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New media such as Web-based news outlets and technology such as high-performance consumer video cameras are challenging land managers and media producers alike as officials try to decide who should pay for commercial filming and photography permits on public lands.

Both the National Park Service and the U.S. Forest Service have policies that require some photographers and videographers to obtain permits, depending on circumstances. While those covering “breaking news” are exempt from obtaining permits, as contemplated in the Constitution, government bureaucrats, not news editors, are deciding what meets that definition.

The issue recently came to a head in Idaho when U.S. Forest Service officials denied Idaho Public Television permission to film a group of students in the Frank Church River of No Return Wilderness. The Forest Service later relented after intervention from Idaho Gov. C. L. “Butch” Otter.

In Jackson Hole, film and video producers say the permit requirements pose an unnecessary burden on smaller operators that might not have the cash to pay the processing charges and daily fees, which can amount to thousands of dollars for just a few days of filming. Where filming a documentary previously required lots of equipment and personnel, today’s filmmakers can achieve similar results with a single hand-held camera and a tripod, without many of the resource and visitor impacts associated with bigger crews.

“It’s getting harder to make movies these days,” said Darrell Miller, owner of Storm Show Studios, who has made ski movies in Jackson Hole for the past 10 years.

Miller, who often shoots scenes for his movies in the backcountry with a hand-held video camera, one skier and maybe an assistant, said Forest Service fees of $150 a day, plus insurance, plus a processing fee, make things too expensive.

“All in all, for a couple of days, it’s easily a thousand dollars,” he said. “If you buy a camera, you should be able to do whatever you want to do. It’d be nice if they helped support the arts instead of trying to add every baggage fee they can find.”

Jeff Hogan, a local wildlife filmmaker, agreed that the Forest Service fee of $150 a day is too much, especially when larger “Hollywood” film crews are charged only $600 a day.

“As far as the Park Service goes, they’re really fair: They ask $200 a year,” he said. “For the Hollywood crew, it’s nothing for those guys, but it’s going to put us out of business. I might spend a week looking for an owl, and I might never find one.”

For the most part, Hogan says he simply avoids shooting movies on the forest.

“If I’m shooting a film about beavers for 100 days, that’s  $15,000,” he said. “That’s most of the budget. We can’t go out in our own backyard filming. For the little guy, I believe it is not reasonable.”

What’s ‘news’?

News providers have also run up against the permitting process. While Yellowstone and Grand Teton national parks make allowances for “breaking news,” reporters point out that important news doesn’t always revolve around a single news event. Take, for example, a story on invasive species or pollution, issues that are ongoing on public lands with no particular beginning or end.

“Limiting news coverage to breaking news means that a video journalist can cover a heart attack but not the chronic symptoms leading up to that heart attack,” said Rebecca Huntington, a correspondent for the Environment News Trust, a nonprofit group that provides stories for outlets such as Yahoo News, NBC affiliates and public television stations. “Is that really the kind of news coverage we want?”

Huntington, who has covered environmental issues in Greater Yellowstone for years (she previously worked as a reporter for the Jackson Hole News&Guide), recently ran up against red tape while attempting to shoot video in Yellowstone for a story on snowmobiles and the park’s ongoing winter use process. Due to the unconventional nature of the Environmental News Trust and the fact that she was shooting video, not reporting for print, Park Service officials said she would need a permit to cover the story.

“The same story that I’ve reported many times for print outlets and many times for radio, I was told that I did not fall under a news exemption when it came to video,” Huntington said. “I can understand how some public land managers might not know how to treat us. We’re an example of how media has evolved.”

Park Service officials made the decision on short notice and were open to discussing changes to the film guidelines in the future, Huntington said.

“Their policies are lagging behind the rapid evolution that is happening in the media world,” she said. “This is a good time to revisit policies to see if they are up to date with current technology.”

The policies and permit applications seem to extend control beyond any need to preserve the landscape or benefit from commercial enterprises. For instance, Yellowstone’s permit guidelines state “the determination of what is considered to be breaking news is at the discretion of [Yellowstone's] film permit coordinator.”

The Bridger-Teton’s guidelines also seem to attempt some control over what message is conveyed by the photographs or the film.

“Images and/or message portrayed [must be] consistent with FS regulations and responsible land use,” an application form states. In congressionally designated wilderness areas, “The message and actions portrayed must be consistent with wilderness values and ethics,” the form states.

Some might question whether such regulations conflict with the First Amendment’s clause that “Congress shall make no law ... abridging the freedom of speech, or of the press.”

The issue is difficult, acknowledged Yellowstone spokesman Al Nash, who said advocacy journalism is another gray area.

“When it comes to emerging media and social media, we’re struggling a bit,” he said. “A lot of good questions are raised. We’re trying to find appropriate ways to interact with and respond to those people.”

The issue is complex, he said, because not all federal land management agencies work under the same set of rules. Nash said he doesn’t consider the “breaking news” permit exemption useful.

“I do not use that definition to decide whether to require a permit or not,” he said. “[There isn’t] an agreed-upon industry standard definition for breaking news, so we looked for a different approach that we felt was more equitable and easier to understand.”

That approach is determining whether the news is going to appear on a regularly scheduled broadcast or if regularly scheduled programming is going to be interrupted for the story.

The Yellowstone permitting process typically does not apply to still photographers the way it does videographers, Nash said.

“If one is shooting a movie or a commercial or a nature documentary, we feel it’s very clear that we’re required to work through the film-permit process,” he said. “What has been more challenging has been to look at some of the scope of impacts of small filmers. We certainly have some folks who are here [who are] one-person crews, and the technology they use ... certainly isn’t the size of equipment and the impacts to resources or visitors that we once had.”

Leeway in Grand Teton

In Grand Teton, officials typically try to allow more leeway for photographers and videographers who aren’t impacting park resources, said spokeswoman Jackie Skaggs.

“But if it’s something that someone is going to be making and selling, like an ad, where they’re going to have lights and equipment and models and props, then we do require a commercial film permit,” she said. “We need them to go ahead with that well ahead of their intended shoot. The main purpose of having a [permitting process] is to be able to manage those large-scale filming situations where there’s the potential for negative impacts to other visitors and negative impact to resources.”

On the Bridger-Teton National Forest, the policies are a little more rigid, spokeswoman Mary Cernicek said.

“Any time you’re doing any kind of business on a national forest it requires a permit,” she said. “For us, I think, we do require a permit for still photography if it’s for the purpose of sale.”

Professional photographer Tom Mangelsen said the level of impacts to resources and visitors should be the determining factor for permits and fees, not whether someone is going to sell the photographs.

“It’s always seemed ... unjust to me,” he said. “There’s such a fine line between full-out production and somebody who is shooting video for YouTube or personal use.

“Sometimes amateurs are competing in the same market,” he said. “I think it’s pretty crazy to be charging small companies or amateurs that don’t have an impact on the environment,” he said.

After Gov. Otter raised concerns about the Forest Service policy in Idaho, the Forest Service released a statement reversing its position on the Idaho Public Television issue.

“Nationally, we want to improve access and increase public understanding of the importance of national forests, grasslands and wilderness areas,” the statement said. “One of the ways we can do this is through media. An assessment of the current policy will be completed soon that will address the need for media-related activities on national forest system land.”