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Photographers and tourists with spotting scopes line the top of a hill in the Lamar Valley to photograph and watch wildlife in Yellowstone National Park. A district court judge recently ruled that charging fees for commercial filmmakers and photographers was unconstitutional.

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To capture unique footage of a grizzly bear romping in the snow or a bald eagle swooping in to claim a morsel in Yellowstone National Park, Gardiner-based filmmaker Bob Landis has always been required to purchase a permit from the National Park Service.

Those fees and how they are implemented are now being reconsidered.

In January, a U.S. District Court judge in the District of Columbia ruled these fees were unconstitutional under the First Amendment. Judge Colleen Kollar-Kotelly issued a permanent injunction halting the permit and fee requirements.

However, Kollar-Kotelly did allow 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.”

The lawsuit was filed by Gordon Price, an independent filmmaker from Yorktown, Virginia. Price was fined after a film he made at Yorktown Battlefield in Colonial National Historical Park was shown and drew the Park Service’s attention. Price challenged why he should pay a fee if noncommercial entities and news crews did not face the same fees.

How the judgment may affect the Park Service and other federal land management agencies going forward is uncertain. A query to Yellowstone’s staff was directed to the national headquarters. Cynthia Hernandez, public affairs specialist, for the NPS would only say the “Department is reviewing the decision.” However, on Yellowstone’s website no permits for crews larger than five people are being approved right now due to COVID-19.

“I expect there will be further guidance coming out,” said Livingston-based cinematographer Dawson Dunning. “For now, we just have to follow the general rules.”

Fees

For his part, Landis said he never minded paying the fee to Yellowstone, which now costs $300 a year. That price goes up for a larger crew. A day-use fee of $150 for three or more people is tacked on and increases based on the number of people in the crew. An additional fee of $65 an hour has been charged if the group was required to have a Park Service monitor when filming near roads or thermal areas. That can get expensive, Landis said, especially in winter when travel is difficult and slow.

The fees also applied to commercial still photographers and group photographic tours. Money raised from the fees stayed with the park.

“For me, it’s very cheap to have the privilege to film here every day,” Landis said. “If I had to film in 10 parks, it could become a burden.”

Landis also said the permit acted as an “axe over the head” of filmmakers and photographers who, if they violated park regulations like approaching wildlife too closely, could be booted.

Yellowstone’s commercial permit office handled 137 permits in 2015. In 2017 by July the office’s lone seasonal employee had processed 76 requests and by July 2018 that hit 90. The park’s staff did not respond to a request for information on more recent numbers.

Filmmaker

Dunning has frequently filmed in Yellowstone, with requests mounting this past year as crews from the United Kingdom were unable to travel due to the pandemic. His fees are usually paid by whatever company he is working for, yet he questioned why the park would sometimes require a monitor to accompany a film crew.

Dunning said he could understand the need for oversight for a larger crew in congested or sensitive areas, but doesn’t comprehend why small crews were restricted in where they could travel given that commercial still photographers and the general public were not regulated. Those restrictions included not allowing Dunning to travel any farther than a half-mile from a road.

“We should be encouraged to be off the road and not attracting a crowd,” he said. “There are times we’d like to be in the backcountry.”

Groups

Once in 2018 and again in 2019, Yellowstone hosted National Geographic film crews for live reporting from the park. The first year that effort employed 25 reporters with cameras, in addition to a helicopter for four days of broadcasting.

Allen Burman, who produced those shows, said he doesn’t know how much Nat Geo paid for the filming permits. After reading through the judge’s decision he called it “a fascinating case with a welcome outcome.”

Tom Murphy, a Livingston-based photographer, purchased the first permit for guiding photo safaris in Yellowstone in 1985. Murphy said he didn’t mind paying the fees since he is making money from the park. Now there are more than 100 different individuals or companies offering similar guided photo safaris.

Murphy has also had to purchase a filming permit and one for still photography. It’s the still photographer permit he has an issue with, not because of the fee, but because so many other people with cameras are capturing photos they may hope to sell. They aren’t buying a permit, so there’s a question of fairness, he said.

Murphy said commercial filmmakers should pay a fee since they are directly benefiting from the resource, but a fee for photographers wandering around shooting still photos seems unreasonable.

Photographers

The National Press Photographers Association, which represents news photographers, joined the lawsuit by filing an amicus brief. Other such groups — including the North American Nature Photography Association, the White House News Photographers Association and Getty Images, which sells images for photographers — also stepped in.

Their attorneys argued it was a “presumptively unconstitutional prior restraint” to require the permits.

“By specifically requiring permits for filmmaking and photography, the NPS is judging them not by the level of disruption or inconvenience to park visitors, but instead by whether or not the work will generate profits that can be levied,” the attorneys wrote.

Altered

Enacted in 2000 by Congress, the permitting rules were modified in 2007, going beyond the lawmakers’ original intent to address significant disruptions, the attorneys in the case argued. Given advances in technology that allow filming with modern still camera equipment, the fees unfairly penalized low budget or no budget filmmakers, the lawyers continued.

Agencies were also interpreting and implementing the law in different ways “resulting in arbitrary rules and enforcement,” they argued.

Dunning said it may take another court case to resolve the inconsistencies. An NPPA attorney said the group has not provided any advice to its members since the National Park Service could appeal the ruling.

Landis noted he once overheard commercial film crews complaining they operated under fewer restrictions when working with the U.S. military in Iraq than what they encountered in Yellowstone National Park. As a lone photographer, he couldn’t help but feel a bit empowered by restrictions on the larger groups, he said.

“Yes! Keep those people away from animals so we can get those shots,” he joked.

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