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Public lands filming, photography law stifling enterprise reporting?

By Dave Carlson
A near decade-old public lands commercial filming and still photography law designed to protect fragile Western natural resources from exploitation by high-end movie-making and advertising production companies is inconsistently interpreted and applied. It stifles enterprise reporting critical to the media’s watchdog role.
That is my assessment based on periodic encounters over the years of producing news documentary reports for the “Northland Adventures” that revolve around federal lands controlled by the U.S. Department of the Interior and U.S. Department of Agriculture.
First, along with other journalists and TV producers I have consulted, I support the concept of the law. Federal lands and rights of the public must be regulated to avoid potentially harmful intrusion and interference by large-scale commercial users. Passed by Congress and signed by President George W. Bush, Public Law 106-206 was enacted May 26, 2000.
photog-at-sunsetBasically, a filming (videotaping and audio taping, too) permit is required if actors, models, props and other equipment is used to advertise a product or service or create a product generating income, “but not including activities associated with news broadcasts,” according to published federal filming permit policy.
Television and other filming permits are denied “if there is likelihood of resource damage that cannot be mitigated, there would be unreasonable interruption of public use and enjoyment of the site or the (filming) poses health or safety risk to the public that cannot be mitigated.”
Still photography permits are required if talent, props and sets are involved. No permit will be issued to still photographers using equipment and models not part of a site’s natural or cultural resources or administrative facilities. No permit will be issued if the shoots are to “take place where the public is generally not allowed or at a location where administrative costs are likely.”
Permit fees vary with size of the operation and duration. Liability insurance is necessary, too. Some federal agencies authorized to charge for permits issue a “one- to two-person, camera and tripod” permit for free.
But, as the law has evolved West to East, it has been liberally and fairly applied by some land managers and unreasonably and even discriminatively enforced by those with more narrow definitions. In the process, some TV producers are avoiding certain public lands or, as I recently experienced, being denied any access at all.
Earlier this year after obtaining necessary entry permits to the Boundary Waters Canoe Area Wilderness through an Ely, Minn., outfitter, I contacted the local Superior National Forest Service district ranger, Mark Van Every, for input on a story angle suggested by our guides. Don Beans and Dean Bushey of Jasper Creek Outfitters said that with the Ely region hurting economically, public use of the wilderness in recent seasons had fallen off dramatically during May, when the area had some of its best fishing and camping opportunities.
To my surprise, Van Every said based on regional Forest Service interpretation of Congressional intent of the film/still photography law, no permits are issued for the Boundary Waters. Van Every instead suggested we focus on under-utilized bypassed “wilderness” looking lands adjacent to the official Boundary Waters border.
Van Every said the Forest Service policy also is to not market the canoeing wilderness. Asked about the decline in early season use and lost revenues for his agency and the Ely region, Van Every said, “It’s not our goal to be at 100 percent use.”
Although hundreds of thousands of annual Boundary Waters visitors are controlled by quotas at various entry points, the Forest Service has not considered issuing a limited number of filming/still photography permits, according to a spokesperson at the regional office in Duluth, Minn..
Van Every pointed out that TV cameras and other photographers are allowed to enter the Boundary Waters when there is “breaking news.”
By the filming law’s definition, “breaking news is an event that arises suddenly, evolves quickly and rapidly ceases to be newsworthy.”
Question is, “Who decides?” Is it only a windstorm leveling forests, wildfires, infestations of invasive species, acts of crime or violence? What about the day-to-day serenity and beauty of official “wilderness,” not the next door “looks-like” wilderness? Doesn’t that call about not marketing wilderness hurt Forest Service revenues in lean budgetary times? What about limiting growth of the public constituency, which is needed by places like this, and others, to survive?
Ironically, a few months earlier an Ottawa National Forest spokesperson at Watersmeet, Mich., said we could obtain a one-day permit to feature walk-in non-motorized ice fishing in the Sylvania Wilderness Area, for a fee of $170. We elected to fish public access waters on the Wisconsin side of the border.
A few years ago, we paid $125 daily to videotape trout fishing and horseback riding segments on National Forest land in the Black Hills of South Dakota.  That was even after I produced a letter from a Midwest region Forest Service spokesperson advising that because of the nature of our show, we were exempt from the permit requirement. That clarification from Paul Strong of the Forest Service Milwaukee office came after a ranger challenged our camera videotaping of a great gray owl research program in the Chequamegon-Nicolet National Forest of northern Wisconsin.
When shown that “exemption” letter, Forest Service officials in Custer, S.D., said they interpreted the filming law differently in their region.
Prior to the law, we’ve videotaped summer and winter in the Boundary Waters, even involving Forest Service officials, and never were accused of hurting resources or interrupting public activities.
Van Every said permit requests for the Boundary Waters, even one recently submitted by Boys Scouts of America, are routinely denied and there is no intention to single out TV productions.
Yet, a private production company produced a Boundary Waters educational video that all visitors are required to view before they enter the wilderness. Another, North American Fisherman television, has an arrangement with the Forest Service granting access to Superior National Forest lakes, he said.
Often federal lands managers defend the law saying, “You are making money off public land, why shouldn’t you pay?” Usually, I respond, “What about newspaper reporters, magazine editors, book authors, radio announcers, even artists?” All of them operate uncontested within wilderness, turning out a product that is generating revenue.
Typically, we have been well received by managers on most federal wildlife refuges and water production areas, BLM tracts, national parks and most national forests after they evaluate our credibility and story plan. Most want the exposure for their facilities and management and some even offer to participate.
In fact, although we are just a two-person and camera team and not a big budget operation, we would be willing to pay for access permits.
However, we cannot accept being denied access without seeking change for our generation of outdoors reporters and beyond. Public resources, wilderness or otherwise, need to be shown and interpreted to all.
“If the law needs to be changed,” Van Every said, “that’s something for you and others in your profession to sort out.”
By the way, we took Van Every’s suggestion and produced a segment on the “wilderness” opportunities outside the Boundary Waters. Van Every said he thought it was a good job. And, he offered to work with us on a report examining all-terrain vehicle use within the forest. ◊
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