Forest Service Seeks To Limit Journalists' Access to Wilderness Lands

September 24, 2014

The U.S. Forest Service is seeking to harden rules that would require a journalist to get a permit and pay a fee of up to $1,500 in order to report inside a federal wilderness, even with a cell-phone camera. Not yet finalized, the proposed "directive" is open for public comment. Journalism groups have commented that it is unconstitutional.

[Update posted Sept. 25, 2014: A Forest Service spokesman announced today that USFS would extend the comment period on this proposal by 30 days and hold public meetings to receive more input on it. The announcement came after objections were heard from various media groups. More information is available in today's story by Zach Urness in the Statesman Journal.]

The Society of Environmental Journalists has opposed similar rules in the past when issued by the National Park Service, and many of the legal issues are the same for Forest Service lands. Wilderness is a special category of public land intended to be left unspoiled, and free of commercial activity. Much of the nation's wilderness is under Forest Service jurisdiction.

"The Forest Service's proposed directive on commercial filming in wilderness raises many serious issues about restraint of newsgathering on public lands," said SEJ President Jeff Burnside. "The Society of Environmental Journalists has a number of practical, legal, and Constitutional concerns about its consequences, intended or otherwise. We plan to comment formally under the rulemaking process on how this directive could be improved to allow transparent and open reporting of wilderness conditions and issues."

Comments on the Forest Service proposal are due by ~~November 3, 2014~~ December 3, 2014.

During the last major political confrontation over "commercial filming" rules on public lands in 2007, some 18 other journalism groups joined SEJ in objecting to proposed requirements that film crews and others get permits and pay fees. Calling the proposal a restraint on news-gathering, they pressed for exemptions for journalism, broadly defined.

Under a law passed in 2000, Congress originally meant to keep large TV productions and Hollywood film crews from trampling public lands worthy of protection. The law directed the Interior Department to regulate filming and recover costs associated with accommodating it. But the Interior Department and other agencies later interpreted "commercial filming" restrictions to include still photography, sound recording, and other kinds of journalism, even if only a single freelancer or documentarian was involved. In the face of journalists' objections, federal agencies backed off, but left the legal issues unresolved.

Earlier this year, the House passed legislation that would have required small film crews to pay an annual fee of $200 to shoot video on federal lands. SEJ and other journalism groups had similar problems with that measure, which died in the Senate.

There is a provision in the Forest Service proposal that would exempt coverage of "breaking news," but otherwise wilderness managers would have discretion in issuing permits to weigh whether the proposed filming or photography would promote wilderness use and enjoyment, among other things.

"The last thing anyone wants is for some bureaucrat, ranger or service employee to be in a position to decide not only what is or is not commercial photography or filming, but also determine what constitutes 'breaking news'," said Mickey Osterreicher, general counsel for the National Press Photographers Association. He said the Forest Service directive would have an unconstitutional "chilling effect" on the freedom of speech and of the press guaranteed by the First Amendment.

The Portland Oregonian's Rob Davis brought attention to the Forest Service's proposal in a September 23, 2014, story.

"The Forest Service's previous rules caused a fuss in 2010, when the agency refused to allow an Idaho Public Television crew into a wilderness area to film student conservation workers," Davis reported. "The agency ultimately caved to pressure from Idaho Gov. C.L. 'Butch' Otter."