Who needs a Commercial Film Permit in a National Park - Still Depends
Commercial Film Permits in National Parks and other Public Lands. Tom Opre Filmmaker. Tony Bynum Photography
Who needs a commercial film permit in a National Park? Well, for now, no one, concludes one federal judge, and now the National Park Service (NPS). As of February 11, 2021, the NPS website (confirmed by me in a message left on my phone by a representative of the NPS) no one needs a permit.
As of January 22, 2021, the National Park Service is no longer collecting application or location fees, or cost recovery for filming. NPS Website (confirmed by the NPS in a message left on my phone on February 11, 2021).
Remarkably, as of today, the NPS is NOT issuing or even asking for you to fill out a permit application. Wow. I’ll say it again, Wow!
Judge Colleen Kollar-Kotelly Rulling
Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia declared that the statute and enacting regulations that require those engaged in “commercial filming” to obtain permits and pay certain fees are unconstitutional. The court also found that the permit rules restrict speech in public forums, including the many National Park locations that are already considered traditional public forums such as the National Mall. The court found that the rules were content-based restrictions on speech, subject to strict scrutiny. Likewise, she found, the regulations and underlying reasons offered by the government—namely obtaining a “fair market” payment on top of any administrative costs—do not meet that scrutiny. “The government may not impose a charge for the enjoyment of a right granted by the federal constitution, including the First Amendment right to free expression.” Judge Kollar-Kotelly wrote.
"Mr. Price’s filmmaking at these parks constitutes a form of expressive speech protected by the First Amendment," she writes in the opinion, adding "the creation of a film must also fall within the ambit of the First Amendment’s protection of freedom of expression. To find otherwise, would artificially disconnect an integral piece of the expressive process of filmmaking."
The Judge said that her ruling applies to National Wildlife Areas and public lands administered by the Bureau of Land Management. Her final statement leaves room for a new permit and fee system possibly based on other criteria.
In issuing this injunction, the Court observes that a more targeted permitting regime for commercial filming, which is more closely connected to the threat posed by large groups and heavy filming equipment, may pass constitutional muster in the future.
You can the entire decision here: Judge rules film bill unconstitutional.
How does this apply to the Department of Agriculture - Forest Service?
This is a hard question to answer directly. I can tell you that after my recent call with a Forest Service supervisor they told me “we’re looking into it, and are not sure how it’s going to affect our permit program.” My guess is that the USFS special use permit program WILL be affected and will be reworked.
What NOW?
Going forward:
I recommend anyone engaged in commercial filming call their local park service, BLM or National Fish and Wildlife Service office for the latest. I suspect at some point there will be a new permit system for commercial filming in National Parks and other federal public lands.
I also recommend that if you’re planning a shoot on Department of Interior lands (BLM, NPS, FWS), you do your level best to follow all other rules and regulations. I would avoid filming in popular/busy locations and I would do everything I could to avoid displacing wildlife, other people, damaging any resources, and absolutely DO not trespass!
Call your senator and representative and tell them you heard about the ruling and you would like to know what they plan to do. Ask them to please look into it, and better,
I can’t tell you what to do if you have content already in the can that you captured without a permit.
Current Film Permit Podcast - Tony Bynum and Brian Call a.k.a, “Gritty.”
Tony Bynum and Brian Call discuss Filming on federal Public lands and the recent federal judge’s ruling that current film permits and fees are unconstitutional and issued an injunction.
Other sources
The National Press Photographers Association (NPPA) has been leading the legal charge on changing the federal permit program. I found its article helpful and interesting to read. And the Kurt Repansheck over at the National Parks Traveler sight did a great write up as well.