Case 0:24-cv-00266 Document 1 Filed 12/18/24 Page 1 of 56

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

ALEXANDER RIENZIE, CONNOR

BURKESMITH, and THE NATIONAL
PRESS PHOTOGRAPHERS
ASSOCIATION,

Plaintiffs,

v. Civil Action No.: 24-cv-00266

DEBRA A. HAALAND, in her official COMPLAINT FOR CIVIL RIGHTS

capacity as Secretary of the Interior; VIOLATIONS
CHARLES F. SAMS III, in his official
JURY TRIAL DEMANDED
capacity as Director of the National
Park Service; MERRICK GARLAND,
in his official capacity as the Attorney
General; PALMER “CHIP” JENKINS,
in his official capacity as
superintendent of Grand Teton
National Park; and AMY
ALLABASTRO, in her official capacity
as Revenue and Fee Business Manager
and Special Park Use Coordinator of
Grand Teton National Park,

Defendants.

ROBERT CORN-REVERE* MARK V. JACKOWSKI (W.S.B. 7-6127)

FOUNDATION FOR INDIVIDUAL RIGHTS PO Box 1982 Wilson, WY 83014
AND EXPRESSION Tel: (202) 486-3410
700 Pennsylvania Ave. SE, Ste. 340 mvjackowski@gmail.com
Washington, DC 20003
Tel: (215) 717-3473 MICKEY H. OSTERREICHER*
bob.corn-revere@thefire.org GENERAL COUNSEL
NATIONAL PRESS PHOTOGRAPHERS
DANIEL M. ORTNER* ASSOCIATION
COLIN MCDONELL* FINNERTY OSTERREICHER &
FOUNDATION FOR INDIVIDUAL RIGHTS ABDULLA
AND EXPRESSION 70 Niagara Street

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510 Walnut St., Ste. 900 Buffalo, NY 14202

Philadelphia, PA 19106 Tel: (716) 983-7800
Tel: (215) 717-3473 lawyer@nppa.org
daniel.ortner@thefire.org
colin.mcdonell@thefire.org Alicia Wagner Calzada*
DEPUTY GENERAL COUNSEL
*Pro Hac Vice Motions Forthcoming NATIONAL PRESS PHOTOGRAPHERS
ASSOCIATION
ALICIA WAGNER CALZADA, PLLC
926 Chulie Dr. Suite 16
San Antonio, TX 78216
Tel: (210) 825-1449
Alicia@calzadalegal.com

Counsel for Plaintiffs

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INTRODUCTION

1. Each year, tens of millions of people visit America’s national parks and

record their experiences by taking videos and still photographs. Visitation Numbers,

Nat’l Park Serv., https://nps.gov/aboutus/visitation-numbers.htm (last updated Feb.

22, 2024) (325,498,646 visits in 2023). The Park Service understands that

“[p]hotography is an important part of national park history,” Picturing the Parks,

Nat’l Park Serv., https://www.nps.gov/subjects/photography/ index.htm (last updated

Oct. 15, 2019), and even encourages such activity by sponsoring an annual amateur

photo contest with cash prizes up to $10,000. Share the Experience, Nat’l Park Found.,

https://www.sharetheexperience.org (last visited Dec. 17, 2024). The U.S. Fish and

Wildlife Service also sponsors photo contests, Susan Morse, Photo Contests, U.S. Fish

& Wildlife Serv., https://www.fws.gov/story/photo-contests (last visited Dec. 17,

2024), and describes wildlife photography as “a priority public use on national wildlife

refuges.” Photography, U.S. Fish & Wildlife Serv.,

https://www.fws.gov/activity/photography (last visited Dec. 17, 2024).

2. While the government broadly encourages park visitors to take

photographs or videos in all areas generally accessible to the public, federal law treats

commercial filmmakers differently. It requires them to first obtain a permit and pay

a fee before they may press the “record” button. 54 U.S.C. § 100905(a)(1). The

distinction is not based on any potentially different impact on park use or resources

posed by commercial versus noncommercial filming; a lone individual recording video

on his cell phone for posting on an ad-supported website must get a permit and pay a

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fee, while a non-commercial film crew with heavy equipment does not. The law is

purely a revenue measure designed simply to provide “a fair return to the United

States.” Id. § 100905(a)(1).

3. Plaintiffs Alexander Rienzie and Connor Burkesmith are documentary

filmmakers and members of the National Press Photographers Association (“NPPA”)

who frequently make video recordings and take still photographs in national parks.

They are subject to the federal permit and fee requirement because they often

(although not always) have a commercial purpose when they film in national parks.

The fee and permit laws and regulations—including the cumbersome and arbitrary

permit process, the denial of permits, the costly fees, the ambiguity over when

permits are required, and the potential for criminal prosecution from running afoul

of these rules and regulations—chills Rienzie, Burkesmith, and other NPPA members

from filming in national parks when they otherwise would.

4. In August 2024, Rienzie and Burkesmith sought a permit to film a

newsworthy event—an individual’s attempt to break the record for the fastest known

time ascending and descending a mountain in Grand Teton National Park. Although

they applied for the permit weeks in advance and proposed using equipment no more

intrusive than a typical park tourist’s gear, their application was categorically denied.

The denial forced them to choose between foregoing documenting a potentially record-

breaking athletic feat and risking prosecution for violating federal law. Rienzie and

Burkesmith chose to film the event without a permit and now face an ongoing threat

of criminal prosecution. This threat has impeded their ability to use the footage they

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took during this event, interfered with their business activities, and hampered plans

to film similar events currently in the planning stages.

5. The federal permit and fee requirements are content-based prior

restraints on expressive activities that the First Amendment protects. The permitting

regulations are not narrowly tailored to serve a legitimate government purpose. And

they deprive Americans of the right to engage in these expressive activities without

due process of law. Accordingly, Plaintiffs seek to enjoin NPS’s permit and fee

requirements to protect their rights and the rights of millions of Americans.

THE PARTIES

Plaintiffs

6. Plaintiff Alexander Rienzie is a documentary filmmaker who resides in

Wyoming. Rienzie produces commercial and editorial content focused on adventure

storytelling and outdoor photography. Rienzie is a member of the National Press

Photographers Association.

7. Plaintiff Connor Burkesmith is a photographer and filmmaker who

resides in Wyoming. Burkesmith runs his own business, specializing in

photographing and filming athletes in beautiful outdoor spaces. Burkesmith is a

member of the National Press Photographers Association.

8. Plaintiff National Press Photographers Association (NPPA) is a

501(c)(6) not-for-profit organization. Since its founding in 1946, NPPA has promoted

the interests of news photographers, filmmakers, videographers, and multimedia

journalists. NPPA advocates for the rights of visual journalists and other

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photographers to earn a living from their work and for the freedom of the press

protected by the First Amendment.

Defendants

9. Defendant Debra A. Haaland, as Secretary of the Interior, heads the

U.S. Department of the Interior (“DOI” or “the Department”). DOI is charged with

managing the country’s federal lands and natural resources, including conditions on

their access and use. The Department is responsible for implementing 54 U.S.C.

§ 100905, the statute that establishes the fee and permit requirements for

commercial filming on federal lands. It is also responsible for adopting, maintaining,

and enforcing regulations implementing the statute.

10. Defendant Charles F. Sams III is Director of the National Parks Service

(“NPS”), the component of DOI responsible for care of the country’s national parks.

NPS adopted the regulations found in 36 C.F.R. § 5.5, which implement 54 U.S.C.

§ 100905.

11. Defendant Merrick Garland is the Attorney General of the United States

and heads the U.S. Department of Justice (“DOJ”), the federal agency responsible for

enforcing federal criminal law. Defendant Garland has ultimate responsibility over

decisions about whether and how to enforce federal criminal laws.

12. Defendant Palmer “Chip” Jenkins works for the NPS as Superintendent

of Grand Teton National Park (“Grand Teton”). Defendant Jenkins is responsible for

managing staff and operations at Grand Teton, including directing staff on whether

to grant or deny filmmaking permit applications.

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13. Defendant Amy Allabastro works for the NPS as Revenue and Fee

Business Manager and Special Park Use Coordinator of Grand Teton. Defendant

Allabastro oversees permitting and fee collection at the park and was responsible for

denying Rienzie and Burkesmith’s August 2024 request for a filming permit.

14. All Defendants are sued solely in their official capacity,

JURISDICTION AND VENUE

15. This action arises under the U.S. Constitution, particularly the First

and Fifth Amendments.

16. This Court has original jurisdiction over these federal claims under 28

U.S.C. §§ 1331 and 1343.

17. This Court has authority to grant the requested declaratory relief under

28 U.S.C. §§ 2201 and 2202 and Federal Rule of Civil Procedure 57 because this case

presents an actual case or controversy within the Court’s jurisdiction.

18. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1)(B) and (C)

because, in this action against officers and employees of the United States, a

substantial part of the events or omissions giving rise to these claims occurred in this

judicial district and because Plaintiffs Rienzie and Burkesmith reside in this district.

FACTUAL ALLEGATIONS

Commercial Filming Restrictions in National Parks.

19. In 2000, Congress passed Public Law 106-206 (the “Act”), which

regulates commercial filming on federal lands, including in national parks. The Act

was motivated by the filming of major studio Hollywood productions on federal lands,

but its scope is not limited to such large-scale activities.

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20. The Act tasks the Secretary of the Interior with administering

permitting and fee requirements for commercial filming in national parks. 54 U.S.C.

§ 100905.

21. The Act applies to “commercial filming activities,” a term the Act does

not define. 54 U.S.C. § 100905(a)(1).

22. Under the Act, the Secretary of the Interior “shall require a permit” for

all commercial filming activities. Id. The Secretary must “establish a process to

ensure” that the Secretary responds in a “timely manner to permit applicants.” Id.

§ 100905(f).

23. The Act also requires the Secretary to set a “reasonable fee” for

commercial filming activities. Id. § 100905(a)(1). The fee must “provide a fair return

to the United States” based on the number of days of filming activity, the size of the

film crew, and amount and type of equipment involved. Id.

24. The fee does not recover administrative costs associated with issuing

permits or supervising park activities. It is purely a revenue measure.

25. Under the Act, the Secretary cannot require a permit or assess a fee for

still photography taking place “where members of the public are generally allowed,”

unless the photography uses “models or props” not ordinarily present in the national

park. Id. § 100905(c). The Secretary may require a permit and assess a fee for still

photography if it takes place in areas where the public is not generally allowed or

where additional administrative costs are likely. Id.

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26. Filming or still photography may be prohibited if the Secretary

determines that it would likely damage resources, unreasonably disrupt the public’s

use of the area, or pose health or safety risks to the public. Id. § 100905(d).

27. Filming in violation of any of these permit or fee requirements is a

federal criminal offense subject to a fine and up to six months in prison. See 18 U.S.C.

§ 1865(a); 36 C.F.R. §§ 1.3, 5.5(a).

Implementing Regulations

28. To implement the Act, the Secretary of the Interior promulgated

regulations further detailing the permitting and fee requirements. See Commercial

Filming and Similar Projects and Still Photography Activities, 78 Fed. Reg. 52087-

02, 52087 (Aug. 22, 2013).

29. The regulations define commercial filming to encompass filming “for a

market audience with the intent of generating income.” 43 C.F.R. § 5.12. The

regulations include “television broadcast, or documentary, or other similar projects”

in the definition of “commercial filming.” Id.

30. The definition of “news-gathering activities” is remarkably similar to the

definition of commercial filming. It is defined as “filming, videography, and still

photography” by a person or entity who “gathers information of potential interest to

a segment of the public, uses its editorial skills to turn the raw materials into a

distinct work, and distributes that work to an audience.” 43 C.F.R. § 5.12.

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31. The regulations require a permit for all “commercial filming.” Id.

§ 5.2(a). Park visitors are not required obtain any permit to film unless it is

“commercial,” as defined by the rules. Id. § 5.2(c).

32. “News-gathering activities involving filming, videography or still

photography do not require a permit unless” a permit is needed “to protect natural

and cultural resources, to avoid visitor use conflicts, to ensure public safety or to

authorize entrance into a closed area.” But even then, no permit is needed if obtaining

one would interfere with gathering the news. Id. § 5.4

33. The requirement that commercial filmmakers obtain a permit and pay

a fee is not based on the potential impact on park resources or visitors. The

requirement is not based on the type of photo equipment to be used or the number of

people involved. See Commercial Filming and Similar Projects and Still Photography

Activities, 78 Fed. Reg. at 52090 (“There is no basis for an exclusion [from getting a

permit] based on crew size or amount of equipment under this statute.”).

34. The regulations establish expansive discretion for park officials to reject

permit applications, including if the official believes the filming would result in

“unacceptable impacts” to NPS “values.” 43 C.F.R. § 5.5. The government may also

impose conditions on the permits. Id. § 5.6. In practice, these requirements result in

the denial of filming permits for arbitrary and unpredictable reasons.

35. The regulations provide no time limit for park officials to decide whether

to grant or deny a commercial filming application, nor does it provide for situations

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where filmmakers are not able to predict in advance that something will happen in a

national park that they will want to film.

36. The regulations provide no review process in cases where a permit

application is denied or subjected to limiting conditions.

37. A permit for still photography generally is not required unless (a) the

photography involves a model, set, or prop; (b) occurs at a place where or a time when

members of the public are not allowed; or (c) could require the government to expend

money to protect national park resources or minimize conflicts with other visitors

using the park. 43 C.F.R. § 5.2(b). The regulations are clear that “portrait subjects

such as wedding parties and high school graduates are not considered models,” and

“the use of a camera on a tripod, without the use of any other equipment, is not

considered a prop.” Id. § 5.12. Accordingly, ordinary still photography does not require

a permit regardless of whether or not it is considered “commercial.”

38. “News-gathering activities” involving filming do not require a permit

even if they are “commercial.” Id. § 5.4. The rules define “news” as “information that

is about current events or that would be of current interest to the public, gathered by

news-media entities for dissemination to the public.” Id. § 5.12

39. The rules define “news-gathering activities” as “filming, videography,

and still photography activities carried out by a representative of the news media.”

Id.

40. The regulations provide examples of news-media entities as including

“television or radio stations broadcasting to the general public and publishers of

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periodicals (but only if such entities qualify as disseminators of ‘news’).” 43 C.F.R.

§ 5.12. News media may also include electronic dissemination of newspapers through

telecommunications services. Id.

41. To fall within the newsgathering exemption to the permit and fee

requirements, a freelance filmmaker who is not employed by a “news-media entity”

must “demonstrate a solid basis for expecting publication” through a news outlet. Id.

§ 5.12.

42. The exemption for representatives of the news media applies whether

the news will be made available to the public for free or for profit. Id.

43. The rules do not limit park officials’ discretion to determine what

activities qualify as “news-gathering.” Nor do they limit officials’ discretion to

determine who qualifies as a “representative of the news media.”

44. Under the rules, filming breaking news in national parks is exempt from

the permit requirement, even if for a commercial purpose, while filming a

documentary about the same event requires a permit if done “with the intent of

generating income.” Id.

45. The permit fee for commercial filming is not for recovery of the

administrative costs involved with issuing permits. Applicants seeking a permit for

commercial filming must pay a “location fee” that provides “a fair return” to the

government. Id. § 5.8. Separately, applicants must pay for the “actual costs” the

government incurs in processing and administering a permit. Id.

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Park Procedures and Practices

46. The process to apply for a permit is cumbersome and differs from park

to park. NPS provides no centralized authority for processing permit applications.

47. Each park is allowed to determine for itself whether a request qualifies

as “news-gathering activities” and whether the request is compatible with the park’s

“values.”

48. Each park is authorized to determine for itself whether commercial

filming permits are required, as well as how and when to process applications.

49. Although the regulations state that national parks will process

applications for filming permits “in a timely manner,” 43 C.F.R. § 5.9, in practice

permit applications may languish for weeks or even months without a decision. This

process makes it impossible for individuals to spontaneously capture footage that

they intend to later monetize, or to later monetize footage that was not initially

captured with that intent, unless the individual qualifies as a member of “news

media” as defined in the regulations. Id. §§ 5.2, 5.12.

50. The law’s arbitrary distinctions do not serve any legitimate

governmental interest in protecting national park resources. A tourist recording

video in a national park with a hand-held camera or cell phone is not required to

obtain a permit, but he may become subject to the law if he later posts the video on

YouTube, which pays some users for popular content.

51. A documentary filmmaker who films in a national park is not required

to apply for, or obtain, a permit prior to filming if he doesn’t intend to “generate

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income.” But the same person, using the same equipment, is required to obtain a

permit if a park administrator deems his intent to be “commercial.”

52. The same documentarian, who filmed for noncommercial purposes

without a permit, may later be subjected to the rules if he subsequently decides to

use the film for a commercial purpose. This may involve nothing more than posting

the video on a website such as YouTube.

53. Modern professional cameras can shoot both still images and cinematic-

quality video. Members of the National Press Photographers Association use these

cameras regularly and will shoot both still images and video footage with the exact

same camera. No permit is required for professional photographers using a handheld

camera to take still images even if park administrator deems the activity is not “news-

gathering.” But the same photographer would become subject to the rules and face

potential criminal liability if they flip a switch on their camera to capture video

instead.

54. If a tourist, a reporter, and a documentary filmmaker each filmed the

same vista or event in a national park using the same equipment, only the filmmaker

would be required to obtain a permit and pay a fee, if their purpose were deemed to

be “commercial” and not “news-gathering.”

55. In implementing the rules, park officials have not only imposed the

permit and fee requirements as a prior restraint on speech, but they have also

contacted some filmmakers after the fact to demand video footage be removed from

public display when they deemed it “commercial.”

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56. In implementing the rules, park officials have imposed permit

requirements and denied permits based solely on the content or message of the work

created.

57. There is no way to comply with the permit and fee requirements

retroactively. If a filmmaker or videographer captures images with noncommercial

intent but later wants to profit from the images, he must either risk prosecution or

forego any possibility of monetizing the images.

Price v. Garland and the Interim Guidance

58. In 2019, independent filmmaker Gordon Price was criminally charged

for filming a movie at the Yorktown Battlefield in the Colonial National Historical

Park without obtaining a permit from the NPS. Price v. Barr, 514 F. Supp. 3d 171,

179 (D.D.C. 2021), rev’d and remanded sub nom. Price v. Garland, 45 F.4th 1059

(D.C. Cir. 2022), cert. denied, 143 S. Ct. 2432 (2023).

59. The government dismissed its charges against Price, and he filed a civil

lawsuit in the U.S. District Court for the District of Columbia challenging the

constitutionality of 54 U.S.C. § 100905 and its associated regulations. Id. at 179–180.

60. The district court in that case held the permit regime was facially

unconstitutional and enjoined its enforcement nationwide. Id. at 198.

61. While the nationwide injunction was in place, NPS announced interim

guidance for filming in national parks. Under the interim guidance, filming that had

a “low-impact” on park resources did not require a permit. See Nat’l Park Serv.,

National Park Service Announces Interim Guidance for Filming in Parks, NPS (Feb.

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22, 2021), https://www.nps.gov/orgs/1207/02-22-21-interim-guidance-for-filming-in-

parks.htm [https://perma.cc/WF32-PXVK].

62. The interim guidance defined “low-impact filming activities” as “outdoor

filming activities in areas open to the public (excluding areas managed as wilderness),

consisting of groups of five persons or fewer, and involving equipment that will be

carried at all times—except for small tripods used to hold cameras.”

63. NPS has never suggested that the interim guidance rendered it less able

to protect its interest in protecting park resources or the visitor experience.

64. In August 2022, the U.S. Court of Appeals for the District of Columbia

Circuit reversed the district court, holding that filming in a national park was not

First Amendment-protected speech but was instead a “noncommunicative step in the

production of speech.” It therefore concluded that Price was not likely to succeed on

the merits of his claims and rescinded the preliminary injunction. Price, 45 F.4th at

1068.

65. Judge Tatel issued a dissent sharply disagreeing with the panel’s

decision. Judge Tatel argued the panel erred by “disaggregat[ing] speech creation and

dissemination, thus degrading First Amendment protection for filming, photography,

and other activities essential to free expression in today’s world.” Id. at 1082 (Tatel,

J., dissenting). And he agreed with the district court that the permit and fee

requirements “penalize far more speech than necessary to advance the government’s

asserted interests” and therefore “run afoul of the First Amendment.” Id. at 1076.

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66. After the D.C. Circuit’s decision, NPS scrapped its interim guidance and

returned to the permit regime that predated Price.

The Permit and Fee Requirements Have Hampered Alexander Rienzie and
Connor Burkesmith’s Efforts to Film a Documentary in Grand Teton
National Park.

67. Plaintiffs Rienzie and Burkesmith are documentary filmmakers and

nature photographers. The two filmmakers collaborate on various projects concerning

athletic endeavors in outdoor spaces. These include attempts to document athletes

attempting a “fastest known time,” or “FKT,” which is a speed record on a particular

running or hiking route. Their projects entail filming athletes attempting FKTs on

routes in national parks, capturing footage they would like to use in documentary

films.

68. The permit and fee requirements have materially hampered Rienzie’s

and Burkesmith’s efforts to create documentary films. Despite Rienzie’s and

Burkesmith’s repeated efforts to obtain permits in compliance with the requirements,

their applications have been denied, subjecting them to potential criminal penalties

if they engage in protected filmmaking activities with the intent to earn a living from

their work.

69. Rienzie and Burkesmith face these risks of criminal prosecution for their

filming even though they only go to publicly accessible areas of the parks, use only

small handheld cameras and tripods, and their presence does not otherwise risk

damage to park resources or interference with other visitors’ use of national parks.

70. Other park visitors observing FKT attempts are free to capture footage

in the same areas of the park using similar equipment, and to publish that footage so

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long as they don’t earn income from it. But Rienzie and Burkesmith are precluded

from doing so without first obtaining a permit because the park administrators have

determined that their use is “commercial.”

71. Because changing weather affects safe conditions to attempt an FKT, it

is difficult to predict in advance the date of an attempt. This means any delay in

acting on a filming application can effectively serve as a denial of the request.

72. In August 2023, Rienzie and Burkesmith applied for filming permits for

Grand Teton National Park but their applications were denied. They planned to film

an athlete attempting an FKT of the tallest summit in Grand Teton National Park.

73. On August 9, 2023, Rienzie contacted the NPS to inquire about

obtaining a permit to film this athlete during the week of August 12–18, 2023. Grand

Teton National Park Revenue and Fee Business Manager Amy Allabastro told

Rienzie he would need to apply for a permit under 43 C.F.R. §§ 5.4 and 5.12 at least

30 days in advance, and that he would have to pay a non-refundable $325 application

fee. Allabastro also told Rienzie that he would have to pay an additional location fee

unless his filmmaking qualified as news-gathering.

74. Because of the processing procedures and the accompanying delay,

Rienzie was unable to obtain a permit in advance of the FKT attempt.

75. Rienzie and Burkesmith were forced to choose between waiting for a

permit or risking possible prosecution for unauthorized commercial filming. Because

of the possibility that a record-breaking event might not be captured on film, they

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chose to film the athlete in Grand Teton National Park during his August 2023 FKT

attempt.

76. In line with their ordinary practice, Rienzie and Burkesmith filmed this

attempt from publicly accessible areas of the park using small handheld cameras and

small tripods and did not damage park resources or interfere with other visitors. No

permit would have been required for filming under these same conditions if Plaintiffs

had been tourists, still photographers, or news reporters or if they lacked commercial

intent.

77. Rienzie and Burkesmith posted some footage of the August 2023 FKT

attempt on social media. But because of the chilling effect of the statute, they did not

publicize the footage more widely for fear that officials might consider the filming

commercial and prosecute them for failing to obtain a permit.

78. In 2024, Rienzie and Burkesmith made plans to create a documentary

film of a different athlete attempting an FKT of the tallest summit in Grand Teton

National Park. Given their lack of success in obtaining a permit to film in Grand

Teton in 2023, they applied for the permit as far in advance as possible to allow

sufficient time for the NPS to process the application.

79. In July 2024, Burkesmith and the athlete met with a company

interested in sponsoring a documentary film of the FKT attempt in Grand Teton

National Park. Over the next few months, Burkesmith and Rienzie continued

planning the documentary film with the athlete and the sponsoring company.

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80. On August 5, 2024, Burkesmith submitted an NPS Form 10-931

(Application for Special Use Permit, Commercial Filming/Still Photography) to Grand

Teton National Park, seeking a permit to film the athlete’s FKT attempt in early

September.

81. In that application, Burkesmith noted that two to three

cinematographers would be on the mountain at different locations along the 14-mile

roundtrip run to film and photograph the athlete’s attempt. The cinematographers

would each use one small camera and one tripod. They would not use any props,

backgrounds, or sets.

82. Burkesmith’s application stated that the attempt was planned for early

September, but that the date of the attempt was variable due to weather and safe

conditions on the route. The attempt would take roughly three hours, beginning at

6:00 AM.

83. In the application, Burkesmith stated that he planned to create a short

film using the footage. He also noted that he planned to use the footage in a story

about the FKT attempt in a local newspaper.

84. If Burkesmith had planned to use the footage of the FKT attempt only

in a manner the park determined was news-gathering, he would not have been

required to seek a filming permit.

85. Along with the application, Burkesmith paid a non-refundable $325

application fee.

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86. On August 7, 2024, Burkesmith received an email from Allabastro,

acknowledging receipt of his application and noting he should allow “7–10 days for

[the application] to be reviewed for being approved to be permitted.”

87. On August 7, 2024, Burkesmith replied to Allabastro’s email with a

revised application. The revised application was largely the same as the original but

also sought a permit to obtain a day of “B-roll” footage on the route with the athlete.

The application explained that filming the FKT attempt would likely only yield a few

minutes of usable footage because the athlete would be moving quickly. The B-roll

footage would allow fuller illustration of the story of the attempt and provide for

additional shots of the landscape. The only cinematographer for the B-roll footage

would be Burkesmith with a handheld camera and tripod.

88. Allabastro called Burkesmith on August 13, 2024 and told him she

would not issue a permit to film the FKT attempt under any circumstances. She said

that even though the athlete was allowed to attempt the FKT, she could not allow

placing two to three individual filmmakers or videographers along the route because

that could be dangerous and interrupt park activities. Burkesmith explained that the

cinematographers would be indistinguishable from normal visitors. Allabastro said

that cinematographers would turn the FKT attempt into a “competitive event,” and

that she could not issue a permit for a “competitive event.”

89. No permit would have been required if the athlete making the FKT

attempt had arranged to have friends with no commercial interests at various places

along the route to record his effort using the exact same equipment as in

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Burkesmith’s application. However, if those friends later licensed the footage for a

use involving “a market audience with the intent of generating income,” experience

shows that the NPS would consider them to be in violation of the statute.

90. The documentary that Rienzie and Burkesmith are working on meets

the definition of “news-gathering activities” in the regulations governing NPS film

permits because they are capturing “information of potential interest to a segment of

the public” and they will be using their “editorial skills to turn the raw [footage] into

a distinct work, and distribut[ing] that work to an audience.” 43 C.F.R. § 5.12.

Nonetheless, Allabastro told them that they cannot film portions of their

documentary at Grand Teton National Park without a permit and that even if the

footage were used as part of “breaking news” coverage of the FKT attempt she would

still deny the request.

91. During the August 13 phone conversation, Allabastro said she might be

able to grant Burkesmith a permit for filming B-roll with the athlete on a day other

than the FKT attempt, but they were currently booked during the entire month of

September. She said she would look at possible dates and get back to Burkesmith.

92. Allabastro sent Burkesmith an email on August 15, 2024, that his

application could not be processed because “there already [are] applications being

processed that have the available schedule booked until early October.”

93. Allabastro’s email reiterated that the park would not issue the permit

because Burkesmith sought to place two to three photographers along the route while

an athlete attempted an FKT. She explained the proposed filming created a

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“competitive event which could impact other visitor (climbers), and/or create a safety

hazard.”

94. Even while offering this justification for denying the permit, Allabastro’s

August 15 email noted “the athlete is not being restricted from the attempt itself as

long as there is not impact [sic] other climbers/hikers which could create a safety

hazard or disrupt their experience.” Allabastro wrote that Burkesmith could revise

his application to obtain only B-roll, not of the attempt itself, on a date after October

7.

95. No permit would have been required if Burkesmith had proposed to limit

the use of his footage for “breaking news” of the FKT attempt, or if he had lacked

commercial intent.

96. On September 2, 2024, the athlete attempted the FKT in Grand Teton

National Park. Rienzie and Burkesmith were forced to decide whether to forego

filming the attempt or to risk prosecution. Rienzie and Burkesmith chose to film and

photograph the FKT attempt.

97. In line with their ordinary practice, Rienzie and Burkesmith filmed and

photographed this attempt only from publicly accessible areas of the park using small

handheld cameras and small tripods and did not damage park resources or interfere

with other visitors.

98. Rienzie’s and Burkesmith’s photographs were featured in over a dozen

news outlets and social media accounts covering the FKT attempt.

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99. As a result of the news stories about the FKT attempt, an NPS

spokesman said NPS was investigating Rienzie and Burkesmith and considering

bringing criminal charges against them for filming without a permit.

100. To date, NPS has not charged Rienzie and Burkesmith for filming and

photographing the FKT attempt without a permit. An NPS official, quoted in a local

news article, said rangers did not believe that Rienzie and Burkesmith met all of the

criteria necessary to pursue charges against them for commercial filming without a

permit. The official said it would have been “less of a gray area” if the athlete’s image

were used “in a commercial or a catalog or something like that.” This statement

makes it clear that the NPS is deciding whether to prosecute Rienzie and Burkesmith

based on what message they have communicated with the footage.

101. The NPS official said: “So many people are out here filming every day

for their Instagram accounts or TikToks, and that’s hard for our rangers nationally

to enforce what’s commercial, what’s not.”

102. Rienzie and Burkesmith have an objectively justified fear that, if they

were to use their footage of the FKT in a documentary as they had originally planned,

NPS officials would charge them for commercial filming without a permit.

103. Rienzie and Burkesmith want to film the athlete’s next FKT attempt in

Grand Teton National Park in the summer of 2025, and use footage of both the 2024

and 2025 FKT attempts in a documentary. But they would do so under the threat of

criminal prosecution.

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104. The permit requirement and the chilling effect of an ongoing risk of

prosecution has hampered Rienzie and Burkesmith’s ability to post the existing

footage they have taken and to use it to attract sponsors for a documentary film

involving future attempts to break the record.

105. But for the permit requirement, the threat of prosecution, and its

chilling effect, Rienzie and Burkesmith would post footage of the 2024 FKT attempt

on social media to generate interest from potential sponsors. They have not done so

out of fear that NPS officials would then determine that their footage was taken with

a profit motive and was therefore unlawful.

106. Potential sponsors have informed Rienzie and Burkesmith that they

would not sponsor the film unless Rienzie and Burkesmith are able to obtain filming

permits. But for the permit requirement, Rienzie and Burkesmith would be able to

secure these sponsors to fund their filming.

The Permit and Fee Requirements Burden the First Amendment Rights of
Other Members of the National Press Photographers Association in National
Parks.

107. Plaintiff NPPA is a 501(c)(6) not-for-profit organization that “is

dedicated to the advancement of visual journalism, its creation, practice, training,

editing and distribution, in all news media and works to promote its role as a vital

public service.” NPPA Mission and Bylaws, NPPA, https://nppa.org/gov/bylaws (as

amended July 31, 2022). Its purpose is “to advance visual journalism in all its forms”

including by opposing “infringements of the rights of visual journalists.” Id. NPPA

regularly advocates for the interests of news photographers, filmmakers,

videographers, and multimedia journalists, including the rights of its members under

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the First Amendment and to earn a living from their work. NPPA’s members include

video and still photographers, editors, students, and representatives of businesses

that serve the visual journalism community.

108. Since its founding in 1946, NPPA has been the “Voice of Visual

Journalists” and other photographers, vigorously promoting the constitutional and

intellectual property rights of journalists as well as the freedom of the press in all its

forms, especially as it relates to visual journalism.

109. NPPA’s membership includes visual journalists and other

photographers, who collectively work in every national park in the country. Plaintiffs

Rienzie and Burkesmith are members of NPPA.

110. NPPA advocates for the rights of photographers to work in national

parks and other federal lands, and NPPA has testified before Congress about the

importance of protecting the First Amendment rights of photographers in national

parks.

111. Many of NPPA’s members work as freelance journalists. Although their

work may ultimately be published in a newspaper or appear on a newspaper’s

website, at the time they are filming or photographing they may not be able to satisfy

an official who questions them as to whether they are engaged in “news-gathering

activities” within the meaning of the regulations or prove that they are employed by

a news organization.

112. For example, an NPPA member could visit a national park without an

agreement with a newspaper but with the intent to license their photographs or

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videos. Once they do so their photographs and videos would then constitute news.

However, prior to this licensing, at the time they film, the member might not be able

to prove they are participating in “news coverage,” because they potentially could

have licensed the footage to a non-journalistic enterprise.

113. NPPA’s members regularly photograph and record the sort of matters of

public interest that exist or occur in national parks, such as documenting wildlife,

environmental issues, human activity, and weather emergencies such as flooding and

wildfires. Some of the footage they capture may later be deemed newsworthy even if

it was not considered news at the time it was filmed. Some of the footage may be

licensed for commercial use even if it was initially captured for newsgathering

purposes.

114. Existing permitting regulations vest permitting officials with virtually

unchecked discretion to limit or restrict journalistic activities and subject NPPA

members engaged in photojournalism to arbitrary judgment.

115. In March of 2022, NPPA learned that Grand Teton National Park was

planning to enact a rule requiring commercial still photographers to obtain costly

special permits to take pictures in national parks regardless of the impact, location,

or burden on the park. The permit requirements included an application fee of $300

and a three percent tax on all earnings from the photography. The plan further would

have limited photography to “site-specific” weddings, which are not permitted during

the winter season, and would have banned photographers at smaller wedding

ceremonies allowed elsewhere in the park and during the winter. In addition to the

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financial burden, the combination of these policies would have resulted in a complete

ban on wedding photography during seven months of the year as well as a complete

ban on wedding photography in many of the park locations where weddings take

place.

116. After learning of the 2022 still photography permit requirement, NPPA

sent a letter to Defendant Superintendent Chip Jenkins, explaining that the

requirements were in direct violation of federal laws and regulations, as well as the

First Amendment. Subsequently, the park walked back the requirements and

reverted to the standard NPS regulations. Michael Zhang, Grant Teton Axes

Controversial Plan to Require Portrait Photo Permits, PetaPixel (Apr. 2, 2022),

https://petapixel.com/2022/04/02/grand-teton-axes-controversial-plan-to-require-

portrait-photo-permits/.

117. In November 2024, Grand Teton National Park announced revised

guidelines for wedding permits in 2025. The guidelines state that still photographers

who shoot portraits at a wedding need a permit to use those images “to promote or

sell a product or service.” Wedding and Commitment Ceremonies, Grand Teton Nat’l

Park, https://www.nps.gov/grte/planyourvisit/weddingcommitments.htm (last

updated Nov. 25, 2024). NPPA members who shoot weddings often will post examples

of those weddings on their website or Instagram feeds to promote their services. NPS

has previously interpreted such use of wedding photos as commercial, has fined

photographers, and has demanded images be taken down from the social media

accounts of photographers. However, 43 C.F.R. Part 5 and 54 U.S.C. § 100905

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explicitly prohibit requiring a permit for still photography in these circumstances,

regardless of whether it is commercial.

118. The existing permitting and fee requirements, as well as the

implementation regime impose vague and unacceptable restrictions on NPPA

photojournalists’ ability to collect and report the news on public lands, with a

particularly harmful effect on smaller news organizations and freelance

photojournalists who cannot afford to pay the required fees imposed by the permitting

and fee regime.

STANDING AND REDRESSIBILITY

119. The Plaintiffs have standing to challenge 54 U.S.C. § 100905 and the

regulations implementing it. The NPS permit and fee requirements for commercial

filmmaking deprive Plaintiffs of their constitutional right to photograph and

videotape in national parks.

120. The permit requirement of 54 U.S.C. § 100905 imposes an unlawful

prior restraint on Plaintiffs’ constitutionally protected expressive activity.

121. The fee requirement for commercial filming imposed on Plaintiffs is a

tax on constitutionally protected expressive activity. The permit fee is unrelated to

any impact that their filming has on the national parks or any costs that a national

park must incur to facilitate their filming.

122. The permit process imposed on Plaintiffs as set forth in 43 C.F.R. Part

5 and 36 C.F.R. § 5.5 does not guarantee them a timely response and prevents their

ability to film and photograph in the national parks without significant advanced

notice.

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123. The permit and fee requirements impose unconstitutional constraints

on Plaintiffs based on the content of their speech. If Plaintiffs are determined by the

NPS to be filming for the news media or are filming without a profit motive, they are

not required to apply for a permit or pay a fee. But if the NPS arbitrarily decides that

the use of the footage or photography is too commercial, the NPS can and has refused

to permit a wide range of filming on matters of public concern.

124. NPPA’s members have been subjected to content-based and arbitrary

enforcement of the film permit regime, as well as content-based and arbitrary denial

of permission to capture video and still photography in national parks and other

federal lands regulated by 54 U.S.C. § 100905 and 43 C.F.R. Part 5.

125. The permit and fee requirements vest excessive administrative

discretion in park officials to decide who must obtain a permit, and in deciding how

and when to process filming applications. The exercise of this discretion has impeded

Plaintiffs’ efforts to engage in filming.

126. Because of the permit and fee requirements, Plaintiffs Rienzie and

Burkesmith have been unable to secure sponsors for upcoming filming projects. If the

permit requirement is enjoined, then Rienzie and Burkesmith would be able to post

existing video footage and use it to secure sponsors for future events. Rienzie and

Burkesmith could also use existing and future footage in documentary films about

matters of public interest.

127. Absent prospective injunctive relief, Plaintiffs and other NPPA

members will continue to be subject to the permit and fee requirements.

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128. Absent prospective injunctive relief, Plaintiffs Rienzie and Burkesmith

face an ongoing and credible threat of prosecution for filming in Grant Teton National

Park in August 2023 and on September 2, 2024.

CLAIMS FOR DECLARATORY AND INJUNCTIVE RELIEF

FIRST CAUSE OF ACTION

Violation of the First and Fifth Amendments
(Prior Restraint)
(Facial and As-Applied Challenge Against All Defendants)

129. Plaintiffs re-allege and incorporate by reference the preceding

paragraphs as though fully set forth herein.

130. The First Amendment provides “Congress shall make no

law . . . abridging the freedom of speech, or of the press; or of the right of the people

peaceably to assemble, and to petition the Government for a redress of grievances.”

U.S. Const. amend. I.

131. The First Amendment protects the entire speech process. This

necessarily includes gathering information and the creation of speech, including

photography and videorecording. See, e.g., Sorrell v. IMS Health Inc., 564 U.S. 552,

570 (2011) (both the “creation and dissemination of information are speech within the

meaning of the First Amendment”); Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 792

n.1 (2011) (First Amendment applies to “creating, distributing, [and] consuming

speech”); Animal Legal Def. Fund v. Kelly, 9 F.4th 1219, 1228 (10th Cir. 2021);

Irizarry v. Yehia, 38 F.4th 1282, 1289 (10th Cir. 2022); W. Watersheds Project v.

Michael, 869 F.3d 1189, 1196 (10th Cir. 2017).

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132. Contrary to the D.C. Circuit’s holding in Price v. Garland that filming is

non-communicative conduct, the U.S. Court of Appeals for the Tenth Circuit has held

that filming is protected by the First Amendment as an integral part of the

communication process. See Animal Legal Def. Fund, 9 F.4th at 1228; Irizarry, 38

F.4th at 1289 (“If the creation of speech did not warrant protection under the First

Amendment, the government could bypass the Constitution by simply proceeding

upstream and damming the source of speech.”); W. Watersheds Project, 869 F.3d at

1196 (same). Every other circuit court that has addressed the issue agrees that the

First Amendment protects filming and recording as part of the speech process. Ness

v. City of Bloomington, 11 F.4th 914, 923 (8th Cir. 2021); Telescope Media Grp. v.

Lucero, 936 F.3d 740, 752 (8th Cir. 2019); Project Veritas Action Fund v. Rollins, 982

F.3d 813, 831 (1st Cir. 2020); Gericke v. Begin, 753 F.3d 1, 7 (1st Cir. 2014); Turner

v. Driver, 848 F.3d 678, 688–89 (5th Cir. 2017); Fields v. City of Philadelphia, 862

F.3d 353, 355-56 (3d Cir. 2017); ACLU of Ill. v. Alvarez, 679 F.3d 583, 595 (7th Cir.

2012); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); Fordyce v.

City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995).

133. When individuals are lawfully in a public place, the First Amendment

protects their ability to record what their eyes can see.

134. Filming and photography by private parties on federal lands maintained

by the NPS therefore constitutes expressive activity safeguarded by protections

afforded to freedom of speech and freedom of the press under the First Amendment

to the U.S. Constitution. Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1203–04

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(9th Cir. 2018); Glik v. Cunniffe, 655 F.3d 78, 82–85 (1st Cir. 2011); Leigh v. Salazar,

677 F.3d 892, 898 (9th Cir. 2012); Nicholas v. Bratton, 376 F. Supp. 3d 232, 259–260

(S.D.N.Y. 2019).

135. The permit requirement burdens Plaintiffs’ exercise of their First

Amendment freedoms.

136. Requiring a permit in advance of filming is a prior restraint. The NPS

permit requirement operates as a prior restraint by requiring photographers and

filmmakers to seek advance permission to film. Filmmakers also have received take-

down letters from NPS officials for footage taken in national parks and have been

threatened with criminal prosecution for filming without a permit.

137. Prior restraints are “the essence of censorship,” Near v. Minnesota, 283

U.S. 697, 713 (1931), and “the most serious and the least tolerable infringement” of

the First Amendment, Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). Such prior

restraints bear “a heavy presumption against [their] constitutional validity,” Bantam

Books v. Sullivan, 372 U.S. 58, 70 (1963), and nothing in the statute, or the agency’s

implementation of it, purports to satisfy the extraordinary justifications required for

a prior restraint.

138. The NPS photography and filming permit requirements arbitrarily

distinguish between “commercial” and “noncommercial” filming. The differential

treatment is not based on whether the filmmakers impose the same, or differing

burdens in their use of federal lands.

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139. The Constitution’s protection for speech does not vary based on whether

it is conducted for profit. See, e.g., Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501

(1952) (“[T]hat books, newspapers, and magazines are published and sold for profit

does not prevent them from being . . . safeguarded by the First Amendment.”).

140. Prior restraints are subject to even more rigorous scrutiny when they

allow “officials to use discretion in deciding whether to allow speech” while permitting

them to consider “the subject matter of the speech.” Taylor v. Roswell Indep. Sch.

Dist., 713 F.3d 25, 43 (10th Cir. 2013).

141. Under the NPS permit and fee regime, government officials are

empowered to consider the content and subject matter of speech when assessing

whether to grant or deny a permit. The regime rests “upon the uncontrolled will of an

official—as by requiring a permit or license which may be granted or withheld in the

discretion of such official.” Am. Target Advert., Inc. v. Giani, 199 F.3d 1241, 1252

(10th Cir. 2000) (quoting Staub v. City of Baxley, 355 U.S. 313, 322 (1958)).

142. Laws that subject First Amendment freedoms to prior restraint without

narrow, objective, and definite standards to guide the licensing authority, are

presumptively unconstitutional. Shuttlesworth v. City of Birmingham, 394 U.S. 147,

150–51 (1969). To avoid invalidation, a licensing scheme must include definite

standards and must not vest officials with excessive administrative discretion.

Forsyth Cnty v. Nationalist Movement, 505 U.S. 123, 130–31 (1992).

143. The NPS permit requirement for commercial filmmaking lacks

definitive standards and vests government officials with excessive administrative

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discretion. Government officials administering the system are allowed to decide

arbitrarily who must get a permit, to deny permits based on their subjective judgment

about what kind of filming and activities are consistent with the park’s “values,” to

delay permitting decisions, and to provide no recourse for when permits are denied.

144. The NPS permit regime imposes unconstitutional burdens on

individuals who are similarly situated in all material ways, allowing some to engage

in filmmaking without a permit while imposing permit requirements on others.

145. As a result of this prior restraint, photographers, filmmakers, and

videographers, including Plaintiffs, must either forgo filming altogether or risk fines

and even criminal prosecution for filming without a permit.

146. This permitting requirement is particularly burdensome for filmmakers

like Rienzie and Burkesmith who attempt to record matters of public concern, like

speed run attempts, that do not allow for significant advance notice. Rienzie and

Burkesmith were informed they must obtain a permit to film the run and then were

denied a permit based on the NPS official’s assessment of the content. The permit

requirement therefore significantly curtails spontaneous expressive activity.

147. Filmmakers like Rienzie and Burkesmith must either apply for a permit

with no guarantee that they will get one or forgo any income from their videos which

undermines the purpose of filming and makes it financially unviable. Alternatively,

they must risk prosecution if they proceed with commercial filming without a permit.

148. As a direct and proximate cause of the NPS photography and filming

permit requirements, Plaintiffs have suffered and continue to suffer irreparable

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injury, including the burdening of their First Amendment-protected right to take

photographs and videos in public areas of the national parks.

149. As a direct and proximate cause of the NPS photography and filming

permit requirements, Plaintiffs have suffered and continue to suffer irreparable

injury, including their right to due process and equal treatment under the law.

150. The deprivation of constitutional rights is irreparable injury per se.

Elrod v. Burns, 427 U.S. 347, 373 (1976). The harm continues every day that Rienzie

and Burke are unable to publish their footage. The harm continues every day that

Rienzie and Burkesmith and other NPPA members are prevented from engaging in

protected First Amendment activity in national parks.

151. Plaintiffs are entitled to a declaration under 28 U.S.C. § 2201 that the

permit requirement violates the First and Fifth Amendments both on its face and as

applied Plaintiffs’ expression.

152. Plaintiffs are entitled to injunctive relief under Ex parte Young, 209 U.S.

123 (1908), preventing Defendants from enforcing the permit requirement.

153. Plaintiffs have no adequate legal, administrative, or other remedy by

which to prevent or minimize the continuing irreparable harm to their First and Fifth

Amendment rights.

154. Without declaratory and injunctive relief against the permit

requirement, Defendants’ actions suppressing Plaintiffs’ First Amendment

expressive rights will continue, and Plaintiffs will continue to suffer per se

irreparable harm indefinitely.

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SECOND CAUSE OF ACTION

Violation of the First Amendment
(Unconstitutional Tax on Speech)
(Facial and As-Applied Challenge Against All Defendants)

155. Plaintiffs re-allege and re-incorporate the preceding paragraphs as

though fully set forth herein.

156. The First Amendment protects photography and filming on public lands,

including in the national parks. See supra ¶¶ 130–35.

157. The First Amendment prohibits imposing a tax on the exercise of First

Amendment rights. See, e.g., Murdock v. Pennsylvania, 319 U.S. 105, 113 (1943); Ark.

Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 227–28 (1987); Simon & Schuster, Inc.

v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991); Forsyth Cnty.

v. Nationalist Movement, 505 U.S. at 130.

158. The provisions of 54 U.S.C. § 100905, 43 C.F.R. Part 5, and 36 C.F.R.

§ 5.5 operate as a content-based licensing regime that prohibits commercial

filmmaking, documentary filmmaking on matters of public concern, and certain still

photography unless those wishing to engage in such expressive activity first secure a

permit and pay a fee to the government. This establishes a government precondition

to that expressive activity. Although the First Amendment permits the government

to be reimbursed for the administrative costs associated with administering a

regulatory program, fees on expressive activity that exceed those costs are

unconstitutional. Murdock, 319 U.S. at 114.

159. NPS separately collects fees to cover administrative and other costs of

issuing permits. The fee requirement thus goes beyond what is necessary to cover the

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costs of administering the permitting process, making it an unlawful tax on a

constitutional right. 43 C.F.R. § 5.8.

160. The law confirms as much, explaining that the commercial filming

permit fee is justified solely as a revenue-raising measure intended to ensure “a fair

return to the United States” and bears no connection to any cost or burden imposed

on federal lands or on the government body that manages them. Id.

161. Raising revenue and providing “a fair return to the United States” is the

motivating reason the commercial filmmaking permit and fee requirements were

enacted.

162. Even when the “location fee” is $0 per day, or $50 per day, filmmakers

and still photographers are required to pay costly, non-refundable application fees

that vary but often are hundreds of dollars higher than the location fee. Filming &

Still Photography Permits, Nat’l Park Serv.,

https://www.nps.gov/aboutus/news/commercial-film-and-photo-permits.htm (last

updated Mar. 15, 2023).

163. Grand Teton National Park and other national parks have required fees

and costly permit applications for still photography in national parks based on the

message being communicated, even when no props or models are involved and even

when that policy violates 43 C.F.R. Part 5.

164. Grand Teton National Park and other national parks have required

location fees and costly film permit application fees for filmmakers to capture footage

in national parks, even when those filmmakers only use handheld equipment or

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handheld equipment and a tripod—both things that tourists regularly use in national

parks without needing a permit.

165. These fee requirements can add significant expense to the cost of filming

in national parks and can even be prohibitively expensive, significantly chilling

speech for many Americans who want to film in national parks.

166. These fee requirements are particularly burdensome for independent

filmmakers like Rienzie and Burkesmith for two reasons. First, their ability to film

speech is contingent on weather patterns that cannot be predicted in advance, but

they are nevertheless required to pay expensive nonrefundable application fees in

anticipation of a filming session that may not even occur. Second, their ability to

make money from their filming depends on factors outside of their control such as the

success of the athlete they are filming and their ability to attract sponsors. They must

therefore pay significant expenses just to get permission to film with no guarantee

that they will recoup any of these expenses.

167. These same impediments to filming affect other NPPA members across

the United States.

168. As a direct and proximate cause of the NPS photography and filming

permit requirements, Plaintiffs have suffered and continue to suffer irreparable

injury, including the burdening of their First Amendment-protected right to film in

public areas of the national parks.

169. The deprivation of constitutional rights is irreparable injury per se.

Elrod, 427 U.S. at 373.

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170. Plaintiffs are entitled to a declaration under 28 U.S.C. § 2201 that NPS’s

permit requirement violates the First Amendment both on their face and as applied

to Plaintiffs’ expression.

171. Plaintiffs are entitled to injunctive relief under Ex parte Young, 209 U.S.

at 123, preventing the Defendants from enforcing the permit requirement.

172. Plaintiffs have no adequate legal, administrative, or other remedy by

which to prevent or minimize the continuing harm to their First Amendment rights.

173. Without declaratory and injunctive relief against the NPS photography

and filming permit requirements, Defendants’ suppression of Plaintiffs’ First

Amendment expressive rights will continue, and Plaintiffs will suffer per se

irreparable harm, indefinitely.

THIRD CAUSE OF ACTION

Violation of the First Amendment
(Content-Based Speech Restriction)
(Facial and As-Applied Challenge Against All Defendants)

174. Plaintiffs re-allege and re-incorporate the preceding paragraphs as

though fully set forth herein.

175. The First Amendment protects photography and videography on public

lands, including in the national parks. See supra ¶¶ 130–35.

176. The First Amendment “means that government has no power to restrict

expression because of its message, its ideas, its subject matter, or its content.” United

States v. Stevens, 559 U.S. 460, 468 (2010) (citation omitted).

177. Content-based restrictions of speech, particularly those enforced by

criminal penalties, are presumptively unconstitutional and “have the constant

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potential to be a repressive force in the lives and thoughts of a free people.” Ashcroft

v. ACLU, 542 U.S. 656, 660 (2004).

178. “[R]egulation of speech is content based if a law applies to particular

speech because of the topic discussed or the idea or message expressed.” Reed v. Town

of Gilbert, 576 U.S. 155, 165 (2015); United States v. Playboy Ent. Grp., Inc., 529 U.S.

803, 811 (2000).

179. The provisions of 54 U.S.C. § 100905 require an advance permit and

payment of fees for all “commercial motion picture photography” but impose no such

requirements on filming it labels non-commercial.

180. The Act and implementing rules are content-based in three ways: First,

they impermissibly impose the permitting regime based on the speaker’s profit

motivation. See, e.g., Joseph Burstyn, Inc., 343 U.S. at 501; Sorrell, 564 U.S. at 564–

66; see also Aptive Env’t LLC v Town of Castle Rock, 959 F.3d 961, 983 (10th Cir.

2020). Second, the implementing regulations require an advance permit and payment

of fees for commercial filming but not for news-gathering conducted by the “news

media” even if conducted by commercial enterprises. Regan v. Time, Inc., 468 U.S.

641, 648 (1984). Third, in applying the law, the NPS requires and denies permits

based on the message being communicated. An NPS official stated that Rienzie and

Burkesmith were only denied their permit because they were filming an FKT

attempt.

181. To determine whether the news gathering exemption applies,

Defendants must look at both the speech (whether it is “news”) and the speaker

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(whether the speaker is part of the “news media”). See City of Cincinnati v. Discovery

Network, Inc., 507 U.S. 410, 412 (1993). Park officials have unbounded discretion to

decide whether a given event is sufficiently newsworthy to qualify for a permit

exemption, whether the photographer in any particular case qualifies as a “member

of the news media,” and whether the request is consistent with the park’s “values.”

182. Content-based speech restrictions are unconstitutional unless they can

satisfy strict scrutiny. Reed, 576 U.S. at 164, 169; Sorrell, 564 U.S. at 573–74, 577–

78. “A law that is content-based on its face is subject to strict scrutiny regardless of

the government’s benign motive, content-neutral justification, or lack of ‘animus

toward the ideas contained’ in the regulated speech.” Reed, 576 U.S. at 165 (citation

omitted).

183. Under the First Amendment, content-based restrictions are “presumed

invalid” and “the Government bears the burden of showing their constitutionality.”

Ashcroft, 542 U.S. at 660 (citations omitted). The government must prove the law is

“narrowly tailored to promote a compelling Government interest,” meaning it must

directly advance the stated interest and be neither overinclusive nor underinclusive,

and no “less restrictive alternative would serve the Government’s purpose.” Playboy

Entm’t Grp., 529 U.S. at 813.

184. The NPS photography and filming permit requirements cannot satisfy

strict scrutiny.

185. The government’s stated purpose in placing the additional requirements

on “commercial” filming is to get the government a cut of the proceeds and generate

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revenue which is not tied to any burden that the expressive activity has on public

lands.

186. Taxing the exercise of First Amendment rights is not a legitimate

governmental interest.

187. The NPS photography and filming permit requirements are not

narrowly tailored to further any compelling interest in protecting park lands and

resources. They are both underinclusive and overinclusive.

188. The NPS photography and filming permit requirements do not advance

any governmental interest. The permit requirement turns on whether the speech is

“commercial” or whether it can be classified as “newsgathering,” rather than on any

impact on park resources. It allows expressive activities without a permit that have

an equal impact on park resources.

189. The permit requirement is not tailored to further the preservation of

park resources. For instance, two people could be taking a video on a cellphone at the

same location at a National Park, each filming the same scenic vista or event, but one

will need a permit and the other not based solely on how they intend to use the video.

190. NPS also is vested with unbridled discretion to enforce the permit and

fee requirements if a filmmaker later changes his use for the video. A park visitor

with no present intent to use a film commercially, and therefore no obligation to

obtain a permit, may later become subject to the rules if he posts the film on a

monetized website or otherwise profits from its use. Nothing in the law or

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implementing rules limits such post facto enforcement. Yet NPS employees have

ordered photographers to take images down.

191. The law does not employ the least restrictive means because it requires

for-profit filmmakers to get a permit no matter how small their impact on park

resources.

192. A less restrictive alternative is feasible as demonstrated by the more

narrowly tailored interim guidance that the NPS adopted after the district court’s

Price decision. See supra ¶¶ 58–66.

193. The NPS did not report any adverse impact on park resources or on the

visitor experience in national parks during the time when the interim guidance was

in effect.

194. The Act and implementing rules likewise cannot satisfy intermediate

scrutiny because they were not adopted to serve an important governmental interest

and are not narrowly tailored to achieve that interest. See Berger v. City of Seattle,

569 F.3d 1029, 1043 (9th Cir. 2009); Rosen v. Port of Portland, 641 F.2d 1243, 1247

(9th Cir. 1981).

195. The Act and implementing rules cannot satisfy any level of First

Amendment scrutiny because the law is arbitrary, irrational, and unreasonable.

There is no rational basis for treating two filmmakers with identical equipment

differently based solely on the message to which they will attach their video, and

taxing the exercise of constitutional rights is not a legitimate government interest.

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196. The permit and fee regime also fails constitutional scrutiny as applied

to Plaintiffs. Even though Rienzie and Burkesmith are filming newsworthy speed

runs, they are denied permits to film in Grand Teton National Park because they

want to use their footage in a documentary rather than on the evening news. This

arbitrary content-based distinction fails any level of scrutiny when applied to Rienzie

and Burkesmith’s speech.

197. As a direct and proximate cause of the NPS photography and filming

permit requirements, Plaintiffs have suffered and continue to suffer irreparable

injury, including the burdening of their First Amendment-protected right to take

photographs and videos in public areas of the national parks.

198. The deprivation of constitutional rights is irreparable injury per se.

Elrod, 427 U.S. at 373.

199. Plaintiffs are entitled to a declaration under 28 U.S.C. § 2201 that the

NPS photography and filming permit requirements violate the First Amendment

both on their face and as applied to Plaintiffs’ expression.

200. Plaintiffs are entitled to injunctive relief under Ex parte Young, 209

U.S.at 123, preventing Defendants from enforcing the permit requirement.

201. Plaintiffs have no adequate legal, administrative, or other remedy by

which to prevent or minimize the continuing irreparable harm to their First

Amendment rights.

202. Without declaratory and injunctive relief against 54 U.S.C. § 100905

and the NPS photography and filming permit rules, Defendants’ actions that

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suppress Plaintiffs First Amendment expressive rights will continue, and Plaintiffs

will suffer per se irreparable harm indefinitely.

FOURTH CAUSE OF ACTION

Violation of the First Amendment
(Overbreadth)
(Facial Challenge Against All Defendants)

203. Plaintiffs re-allege and re-incorporate the preceding paragraphs as

though fully set forth herein.

204. A regulation violates the First Amendment for overbreadth if “a

substantial number of its applications are unconstitutional, judged in relation to the

statute’s plainly legitimate sweep.” Stevens, 559 U.S. at 473 (quotations and citations

omitted).

205. The provisions of 54 U.S.C. § 100905, 43 C.F.R. part 43, and 36 C.F.R.

§ 5.5 prohibit a substantial amount of protected expression. They prohibit filming on

federal lands for “commercial” purposes unless the speaker first obtains a permit and

pays a fee, regardless of the burden or costs—if any—that the filming imposes on the

site, or on the governmental unit charged with managing it.

206. The statute does not define “commercial filming,” and the regulations

define it based only on whether material filmed is intended for “a market audience”

with the “intent of generating income” while at the same time excluding

newsgathering (even if conducted by commercial entities) and most photography.

207. The fee and permit requirements apply to a vast number of individuals

who wish to photograph or video in national parks and lack any legitimate sweep

insofar as their underlying interest is imposing a tax on the exercise of constitutional

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rights. They also sweep far beyond any interest in protecting the national parks from

damage.

208. The permit and fee requirements apply to a vast array of speech that

has no greater impact on federal lands and/or the administration of them than other

filmmaking activity not covered by the requirements.

209. As a direct and proximate cause of the NPS photography and filming

permit requirements, Plaintiffs have suffered and continue to suffer irreparable

injury, including the burdening of their First Amendment-protected right to take

photographs and videos in public areas of the national parks.

210. The deprivation of constitutional rights is irreparable injury per se.

Elrod, 427 U.S. at 373.

211. Plaintiffs are entitled to a declaration under 28 U.S.C. § 2201 that NPS’s

photography and filming permit requirements violate the First Amendment both on

their face and as applied to Plaintiffs’ expression.

212. Plaintiffs are entitled to injunctive relief under Ex parte Young, 209 U.S.

at 123, preventing Defendants from enforcing the permit requirement.

213. Plaintiffs have no adequate legal, administrative, or other remedy by

which to prevent or minimize the continuing irreparable harm to their First

Amendment rights.

214. Without declaratory and injunctive relief against NPS’s photography

and filming permit requirements, Defendants’ actions that suppress Plaintiffs First

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Amendment expressive rights will continue, and Plaintiffs will suffer per se

irreparable harm indefinitely.

FIFTH CAUSE OF ACTION

Violation of the Fifth Amendment
(Due Process)
(Facial Challenge Against All Defendants)

215. Plaintiffs re-allege and re-incorporate the preceding paragraphs as

though fully set forth herein.

216. The Due Process Clause of the Fifth Amendment guarantees that “[n]o

person shall be deprived of life, liberty or property without due process of law.” U.S.

Const. Amend. V.

217. Plaintiffs have a liberty interest in filming and photographing in the

national parks.

218. Under the NPS permit and fee regime, government officials are

empowered to determine whether to grant or deny a permit based on their own

arbitrary discretion and without being subject to narrow, objective, and definitive

standards. See supra ¶¶ 141-43.

219. Under the NPS permit and fee regime, government officials can delay

responding to a permit request and are not required to respond based on any fixed

deadlines.

220. Under the NPS permit and fee regime, there is no effective recourse for

when permits are denied.

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221. As shown by the denial of Burkesmith’s application, a permit denial may

be categorical, excluding a whole content category of photography and videography

indefinitely and without any recourse.

222. As shown by the denial of Burkesmith’s application, NPS denies permits

based solely on the content of what the filmmaker or videographer is documenting

even if the activity itself is permissible.

223. Given the broad and sweeping nature of the deprivation of rights and

the potential for criminal sanctions for disregarding the NPS’s permitting decisions,

the NPS permitting scheme falls far short of the requirements of the Due Process

Clause.

224. As a direct and proximate cause of the NPS photography and filming

permit requirements, Plaintiffs have suffered and continue to suffer irreparable

injury, including the burdening of their Fifth Amendment right against being

deprived of their liberty interest in taking photographs and videos in public areas of

the national parks without due process of law.

225. The deprivation of constitutional rights is irreparable injury per se.

Elrod, 427 U.S. at 373.

226. In addition, Plaintiffs suffer irreparable harm that cannot be remedied

through money damages including being deprived of the opportunity to record and

capture once-in-a-lifetime events such as record-breaking speed-runs and facing

threats of criminal prosecution if they choose to film without a permit or publish that

film.

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227. Plaintiffs are entitled to a declaration under 28 U.S.C. § 2201 that the

permit requirement violates the Fifth Amendment both on its face and as applied to

Plaintiffs’ expression.

228. Plaintiffs are entitled to injunctive relief under Ex parte Young, 209 U.S.

at 123, preventing Defendants from enforcing the permit requirement.

229. Plaintiffs have no adequate legal, administrative, or other remedy by

which to prevent or minimize the continuing irreparable harm to their First

Amendment rights.

230. Without declaratory and injunctive relief against the permit

requirement, Defendants’ actions and suppressing Plaintiffs’ First Amendment

expressive rights will continue, and Plaintiffs will suffer per se irreparable harm

indefinitely.

SIXTH CAUSE OF ACTION

Violation of the First and Fifth Amendments
(Due Process - Vagueness)
(Facial Challenge Against All Defendants)

231. Plaintiffs re-allege and re-incorporate the preceding paragraphs as

though fully set forth herein.

232. Under the Due Process Clause of the Fourteenth Amendment to the U.S.

Constitution statutes must be invalidated if they are so impermissibly vague that an

ordinary person would not understand what conduct the statute prohibited, or are so

standardless as to invite arbitrary enforcement.

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233. The unconstitutionality of a vague statute is aggravated when it

operates to inhibit constitutional rights and First Amendment freedoms. Baggett v.

Bullitt, 377 U.S. 360, 372 (1964).

234. 43 C.F.R. § 5.12 defines “videography, television broadcasts, or

documentary or similar projects” as “commercial” but those types of films also fit the

definition of “news-gathering activities” because they involve filming and

videography that “gathers information of potential interest to a segment of the public”

by a videographer who, uses [their] editorial skills to turn the raw materials into a

distinct work, and distributes that work to an audience.” When addressing the issue

of whether NPS would charge Rienzie and Burkesmith, an NPS official revealed that

the vague nature of “commercial” use makes it “hard for our rangers nationally to

enforce what’s commercial, what’s not.”

235. Without declaratory and injunctive relief against NPS’s photography

and filming permit requirements, the vague differences between commercial filming

and photography and non-commercial filming and photography will continue to

suppress Plaintiffs First Amendment rights, and Plaintiffs will continue to suffer per

se irreparable harm indefinitely.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment

against Defendants and issue the following relief:

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A. Declare that photography and videography in the national parks and

other federal lands are protected expression under the First Amendment

to the U.S. Constitution.

B. Declare that the permit and fee requirements of 54 U.S.C. § 100905 and

36 C.F.R. § 5.5 are unconstitutional on their face because they require

every person who wishes to engage in commercial filming to obtain a

permit and pay a fee before filming on federal land administered by the

NPS.

C. Declare that the permit and fee requirements of 54 U.S.C. § 100905 and

36 C.F.R. § 5.5 are unconstitutional as applied to Plaintiffs.

D. Declare that Section 5.2 of 43 C.F.R. Part 5 is an unconstitutional prior

restraint on its face because it requires all commercial filmmakers to

obtain a permit before they can film on National Park Service-controlled

land.

E. Declare that Section 5.2 of 43 C.F.R. Part 5 is an unconstitutional prior

restraint as applied to filming conducted in areas where news-gathering

activities or analogous non-commercial filming are permitted.

F. Declare that Section 5.8 of 43 C.F.R. Part 5 is an unconstitutional tax

on speech.

G. Declare that Section 5.12 of 43 C.F.R. Part 5 is facially unconstitutional

because it discriminates based on content.

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H. Declare that Section 5.12 of C.F.R. Part 5 is unconstitutional as applied

to filming conducted in areas where news-gathering activities or

analogous non-commercial filming are permitted.

I. Declare that Sections 5.5 and 5.6 of 43 C.F.R. Part 5 are facially

unconstitutional because they grant arbitrary discretion to government

officials to determine whether a permit should be required or denied.

J. Declare that Sections 5.5 and 5.6 of C.F.R. Part 5 are unconstitutional

as applied to filming conducted in areas where news-gathering activities

or analogous non-commercial filming are permitted.

K. Declare that Section 5.9 of 43 C.F.R. Part 5 is facially unconstitutional

because it fails to set a time limit for responses to permits and gives park

officials arbitrary discretion to shut down spontaneous speech.

L. Declare that Section 5.9 of 43 C.F.R. Part 5 is unconstitutional as

applied to filming conducted in areas where news-gathering activities or

analogous non-commercial filming are permitted.

M. Declare that permit and fee requirements that flow from the definitions

in Section 5.12 C.F.R. Part 5 are facially unconstitutional because the

definitions are impermissibly vague.

N. Declare that permit and fee requirements that flow from the definitions

in Section 5.12 C.F.R. Part 5 are unconstitutional as applied to low-

impact videography, television broadcasts, documentary filmmaking, or

“similar projects” because the definitions are impermissibly vague.

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O. Preliminarily and permanently enjoin Defendants from enforcing the

permit and fee requirement of 54 U.S.C. § 100905 and 36 C.F.R. § 5.5

facially and as-applied to filming conducted in areas where the public is

allowed and where filming by tourists or news-gatherers or analogous

non-commercial filming are permitted.

P. Preliminarily and permanently enjoin Defendants from enforcing

Section 5.2 of 43 C.F.R. Part 5 facially and as-applied to filming

conducted in areas where news-gathering activities or analogous non-

commercial filming are permitted.

Q. Preliminarily and permanently enjoin Section 5.8 of 43 C.F.R. Part 5 as

an unconstitutional tax on speech both facially and as-applied to

Plaintiffs’ permit requests.

R. Preliminarily and permanently enjoin Defendants from enforcing

Sections 5.12 of 43 C.F.R. Part 5 facially and as-applied to filming

conducted in areas where news-gathering activities or analogous non-

commercial filming are permitted.

S. Preliminarily and permanently enjoin Defendants from enforcing

Sections 5.5 and 5.6 of 43 C.F.R. Part 5 facially and as-applied to filming

and still photography conducted in areas where news-gathering

activities or analogous non-commercial filming and still photography

are permitted.

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T. Preliminarily and permanently enjoin Defendants from enforcing

Section 5.9 of 43 C.F.R. Part 5 facially and as-applied to filming and still

photography conducted in areas where news-gathering activities or

analogous non-commercial filming are permitted.

U. Preliminarily and permanently enjoin Defendants from ordering

photographers or filmmakers to take down photographs and videos.

V. Preliminarily and permanently enjoin Defendants from requiring

permits from still photographers and filmmakers capturing images and

video in areas where the public is generally allowed if they don’t use

models or props as defined in section 5.12 of 43 C.F.R. Part 5.

W. Award reasonable attorneys’ fees and costs under 28 U.S.C. § 2412(b)

and any other applicable law; and,

X. Award all other relief as this Court deems just and proper.

DEMAND FOR JURY TRIAL

In compliance with Federal Rule of Civil Procedure 38, Plaintiffs demand a

trial by jury on all issues so triable.

Dated: December 18, 2024 Respectfully Submitted,

/s/ Mark V. Jackowski

ROBERT CORN-REVERE*
MARK V. JACKOWSKI (W.S.B. 7-6127) FOUNDATION FOR INDIVIDUAL RIGHTS
PO Box 1982 Wilson, WY 83014 AND EXPRESSION
Tel: (202) 486-3410 700 Pennsylvania Ave. SE, Ste. 340
mvjackowski@gmail.com Washington, DC 20003
Tel: (215) 717-3473
MICKEY H. OSTERREICHER* bob.corn-revere@thefire.org

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GENERAL COUNSEL
NATIONAL PRESS PHOTOGRAPHERS DANIEL M. ORTNER*
ASSOCIATION COLIN MCDONELL*
FINNERTY OSTERREICHER & FOUNDATION FOR INDIVIDUAL RIGHTS
ABDULLA AND EXPRESSION
70 Niagara Street 510 Walnut St., Ste. 900
Buffalo, NY 14202 Philadelphia, PA 19106
Tel: (716) 983-7800 Tel: (215) 717-3473
lawyer@nppa.org daniel.ortner@thefire.org
colin.mcdonell@thefire.org
Alicia Wagner Calzada*
DEPUTY GENERAL COUNSEL *Pro Hac Vice Motions Forthcoming
NATIONAL PRESS PHOTOGRAPHERS
ASSOCIATION
ALICIA WAGNER CALZADA, PLLC
926 Chulie Dr. Suite 16
San Antonio, TX 78216
Tel: (210) 825-1449
Alicia@calzadalegal.com

Counsel for Plaintiffs

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