EXPLORE ACT Returns Filming in National Parks and Expands Access to Public Lands

S. House of Representatives that will provide for a whole host of changes on public lands, including expanding recreation opportunities like biking and rock climbing, addressing access barriers for veterans and people with disabilities, and streamlining the permitting process for small businesses who work within public lands. Most notably, from our perspective, it will improve the rules and provide some much-needed clarity about the legality of shooting videos in national parks and on other public lands. I'm Jason Epperson. This is the America's National Parks Podcast, and it's time for the National Park News.

Welcome back, everybody. Normally, this time of the month, we do our full roundup of national park news stories, but we're going to push that off a week, and instead we're going to do a special report on a bill that just passed the U.S. House of Representatives with broad bipartisan support. It's called the Expanding Public Lands Outdoor Recreation Experiences Act, or the EXPLORE Act, you know, because all bill titles must be acronyms for something. It was introduced by Arkansas Republican Bruce Westerman and Arizona Democrat Raul Grijalva, who are respectively the chair and the ranking member of the House Committee on Natural Resources.

It has 51 co-sponsors, 27 Democrats and 24 Republicans, and passed the House Tuesday on a voice vote. It's not law yet, it still needs to pass the Senate and be signed by the President, but with so much bipartisan support, odds are pretty good. this bill will make its way to the end of the sausage machine. It also complements the Senate's America's Outdoors Recreation Act proposed by Senator Joe Manchin, which we reported on last fall. That bill has been years in the making and has yet to leave committee.

There's a whole lot to get to in this bill that affects public land visitation. But let's start with the filming rules, a subject that's been hotly debated on YouTube and across social media, since the National Park Service specifically called out social platforms in its official rules that governed what it calls commercial filmmaking. At the current moment, it is illegal to film, which is also defined as shooting video, in units of the National Park Service for commercial purposes without a permit. The rule says, quote, commercial filming means 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. Examples include, but are not limited to, feature film, videography, and documentaries.

The National Park Service goes on to say, quote, federal law requires a permit for all commercial filming, no matter the size of the crew or the type of the equipment. This includes individuals or small groups that don't use much equipment but generate revenue by posting footage on websites such as YouTube and TikTok. This all came to a head back in 2021, when popular YouTubers, Kara and Nate, were fined for filming in parks after the fact when the Park Service got a hold of some video of theirs with drone footage in it. It's illegal to fly drones from National Parks, but Kara and Nate said the footage wasn't theirs. Regardless of the commercial filming rules, flying drones from National Parks is illegal.

I say from, because the National Park Service cannot regulate the skies. That's the FAA's purview. But the law is that you cannot pilot a drone from National Park property whether you're doing it for commercial reasons or not. Kara and Nate faced a fine for commercial filming, though, not for flying a drone, which stems from a law that requires the federal government to charge fees for filming on public lands for the benefit of the taxpayers. Obviously, nobody wants Steven Spielberg setting up shop in the Grand Canyon for a Hollywood movie without going through the permit process and paying the people of the nation for the inconvenience, if it's even deemed appropriate at all.

But the law was written pre-YouTube, pre-smart phones, pre-most digital cameras really, and now anyone with a cell phone can make content for profit. And it can be argued that simply the act of posting to YouTube or TikTok is a profitable endeavor for YouTube and TikTok, whether you make any money off it or not. They're still running ads against it. Now, the National Park Service knew this law was a bit questionable. on the freedom of speech and expression front.

It makes little provisions for news reporting and the whole idea of regulating speech and expression based on whether you sell that expression sounds pretty unconstitutional. The I Have a Dream speech is copyrighted and the King family makes money off of that speech. It would probably be better to make rules that govern all filmmaking and photography, that protect the national parks and the visitor experience whether that artist or reporter makes any profit off of it or not. And remember, national park sites include places like the National Mall, where protests often happen, and the grounds of the White House. There are conflicts all of the time that happen on public lands that reporters, including citizen journalists, report on.

The National Park Service even uses this citizen journalism in order to enforce other laws. For instance, if a person walks up to a bison at Yellowstone and I film it and put it on social media, the National Park Service is likely to use that video to find that person and use it in evidence against them. But I didn't have a permit for that video, and maybe I'd get a few dollars off of YouTube for it. So I'm breaking the law. But the National Park Service has always known this law was dicey and has avoided any real litigation over it.

in order to avoid an unfavorable ruling. When it cites someone with the law, it has often settled with them or given them a warning as long as they take the video down. It's frankly a law that they use to find people that do things that aren't technically illegal. They didn't catch Kara and Nate flying a drone from the park, which they could have cited them for at that time. But they did post a commercial video, so that's the citation.

There are places where things like base jumping aren't illegal, but people get cited for shooting commercial video from their GoPro footage. The laws apply differently all over the Park Service, and we've talked to folks who were allowed to film without a permit. Of course, that doesn't really give them much recourse without that legal permission slip. And we've talked to folks who were told that they had to stop filming a time-lapse of the stars. It really is all over the place.

Prior to Kara and Nate in 2019, filmmaker Gordy Price was cited for shooting a small film on Park Service lands, which I think a lot of us would like to see somebody like that having to go through the permit process, considering you're bringing in actors and equipment. But he sued the government, citing his freedom of expression, something the National Park Service had sort of been avoiding. He won his case, which essentially proved the federal government's commercial filming law and lots of other state and local laws were unconstitutional. The judge said, essentially, that making laws related to the content of free speech is unconstitutional, meaning that speech for money is not by itself a reason someone should have to pay a fee and get a permit. The federal government is free to set rules about equipment and staff and resource use, but saying that simply because the intent of the content was for profit was not a good enough reason for restricting free speech for this judge.

So when that ruling was handed down in January of 2021, the National Park Service changed its rules to allow anyone filming as long as they had no more equipment than what they could carry at all times and no more than a single small tripod to set on the ground to film all they want. But at the same time, they began the appeal process, and in 2022, in a two-to-one decision, the U.S. Court of Appeals' D.C. Circuit reversed that ruling. That put creators in a situation where, before standing in a national park, using a cell phone to record commentary on our national parks that will air on an advertisement-supported YouTube channel, an individual must obtain a permit and pay a fee.

Before filming a protest on the National Mall, tourists must obtain a permit and pay a fee if they have any inkling that they might later make money from that footage on social media. And when the filming is spontaneous, these individuals would be criminally liable and face up to six months in prison, even though they could not possibly have obtained a permit ahead of time. And if that all sounds like a dramatic interpretation of the ruling, know that those are the exact words of the third judge in his scaling dissent. Worse, the ruling went further to define the mere recording of video as not speech at all, saying that this is just a non-communicative step in the process. The implications of the U.S.

Appellate Court setting the precedent that shooting video on a cell phone is not free speech are obvious. This ruling could be used to establish laws that make filming a police officer illegal, for instance. And the process isn't as simple as going to a visitor center and paying a fee, either. It takes several weeks and you can get denied for lots of reasons. And of course, it costs money, for most, more money than they'd ever make on a YouTube video.

The National Park Service then implemented this new guidance that we're all under now and specifically made it clear that social media content counted as commercial filmmaking. So what does this new law, the EXPLORE Act, do for filmmaking on public lands? It establishes a new set of rules for all land under the National Park Service or other Department of Interior and U.S. Forest Service lands. We're talking about 27% of the entire country.

And it essentially combines those rules with the rules set out for photographers. See, photographers were always able to make money off of photos they shot in national parks, as long as they didn't use models or props. The EXPLORE Act establishes that the federal land agencies shall not require an authorization or a permit or assess a fee for filming or still photography activity that involves fewer than six individuals or is merely incidental to, or documenting an activity or event that is allowed or authorized at the system unit. So basically, anything that's already happening, if you're taking video of that, you can do it. And that's regardless of the number of individuals participating in the allowed or authorized activity, whether anyone is making any money off of it or not.

If you have seven or eight people involved, the government will establish an online authorization application that will have no fee and instant approval. And if you have more than eight people, you will have to get a permit. Kind of weird that this whole system will be set up for just filming with seven to eight people, but that's what's in the bill. You will need a permit for any filming or photography that impedes or intrudes on the experiences of other visitors and anything that disturbs or negatively impacts a natural or cultural resource, an environmental or scenic value, or the use of facilities. You'll only be able to film in areas where the public is allowed, and you will not be able to kick people out of your shot.

You'll need a permit to use a set or staging equipment, but you will not need one for handheld equipment such as a tripod or a handheld light. You have to comply with all the other visitor use policies and local laws. So basically, if this law makes it through the Senate, people traveling on vacation, walking on a hike with a GoPro, will be allowed to do so. Newsmakers like myself will be able to report on stories in person, in parks, and on other public lands. I'll give you a great example.

When the big river flood issue happened at Yellowstone, knocking out lots of access and destroying that north entrance road, for many weeks, the park junkie YouTube channel reported from the ground on what was happening. He shot video of the damage from inside the park and kept the public informed on the situation at hand. That should be legal to do, whether he's making money from YouTube on it or not. It's news reporting. What shouldn't be legal is disturbing the public's enjoyment of the land or destroying any property.

And I know, as I always do when I report on this, I'll hear from commenters that they're tired of social media influencers ruining their experience by taking over a scenic overlook, to do a TikTok dance, or by walking up to wildlife or going off trail. None of that would be permitted under this law. You're not allowed to do that stuff, whether you're making money off of something or not. And as it is, people who aren't making money are still doing silly things to get attention. So that really is kind of a different issue.

So that's the filmmaker provisions in this law. We're going to take a look at the rest of the bill in a moment. But first, this episode is sponsored by the folks at RVShare. With over 4 million nights booked and thousands of five-star reviews from happy campers, RVShare is the largest RV rental website in the U.S. A wide-ranging inventory from affordable pop-up campers to luxury motorhomes means RVShare has a rental that is perfect for you.

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com to find out more and use promo code PARKS30 for $30 off of a $500 or more booking. So, the filming and photography element is obviously something important to me and to us here at RVMiles and the America's National Parks podcast. But there is a lot more in this bill that will affect many different aspects of public lands, access and recreation. The outdoor recreation economy has exploded in recent years, providing for $1.1 trillion in economic output. That's right near the impact that the food industry has.

The Explorer Act will establish no fewer than 10 long-distance bike trails across the country that will be defined with signage and the like, and could even become official national trails under the National Park Service, or perhaps these will be bike routes that already are a part of the national trail system. For rock climbers, it will establish the use and maintenance of fixed anchors, is allowed on federally protected land and require that agencies build policies for their use. The idea here is to greatly expand access to rock climbing in places where it might not be allowed due to anchors being considered a destructive element. It will establish official target shooting ranges in Bureau of Land Management and U.S. Forest Service Districts.

Some of these places have areas where people go to shoot that are entirely unorganized. It will require all of the agencies develop motor vehicle use maps. Some of them already have them, but they need to show where you can drive, where you can off-road, where you can ride a snowmobile, etc. The bill will allow the different federal land agencies to provide financial and technical assistance to gateway communities. Gateway communities are the towns just outside of a popular land destination like a national park.

Think of Springdale, Utah, just outside of Zion. This will allow the federal government to work a little closer with those towns to address issues like housing shortages, roadways, and utility demands. It will dramatically expand broadband internet access or cell service access in national parks and other federal campgrounds, lodges, visitor centers, and high traffic areas. This is something that will be controversial to a lot of folks. Nature for many is a place to get away, but the reality is that, with the popularity of places like national parks these days, the need for directions, access to reservations, the ability to pay online, and emergency services when there's a problem probably outweighs some of those concerns, particularly when it comes to employees and their ability to perform their jobs.

The more information is at a visitor's fingertips, the less demand on the rangers, etc. The bill will require each district of the different federal land agencies to build at least three accessible trails and make minor improvements to existing trails to improve the accessibility for people with disabilities. It will establish a new focus on providing veterans with opportunities for outdoor recreation, including building a bridge from service duty to jobs within the federal outdoor recreation sector. It will extend and reauthorize the Every Kid Outdoors Act, which allows for free federal lands passes for fourth-graders. The bill greatly simplifies the hurdles that concessionaires have to jump when it comes to getting commercial use authorization permits, and it reduces the fees a bit.

So we're talking about things like tours, rafting guides, canoe services, and the like. Picnic areas would no longer be allowed to assess a fee for groups under 40 people. And finally, the EXPLORE Act directs the agencies to look at seasonal closures and really study the interest and feasibility of expanding access. So, for instance, campgrounds that are only open April 15th to October 15th, as is pretty common here in the Midwest, would it be wise to open some a little sooner and close them a little bit later, or make some more year-round campgrounds if the infrastructure can handle it? A lot of these parks are closed because they have water systems that can freeze up.

The bill has the approval of a whole host of public associations, including the American Alpine Club, the American Hiking Society, the American Horse Council, the American Mountain Guides Association, the American Sports Fishing Association, the International Mountain Bicycling Association, the RV Industry Association, the REI Co-op, and the National Wildlife Foundation, who said that nearly 600 million Americans visited national public lands last year to pursue hiking, biking, camping, hunting, fishing, and a broad array of outdoor activities. Too often they were met with overcrowding, confusing fees, or dilapidated structures. The bipartisan EXPLORE Act will facilitate long overdue improvements to infrastructure, expand access, and simplify fees so that people can better enjoy the countless benefits that our public lands have to offer. As we expand opportunities for recreation, however, we must always make sure that it is done in a responsible manner so that negative impacts to wildlife are avoided or minimized. I'd love to know what you think of the EXPLORE Act in the comments.

Frankly, I've seen next to zero coverage of the passage of this bill in the media, so I think it's important that we weigh in and let your senators know whether you support this bill or don't, as it makes the last few steps on the journey through the legislative process. That's it for this episode of the National Parks News. Thanks so much for being here, everybody. See you next time.