The Wilderness Loophole? Closed!

For more than a year, photographers, filmmakers, and paddlers didn’t have a clear answer to a basic question: was filming or photographing your own wilderness trip even legal? The EXPLORE Act, signed into law on January 4, 2025, aimed to answer that question with a provision called the FILM Act. Its goal was to standardize rules around filming, photography, and audio recording on public lands, but it also carried language that could have undermined creatives’ free speech rights in congressionally designated wilderness areas — The Wilderness Loophole. Now, we have final clarification from the USFS about this loophole, and it’s effectively closed.

What Was the Wilderness Loophole?

Since 2025, the implementation of the FILM provision of the EXPLORE Act has rolled out across the various public agencies (see: One Year After EXPLORE Act Became Law, Forest Service Still Has No Wilderness Filming Policy and Forest Service Updates Filming and Photography Rules). The biggest concern among creatives was how filming and photography were going to be handled in designated wilderness areas. The Wilderness Act of 1964 limited “Commercial Enterprises,” such as setting up a shop in designated wilderness and selling root beer, and “Commercial Services,” such as guiding. The government could have used the loophole to fold photography and filming into ‘commercial enterprise’ or ‘commercial service’ — categories the Wilderness Act restricts — or to revive the fees it once charged for these activities.

An analogy would be that they could have used The Wilderness Loophole, to prevent Ansel Adams from visiting designated wilderness and photographing it if he intended to sell prints of his works. That’s something that the primary author of the Wilderness Act, Howard Zahniser, Executive Director of the Wilderness Society, would never have imagined. Adams was heavily involved with the Wilderness Society at the time, and his photos were used to help get the legislation passed. The Act within several sentences of its opening explicitly allows for “the gathering and dissemination of information regarding their use and enjoyment as wilderness.” Unfortunately, in the past, various parts of the government interpreted the prohibition of “commercial enterprises” as a prohibition on activities such as those that Ansel Adams would have taken.

Before the EXPLORE Act, both the National Park Service and the US Forest Service took the position that even posting a video on YouTube of your trip into an area such as the Boundary Waters Canoe Area Wilderness was illegal.

Immediately after the EXPLORE Act passed the National Park Service updated their rules to clarify that commercial filming and photography are not a “commercial enterprise” or “commercial service” under the Wilderness Act.

While the NPS resolved its side within months, the Forest Service took considerably longer.

USFS Finally Issues Its Policy

At some point between April 8th (my last correspondence with them) and June 18th, 2026 the USFS came up with a national policy about photography, filming and audio in designated wilderness. This is a direct quote from an email from the National Press Team, USDA Forest Service, Office of Communication, National Press Desk received on June 18, 2026:

Under the EXPLORE Act (effective March 2026), the U.S. Forest Service updated 36 CFR 251.50–.51 to allow hand-held still photography or filming by up to five people (and up to eight people with free “de minimis” authorization) in designated wilderness areas without needing a permit, as long as the activity causes no resource or visitor impacts.

Later sales or licensing of photos, videos, or watercolor sketches do not make them commercial, nor do they trigger permit requirements, as long as you’re operating within these thresholds. If you exceed eight people, introduce staging or professional setups, then a full special-use permit would be required.

The Four Tiers for Content Creators

Now that creators have clarity about the filming, photography, and audio recording policies in designated wilderness areas managed by USFS, they have uniform rules across the nation. These are the 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 Authorization on USFS land. NPS doesn’t require this extra step. They treat groups of eight or fewer the same, with no permit needed.
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 (with the exception of tier three) or groups unable to meet the required conditions need a permit.

The law requires USFS to build a website to handle de minimis requests for tier two, with automatic issuance. Applications can also be submitted in person at a field office, according to the law, and the authorization must be issued immediately. Until the website is up, groups of six to eight on USFS land will need to apply at a field office.

Conditions You Must Meet

Here is the list of the conditions that content creators must follow:

• Doesn’t impede or intrude on other visitors, and doesn’t disturb natural or cultural resources or environmental/scenic values;
• Allows for equitable allocation or use of facilities;
• Occurs in areas open to the public;
• Doesn’t require exclusive use of a site or area;
• Doesn’t take place in a localized area that receives very high visitation;
• Doesn’t use a set or staging equipment — handheld gear like a tripod, monopod, or handheld lighting doesn’t count as staging;
• Complies with the unit’s visitor use policies, practices, and regulations;
• Isn’t likely to add administrative costs for the Forest Service; and
• Complies with other applicable federal, state, and local laws, including drone regulations.

Agency Filming & Photography Pages

For more information, check the agency’s filming and photography pages:

• NPS’s rules
• USFS’s rules

With the final piece of the puzzle in place, creators can breathe a sigh of relief, and no paddler needs to worry that posting their videos or photos on social media will trigger a law enforcement action. Personally, I feel relieved, like my First Amendment rights have been unmuzzled. It’s been a long time coming.