Photography on BLM. FWS, and NPS Lands

[Vaughn]

I just tell them I am making art -- it confused the hell out of them!

[Racer X 69]

Thanks Jeff for this post and for the informative and helpful article.

I went to the Guv'mint Web Place and waded through endless pages of bureaucratic nonsense (I think they make it difficult to read and understand on purpose) and found the excerpt you mentioned in your first post here.

From the "new" rule:

We will require a permit for still photography when the activity uses models, . . . . .

So what I get from this is if I am at Yellowstone and want to take a shot of Mrs. Racer and myself standing in front of Old Faithful, or in Yosemite going for a photo of her and myself with the Half Dome in the background, or up in Glacier NP getting a picture of us with the beautiful vistas, or up on Lemhi Pass on the Idaho/Montana border with the Salmon National Forest to the West and the Beaverhead National Forest to the East, shooting us with the headwaters of the Missouri river to the East and the Snake river to the West, using a tripod and a remote, and the overzealous Ranger Danger happens along, and we don't have a permit then he may wave his pistol about, jump up and down and yell at us if we don't have a permit.

But wait, there is Title 42, United States Code, Section 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity.

And Title 18, United States Code, Section 242:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

So they really have no grounds to require a permit of any kind if, as citizens of the United States, we are attempting to exercise our rights to move freely about this Great Land and enjoy it, and "make art" while doing so.

And under the Title 18 code the Ranger Danger guy has no right to menace us (and Kirk, poor guy, I know how he feels, I seem to have the same bad luck) with his pistol, and in doing so risks prosecution, fines and imprisonment.

[Vaughn]

Lol!

[Jeff Conrad]

I doubt the NPS would cite for taking a picture of Mrs. Racer ...

It’s actually worth the trouble to read the introductory material, because in addition to the riveting narrative, there’s an occasional factoid. In this case, under the response to Comment 7:

for the purpose of this regulation, family members or friends not being filmed to promote the sale or use of a product or service are not considered models.

The actual wording in the definition of model in 43 CFR 5.12 is slightly different:

portrait subjects such as wedding parties and high school graduates are not considered models, if the image will not be used to promote or sell a product or service.

I see two possible problems.

1. When the new rule is added to the Code of Federal Regulations, the introduction won’t be included, leaving the text of the regulation to speak for itself. The same would be true of any clarification I might get from the NPS or the BLM.
2. The example in the definition is a restrictive clause, possibly suggesting that some types of portrait subjects would require a permit. It’s only a comma, you say? Courts generally make a very big deal of such things. In this case, I think a court would have sense enough to know that if a permit isn’t required for a high school group, it isn’t required for family members, either. Of course, appearing for a citation in Yellowstone could be a problem if you lived in Florida ...

I can’t see someone getting too excited over a remote, either (though I concede this came to mind). The greater concern is that just how far beyond a remote can someone go? I often carry 4–5 collapsible reflectors and diffusers, and probably have used as many as 3 at any given time. Would this now result in a citation (or a tasering if I did this in the GGNRA ...)?

Full disclosure here: I was at least one of the people responsible for comments 7 and 8, so perhaps it’s all my fault In my defense, however, I offered far more sensible definitions of model and prop.

Anyone who’s followed §1983 actions knows that such a thing is a tough row to hoe. For an action to even get to trial, a court must find that

• There was a deprivation of a Constitutional right, and
• The law was clearly established at the time.

Absent both, the defendant is invariably granted qualified immunity and the action dismissed.

Incidentally, §1983 doesn’t apply to employees of the federal government. But a similar action could be filed under the Federal Tort Claims Act (28 USC §1346(b))—with similar obstacles.

For various reasons, I think if someone with the time and money were to push the issue (don’t all volunteer at once, now ...), a court would find that the intent of Public Law 106-206 with regard to still photography could not have been other than to impose the conditions of 36 CFR 5.5(b) that I mentioned in my first response to Kirk. But even were that to happen, some of the wording in the new rule—especially in the definition of prop—is so vague as to probably doom an FTCA action from the onset. It would not surprise me if a court were to find that a reasonable ranger could reasonably have believed that she had reasonable cause to believe that use of a handheld light meter was a violation of 43 CFR 5.2(b)(1). For those who care, I had this wording verified by an intern to Sgt. Rehnquist of the Department of Redundancy Department ...

The example of a light meter may be a bit extreme, but it’s not completely crazy. I once spoke with a California BLM ranger who was convinced that a handheld meter was a sure sign of a “professional” photographer, and thus a basis for citation for not having a permit—despite the fact that the BLM required a permit only for conditions similar to those of 36 CFR 5.5(b).

What has blown my mind about the process (which was started by Rep. Joel Hefely of Colorado—in 1997 ...) that led to the new rule is that the original intent was simply to provide additional revenue to national parks by eliminating a prohibition from charging location fees for commercial filming. This could easily have been accomplished by changing a few words in 43 CFR 5.1(b)—but for some reason the process snowballed, taking two sessions of Congress, six bills, and over 13 years to get all of the implementing rules issued. Suffice it to say that, had I been given this assignment, I’d have approached it quite differently. But then I’d never get elected to Congress ...

And ’tis as ’tis ... and we’ll just need to see how it works in practice. The NPS have essentially been applying the new rule for years, and though I’ve heard of a few strange interpretations, it’s hardly been a catastrophe. So perhaps things will continue in the same way. The only thing in the final rule that surprised me was the statement about what is not a prop; it may well prove inconsequential, but it nonetheless gives me pause.

[Jeff Conrad]

I truly have no idea why I have so much trouble.

Just out of curiosity—how do you respond to this sort of nonsense?

[Nathan Potter]

Interesting comment about the Pecos Nat. Monument Kirk. I had a similar squabble about my commercial intent using my TK45 on a tripod with a light meter for fine art work about four years ago. The ranger was pretty abrupt and wanted to see my permit. I would have thought that LF use was fairly frequent there and there would be some familiarity with the process. Others around with digi P&S seemed to not arouse any suspicion.

Per Jeffs comment on response; I explained I was a fine art amateur photographer with no commercial intent; although he was polite and just said he'd prefer that I leave. So I packed it up since I had bigger fish to fry.

But this experience is unusual for me. I've spent thousands of hours on BLM and Nat Park and Monument lands with almost never any interference from an official.

I'm guessing that negative interactions occur as a function of "Time spent in the Field" so the actual frequency of objectionable interaction is very low to non existent.

I have vastly more frequent problems with local police and private entities.

Nate Potter, Austin TX.

[Racer X 69]

I doubt the NPS would cite for taking a picture of Mrs. Racer ...

I know, but I was in a crazy mood at the moment and wanted to add some levity to the discussion. But she is pretty enough that an overzealous Ranger Danger may assume her to be a "professional model".

It’s actually worth the trouble to read the introductory material, because in addition to the riveting narrative, there’s an occasional factoid.

I did read the whole thing, but fell asleep several times. That sort of thing can be mind numbing. Again, I think they write that stuff that way on purpose.

And there is always that Ranger who thinks he knows it all and wants to puff out his chest. You know, give a person a badge and a gun, and a modest amount of authority . . . .

I can’t see someone getting too excited over a remote, either (though I concede this came to mind). The greater concern is that just how far beyond a remote can someone go? I often carry 4–5 collapsible reflectors and diffusers, and probably have used as many as 3 at any given time. Would this now result in a citation (or a tasering if I did this in the GGNRA ...)?

And that really is where the problem lies. Amateurs who are serious about their hobby will be knowledgeable about it, and make the best use of whatever equipment and techniques are reasonably available and affordable to obtain the best results that they can, right?

How is it a Ranger who's sum total experience in photography may have been nothing more than a one use point and shoot film camera that was purchased at a grocery store makes him or her an expert at determining what separates a pro from an amateur?

People ask me all the time if I am a professional photographer when I am walking around taking pictures. I usually smile and say, "No. Notice that I don't have a vest on, and 2 or 3 other cameras hanging around my neck. Oh, and of course it says 'Pentax' on my DSLR too, not Canikon!"

Anyone who’s followed §1983 actions knows that such a thing is a tough row to hoe.

Indeed. I've been there, done that, and got a shirt to show for my troubles.

Incidentally, §1983 doesn’t apply to employees of the federal government.

You are correct. I overlooked that minor detail.

It would not surprise me if a court were to find that a reasonable ranger could reasonably have believed that she had reasonable cause to believe that use of a handheld light meter was a violation of 43 CFR 5.2(b)(1). For those who care, I had this wording verified by an intern to Sgt. Rehnquist of the Department of Redundancy Department ...

That reminds me of the changes in workplace sexual harrassment rules. It all comes down to what "A reasonable woman" would find offensive, and is entirely subjective.

The example of a light meter may be a bit extreme, but it’s not completely crazy. I once spoke with a California BLM ranger who was convinced that a handheld meter was a sure sign of a “professional” photographer, and thus a basis for citation for not having a permit—despite the fact that the BLM required a permit only for conditions similar to those of 36 CFR 5.5(b).

Again, I go back to my comment about what qualifies a Ranger as an expert in photographic processes.

What has blown my mind about the process (which was started by Rep. Joel Hefely of Colorado—in 1997 ...) that led to the new rule is that the original intent was simply to provide additional revenue to national parks by eliminating a prohibition from charging location fees for commercial filming. This could easily have been accomplished by changing a few words in 43 CFR 5.1(b)—but for some reason the process snowballed, taking two sessions of Congress, six bills, and over 13 years to get all of the implementing rules issued. Suffice it to say that, had I been given this assignment, I’d have approached it quite differently. But then I’d never get elected to Congress ...

Your tax dollars at work . . . . . .

So perhaps things will continue in the same way.

One can only hope!

[Jeff Conrad]

Nate’s experience harks back to a Galen Rowell column in Outdoor Photographer in the late 1980s about a photographer using a 4x5 in the Golden Gate National Recreation Area who was threatened with arrest if he did not leave immediately (the photographer complied). That column spooked a lot of people for many years, and often got embellished to include arrest and sometimes even conviction. I even encountered a couple of people who were convinced that this meant it was illegal to photograph the Golden Gate Bridge from the GGNRA ...

Then, as now, the ranger’s claim was utter nonsense—the photographer wasn’t photographing automobiles or models for the purpose of commercial advertising, and didn’t need a permit under 36 CFR 5.5(b). At the time (and actually until 23 September of this year), the only NPS definition of prop—in Resource Manual 53, Appendix 13, Exhibit 8—was the same as the common meaning: a small movable object on a set. But the photographer probably wasn’t familiar enough with the law to cite it in his defense, and decided that he couldn’t take the chance that a permit was required.

Whether Nate’s photography was for fine art was irrelevant, and any ranger should have known this. It would seem simple enough to ask a ranger to look at the regulation, which would make clear that a permit wasn’t required. Of course, there’s always a time to hold ’em and a time to fold ’em, and as Nate mentioned, it sometimes just isn’t worth the grief to butt heads with a ranger who’s out to make trouble.

The problem I see with the new rule is that, in a situation like Nate’s, it might not be obvious that a permit isn’t required—the ranger conceivably could say, “You’re using a light meter, which clearly is more than a camera and tripod, so you need a permit.” I doubt most rangers would be such jerks, but one who issued a citation could reasonably argue doing so was proper under the law. I doubt a judge would uphold the citation, but unless the photographer mounted a formal challenge to the regulation, I also doubt that much would happen to prevent the ranger (or other rangers) from issuing similar citations in the future.

I’m honestly not sure what the intent of the new rule is—and I’ve closely followed this process since 1997 and have read and re-read the new rule and the supplementary information several times. But the initial impression isn’t encouraging. A similar definition of prop was given by the Forest Service in 2003; that definition included the statement

nor does a prop include a hand-held camera or a camera mounted on a tripod.

In 2004, the BLM issued an Instruction Memorandum with essentially the same definition. At my request, they further qualified the exemption to read

nor does a prop include cameras, camera supports, and ancillary still photographic equipment.

The latest definition

a camera on a tripod, without the use of any other equipment, is not considered a prop.

seems a pretty significant departure from both of the earlier definitions, so it’s tough for me to see it as accidental. But I could be wrong—and I certainly hope that’s the case. And I hope to get some clarification this week.

[Drew Bedo]

Is there any meat in this issue for the ACLU to chew on ?. . .First Amendmendment or something? Claim you are worshiping nature (as a Druid?) or something else?

[Drew Wiley]

I've only been even questioned once, and this was by a GGNRA ranger who was completely new on the job and had never seen a view camera before. So I'd take that old Galen column with a grain of salt - probably some kind of incident lay behind it; he's been known to tweak stories more than once to make them more interesting - kinda a custom with writers with a mountaineering background (including Muir). But there have been numerous occasions where a ranger politely waited for me to take the shot and then started chatting film photography themselves, or about some friend or relative who used a view camera, or if I happen to know so and so, who also uses one in the area. Bad attitudes seem more common where rangers are just burnt out with misbehaving tourists and have a big chip on their shoulder. And where the Forest Service and BLM are concerned, they seem to hire a lot of dummies for field work who are marginally literate - high school dropout types, so it's going to be a waste of time even arguing with them. Best to hand them a can of rotgut beer and strike up a friendly conversation about
the local fishing holes or whatever.... you'll get a lot further than waving the constitution over their heads.