We weren’t planning on covering the EXPLORE Act in the 12 Days of Legal Updates series, because it wasn’t clear if it would survive the lame duck session of Congress. This is a substantial piece of legislation that passed the House of Representatives unanimously months ago. Like many pieces of legislation it faced an uncertain future in the Senate.
However, earlier this afternoon, it passed the Senate by unanimous consent, and it is now headed towards Biden’s desk where it will likely be signed.
We never took an official position on this legislation, because it is a mixed bag. But since it does address many issues that are important to our work. There are five features of this legislation that we would like to share with our members, since it will define aspects of our work moving forward.
Since it’s always best to review text of legislation yourself, here is the link to the full text: https://www.congress.gov/bill/118th-congress/house-bill/6492/text
Commercial Film Permit Reform
This legislation includes major reforms of the commercial film permitting program that we have been challenging in court. While we still need to consult with our attorneys about the future of this litigation, the major reforms in this legislation address many of the problems we raised in our case. Film permits are no longer required if you’re in a group of less than six people. You need to ensure you don’t impede the on the experiences of others or negatively impact cultural or natural resources. You need to be in places where the general public is allowed. You can’t use substantial amounts of equipment. You also can’t violate provisions of the Wilderness Act through your filming.
There are more provisions that are worth reviewing, but the ones listed above are the ones that would apply to most general film and photography activities. Where the previous film permitting program essentially criminalized filming and posting content on social media platform for commercial purposes, this act limits permit requirements to filming activity of those who are participating in what we would refer to as industrial scale filming activities typical of a major Hollywood production.
We will be monitoring the implementation of this law closely with special attention to how it impacts First Amendment rights.
Mapping Requirements
The bill requires land agencies to make official transportation maps within a certain time period. The language to create this requirement was obviously written before Chevron Deference was struck down, because it doesn’t spell out what it means for agencies to make these maps available in a situation where the status of many transportation routes are subject to numerous ongoing court proceedings, legal settlements, and planning processes. With the reversal of Chevron Deference calling into question many of the administrative and regulatory policies that inform how transportation networks should be identified and managed, this mapping requirement feels like Congress trying to put a bandaid on a problem instead of tackling the underlying root problems that make creating official maps so difficult.
As an organization that works substantially on travel and transportation planning, the nicest thing we can say about this provision is that we have a lot of questions. Many of these will likely only be fully answered through litigation, which is unfortunate that a moment to create greater clarity will likely only lead to more confusion.
This mapping requirement is also likely to disrupt the status quo for snowmobile access in many national forests.
One Redeeming Sentence
The legislation includes this sentence, “The Secretaries shall seek to create additional opportunities, as appropriate, and in accordance with existing law, for motorized and nonmotorized access and opportunities on Federal recreational lands and waters administered by the Chief of the Forest Service or the Director of the Bureau of Land Management.”
We ask federal agencies to expand, increase, and enhance opportunities for motorized access in every comment we submit. 99% of the time, our requests are summarily ignored and rejected as agencies use their planning process to systematically close and reduce access to public lands. We now have one sentence of statute that requires them to “create additional opportunities” for motorized recreation. This is another provision that was clearly written before Chevron Deference was overturned, because it will require substantial amounts of agency discretion to determine how the three words “create additional opportunities” should be incorporated into policy. BRC will have to commit time and resources to make sure that this provision is used to the benefit of motorized recreation users, and we intend to actively ensure that this happens.
Expanded Programs for Disability Access
This bill creates several new programs and policies for enhancing disability access on public lands. We still think the strong protections of the Outdoor Americans with Disabilities Act are needed, but the recognition of the need to change land management policy to improve the experience of disabled Americans on public land is a welcome development. These new programs contemplate participation of organizations like BRC and our allies that provide outdoor recreation experiences to disabled Americans and veterans in the creation of new programs and policies, and we plan to rise to the challenge. These provisions are a good first step, but there is a lot of important work to do – especially when it comes to recognizing the value of motorized recreation as a form of disability access – which these provisions barely address.
Bolting Allowed for Rock Climbing in Wilderness Areas
We believe the radical wilderness movement that has sought the most restrictive policies for human access to public lands is an outcome cyclical trend that is weakening and being replaced by different centers of gravity within our public land system. The shift to prioritize recreation on public land is a generational shift that will likely replace the dominant position the wilderness movement has held in public land policy. Wilderness groups were adamantly opposed to the provision of the EXPLORE Act that allowed fixing bolts to rocks for rock climbing in wilderness areas because this would be the first nationwide amendment to the Wilderness Act and a carveout for a recreation interest. We hope our friends in the wilderness movement are getting ready for more policy changes like this as the ascendant recreation interest starts acting relative to its size in economic and political strength.
One size fits all management inevitably leads to mismanagement, and we expect that the world will keep turning even if people are allowed to safely climb rocks in wilderness areas. It will be good for the public to see that modifying the wilderness act to allow active management isn’t going to lead to the end of the world. The wilderness groups also opposed the film permit reforms, special use permit reforms, and allowing more cell phone towers to be built in the backcountry.
There is a lot more going on in this bill, and we expect to release a podcast episode about this soon where we can do an appropriate deep dive into how this legislation will change things for outdoor recreation on public lands.
Stay tuned.
