LAS VEGAS (KLAS) — Over the last couple of weeks, there has been a rise in the number of social media posts and shared videos on YouTube claiming that the federal government has banned filming at Lake Mead. It turns out the answer is not a simple yes or no.
Background
It’s important to know that filming something commercially (for profit) has been regulated by the National Park Service (NPS) for years. But in 2021, the U.S. District Court for the District of Columbia issued a decision in Price v. Barr determining the permit and fee requirements applying to commercial filming were unconstitutional. At this time the NPS held off on enforcing commercial filming rules.
The NPS appealed this ruling and an appeals court reversed the decision on Aug. 23, 2022.
In the opinion in Price v. Garland (below), the panel reversed the district court on a 2-1 vote. The panel held that although some portions of the national park system are public forums, a public forum analysis does not apply to filmmaking. The judge who wrote the opinion said, “A filmmaker does not seek to communicate with others at the location in which he or she films, the filmmaker does not use the location as a ‘forum.’ ” Adding that filmmaking “is not itself a communicative activity; it is merely a step in the creation of speech that will be communicated at some other time, usually in some other location.” This led to the court determining that filmmaking was a “non-communicative first amendment activity.”
This ruling led to changes in the language used by NPS. On its website, it now states, “Effective October 28, 2022, the National Park Service rescinded interim guidance that was in place during litigation regarding commercial filming and has returned to longstanding laws and regulations governing commercial filming in parks.”
Penalty
If NPS catches someone commercially filming without a permit it could mean a fine and even time behind bars, according to the appeal ruling. In the ruling, the judge wrote, “A person convicted of engaging in commercial filming without obtaining a permit or paying a fee faces a fine and up to six months in prison.”
What does this mean for the average person?
These rules do not mean much if all that is being done is filming (recording video) for personal use. This is and always has been allowed by NPS. The park service says non-commercial filming includes “student films or videos filmed at Lake Mead National Recreation Area by another government agency or park partner, not intended for commercial use.”
However, if someone is recording video commercially, especially to be put on YouTube or other platforms for profit, then these rules are important. NPS says, “Commercial filming is defined as a digital or film recording of a visual image or sound recording by a person, business or other entity for a market audience, such as for a documentary, television or feature film, advertisement or similar project.”
Commercial filming permits
Simply put, commercial filming at Lake Mead is banned only if the person does not have a filming permit. If someone is filming for a YouTube video anywhere in the Lake Mead National Recreation Area, or other national parks, a permit needs to be approved by NPS.
The process to get a permit will take at least 10 days and could take as long as 60 business days to process. Applications for a permit (link below) are accepted through email to LAKE_SPU@nps.gov
How much does it cost?
Fees for filming at Lake Mead National Recreation Area vary depending on the type of project being worked on. The following tables explain the fee structure from NPS:
Film Permit Application and Permit Fees
| Type of filming | Application Fee | Permit Cost | Total Cost |
|---|---|---|---|
| Commercial | $200 | $200 + Cost Recovery* | $400** |
| Major Motion Picture | $500 | $500 + Cost Recovery* | $1,000** |
| Travel Log | $150 | $150 + Cost Recovery* | $300** |
| Non-commercial Government Agency/Partners | $0 | $0 + Cost Recovery*** | $0** |
*Plus applicable Location Fee **Does not include cost recovery charges ***If applicable
Commercial Filming Location Fees
(not required for non-commercial filming permits)
| 1-2 people, camera & tripod only | $0/day |
| 1-10 people | $150/day |
| 11-30 people | $250/day |
| 31-49 people | $500/day |
| More than 50 people | $750/day |
Still photography
Most still photography is allowed without a permit. According to NPS, permits are only required for the following:
- The activity takes place at location(s) where or when members of the public are generally not allowed.
- The activity uses model(s), sets(s), or prop(s) that are not a part of the location’s natural or cultural resources or administrative facilities.
- The park would incur additional administrative costs to monitor the activity.
- The park needs to provide management and oversight to:
- Avoid impairment or incompatible use of the resources and values of the park
- Limit resource damage
- Minimize health or safety risks to the visiting public
News-gathering exception
Within the Price v. Barr appeal ruling, the judge also wrote about commercial news-gathering within national parks:
Price argues that the special treatment the NPS regulations afford to “news-gathering activities” amounts to an impermissible content-based distinction. He further argues that the distinction in the regulations between “news-gathering activities” (exempt from the permit-and-fee requirements) and filming a “documentary” (subject to the permit-and-fee requirements, 43 C.F.R. §§ 5.4, 5.12, is untenable and arbitrary.
Price v. Barr
Even if these arguments raised a real problem with a part of the regulations, they would not be grounds for facially invalidating the entire permit-and-fee regulation, much less the statute. In any event, the arguments are without merit. The favorable treatment of news-gathering is but an example of the unremarkable practice of the Congress “sometimes grant[ing] the press special privileges and immunities.” Associated Press v. F.C.C., 452 F.2d 1290, 1298 (D.C. Cir. 1971); see also Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 579 (1977) (holding a state may privilege the press by exempting it from a right-of-publicity tort). Indeed, the exemption and the definition of “news-gathering activities” in the regulations are modeled on the Freedom of Information Act, which provides for a lower fee to be charged “a representative of the news media, 5 U.S.C. § 552(a)(4)(A)(i). Considering the centrality of the unimpeded functioning of the news media to the health of the Republic, an exception for “news-gathering” is certainly reasonable.
The distinction between news-gathering and filming a documentary is just as benign as the exemption for newsgathering. To the extent that a documentary is not “news,” i.e., does not contain “information that is about current events or that would be of current interest to the public, gathered by news-media entities for dissemination to the public,” 43 C.F.R. § 5.12, the distinction between filming a documentary and news-gathering is no different than the distinction between filming a drama and news-gathering. And to the extent the documentary is “news,” it surely is included in the exception for “news-gathering.”
