Outside had this story. What I thought was most interesting about the judge seemed to think that having permits is about environmental damage, and not so much about the taxpayers getting their share of any monetization. Andy has posted on this before here, that it has to do with the peculiar nature of Park Service regulations on filming.
In the opinion, Kollar-Kotelly noted that new technology and the evolving media landscape have changed the nature of filmmaking. The permitting system was intended to mitigate ecological impact, but an independent filmmaker shooting a climbing documentary is a much different beast than a crew shooting the next Star Wars movie.
“Now, over two decades after the passage of § 100905, any individual may easily enter a national park and shoot a high-quality video at will using nothing more than a smartphone,” she wrote. “With the expansion of mass-media outlets like YouTube, such filmmakers may expediently disseminate and monetize those videos on the internet. Yet, so long as these modern filmmakers attempt to commercially market their videos, § 100905 and its implementing regulations require a permit, without any regard for the effect that their filming might have on the preservation of national park land.”
I wonder whether the permitting system was actually designed only to charge enough to mitigate ecological impact. It seems like other kinds of permits, it’s argued that feds should charge fair value for the American taxpayer (however that is defined). As a taxpayer, it seems to me that for anyone who monetizes something from federal lands, we should get some piece of the action.
The Park Service will also no longer distinguish between different types of filming, such as commercial, noncommercial, or news-gathering projects. In the past, a major newscast wasn’t subject to obtaining a permit, nor was a production for a nonprofit, no matter the size of the crew or amount of equipment required. From now on, it’s just “filming,” and whether or not you need a permit depends solely on how much your crew will impact the park. According to the NPS, the interim guidance will “eventually be replaced with regulations addressing filming activities that are consistent with the outcome of the litigation.” For now, anyone interested in filming in a park is still encouraged to contact that park directly beforehand.
As a video producer myself, navigating the lengthy application process and red tape has frequently outweighed the benefits of shooting on public lands, and in some cases made it impossible. That’s a shame, because these lands belong to everyone and are one of this country’s greatest assets. For the Pattiz brothers, being able to easily capture the beauty and wonder of the national parks helps them accomplish their mission of sharing the parks with the greater public.
“We’re of the strong belief that greater awareness leads to more protection,” Will says. “The reason we named it More than Just Parks is that they really are more than just parks, they’re something different to everybody, and they should be a place for inclusion—these places were set aside for everyone.”
2 thoughts on “More on Filming on Federal Lands: Outside Magazine”
I thought I’d see what the Federal Land Management and Policy Act (FLPMA) says about the authority for collection of fees, and whether “a piece of the action” is a proper consideration in how much to charge. This apparently applies only to BLM lands. It is mostly about recouping costs, but there are some considerations related to the “commercial” use. (Forest Service authority to regulate uses of national forests is found in its Organic Act, and is much less specific.)
“§1734. [FLPMA §304]
Fees, charges, and commissions
(a) Authority to establish and modify
Notwithstanding any other provision of law, the Secretary may establish reasonable filing and service fees and reasonable charges, and commissions with respect to applications and other documents relating to the public lands and may change and abolish such fees, charges, and commissions.
(b) Deposits for payments to reimburse reasonable costs of United States
…As used in this section “reasonable costs” include, but are not limited to, the costs of special studies; environmental impact statements; monitoring construction, operation, maintenance, and termination of any authorized facility; or other special activities. In determining whether costs are reasonable under this section, the Secretary may take into consideration actual costs (exclusive of management overhead), the monetary value of the rights or privileges sought by the applicant, the efficiency to the government processing involved, that portion of the cost incurred for the benefit of the general public interest rather than for the exclusive benefit of the applicant, the public service provided, and other factors relevant to determining the reasonableness of the costs.”
But the first question is whether there are “applications or other documents,” in other words, if a permit is required. These are the circumstances where the Forest Service would require a permit (includes both environmental and commercial considerations):
If you will need to occupy, use or build on Forest Service land for personal or business purposes, whether the duration is temporary or long term.
If there is a fee being charged or if income is derived from the use.
If an activity on those lands land involve individuals or organization with 75 or more participants or spectators.
36 CFR §251.50
(c) A special use authorization is not required for noncommercial recreational activities, such as camping, picnicking, hiking, fishing, boating, hunting, and horseback riding, or for noncommercial activities involving the expression of views, such as assemblies, meetings, demonstrations, and parades …
Here’s the Forest Service definition of “commercial filming” (36 CFR §251.51), which would require a permit:
“Commercial filming – use of motion picture, videotaping, sound recording, or any other moving image or audio recording equipment on National Forest System lands that involves the advertisement of a product or service, the creation of a product for sale, or the use of models, actors, sets, or props, but not including activities associated with broadcasting breaking news, as defined in FSH 2709.11, chapter 40.”
Commercial activities that “involve expression of views” are those that the court has flagged for protection.
But maybe more interesting to some, this issue seems to have come up in the Colorado Maroon Lake “pooping” case. (See https://forestpolicypub.com/2021/01/04/december-litigation-that-doesnt-directly-involve-the-forest-service/.)
That charge was dismissed (after the defendant claimed his self-incriminating photo was faked). Now, “Lesh faces one charge related to a photo he posted of himself in April, 2020, apparently snowmobiling in a Keystone terrain park at a time when state ski areas were closed because of COVID-19. He also faces a new charge of selling or offering for sale any merchandise or conducting unauthorized work on forest lands.” His attorney referred to the new charge as “a petty offense of questionable constitutionality.” https://www.gjsentinel.com/news/western_colorado/david-lesh-wants-back-on-forest-service-land/article_cc505ef2-7d31-11eb-962a-970bb7e66cd7.html