Forest Service Updates Filming and Photography Rules

Without a press release or public announcement, the U.S. Forest Service quietly updated its filming and photography rules, which are now in effect now, bringing its policies in line with the EXPLORE Act, but leaving a critical question unanswered for anyone who wants to document their time in a Wilderness Area.

This update follows a year of delay after the EXPLORE Act passed. Last year, I reported on the EXPLORE Act and how the delay in implementation of the law across U.S. Department of Agriculture (USDA) lands was impacting small-scale creators, especially on lands managed by the U.S. Forest Service (USFS), such as on the Superior National Forest in northern Minnesota and within the Boundary Waters Canoe Area Wilderness.

The New Rules

The new rules align with the EXPLORE Act, and the USDA, unlike the National Park Service (NPS) and other Department of Interior (DOI) agencies, implemented even the optional rules. The new USFS rules create four tiers for content creation (filming, photography and audio recording) regardless of whether or not it is commercial or noncommercial.

1. Groups of one to five people, assuming that the group meets all of the various conditions, don’t need a permit.
2. Groups of six to eight people need a free De Minimis Use permit. The law requires a website be built to handle these permits, which are automatically issued. Applications can also be submitted in person at a field office, according to the law, and the permit must be issued immediately. Until the website is up, this group will need to apply at a field office.
3. Groups engaged in activities or events that are permitted or allowed, regardless of the size, in which the content creation is incidental to, or documenting that activity do not need a permit.
4. Groups with nine or more people or groups unable to meet the required conditions need a permit.

Here’s the list of the conditions that content creators must follow:

• Occurs in areas open to the public;
• Uses hand-carried equipment only;
• Does not require exclusive use of a site;
• Does not adversely impact forest/grasslands resources, values, or other visitors; and
• Activity is not likely to result in additional administrative costs for the Forest Service.

Hand-carried equipment, per the law, includes “equipment (such as a tripod, monopod, and handheld lighting equipment).”

The biggest change for commercial creators is that they’ll no longer pay a daily fee as long as their group stays under five people, or six to eight with a free De Minimis permit. The other significant change is that content creators documenting a permitted activity don’t need a separate permit regardless of group size. This is a welcome shift for photographers covering events such as adventure races, fastest known time attempts, and weddings.

Noncommercial creators in groups of five or fewer will find little change; no permit is required as long as they meet the conditions. Those traveling in larger groups, however, will now need either a free De Minimis authorization or a full permit depending on size, which may be new for some.

The rules appear on the USFS main website, though some individual unit websites haven’t been updated yet. Check the main USFS site for the current rules.

The Wilderness Loophole – Is Filming Allowed in Wilderness Areas?

The Wilderness Loophole is back (I covered this in more depth in my last article). USDA and the USFS, unlike DOI and NPS, have decided to invoke the Wilderness Loophole provision of the law, and from their website it isn’t exactly clear what content creation type will be allowed.

The USFS website says that “Proposals to create content in designated Wilderness areas require additional information and undergo an additional level of screening. If you propose to film in designated Wilderness, contact the local Forest Service office.” The emphasis on “create content” is mine, because the law defines “Content Creation” in a specific way:

Content creation.—Regardless of distribution platform, any video, still photograph, or audio recording for commercial or noncommercial content creation in a System unit shall be considered to be a filming or still photography activity under this subsection.

So, if you want to film yourself with a GoPro canoeing in the Boundary Waters or any other wilderness area under USFS management, you’re going to need to contact the local Forest Service office. It’s also unclear whether the additional screening applies only to video or to photography and audio as well. Regardless, it applies to everyone, not just commercial creators.

Are There Still Mixed Messages?

One of the ideas behind the Film Act provision in EXPLORE Act was to standardize the rules across all public lands, but we still have different implementations of the law, due to the ability of agencies to determine if they want to require De Minimis Use Authorizations and due to the Wilderness Loophole.

The USFS opted to require De Minimis Use Authorizations for groups of six to eight people. The DOI (NPS) did not opt to require De Minimis Use Authorizations. This requires groups of six to eight people to file a permit application that is immediately and automatically approved — adding paperwork steps for both creators and already-strapped local offices for no practical outcome.

Wilderness Areas still give us mixed messages. NPS (and DOI agencies) treats wilderness areas the same as other public areas, but the USFS is treating them separately and is requiring additional information from the content creator and requiring an additional level of screening. The criteria for that screening isn’t publicly available at this point, so we don’t know if it will be uniform across the country or vary based on the local office. It seems to apply to everyone, including a random grandma who wants to film or photograph her grandson while on a canoe trip in a Wilderness Area. Because of the vagueness of the policy, we don’t know what will be allowed on USFS managed Wilderness Areas, such as in the Boundary Waters Canoe Area Wilderness.

What’s Next

The USFS still hasn’t published the criteria it will use to screen content creation requests in Wilderness Areas, which means local offices could apply different standards depending on where you are. That’s a problem worth watching, because paddlers and hikers have always documented their trips, and it’s not clear yet whether the new rules will create a bureaucratic problem they need to manage or if the USFS will apply it to only some types of content creators. I’ve reached out to the Superior National Forest for clarification and will update this story when I hear back.