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U.S. Forest Service Retracts New Wilderness Rule After First Amendment Dispute

By Liam BeriganPublished October 20, 2014

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A newly proposed rule based on the Wilderness Act of 1964 was quickly withdrawn last month after widespread criticism over a possible violation of the First Amendment. The Wilderness Act is celebrating its 50th anniversary and has become a bedrock of U.S. environmental legislation.
By Liam Berigan, 10/20/14

Widespread confusion over new rulemaking by the U.S. Forest Service (USFS) last month introduced questions about how the government should regulate photography of wilderness areas. Under the Wilderness Act of 1964, wilderness areas cannot be used for commercial purposes, even if the commercial purpose has no negative impact on the land. Invoking this piece of legislation, USFS proposed a new rule (published here in the Federal Register) that would have forced the media to have permits in order to take pictures in federally-designated wilderness areas. It would also have given the Forest Service widespread authority to deny those permits if the photos didn't promote the conservation of wilderness areas.

After significant pressure from First Amendment and wilderness advocates, the Forest Service has reversed its initial stance. USFS has pushed back its deadline for providing comments about the new rules from November 3rd to December 3rd and has announced that only commercial photographers and filmmakers need to apply for permits. Clarifying that media organizations and recreational photographers will not be affected by this rule has alleviated most of the concerns that this rule would violate the First Amendment.

The USFS's revised decision is a positive change for the government and the American public. As the adage "take nothing but pictures, and leave nothing but footprints" suggests, photography is one of the few activities that has virtually no negative impact on wilderness areas. Allowing photography in wilderness areas honors the spirit of Wilderness Act, which was enacted to stem the tide of natural areas being lost to agricultural and industrial activities. Photography allows the artist to permanently capture the beauty of a landscape, and share their experiences in these areas with other people. For the average person, who might never get to visit the mountains of Alaska or the deserts of New Mexico, photography may be the only chance that a person gets to appreciate the wilderness areas that their tax dollars work to conserve.

America's dedication to preserving the wilderness has resulted in some remarkable conservation. There are now wilderness reserves in 44 states that protect 110 million acres of remote land. These areas are reserved for traditional outdoor activities, such as hiking and hunting, and are protected from activities that would harm the local environment.

This is not the first controversy surrounding the Wilderness Act's ban on commercial activities that are not "proper for realizing the recreational or other wilderness purposes of the[se] areas. This largely subjective interpretation has given federal land management agencies significant authority to permit or restrict any commercial activity in wilderness areas, which has produced conflict between the government and the private sector. All grazing, timbering, and mining, for instance, is banned in wilderness areas, and so government representatives encounter substantial resistance from these groups when they attempt to designate valuable land as wilderness. These restrictions may make it more difficult to create new wilderness areas, but they also make sure that existing wilderness areas receive the protections they need to remain truly "wild".

Despite conflicts with interest groups, Wilderness Act designation is one of the strongest protections that the federal government can bestow on a piece of land. For the last fifty years it has been a seminal piece of American environmental legislation, and even now it is constantly being adapted and reinterpreted to effectively protect the environment.