12 Days of Legal Updates – Day 2 – 2024
Nathan Riddle loved sharing the stories of America’s public lands. As a BlueRibbon Coalition (BRC) member, Nathan’s videos highlighted the importance of motorized access to remote areas, often capturing breathtaking scenery and heartfelt interviews. With nothing more than a basic camera and a passion for storytelling, he showcased the beauty of these lands and the people who relied on them for recreation.
His work resonated with audiences online, generating ad revenue that helped fund his efforts. But one day, Nathan received a message from the Bureau of Land Management (BLM): his videos were classified as “commercial filming,” and he needed a permit and hefty fees to continue. Nathan was stunned. How could sharing stories on public lands combined with his mission to educate and inspire require such hurdles?
Nathan wasn’t alone in his frustration. Kyle Brothersen, another BRC member and creator behind the popular YouTube channel Dirt Bike Channel, also found himself in a bind. Kyle’s videos, featuring thrilling rides on public trails, had garnered a dedicated audience. But as a small creator, the costs of navigating the permitting system were daunting. “All I’m trying to do,” Kyle explained, “is share the joy of riding and show people what’s out there. These lands are for everyone.”
The issue wasn’t the creation of content itself—it was the rules governing who needed a permit and who didn’t. News organizations, for example, were exempt, regardless of their resources or the scale of their operations. Yet individuals like Nathan and Kyle, often filming with nothing more than smartphones, faced potential fines or even jail time if they failed to comply.
For us at BlueRibbon Coalition this wasn’t just a bureaucratic nuisance; it was a constitutional issue. Founded in 1987, we spent decades fighting to keep public lands open for recreation. When our members’ voices were threatened by permitting rules, we decided to act.
In November 2023, we filed a lawsuit against the federal government, arguing that the permitting and fee system violated the First Amendment. We claimed the rules unfairly discriminated against smaller creators and grassroots advocates by favoring traditional media.
The legal battle wasn’t without precedent. Similar rules had been challenged in the past, but courts had largely upheld them, citing the government’s need to protect natural resources and generate revenue. However, our case highlighted a new wrinkle: the permitting system’s reliance on the speaker’s identity. Traditional news media were exempt from fees, but others were required to comply, even if their content served similar public interests.
We argued that the rules created an uneven playing field, stifling smaller voices while protecting larger, institutional ones. We pointed out that many of our members weren’t professional filmmakers—they were ordinary people sharing their passion for the outdoors.
In June 2024, the federal court in Idaho issued a preliminary injunction in our favor. While the ruling didn’t strike down the permitting rules entirely, it granted temporary relief to BRC and our members, allowing us to film without permits or fees while the case continued.
>>Read the Injunction Here<<
The court’s decision hinged on several key factors. It acknowledged that we raised serious questions about whether the permitting rules discriminated based on the speaker’s identity. By exempting traditional news organizations, the rules appeared to favor one type of speech over another. The court also noted the lack of clarity about whether the rules were narrowly tailored to meet the government’s goals of protecting resources and generating revenue.
While the injunction provided temporary relief, the fight isn’t over.
An injunction doesn’t mean that there has been a final decision in the case, but the injunction will be in effect until the case is decided or the law is changed. Because there is currently active legislation called the EXPLORE Act that would update federal film permitting statutes, the case is currently being held in abeyance. This legislation has currently passed the House of Representatives, but it has yet to receive a full vote in the Senate.
It is possible that this legislation could be included in the few remaining pieces of legislation that could be passed in the lame duck session of Congress, but that likelihood dwindles every day. If the EXPLORE Act is not passed in this Congress we will update you on its prospects in the next Congress. It will also remain to be seen what position the incoming Administration will take with this case.
While there is still work to do, we are committed to keep fighting hard to preserve our constitutional rights.
