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Wilderness Take Two

Posted by Brad Smith at May 20, 2010 01:05 PM |
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The Forest Service denies an IPTV request to film in the Frank Church-River of No Return Wilderness.

I was unpleasantly surprise this morning to read on the front page of the Idaho Statesman that the Forest Service denied a request by Idaho Public Television to film a crew of students doing stewardship work in the Frank Church-River of No Return Wilderness.

The Forest Service believed the request was "commercial" in nature because IPTV sells copies of its programs on compact discs. But IPTV sales strictly cover operating costs. As a state agency, IPTV is prohibited from generating profits.

That aside, IPTV plays a critical educational and informational role in communicating the values of wilderness to Idahoans. Without this programming, including Outdoor Idaho, many Idahoans would be left in the dark about the advantages of wilderness protections for our few remaining backcountry areas.

As an organization that promotes wilderness preservation in Idaho, we have to side with IPTV and the Governor's Office on this one. IPTV's series, Outdoor Idaho, has done much to tell Idahoans the story of our amazing wilderness areas, including the Frank, and why they are important.


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Wilderness, Commercial Uses and Speech

Posted by Andy Stahl at May 21, 2010 11:00 AM
Dear ICL,

The Forest Service acted properly, ensuring that the Wilderness Act's prohibition on commercial enterprises is honored. There's no question that public television is a commercial enterprise; one has only to listen to their sponsorship ads that hammer the airwaves. An enterprise need not be profit-making to qualify as commercial; e.g., General Motors during most of the past decade.

ICL appears to favor a policy of allowing commercial filming in wilderness if it agrees with the filmmaker's message. Films that are "educational and informational" and communicate "the values of wilderness" would be permitted under ICL's view of the Wilderness Act. And, apparently, those that don't, e.g., a public television documentary about hardrock mining in wilderness, would be banned?

That's precisely the sort of content-based government regulation that the Constitution's First Amendment bars.

Please support the Wilderness Act and commend the Forest Service when it does what the law requires.

Sincerely,

Andy Stahl
Executive Director
Forest Service Employees for Environmental Ethics

What a shame

Posted by J at May 24, 2010 09:06 AM
IPTV is a 501(c)(3) not-for-profit organization.
Which clarifies how IPTV is not commercial.
Read line: no part of the net earnings of which inures to the benefit of any private shareholder or individual

So as long as they maintain a 501(c)(3) status, as per Commerciality Doctrine, they seem to be non-commercial. If sponsorships caused a private shareholder to inure benefit they would loose status.

Oh well


Is Public TV a commercial enterprise?

Posted by Andy Stahl at May 25, 2010 10:25 AM
A non-profit can engage in a commercial enterprise just as readily as a for-profit corporation. For example, non-profits must pay taxes on their unrelated business income. More to the point, non-profit status does not determine whether a wilderness activity is commercial, that is, related to "commerce."

In the 9th Circuit's most relevant case (Wilderness Soc'y v. United States Fish & Wildlife Serv., 2003 U.S. App. LEXIS 27248 (9th Cir. Alaska Mar. 16, 2004)), the court explained that the non-profit status of the entity pursuing the wilderness commercial activity was irrelevant. Instead, "both the purpose and the effect of challenged activities must be carefully assessed in deciding whether a project is a 'commercial enterprise' within the wilderness that is prohibited by the Wilderness Act."

In this case, the court concluded that stocking wilderness streams with salmon smolts was a commercial enterprise because the purpose of the stocking was to increase the commercial salmon fishery outside the wilderness.

Idaho Public TV operates a broadcasting business that sells airtime to sponsors, pays employees, pays payroll taxes, and is incorporated as an Idaho business. Idaho Public TV is paying its employee to film a documentary in a wilderness area; a documentary to which it will sell sponsorship rights when it airs the show. That's a commercial enterprise, of which the Wilderness Act says "there shall be no commercial enterprise."


Consider the purpose of the activity not the entity performing it

Posted by Ben Otto at May 26, 2010 09:20 AM
Andy,

We can all agree that Wilderness is not the place for commercial activity. Based on the case you cite, Wilderness Society v. USFWS, IPTV will not be engaging in a commercial activity.

While the Wilderness Act prohibits commercial enterprise, it does not define this term. Therefore the court decided they would look to the "purpose and and effect" of the activity to determine if it is a commercial enterprise.

The "purpose and the effect" the court referred to is the specific activity, not the entity that preforms it. More importantly, the purpose and effect of the activity must be "aimed at preserving the goals of the Wilderness Act."

In Wilderness Society a private, nonprofit group composed of commercial fisherman that placed hatchery raised salmon into a wilderness lake intending only to increase the fish stocks for commercial fisherman. The court prohibited that activity because the purpose and effect was to increase commercial fishing stocks.

IPTV is a public nonprofit group that delivers television programming. They plan to film a volunteer trail crew working in the Frank Church. Here, the purpose of IPTV is not to generate commercial activity, rather it is to promote public awareness and appreciation for wilderness areas.

At ICL we were disappointed the Forest Service disapproved IPTVs request because we believe filming the trail crew supports wilderness values.

- Ben

Here is a link to the case: http://openjurist.org/353/f3d/1051
  


Filming in the Wilderness

Posted by Nellie Bunce at Jun 04, 2010 09:17 AM
I was the crew leader on the Trails project, of which was the center of this controversy.
The film crew from IPTV was allowed on our trail project.
I withdrew my consent to be filmed as I have strong beliefs that this type of filming should NOT ever be allowed in our Wilderness areas.
My suspicion that this filming was completly unnecessary was confirmed shortly after our trail work began. We were working the Camas Creek Trail, which begins in the Salmon-Challis National Forest and after 4 miles or so it crosses into the Frank Church River of No Return Wilderness. The film crew would ask several times a day if we could move any faster, If we really needed to fix everything on the trail, When we would get to the wilderness boundary, all the time with the tone of hurry, hurry, hurry....
It was ridiculous. When we finally moved across the wilderness boundary the cameraman stayed long enough to film 2 of my crew members put up a tent and then the cameraman left. Not a single second of trail conservation work was filmed inside the wilderness. This section of filming for, Outdoor Idaho, was a joke. They could easily have filmed outside of the wilderness and avoided this argument altogether and in doing so showed a concerned and valid wilderness ethic, instead of making a mockery of our last best places, our wilderness.

Sincerely,
Nellie A. Bunce

RE: Wilderness, Commercial Uses and Speech

Posted by Brad at May 24, 2010 10:13 AM
Andy,

Thanks for your comments and your dedication to upholding the Wilderness Act of 1964. I think we agree on more about the Wilderness Act than we disagree.

ICL is not playing favorites to IPTV simply because we "agree with the filmmakers message." The line should be drawn in such a way as to exclude filmmakers that seek to generate profits or produce films purely for entertainment value.

As an organization that promotes Wilderness designation in the State of Idaho, we believe that it is important to tell the story of these Wilderness areas and why its important to protect other areas as Wilderness too. IPTV plays a valuable role in Idaho telling this story. Without their programming, the values of Wilderness would not be communicated as effectively in our conservative state.

Brad

FS Handbook defines commercial filming

Posted by Andy Stahl at Jun 01, 2010 05:45 PM
The Forest Service Handbook defines commercial filming as: "Use of motion picture, videotaping, sound-recording, or any other type of moving image or audio recording equipment on National Forest System lands that involves the <b>advertisement of a product or service<b>, the creation of a product for sale, or the <b>use of actors<b>, models, sets, or props, but not including activities associated with broadcasting breaking news. For purposes of this definition, creation of a product for sale includes a film, videotape, television broadcast, or documentary of historic events, wildlife, natural events, features, subjects or participants in a sporting or recreation event, and so forth, when created for the purpose of generating income."

The Forest Service ignored two of these criteria -- use of actors (the interviewer) and advertisement of product or service (the commercial underwriting of this television show) -- when it decided to reverse the Salmon-Challis forest supervisor's decision and grant the permit.

When James Cameron proposes to film scenes for Avatar Part II in the Frank Church Wilderness, for the avowed purpose of educating children about the virtues of wilderness, I hope your position will be different.

Outdoor Idaho and wilderness

Posted by Bruce Reichert at Jun 09, 2010 08:59 AM
A couple of comments.
To suggest that “Outdoor Idaho” is in the same category as “Avatar, Part 2” is, well, nuts.
  
In fact, that’s what Bethine Church told us Frank’s response would have been to this whole attempt to stop Idaho Public Television from filming an SCA group in the wilderness.

I wasn’t along on the shoot in question, but I’ve certainly talked with my two colleagues who were. They are stellar, award-winning professionals who try to produce substantive, multi-layered stories that people care about. I’m sure many TV people would have taken the easy way out and not gone the extra mile. Marcia and Jay went many extra miles! Why? To show what the students are learning in the field and what they’re DOING, so that just maybe others will be encouraged to do this kind of volunteer work that benefits the forest.

And while Nell and her group barely made it into the wilderness in the time that our shooter had available to him, he was able to film another group in the wilderness, using crosscut saws and doing work in a way that a wilderness demands.

We feel that, if the SCA goes into the wilderness for part of their training, then the wilderness is part of the story. We’re not interested in having someone else dictate to us what the story is.

Hopefully, one day the SCA participants will appreciate this entire experience. Who knows, maybe one of them will even write a dissertation on it. It would be a fascinating study of contrasting values.

I’m told one of the activities of the SCA involves flying into the Flying B ranch to spray for weeds.

Ah, such delicious ironies in the Frank!

Wilderness Ethic

Posted by Nellie Bunce at Jun 21, 2010 09:08 AM
Bruce,
What do you think a wilderness ethic should embody?

Nellie Bunce

P.S. I go by Nellie

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