December 2022 - Parks & Recreation - 32

LAW REVIEW
trict court had correctly concluded
this
revenue-raising
justification
by the NPS " runs afoul of the
well-settled rule that the Government
may not impose a charge
for the enjoyment of a right granted
by the
federal constitution. "
As a result, Price had argued the
NPS location fee was an impermissible
charge for engaging in
constitutionally-protected activity.
With regard to filmmaking, the
specific issue was, therefore,
" whether a small film crew with
a small amount of equipment
implicates those interests " for
the NPS in parkland protection.
The federal appeals court, however,
found the NPS location fee
was analogous to a " reasonable extraction
of a rent by the owner of
a property. " In so doing, the court
noted " reasonableness, for purposes
of forum analysis, includes a commercial
component. "
Moreover,
for commercial use of parkland,
the court recognized " reasonable
regulations may include profitconscious
fees for access for expressive
conduct, in a manner similar to
fees that would be charged if the forum
was owned by a private party. "
Further, the court noted the
NPS had not " singled out speech
to charge a fee. " Instead, the court
found the NPS " charges a fee for
all types of commercial activity
on land controlled by the NPS. "
As cited by the court, this NPS fee
requirement also was " consistent
with
the Congress's declaration
that it is the policy of the United
States that the United States receive
fair market value of the use of the
public lands and their resources. "
43 U.S.C. ยง 1701(a)(9).
As characterized by the federal appeals
court, the NPS fee requirement
" merely puts a commercial filmmaker
on the same footing as any other
person who uses [parkland] for a
commercial purpose, such as a concessionaire. "
Accordingly, since the
NPS could reasonably charge a concessionaire
a rental fee, the appeals
court held the NPS also could charge
the commercial filmmaker a usage
fee. In so doing, however, the federal
appeals court did not " suggest that
any fee would be constitutionally
permissible or that any as applied
challenge to the fee charged by the
NPS would fail. " Rather, the federal
appeals court simply rejected the district
court's " categorical conclusion "
that this particular NPS permitting
regime was unjustified because there
was no reasonable basis for the NPS
to raise revenue through a fee requirement.
Permit
for Park Protection
On appeal, Price also had argued
the NPS justification for the permit
requirement was unconstitutional
because the distinction between commercial
and noncommercial filmmaking
bore no relationship to the
purported significant governmental
interest in protecting parkland.
In general, the federal appeals
court acknowledged: " Protecting
and properly managing [parklands]
are undoubtedly significant governmental
interests. " With regard to
filmmaking, the specific issue was,
therefore, " whether a small film
crew with a small amount of equipment
implicates those interests " for
the NPS in parkland protection.
The federal appeals court conceded
that filmmaking " crews of
32 Parks & Recreation | DECEMBER 2 0 22 | PARK S ANDRECRE AT ION . OR G
three people or fewer have less potential
for causing resource damage
or interfering with the public's use
or enjoyment of the site. " The federal
appeals court, however, found
the NPS had to necessarily exercise
judgment and discretion implementing
federal laws and regulations to
" manage and protect some of the
nation's most treasured and valuable
natural and cultural resources "
under " many circumstances " :
[I]t is important for land managers
to know the specific time and location
of certain activities so permit
terms and conditions may be used to
mitigate the possibility of resource
damage or impact to visitors. For example,
park units may have limited
space, fragile resources, or may experience
high visitation during a specific
time period. Refuges may need
to protect nesting areas of threatened
or endangered species during certain
times of the year.
Accordingly, the federal appeals
court found " no basis for second
guessing the factual underpinnings
of this rationale for requiring filmmakers
to get a permit, " in order to
facilitate NPS park management
and protection.
On appeal, Price also had questioned
" the disparate treatment of
a small commercial production, for
which a permit is required, and a
larger non-commercial production,
which is exempt from the permit
requirement. " According to the
federal appeals court, an otherwise
valid content-neutral
regulation
" must be found to be constitutional
so long as it does not favor one side
of an issue and its rationale is not
undermined by its exemptions. " In
this particular instance, the appeals
court found " no serious argument
that the permit requirement favors

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
https://www.nxtbookmedia.com