can be denied under The Wilderness Act. The Wilderness Act was not specifically mentioned in the proposed rule but was clearly mentioned in regard to additional restrictions. Also it's been 50 years and the law has not been ruled unconstitutional. In reponse to your outcomes.
1. I’m saying I’m not worrying about it because the executive clarifying the rule is the head of the agency and the rule is not finalized. I’m betting that when the rule is finalized, the still photography definitions in Public Law 106-206 will still apply and most still photography will not be charged a fee nor a permit needed. The media will not be considered commercial and subject to the Wilderness Act exemptions on commercial services. Although I do think that there may be some permits required by the media to prevent resource damage. That’s how the Interior final rule is written (with no fees). Chief Tidwell's remarks are a clarification and a reasonably good indicator of where the rule is headed. I don't think he can halt the process with his own order and I did not say that was good enough for me. I'm saying he is the Chief executive for the FS. His statements carry a lot of weight as a result and override that of the spokesperson for the FS. Like the statement of the White House press secretary vs what the president says.
.
2. The 2008 amendment referring to “breaking news” as the intent of Congress, that is probably a misinterpretation of the intent of Congress. That would require reading the Congressional record in regard to PL 106-206 and looking for what was said about news. The 24 hour news cycle for “news” channels does create some programing that is more entertainment not news IMO so I can understand some ambiguity there. Plus having a Congressional mandate to require permits and fees and a decision on what category
3.,4., 5. I disagree. I simply feel that T



I think 2 is the way this rule will end up, meaning that there will be changes made to put the rules into simpler language. I do not forsee changed made to the Wilderness Act and that the same limitations on commercial services will exist after the rule is final.