Forest Service’s troubling new permit policy raises 1st Amendment concerns

By Bruce Reichert

What if, every time you wanted to conduct an interview near, say, Bogus Basin or the Henry’s Fork, you first had to get a permit from the Forest Service?

What if you wanted to do a story on the impact of wolves on elk in the national forest, but needed first to clear it with a public information officer who would charge you a fee?

What if you wanted to do a story on the failure of trail maintenance in the wilderness, and that same public information officer said, “Sorry, that’s not the kind of story we think is appropriate”?

Don’t laugh.  Until the chief of the Forest Service, Tom Tidwell, stepped in, that looked to be our future. And we were alarmed. Versions of this were beginning to happen with alarming frequency to some of us.  And it raised some interesting First Amendment issues for all of us.

I work on the show “Outdoor Idaho,” and I’m lucky to work with some great folks. One of the strengths of the show is its coverage of resource issues – salmon and wildfires, wolves and elk and noxious weeds – the kind of stories that aren’t exactly breaking news but are still important to many Idahoans.

Earlier this month one of our reporters called a Forest Service office in eastern Idaho, looking to interview a botanist. She was told she first had to get permission to film on Forest Service land, wince it wasn’t “breaking news,” and that would require filling out a form and waiting for approval. Oh, and this time they would waive the fee.

Say what?!!  We’ve been doing “Outdoor Idaho” for more than 30 years, and in that time have interviewed all manner of Forest Service official on every conceivable topic in every type of terrain in Idaho.

But, according to a Forest Service directive that seemed to grant the federal agency the power to determine the worthiness of “news,” some rangers in some Idaho forests were arguing, if it’s not “breaking news” as defined by them, then it becomes “commercial filming” subject to their control. In other words, the only exemption for us on the 20 million acres administered by the Forest Service is spot or breaking news.

We said “Whoa!” (Actually, we said a lot more, but, hey, we’re public television.)

Over in Oregon, a similar program, “Oregon Field Guide,” was experiencing the same problems. As OFG producer Ed Jahn told me, “We keep getting told we’re not a newsgathering organization. That’s been our fight with them all along.”

Let’s face it, very little that happens in the forest is “breaking news.” Most of the big policy issues about public lands are ongoing in nature. For example, the recovery of forest land from a massive fire is hardly breaking news; neither is the impact of wolves on ungulates, or snowmobiles on wolverines, or the effect of spotted knapweed on forest health. Yet our coverage of these stories is critical to public understanding and can best be covered in documentary-style news forms.

For the Forest Service to not recognize what we do as news, we believe, betrayed a fundamental lack of familiarity with the essential nature of news coverage.

News crews, photogs told they need permits

And then to characterize what we do as “commercial filming” – well, they obviously have not watched our pledge drives.

IdahoPTV is a government entity of the State of Idaho under the Idaho State Board of Education.  As a government entity, we are prohibited from engaging in commercial activity, including commercial filming.  We are also deemed to be a non-commercial, non-profit, tax-exempt organization by the Internal Revenue Service.  Moreover, IdahoPTV is licensed by the Federal Communications Commission (FCC) as a non-commercial, educational television station.  Our FCC license prohibits us from airing commercials or productions for commercial purposes.  “Commercial filming,” therefore, goes against the very nature of our FCC license, and we do not engage in it. Period.

But back to the issue that I think should matter to the Idaho Press Club:  the First Amendment, as in “Congress shall make no law… abridging freedom of speech or of the press.”

By only exempting “breaking news,” the Forest Service was unconstitutionally restricting the First Amendment right of journalists to cover public policy issues on the public’s lands. We saw it as an attempt to regulate the news media, which clearly is outlawed by the Constitution.

In some ways, this is déjà vu all over again for us. In 2010, we wanted to film some students learning about wilderness techniques in the Frank Church River of No Return Wilderness. We were told on a Monday that we could not film in wilderness. That angered not only Bethine Church, but also the governor and our congressional delegation. On Friday of that same week, the directive from on high changed, allowing us to film young folks learning about the crosscut saw and the Pulaski.

Now, I would be remiss if I didn’t mention a bright spot in all this. Working with Forest Service officials Andy Brunelle, Dave Olson, and Erin O’Connor, this summer we got an unprecedented special use permit for four wilderness areas across multiple National Forest locations and two Forest Service regions. This has allowed us to produce our hour-long “50 Years of Wilderness” documentary, airing December 7th.  One thing I have learned in this process: There are some good folks out there who understand the importance of collaboration, and I salute them.

But back to the broader issue. I don’t think the federal government has any business in the news business, and that it is overreaching when it tries to define news so narrowly.

Bruce Reichert is the host and one of the writers of Idaho Public Television’s “Outdoor Idaho”; he is also a past board member of the Idaho Press Club.

PUBLIC COMMENTS: Though the Forest Service chief now says the service’s rule regarding still photography and commercial filming on national forest lands wasn’t intended to apply to journalists, the rule, which many forest officials have been applying to journalists, hasn’t been changed. It is open for public comments through Dec. 3; it’s an interim directive that the service is proposing to make permanent, and may revise based on the comments. You can comment online here:

Idaho Public TV photos / Rick Gerrard