Wilderness proposal sparks First Amendment fight

SEATTLE -- The U.S. Forest Service is proposing permanent new rules that would require media organizations to obtain a permit to film and shoot photographs in more than 100 million acres of the nation's wilderness.

Under the plan, the Forest Service would consider the nature of a proposed project before approving a special use permit then charge fees of up to $1,500 for commercial filming and photography in federally designated wilderness areas.

Mickey H. Osterreicher, general counsel for the National Press Photographers Association, said such rules would be a clear violation of the First Amendment and raises concerns about press freedom, including whether denying a permit would amount to prior restraint.

"What if they deny you a permit because they don't like the story you're working on?" he asked.

Liz Close, the Forest Service's acting wilderness director, said the Wilderness Act of 1964 prohibits commercial enterprise in wilderness.

The rules exclude breaking news situations, defined as "an event or incident that arises suddenly, evolves quickly, and rapidly ceases to be newsworthy."

But Osterreicher said the agency ignores big distinctions between editorial and commercial use and also should not be allowed to define what constitutes breaking news.

"We're headed down a really slippery slope if we allowed the government to include editorial and news gathering activities in commercial use," he said.

Close said the current rules have been in place for 48 months, and the proposal released this month would make those guidelines permanent. Public comments are due by Nov. 3.

"This is the opportunity for the public and news organizations to work with us to make sure that our directive is the way we want it," she said.

"This isn't even about fees," said Steve Bass, president and CEO of Oregon Public Broadcasting, whose employees have run into permit issues. "It's really the principle. Does the government get to decide what's newsworthy and what's not newsworthy? It's my understanding of the First Amendment that they don't get to decide that."

Bass said he understands why officials want to limit the impact on public lands by large film crews with trucks and other equipment.

"That's not the kind of stuff we do," he said.

Under the rules, permit applications would be evaluated based on several criteria, including whether it spreads information about the enjoyment or use of wilderness or its ecological, geological, scientific, educational, scenic or historical values; helps preserve the wilderness character; and doesn't advertise products or services. Officials also would consider whether other suitable film sites are available outside the wilderness.

Ed Jahn, a producer and reporter with Oregon Field Guide, a program of Oregon Public Broadcasting, said he and his colleagues have been asked about a dozen times over the past several years to get a permit to film in wilderness. It varies among Forest Service districts; some require a commercial filming permit, others don't have a problem, he said.

In each case, he said, they tell the agency they're doing the story and do not get a permit.

"We're journalists. We don't ask permission to do a story," he said, adding he and others abide by all the regulations that also apply to the public.

Ron Pisaneschi, general manager of Idaho Public Television, said his station recently applied for a permit to film in four wilderness areas in Idaho for a program to air later this year on the 50th anniversary of the Wilderness Act.

"It was a bit of an arduous process, and there were a lot of questions about what was the nature of the program, where we were going," he said.

Pisaneschi said he worried that if the proposal becomes permanent it could mean more burdens that will interfere with their ability to do their work.