Forest Service considers Commercial Filming in Wilderness directives; public comment period

SOUTHERN UTAH – The U.S. Forest Service’s consideration of the permanent incorporation of their Commercial Filming in Wilderness; Special Uses Permit into its “Forest Service Handbook” has caused nationwide concern about First Amendment rights, provoking the Forest Service administrators to rethink the language they were using.

According to the August 2008 amendment to the handbook, special uses permits provisions imposed under Interim Directive No. 2709.11–2013.1 were first implemented as part of a trial policy to help protect national forests in accordance with the Wilderness Act of 1964.

A Sept. 25 press release from the Forest Service reported that after the agency opened the proposal to public comment on Sept. 4, there was a resounding public outcry from people who believe imposing a permit fee would restrict Americans’ First Amendment rights. Forest Service Chief Tom Tidwell said in the release that the public has been heard, and he wants to reassure Americans that the Forest Service takes the constitution very seriously.

“The US Forest Service remains committed to the First Amendment,” Tidwell said in the release. “To be clear, provisions in the draft directive do not apply to news gathering or activities.”

According to the Federal Register post on the proposed directive, the issue was open to public comment until Nov. 3; but the press release stated that the date has been extended to Dec. 3 to accommodate the unforeseen influx of public opinion.

“Our intent with the issuance of this notice of proposed directive is to consider such input and, as appropriate, incorporate it into future policy,” the notice posted on the Federal Register stated.

Forest Service National Press Officer Larry Chambers said the backlash was a clear indication to the policymakers within the division that the document’s language should be revised for clarification purposes. Public input is crucial when moving forward with new policies, he said, and the whole point of publishing the request was to gain that input.

“We understand that there are some cases where the language needs to be clearer,” Chambers said. “In some cases the language has been on the books like that for decades, and it probably needs another look at it, so we’re going to be doing that to ensure that the language in the ‘Forest Service Handbook’ meets its intent.”

The intent of the language in the handbook was to ensure that the Forest Service protects both the wilderness lands that reside under its jurisdiction and the First Amendment rights of the public who use those lands, Chambers said.

All news would be considered exempt under the new policy, Chambers said, not just “breaking news,” as indicated in the current language of the “Forest Service Handbook.”

B-roll, long form, feature writing, documentary news, you name it – all news gathering is exempt from permits,” he said.

Zion National Park

Zion Canyon National Park Special Use Permit Coordinator Christine Kennedy said that the National Park System has had policies like this in place for years. Though she has only been in charge of special use permits for a year, she said, the paperwork she has available shows that commercial filming has been required to have a permit since at least 2000.

“This is just the paperwork I have available to me right now,” Kennedy said. “But I wouldn’t be surprised to learn that something similar wasn’t already in place before that.”

There is a $150 application fee for people interested in a special use permit from Zion. The application is then reviewed to ensure that the project will fall within the established guidelines set by policymakers, Kennedy said. Most applications are accepted, she said, but there are occasional requests that don’t meet the requirements and are subsequently turned away.

Violations of the permit requirements can be met with legal action.  St. George News reported on Jan. 18, 2013, that photography guide Steven Sieren was convicted Dec. 4, 2012, for engaging in a business operation on federal wilderness land without a permit and fined $500.

Kennedy said she hasn’t had to press charges on anyone since she has been the special uses permit coordinator.

Dixie National Forest

Dixie National Forest Public Affairs Officer Joe Harris said that the Forest Service has a different mission than the National Park Service. He said it would make sense for the Park Service to already have policies to protect wilderness in place, because their mission is to preserve, while the Forest Service mission is to provide multiple use opportunities to the public.

“We do handle things a little bit different,” Harris said. “We try to keep areas open for recreation; we have range management, where we have permittees that have cattle on our lands … (usually) we deal with things more along the lines of sustainable yield, and preservation is not usually our primary concern.”

Pine Park Campground in the Pine Valley Mountain Wilderness area. Dixie National Forest, Utah, circa 2012 | Photo by Carin Miller, St. George News
Pine Park Campground in the Pine Valley Mountain Wilderness area. Dixie National Forest, Utah, circa 2012 | Photo by Carin Miller, St. George News

Dixie National Forest encompasses about 2 million acres of Forest Service land throughout the Southern Utah region. These territories are broken into four separate ranger districts: Pine Valley Ranger District, Ashdown Gorge Wilderness, Powell Ranger District and the Escalante Ranger District.

The areas in question are the portions of land set aside by Congress as designated wilderness zones, Harris said. Preservation has become a key element in the Forest Service’s mission to steward the land, he said.

“What we are talking about here is filming permits in the congressionally-designated wilderness areas,” he said. “We only have four of these in our forest.”

Harris said the keyword to these specified areas is “untrammeled,” meaning the rules that apply to these particular locations are different than they are for the rest of the Forest Service lands. He said there are no motorized vehicles allowed in these zone, but visitors are welcome to hike, ride horses, or even hunt on the land providing there are no permanent structures built during any of these activities.

“The way we maintain those trail systems is with primitive tools,” Harris said. “We have a minimal-tools analogy where we try to use the minimum of technology to get the job done – which means we clear a lot of our trails with crosscut saws instead of chain saws.”

Including the Box-Death Hollow Wilderness, Ashdown Gorge Wilderness, Cottonwood Canyon Wilderness and Pine Valley Mountain Wilderness areas, the Commercial Filming and Special Uses Permit would apply to 94,738 acres of the nearly 2 million acres of land that the Forest Service manages in Southern Utah.

Harris said that in the year that he has worked with the Dixie National Forest, he has no recollection of a single request for a commercial use permit.

Filmmakers and photographers

Southern Utah moviemaker Dan Fowlks said he could understand a fee for large production companies who are going to be hauling large amounts of materials, equipment and people into the wilderness to film, but he said he could also see how a policy that requires a permit to access public land could be a slippery slope.

“I can totally see the difference between a hobbyist who goes out and is doing some kind of small-time short film, or project, or whatever,” Fowlks said. “That’s obviously different than if you’re going to be doing something that is produced by the masses and there are certain ducks you have to have in a row – like certain permission forms signed and what have you.”

Chandler said that the U.S. Forest Service is not targeting the family photographer from down the street, but rather the large production entities looking to cash in.

“If you are not doing anything that is commercial, you do not need a permit, period,” he said. “If you are going to be shooting a major motion picture, I don’t think anybody would disagree that a permit would be a good idea for that.”

The press release issued by the Forest Service reported that current commercial filming fees start at $30 per day for a group of up to three people, and “a large Hollywood production with 70 or more people might be as much as $800.” It went on to say that the $1,500 commercial permit fee that many publications have cited is inaccurate and actually is part of a completely different proposed directive.

Ed. note: Restrictions and conditions imposed by federal agencies on commercial enterprises on public lands are not new, and a broader analysis of such requirements and their impact is beyond the scope of this report which is specific to the current proposal to make the subject interim directive permanent.

Recap

  • What: Notice of Proposed Directive; Request For Public Comment
  • When: Deadline is Dec. 3
  • Where: Submit comments in any of the following manners
    • via fax
      • 703-605-5131 or 703-605-5106
    • via mail
      • Commercial Filming in Wilderness,
        USDA, Forest Service,
        Attn: Wilderness & Wild and Scenic Rivers
        201 14th Street S.W.
        Mailstop Code: 1124
        Washington, DC 20250-1124
    • via email

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