December 2022 - Parks & Recreation - 29

were " content-based regulations of
speech, " which could not withstand
the required heightened intermediate
or strict judicial scrutiny for speech
restrictions in " traditional public
forums " administered by the NPS.
While Price himself had not filmed on
parkland in a public forum, the district
court determined this NPS permitand-fee
regime was unconstitutional
on its face because the regulations
" [burden] substantially more speech
than is necessary to achieve the
government's substantial interests. "
The NPS appealed.
In the opinion of the federal
appeals court, the federal district
decision had failed to apply the
required
" proportionality
aspect
of the overbreadth doctrine. " In
particular, the appeals court held
the federal district court had failed
to consider the relative " scope of
the law's plainly legitimate applications
within " the vast areas of
NPS land that are not public forums. "
Instead,
as characterized
by the appeals court, the federal
district court had simply concluded
the entire NPS permit-and-fee requirement
was " facially unconstitutional "
and issued " a nationwide
injunction barring enforcement of
the permit-and-fee requirements. "
NPS Permit-and-Fee
Regulations
As cited by the federal appeals
court, under the applicable
federal
statute, the U.S. Secretary of
the Interior must " require a permit
and establish a reasonable fee for
commercial filming activities " on
land administered by the NPS. 54
U.S.C. § 100905(a)(1). Further, the
court noted the implementing regulations
for this statutory mandate
provided " all commercial filming
requires a permit, " and that the
NPS " will require a reasonable location
fee assessed in accordance
with a fee schedule published in
the Federal Register. " 43 C.F.R. §§
5.2(a), 5.8(a)(1),(3).
As described by the federal appeals
court, the NPS implementing
regulations
defined " commercial
filming " as " the film, electronic,
magnetic, digital or other recording
of a moving image by a person,
business or other entity for a
market audience with the intent
of generating income. " Further, as
cited by the court, the regulations
specify that a permit will be denied
if, among other reasons, it is likely
an activity would:
(a) Cause resource damage; (b)
unreasonably disrupt or conflict
with the public's use and enjoyment
of the site; (c) pose health
or safety risks to the public; or
(d) result in unacceptable impacts
or impairment to National Park
Service resources or values. 43
C.F.R. § 5.5.
According to the court, federal
law also required the " location fee "
to be calculated to " provide a fair
return to the United States " based
upon " the number of days of the
filming activity, the size of the crew,
the amount and type of equipment
present, and any other factors the
Secretary considers necessary. " 54
U.S.C. § 100905(a)(1)-(2).
In addition to the location fee,
the appeals court noted this federal
law also would require the Secretary
of the Interior to recover " any
costs incurred as a result of filming
activities. " A person convicted of
engaging in commercial filming
without obtaining a permit or paying
a fee faced a fine and up to six
months in prison. 18 U.S.C. § 1865;
On appeal, the NPS had argued
the permit-and-fee regulations
at issue were " consistent with
others that apply to various
types of commercial activity
conducted on land administered
by the NPS. "
Commercial Activity
Regulation
On appeal, the NPS had argued
the permit-and-fee regulations at
issue were " consistent with others
that apply to various types of commercial
activity conducted on land
administered by the NPS " :
For instance, it is generally prohibited
to " engage in or solicit any
business in park areas, except in
accordance with the provisions of
a permit, contract, or other written
agreement with the United States. "
36 C.F.R. § 5.3. Similarly, a concessionaire
must contract with the
Government and pay a " franchise
fee. " 54 U.S.C. § 101913. Finally,
a person who wishes to provide services
to visitors on NPS land must
obtain authorization and pay " a
reasonable fee for issuance of a
commercial use authorization. " 54
U.S.C. § 101925(b)(2)(A).
In the view of the appeals court,
all of these NPS commercial activity
regulations were " consistent
PARK S ANDRECRE AT ION . OR G | DECEMBER 2 0 22 | Parks & Recreation
29
36 C.F.R. § 1.3, 5.5(a).
In order to comply with the federal
district court's decision, the NPS
had indicated its intent to " update
regulations addressing filming activities. "
SEE: NPS, Filming and
Still Photography Permits, tinyurl.
com/bdfddzyj (Aug. 26, 2021).
https://www.tinyurl.com/bdfddzyj https://www.tinyurl.com/bdfddzyj

December 2022 - Parks & Recreation

Table of Contents for the Digital Edition of December 2022 - Parks & Recreation

December 2022 - Parks & Recreation - Intro
December 2022 - Parks & Recreation - Cover1
December 2022 - Parks & Recreation - Cover2
December 2022 - Parks & Recreation - 1
December 2022 - Parks & Recreation - 2
December 2022 - Parks & Recreation - 3
December 2022 - Parks & Recreation - 4
December 2022 - Parks & Recreation - 5
December 2022 - Parks & Recreation - 6
December 2022 - Parks & Recreation - 7
December 2022 - Parks & Recreation - 8
December 2022 - Parks & Recreation - 9
December 2022 - Parks & Recreation - 10
December 2022 - Parks & Recreation - 11
December 2022 - Parks & Recreation - 12
December 2022 - Parks & Recreation - 13
December 2022 - Parks & Recreation - 14
December 2022 - Parks & Recreation - 15
December 2022 - Parks & Recreation - 16
December 2022 - Parks & Recreation - 17
December 2022 - Parks & Recreation - 18
December 2022 - Parks & Recreation - 19
December 2022 - Parks & Recreation - 20
December 2022 - Parks & Recreation - 21
December 2022 - Parks & Recreation - 22
December 2022 - Parks & Recreation - 23
December 2022 - Parks & Recreation - 24
December 2022 - Parks & Recreation - 25
December 2022 - Parks & Recreation - 26
December 2022 - Parks & Recreation - 27
December 2022 - Parks & Recreation - 28
December 2022 - Parks & Recreation - 29
December 2022 - Parks & Recreation - 30
December 2022 - Parks & Recreation - 31
December 2022 - Parks & Recreation - 32
December 2022 - Parks & Recreation - 33
December 2022 - Parks & Recreation - 34
December 2022 - Parks & Recreation - 35
December 2022 - Parks & Recreation - 36
December 2022 - Parks & Recreation - 37
December 2022 - Parks & Recreation - 38
December 2022 - Parks & Recreation - 39
December 2022 - Parks & Recreation - 40
December 2022 - Parks & Recreation - 41
December 2022 - Parks & Recreation - 42
December 2022 - Parks & Recreation - 43
December 2022 - Parks & Recreation - 44
December 2022 - Parks & Recreation - 45
December 2022 - Parks & Recreation - 46
December 2022 - Parks & Recreation - 47
December 2022 - Parks & Recreation - 48
December 2022 - Parks & Recreation - 49
December 2022 - Parks & Recreation - 50
December 2022 - Parks & Recreation - 51
December 2022 - Parks & Recreation - 52
December 2022 - Parks & Recreation - 53
December 2022 - Parks & Recreation - 54
December 2022 - Parks & Recreation - 55
December 2022 - Parks & Recreation - 56
December 2022 - Parks & Recreation - Cover3
December 2022 - Parks & Recreation - Cover4
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/december-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/november-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/october-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/september-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/august-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/july-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/june-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/may-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/april-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/march-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/february-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/january-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/december-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/november-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/october-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/september-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/august-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/july-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/june-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/may-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/april-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/march-2021
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