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The Legal Paige - Commercial Use Permits in National Parks: What You Need to Know in 2022!

Commercial Use Permits in National Parks: What You Need to Know in 2022!

NOTE: This Blog has been updated on August 29, 2022 to reflect the appellate decision made on August 23, 2022 of Price v. Barr.

 

If you’re a photographer who usually shoots in national parks, public lands, and/or on state land due to the untouched land and picture-perfect landscapes available for your clients, LISTEN UP!

 

Whenever you are shooting on government-owned land whether it is a national park or BLM land you will need to work within the park or land guidelines. More often than not this means you need to apply for permits. Commercial Use Authorization Permits (“CUAs”) and Special Use Permits (“SUPs”) are consistently required for national parks and public land if you are (1) taking photos of your clients for commercial purposes and/or (2) your clients are having a ceremony there. 

 

But before we get into how you can best guide your clients through this permitting process, we first need to talk about the legal history of CUAs and what it now means specifically for photographers (because, unfortunately (and very likely unconstitutionally), photogs seem to be the ones getting singled out!).


The (Legal) History of CUA Permits

CUA permits in the past have been mandated under the powers of the National Park Service for commercial filming AND commercial photography by a person, business, or other entity for a market audience with the intent of generating income. The purpose of this permit was to minimize environmental impact. This rule applied to all YouTubers, bloggers, travel influencers, videographers, and photographers. Especially those whose main source of income was through promoting brands, products, gear, and clothing. Overall, the CUA permit rule was really all-encompassing. Basically, if you were walking into a national park with film or photography equipment  with the intent to make money from the footage you were taking or photos captured, you needed a CUA permit. 

 

In 2021, this rule shifted for some creatives. Price v. Barr [1]  was the first federal case of its kind to tackle the constitutionality of CUAs. The U.S. District Court for the District of Columbia determined that the permit and fee requirements applying to commercial filming under 54 USC 100905, 43 CFR Part 5, and 36 CFR Part 5.5 were unconstitutional under the First Amendment. This case came about because Mr. Price, the Plaintiff, was originally fined by the National Park Service for filming without a permit in the Colonial National Historical Park, which is property administered by NPS. He fought the constitutionality of 54 USC 100905, 43 CFR Part 5, and 36 CFR Part 5.5 under the First Amendment claiming that it infringed on his right to free speech. The Court specifically stated in its opinion that the permitting statute was not narrowly tailored to the government's interest to protect the land. In simple terms, the NPS laws pertaining to CUAs were too broad and needed to be more specific. The Court further stated that the National Park Service must take into account personnel and equipment impact on public lands. For instance, if you were shooting on a small personal camera for commercial purposes the impact on the land will be extremely minimal, if at all. However, if you were shooting a huge national commercial or movie that included a whole film crew and lots of equipment then the impact would likely be much larger. Under the prior law, both kinds of filming needed a permit event though the impact on the land was drastically different.

IMPORTANT UPDATE: In response to the Price v. Barr decision, the National Park Service issued interim guidance on February 22, 2021, which stated that  filming activities may require a permit if they would make a major impact on park resources or the visitor experience. The National Park Service also appealed the decision made in Price v. Barr to the Federal Court of Appeals in the District of Columbia. 

 

On August 23, 2022, the appellate court overturned the district court’s decision in a 3-2 ruling. This means as a filmer, you  may need a permit again to conduct commercial filming in National Parks. The crux of the decision made by the appellate court came down to the finding that the ‘act of filming’ is not itself a communicative activity that is protected under the First Amendment. In essence, the protection of the First Amendment kicks in when the film is displayed. This is a bold statement made by the appellate court and here at TLP we are interested to see if this ruling holds[2]. Overall, we’d be shocked if this is the last time we hear about this case. This fight is likely not over and this is the kind of legal issue that we traditionally see in front of the Supreme Court. If this case is appealed to the Supreme Court and they accept to hear the case (through a writ of certiorari) we could see monumental case law for the First Amendment created—the effects of which will be far-reaching for photographers and videographers.

In interim guidance, the Department of Interior through the National Parks and Public lands has not been requiring videographers to pay for CUAs nor have there been any fines due to the 2021 decision of Price v. Barr. So far, the Department of Interior has stated that they still will be applying the interim guidance for the time being. However, under the Appellate ruling National Parks may start requiring CUAs for commercial filming again. The TLP team will keep you updated on any changes in requirements the National Parks make! 

 

Now if you are a photographer… you’re probably asking yourself “what about me?!”. Let's get into how this case DOES NOT impact photographers and how now the CUA permitting process is entirely unfair and arguably even more unconstitutional because it singles out photographers.


Photographers and CUA Permits

Price v. Barr was a monumental case for videographers, but the district court and appellate court’s rulings were limited to applying to only videographers—it did not address photography whatsoever. This is because the plaintiff only had standing regarding commercial filming!  Which means that the National Park Service still prohibits photographers from shooting within a national park without a CUA permit!  

Now, we here at TLP are going to let you in on some legal secrets... depending on if this case is appealed to the Supreme Court and its decision on the matter there could be a prime opportunity for a photographer who has been fined or forced out of a park for the lack of a CUA permit to take their case up to a federal court!

 

Do You Need a CUA Permit to Photograph Your Clients?

This is the million-dollar question! Remember, every national park has the autonomy to create its own standard practices for permits, so you need to make sure that you understand the rules and regulations for each of the parks you are planning to shoot at. Not every national park has dropped its CUA permit requirement for photographers post-Price v. Barr. Actually, most national park sites have even updated their websites to show whether they are still requiring CUA permits for photographers. To be completely honest with you, figuring this out is hard and messy! We suggest you reach out to the permitting office in the park directly via email (always get it in writing!) with some clarification on whether a CUA permit is required. Oh, and, you should reach out to the park as soon as possible! Because the labor shortage is currently  hitting national parks, these permitting offices have stacks of permits they are waiting to go through. We’ve learned that the parks have minimal resources to sometimes only look at one permit a day. So, if you are shooting an elopement put in that permit request as soon as the client booking comes in. Again, and we here at TLP can't stress this enough: get your answer from the park  IN WRITING! If the answer that you receive is that *you do not need a permit* then print out the response and carry it with you in case a park ranger questions you. We love our park rangers, but sometimes they are not up to date with what is required and what isn't. So, be prepared to answer their questions in the park and, please, be kind and courteous. 


We also have good news for photographers: a new nonprofit was recently created by a collective of photographers that you can use as a resource to stay up-to-date regarding CUA permits. The Public Land Creatives is a nonprofit that was founded to help adventure photographers navigate these permitting issues and advocate for equal, fair, and unbiased access to create on public lands without discrimination and impedance. Their website can be found HERE if you are interested in finding out more. 

 

When Should You Apply For A Special Use Permit?

If your clients plan on having a ceremony in the national park, then your clients likely have to apply for a Special Use Permit (on top of you applying for a CUA). Again, review the national park’s website on SUPs and inquire with the permitting office if you have questions.  Price v. Barr did not impact SUPs whatsoever, so those regulations are still enforceable. Each national park or service has its own set of application steps for SUPs. Generally, your clients will need a special use permit if someone is conducting a legal marriage or union in the park. If it is just the couple and the photographer AND the couple is simply exchanging words and not signing a legal document, usually you do not need a special use permit. However, if there is a larger group with an ordained person present and the couple is legally getting married, they will likely need a special use permit. 

 

But, remember, the permitting office is the only office to process CUAs and SUPs. So, the same logic applies here due to a backlog of permit requests. The best course of action is to have your clients apply for one as soon as they book with you and then continue to follow up on their permits on a regular basis and have backup plans.

 

Have A Backup Plan and… Then Another Backup Plan

As the photographer, you should have several backup plans. Make sure you have multiple other spots outside the park in case your or your clients’ permits do not get approved in time. Prep your clients that their dream spot in the park may not be accessible if the permit does not get approved. Legally speaking, your Adventure Photography Contract should state that photography locations are NOT guaranteed and that your clients are responsible for (1) applying for the permits and (2) ANY fines that may be incurred. This helps to minimize any blame on you regarding the permitting process. 

 

You may also need to tell your client to hire a guide! Most adventure photographers are not guides, but the park that you will be shooting in may require a guide to be present depending on the location and how remote it is. We here at TLP will keep you updated on any issues that may arise regarding *guide* permitting regulations because that’s also a mess that has yet to be dealt with in the court system.

  

TLP’s Take

That was a boatload of information all about the permitting process for national parks (and BLM land)! We know it can be overwhelming and confusing since CUA permits are changing and evolving every single day. But it's imperative that we make sure you’re prepared for some of the changes that have been made and/or may be coming! We will, of course, keep you updated on the legal developments on this issue as well as the appellate decision coming in  Price v. Barr. In the meantime, I would love to hear from you on which parks you are seeing dropping the requirement for the CUA permits for still photography and which ones are not. Pop ‘em in the comments below!

 

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