Take Nothing but Pictures; Leave Nothing but Your Rights: Proposed USFS Regulations May Violate First Amendment

By: Joseph Brown, Staff Member

The U.S. Forest Service manages hundreds of National Forests and Wilderness Areas, nearly 30% of America’s federal lands.[i] Each year, millions of Americans visit areas under USFS protection to camp, picnic, sightsee, and enjoy nature. However, a new proposed regulation may have a significant impact on those who want to snap pictures in designated wilderness areas.[ii] 

The new rule requires a permit for any photography that “uses models, sets, or props that are not a part of the site’s natural or cultural resources.”[iii] Failure to obtain the proper photography permit could result in up to $1,000 per unpermitted photo.[iv] The proposed rule has provoked an outcry that it would violate the First Amendment.[v]

Alaska Senator Lisa Murkowski called the regulation “just one example of the kind of federal overreach that comes when we lock up our public lands in wilderness designations.”[vi] Wyoming Senator John Barasso called the rule “a direct violation of Americans’ First Amendment rights.”[vii] In reaction to the uproar, the USFS tried to clarify the rule and pacify public outcry in a news release, promising that “[t]he proposal does not apply to news coverage… [or] gathering information for a news program or documentary”.[viii] USFS Chief Tom Tidwell told the press that the agency “remains committed to the First Amendment.”[ix]

While the Supreme Court has not yet specifically defined the First Amendment protection afforded to certain types of photography, some courts have suggested that private recreational non-communicative photography is not fully protected by the First Amendment.[x] Others have said that photography only falls within the purview of First Amendment protection when it has both a message to be communicated and an audience to receive that message.[xi] Nonetheless, the proposed regulation is not very well taken among the American public.[xii]

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[i] General Information About the Forest Service, Wildernes.net, http://www.wilderness.net/forestservice. (last visited Oct. 20, 2014).

[ii] Bill Fink, Don't Take That Photo! The U.S. Forest Service Might Fine You $1,000, Yahoo Travel. (Sept. 26, 2014). https://www.yahoo.com/travel/dont-take-that-picture-the-u-s-forest-service-might-98484656432.html. (last visited Oct. 20, 2014).

[iii] Proposed Directive for Commercial Filming in Wilderness; Special Uses Administration. (proposed Sept. 4, 2014) (to be codified at FSH 2709.11, ch. 40, § 45.1c),https://www.federalregister.gov/articles/2014/09/04/2014-21093/proposed-directive-for-commercial-filming-in-wilderness-special-uses-administration#page-52626.

[iv] Fink, supra note 2.

[v] Forest Service clarifies proposal on news photos in wilderness, after First Amendment outcry, FoxNews.com. (Sept. 27, 2014). http://www.foxnews.com/politics/2014/09/27/forest-service-clarifies-proposal-on-news-photos-in-wilderness-after-first/. (last visited Oct. 20, 2014).

[vi] Id.

[vii] Id.

[viii] U.S. Forest Service News Release (Sept. 25, 2014) http://www.fs.fed.us/news/releases/us-forest-service-chief-i-will-ensure-first-amendment-upheld-under-agency-commercial. (last visited Oct. 20, 2014).

[ix] Id.

[x] See Larson v. Fort Wayne Police Dept. 825 F. Supp. 2d 965, 980 (N.D. Ind. 2010).

[xi] See Porat v. Lincoln Towers Community Assoc. 464 F.3d 274 (2nd Cir. 2006).

[xii] Scott Martelle, Parsing the Forest Service's (bad) proposed photo regulations, LATimes.com (Sept. 30, 2014) http://www.latimes.com/opinion/opinion-la/la-ol-forest-service-parks-photography-first-amendment-20140930-story.html. (last visited Oct. 20, 2014).

A Nuclear Power Plant May be Coming Near You Soon: Governor Beshear Attempts to Lift Thirty Year Ban in Kentucky

By: Ashley Stearns, Staff Member

In 1984, Kentucky banned the construction of nuclear power facilities in the Commonwealth until the Public Service Commission finds that the federal government has identified a means for the disposal of nuclear waste.[i] This ban was a reaction the Three Mile Island incident in Pennsylvania where a partial meltdown became the worst nuclear plant disaster in United States history.[ii] As of today, the United States’ attempts to dispose of high-level nuclear waste have not succeeded. However, there has been a recent push by political leaders in Kentucky to lift the ban in the state and begin development in nuclear energy.

Governor Steve Beshear is one of the leading advocates in lifting the ban in Kentucky. Gov. Beshear is pressing Kentucky legislators to lift the ban so conversations can begin with companies about possibilities in the future for nuclear energy in the state.[iii] During a press conference, Gov. Beshear stated, “Nuclear energy is here to stay in the world, and how we employ it and how we utilize it is going to continue to develop.”[iv] The Kentucky Governor is receiving some supporters for his push to lift the ban, including Representative David Floyd of District Fifty.[v] In support of lifting the ban, Rep. Floyd emphasized the new improvements and developments in nuclear energy in recent years and the high efficiency of producing energy in this manner. [vi]

Conversely, several political leaders and Kentucky groups continue to oppose the idea of allowing nuclear power plants to enter the state. Representative Tom Riner stated that Beshear’s plan to lift the ban is “a huge accident waiting to happen.” [vii] Rep. Riner pointed to disasters such as the earthquake and tsunami in Japan, suggesting natural disasters, mechanical and human failure, and even terrorism make the risk too great. [viii] Furthermore, advocacy groups such as the Kentucky Resources Council strongly oppose Gov. Beshear’s plan for both environmental and safety reasons.[ix]

Though political leaders continue to debate the issue, the risks associated with nuclear energy outweigh the benefits for Kentucky. Since the federal government has not yet found a method to dispose of nuclear waste, Gov. Beshear and his supporters would allow nuclear plants in Kentucky as long as a waste plan is in place in compliance with federal law, such as securing the waste at the power plants.[x] The method of waste-storage presents several homeland security concerns and can pose human and ecological risks for centuries and beyond.[xi] Moreover, the United States has already seen the disasters that nuclear energy may bring. The Three Mile Island accident was attributed to equipment malfunction, design-related problems, and human error, which led to a partial meltdown and releases of radioactivity. [xii] Such issues and unsolved problems with nuclear energy make it clear that this is not something needed in Kentucky and the ban on the construction of power plants in the Commonwealth should remain.

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[i] Ky. Rev. Stat. Ann. § 278.605 (West 2010).

[ii] Lawrence Smith, Gov. Beshear Supports Lifting Ban on Nuclear Power Plants in KY, WDRB (Aug. 28, 2014, 3:13 PM), http://www.wdrb.com/story/26396259/gov-beshear-supports-lifting-ban-on-nuclear-power-plants-in-ky.

[iii] Erik A. Carlson, Beshear Still Pushing for End to State Ban on Nuclear Energy, BussinessLexington (Sept. 26, 2014),  http://bizlex.com/2014/09/beshear-still-pushing-for-end-to-state-ban-on-nuclear-energy/.

[iv] Id.

[v] Smith, supra note ii.

[vi] Id.

[vii] Id.

[viii] Id.

[ix] James Bruggers, Kentucky Might End Nuclear Plant Ban, West Kentucky Journal (Feb. 25, 2008), http://www.westkyjournal.com/news.php?viewStory=287.

[x] Id.

[xi] Tom FitzGerald, KY Bill to Lift Nuclear Power Plant Construction Ban Opposed, OpenNewsNet (Mar. 6, 2008) http://opennewsnet.blogspot.com/2008/03/bill-to-lift-nuclear-power-plant.html.

[xii] Backgrounder on the Three Mile Island Accident, United States Nuclear Regulatory Commission, http://www.nrc.gov/reading-rm/doc-collections/fact-sheets/3mile-isle.html (last updated Apr. 25, 2014).