by Ron Spomer
Did you know you could be arrested and fined for taking pictures or videos of mountains, rivers, wildlife and even your friends on some public lands? If those photos appear in any form associated with any type of commerce (postcards, DVDs, monetized YouTube videos, a fund-raising slide show at church, etc.,) a government bureaucrat could choose to have you prosecuted for violating an obscure and onerous rule.
The Forest Service Handbook 2709.11, 45.51 includes this: A special use permit is required for all still photography activities on National Forest System lands that involves [sic] the use of models, sets, or props that are not part of the natural or cultural resources or administrative site where the activity is taking place.
A writer whose article and photos on deer hunting on public land in a national forest received the following letter (shortened for brevity):
It was observed in the (date) issue of (magazine title) in the article (article title) a photo of (hunters and mules) in the (name of National Forest.) The article was written by you and photos credited to you…
…the (hunters and mules) are considered models since they are not a part of the natural or cultural resource. The photos are considered commercial when they are used to sell a magazine…
Failure to obtain a special use permit for commercial photography violates section 261.10(n) of the Code of Federal Regulations, “Failing to pay any special use fee or other charges as required.” This violation carries a maximum fine of $5,000 and up to six months imprisonment.
This letter is for information and education purposes only, but further violations may result in a violation notice.
That threatening letter was signed by a District Forest Ranger. What the letter failed to note was that the writer HAD applied for that commercial photography permit in the hopes of filming the adventure for a TV show. He’d answered pages and pages of questions such as how many catering trucks would be involved, how many helicopters, how many photographers, actors, extras, etc. The application was obviously written to address major Hollywood productions. Since the writer would merely be hunting with one videographer along to record the activities with one handheld camera, the pair of them would have minimum impact on the environment, certainly no more impact then the dozens of other hunters, anglers, hikers and horse riders free to use those lands. Since the video was aimed at showcasing the successful protection and management of wildlife and hunting on National Forest public lands, the writer figured the $200 permit was sure to be granted.
It wasn’t.
The Forest Service representative who arbitrarily rejected the application noted that the applicant didn’t “need” to film a deer hunt on National Forest Lands because the same species could be hunted on private lands elsewhere. This Forest Service official never explained how hunting on private lands could showcase the success of wildlife management on National Forest lands. He did suggest the applicant “just take still pictures and write a story” for some publication if he insisted on covering a hunt on National Forest Service lands.
When the writer did just that, another member of the U.S. Forest Service threatened him with the above letter.
One is left scratching his head over this on several levels:
1. Why are government bureaucrats wasting time perusing publications for photos that might have been taken on public lands? Are our vast public forests and parks being compromised when images of them appear in publications?
2. How is a hunter or hiker, already using public lands for a legitimate activity, endangering those resources by taking still or video images of that activity?
3. Why wouldn’t a $200 permit be issued to an applicant like this when applications have clearly been granted for major Hollywood productions made in part on public lands?
4. Doesn’t the Federal Government (various land management agencies) benefit from permit payments? Why would they reject a permit that lets them collect $200 for activity (hunting) that is going to occur anyway?
5. Why would they reject free, positive public relations glorifying public resources that protect wildlife, provide meat and recreation and bring tourism dollars into the local economy?
6. What’s the rational behind denying a photo permit that does not prevent the applicant or any other photographer from hiking, hunting, fishing and camping upon public land and “impacting” the resource? How does selling magazine photos, DVD videos or postcards adversely impact the land?
7. If receiving monetary remuneration for publication of images taken on public land is the concern, why don’t they fine news organizations for showing images of National Forest fire fighting operations? Surely helicopters and firefighters are not part of “the natural or cultural resource.” And the news organization makes money by selling ads on its news shows…
8. While I’ve heard about several hunting writers and videographers being similarly denied permits and harassed, I’ve not heard similar complaints from backpackers, kayakers or even anglers, yet I regularly see videos and magazine photo spreads depicting backpacking, river rafting and fishing on Forest Service lands. Could there be a bias against hunters and hunting? A bias practiced by public servants whose salaries are paid in part by hunters?
9. With all the challenges facing public lands (fire control, road erosion, invasive species, endangered species, pine beetles, ash borers, over cutting, under cutting, etc.) why are they wasting time and personnel trolling magazines? And why are they threatening photographers engaging in economic activity that pays the taxes that fund Forest Service management?
This is wrong on so many levels that it is no wonder Congress has introduced bills designed to straighten out the mess. You can help them.
According to the Professional Outdoor Media Association, two bills promise relief, and hunters are urged to contact their congressmen and senators to support them. Here are excerpts from a POMA news release:
On July 23, the bipartisan leadership of the Congressional Sportsmen’s Caucus (CSC) introduced the Public Lands Filming Act (H.R. 2798) and H.R. 2799, the Sportsmen’s Heritage and Recreational Enhancement (SHARE) Act, two important pro-sportsmen’s bills for the 113th Congress.
“Thanks to the CSC, the Public Lands Filming Act in the House has bipartisan support,” said Laurie Lee Dovey, CEO of the Professional Outdoor Media Association (POMA). “It’s critical legislation for journalists and the American public.
“POMA has worked hard on this issue for several years, by testifying before the House and Senate and helping to craft a reasonable solution. The relief provided in H.R. 2798 will save jobs, provide freelance journalists and small film crews fair access public lands, and ensure all Americans have access to complete coverage of important public-lands issues and outdoor recreation activities.”
The current rules for filming and photographing on federal lands and waterways place a severe burden on individual journalists/small film crews wishing to participate in these activities on federal lands. This legislation will address the inequities, enforcement and process confusion that result from the current regulations.
By assessing an annual fee of $200 for commercial filming activities for any film crew of five persons or fewer on federal lands and waterways administered by the Secretary of Interior and Secretary of Agriculture, federal public lands will be financially accessible for outdoor programming.
# # #
Tony Bynum says
July 29, 2013 at 8:14 PMWell said Ron. Thanks for summarizing the issues into understandable language, and for sharing your story! I share your concerns and have encountered similar issues. Although I’ve never been sent a letter, i have been told over the phone that it would not be possible to issue me a permit for shooting still or video in an wilderness area. So let me ask you this question, how come some content in magazines is considered editorial while other’s is considered commercial? Does it matter if your on an assignment or just freelancing some photos? And at the end of the day, what if I shot the photos, and published them in a news paper? It sounds like there are some arbitration lines being drawn here. And why the difference between video and stills? These days they are the same camera the only difference is how many frames go by per second – get enough of them and you have motion but they’re just still images going by really fast . . . hum . . . I hope the new bill passes and is eventually signed into law. That said, I cant give up my personal stance on the issue – this is constitutional, not administrative! It’s as constitutional as the 2nd amendment as far as I’m concerned – so why cant we fight it on using the “freedom of the press?” Again, thank you for a great contribution to the outdoor media world! Tony Bynum, Montana Photographer
ron says
July 29, 2013 at 9:59 PMThanks for the support, Tony. You are correct. This is mostly arbitrary and left up to the discretion of local administrators of various public lands. Most of the trouble seems to come from Rocky Mountain States. Alaska doesn’t seem to hit the radar. There are no standards. As we understand it, the whole mess arose out of a desire to place reasonable controls on major movie productions with massive crews that would have a real impact on habitats. How they can then apply that to small-time freelance videographers and still photographers is a corruption of intent.
And you’re correct that they are not differentiating between editorial (freedom of speech) and commercial. You selling a pic of a deer to Boy’s Life magazine is hardly comparable to Chevy filming a commercial of a truck driving through a Forest Service stream. Yes, the lines being drawn are arbitrary. You would think common sense could handle this, but apparently the only way to prevent petty, personal grudges or antipathy against individuals or practices (hunting) is to have Congress spell out the rules, hard and fast. Leaving these to the discretion of individual administrators sure hasn’t worked.
Ultimately, I see this as a 1st Amendment issue. If we’ve gotten to the point where free citizens of the United States aren’t free to capture light reflecting from THEIR property and sell representations of that reflected light in whatever medium they desire, we need a serious discussion. We can also come at this from a freedom to work angle. Does the govt, which depends on our tax dollars, really want to squash anyone’s ability to make a living? How many taxes would be lost if sales of various videos and still photos from public lands were stopped? How many hard-working freelancers would be out of jobs? More food stamps, anyone? Hasn’t our govt. been making noises about the need to “help the middle class” and give us all “a fair shot?” Hindering a freelancer’s ability to make an honest living, especially when it provides positive PR about our public lands AT NO COST TO THE GOVT and virtually no destructive impact on the resource is just plain foolish. If I’m not mistaken, various public land management agencies hire PR firms and publishers to create Public Service announcements and informational brochures to tell the public about THEIR wonderful natural resources. As I said in my blog, this is wrong on so many levels. Spread the word. How sad that we need an act of congress to stop overreaction to a problem that didn’t exist in the first place.
Gretchen says
July 29, 2013 at 10:15 PMThank you Ron for bringing this important issue to the forefront, and as Mr. Bynum said, in an easy to understand format for those who have never had to navigate this system. I consider myself lucky that I have no horror stories to share about this subject; although we all know that can change with the next mail delivery.
Randy Newberg says
July 30, 2013 at 12:32 AMRon – Well stated. As you know, my TV show is all public land hunting. Over the last five years, I’ve incurred over $50,000 in film permit fees. For pespective, a public land rancher could graze 2,500 cow-calf pairs for the three summer months over those same five years, and still not pay what I paid in film permit fees. My fee hardly seems reasonable or commensurate with the slight impact two camera guys and I have in a five day trip.
I don’t mind paying for the use of a public resource, but the fee is not only usury for those of us showing the greatness of these public lands, but the system of permit application is ridiculously complex and inconsistent among the agencies, or even among the offices of the same agency, as to how these rules are interpreted.
ron says
July 30, 2013 at 2:20 PMOMG. $50,000! Just to film what you would be doing (hunting) anyway? Your cattle grazing comparison nails it. Public land use that has huge, often negative impacts on the land roll right along at 19th century prices while relatively harmless activities that actually can benefit public resources (through positive PR building support) are stymied by outrageous fees, red tape and harassment. It makes no sense, absolutely no sense at all. How does irrational nonsense like this get started, anyway?
Tom Opre says
July 30, 2013 at 2:33 AMRon,
FYI, the fee for small productions are $200 per DAY, plus you have to provide proof of at least $500,000 of liability insurance. We permit Forest Service locations all the time for commercial film shoots (usually less than 10 people between crew and talent). Most outdoor TV and extreme sport film producers (I doubt FS rangers would grant a permit for a guy to drop off a 100′ cliff on a snowboard or snowmobile) fly under the radar due to this onerous permit process. Another thought – this permit fee is a tax. So doesn’t an outfitter permitted to host hunters on federal land all ready pay a daily fee for each person in his camp? He sure does. And it’s a fee to the same FS ranger district. Double taxation?
ron says
July 30, 2013 at 1:57 PMExcellent observations, Tom. Double tax indeed. T
his whole mess stinks.
ron says
July 30, 2013 at 2:14 PM$200 per day! That’s outrageous. How can they justify that? Is it a fine or tax?
Pete Grady says
July 30, 2013 at 1:48 PMFrom everything you’ve described here it could be argued that the article is editorial, not commercial. The District Forest Ranger is incorrect saying that the images are being used to sell a magazine. In fact, I’m not sure that the photographer even needs to get a special use permit. According to the ASMP “Professional Business Practices in Photography” editorial is defined as “A use whose purpose is to educate ands/or convey news, information, or fair comment opinion, and which does not seek or accept sponsorship to promote a product, person, service, or company.” Editorial has been upheld on countless occasions. If I were the photographer I’d tell the ranger to pound sand.
ron says
July 30, 2013 at 2:13 PMGreat points, Pete. I understand the passion to tell the ranger to pound sand. But I’m trying to see it from all angles. On the whole I admire and respect public resource professionals, mainly because they’re doing the kind of environmental protection and enhancement work we need done. We hired these guys! We pay their wages because they are doing important work. And they often take a lot of crap from bozos who, through ignorance or selfishness abuse and trash our lands. But sometimes (it’s human nature) individuals get a bit proprietary (this is MY park,) overzealous, biased (I hate hikers/bikers/hippies/hunters/whatever) and vindictive. They slip over the line and use their power to pressure, harass or violate the rights of citizens. And to my thinking, we have a 1st Amendment right to communicate our feelings about our national lands, whether through poetry, history, novels, painting, sculpture, videos, photography. What citizens do with what they create should not be monitored or taxed by govt. Not when the acts of creation take nothing away from the public resource but memories and reflected light. Uncle Sam will get tax from the income at any rate.
Pete Grady says
July 30, 2013 at 4:08 PMI, too, see it from many angles. I chose to comment on the one that suited the thesis of your article. As for 1st Amendment rights and taxes, I’m all for both. I prefer to speak my mind and value my right to do so. I, also, like to pay my taxes…well spent, they raise all boats including mine.
Dave Wessels says
June 23, 2017 at 8:08 AMI agree 100%! Photography is an art form and bottom line is it’s PUBLIC LAND!! As in, We the people, own it!!! And the over zealous ranger Rick works for US! Not just U.S. Seriously, the exploitation of Public land by commercial industry was the intent of the original rule and posting a video on YouTube wasn’t even imaginable when devised. Which brings to mind how well the open medium has helped with productive and essential wildlife enforcement and prosecution of poachers who post video or pics! The more we are free to document and share our experience in the wilderness the better we will be able to preserve it and police ourselves.
Tony Bynum says
July 30, 2013 at 4:09 PMThe terms “commercial use,” are at the center of this entire discussion. This is what the USFS uses as a baseline for making decisions – it’s NOT the only thing they use, but it’s the legal foundation. In practice, some USFS areas use attitude, feelings, and personal views to find ways to essentially tell you to pound sand.
36 CFR 251.51
Commercial use or activity – any use or activity on National Forest System lands (a) where an entry or participation fee is charged, or (b) where the primary purpose is the sale of a good or service, and in either case, regardless of whether the use or activity is intended to produce a profit.
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.
Here’s some additional information from the BLM:
The BLM’s Special Recreation Permit policy defines commercial use in several ways. In general it is defined as recreational use of public lands and related waters for business or financial gain. In addition, BLM’s definition of commercial use includes, ”when any person, group, or organization receives money, or obtains goods and services, as compensation from participants in recreational activities…when anyone collects a fee that is not strictly a sharing of expenses for the purpose of the activity, service, or use.” For example, a non-profit organization advertises guided trips on the Missouri. They collect the advertised fee from those who would like to participate. If a portion of the fee pays a trip leader or guide, or goes to support an organization, foundation, or other cause (e.g., is not strictly a sharing of expenses between trip participants), the use is considered commercial.
ron says
July 30, 2013 at 6:32 PMTypical govt. red tape to solve a non-existant problem. Does anyone have any examples of gross or even minor resource abuse or depletion due to wildlife photographers using public land? Or even videographers? So you can go with ten friends onto BLM or Ntl. Forest lands, film an amateur movie for two weeks, jumping over rocks, splashing through creeks, swimming lakes, climbing trees, camping, lighting fires, etc. and no problem. But if that movie then goes on YouTube and an ad appears on the same page, you’ve broken federal law? What is the point with all these regs. other than trying to grab more money?
Tom Ryle says
July 30, 2013 at 6:42 PMWell constructed piece, Ron! This is utterly pointless and clearly aimed at big Hollywood-type productions as you point out, Ron. When I see this heavy-handed oversight by the Federal Government, it makes me cringe. As a taxpayer I feel the National Forest lands are one of our greatest resources that should be enjoyed without the barriers of long-winded government forms and steep fees & fines. As a consumer, I love seeing all sides of the creative process; from the amateur wanting to post video hunts or adventures on YouTube to those who clearly make a living with their talent behind the lens. After all, this is the land of the free, isn’t it?
Rex Summerfield says
July 30, 2013 at 7:30 PMVery well stated Ron. I have received the same type of letter myself for taping we did in Hells Canyon. Not only are we slammed with the $150-$200 fee per day but they recently added a $117 permit fee that supposedly covers the ridicules permit process. This year the USFS demanded the Idaho State bear bait tag numbers for any person in which we might tape for the program be included on the permit. She stated that they would use those numbers to inspect the bait sites for possible violations! I told her that bait tag numbers were under the enforcement of the state not the USFS. She argued but finally conceded that all they can enforce is resource damage. Don’t even think about taking a camera into the wilderness area! They say it is a non-commercial use area only but then are left with no argument when you ask them why the outfitters can operate then. Total craziness.
David Lockwood says
July 30, 2013 at 9:48 PMTotally ludicrous. So is destroying habitat (cows) for 10 cents on the dollar. As you know, if Idaho legislators had their way, they would be charging be charging trespass fees on the land they are leasing for a pittance. And then there is the little matter of wild horses. Money and politics. With enough $ and the right lobbyist you could probably start a fast food brothel chain.
Kevin Reese says
July 31, 2013 at 4:27 AMRon,
Thanks so much for your wonderful work here. Your article on this critical issue was well written, incredibly informative and most importantly, easy to understand. I’ve had run-in’s on public lands in the past. It’s quite disappointing when you realize public land is not “public” at all to the powers that be.
Tony Bynum says
July 31, 2013 at 1:07 PMif Idaho legislators had their way, they would want all “their” land back, then they would sell it to their friends. . .
Louis Cusack says
August 2, 2013 at 6:24 PMGetting film permits in Alaska has become one of our biggest headaches. You would think that the cost of getting to most of our remote hunt locations and the revenue we bring to this state would create and environment which welcomed film crews and offered easy permitting, which is mostly true on state land but enter a national forest or an area deemed a study area via Congress and you have yourself a recipe for a nightmare! Complement that with a bureaucratic administrator that seems to get a kick out of making your life miserable and you will often find yourself moving to a new location. We do not even try to get permits in some of the areas we would love to hunt and showcase to our viewers, simply because while we can legally hunt, camp and fish in the area, we can’t get a freaking permit to film it.
There has to be a way to simplify this process.
Louis Cusack
Donna McDonald says
August 4, 2013 at 4:06 PMRon, I agree with you and well said. As an outfitter who offers our hunts mainly on public land and have a large success rate it is difficult for the public to have the opportunity to see what our public lands have to offer. With the restrictions on public land filming many shows are now filmed on private land. This gives the false image that a hunter has to hunt private land in order to do well. I personally think the Government is missing out on the opportunity to promote our National Forest. In dealing with the public on our National Forest lands once they experience the beauty and opportunity our forest have to offer, they help to protect and conserve our forest for future generations. Lets not make it difficult for the media to share what our country has to offer. There are ways to simplify this process and thanks for making more people aware.
Donna
Bruce W, Fletcher says
September 26, 2014 at 8:14 AMIt happens all too much in our country now. Government bureacrats thinking they hold the keys and allow us to do what they will decide.
In a land that has been kept free by the blood of patriots and money supplied from tax payers, it makes my blood boil when I hear of overbearing government. We do need law and order but not abuse as this type of nonsense clearly is.