[Tweeters] Legal vs Ethical

Teresa Michelsen teresa at avocetconsulting.com
Thu Jan 28 19:30:49 PST 2016

I'd also like to add a reminder that tribal lands and reservations are not
subject to the same laws as the rest of the United States, and should be
treated just as if you are in another country. Each reservation has
different rules, and you cannot assume that the same rights or customs
apply. Some are open to the public, others require pre-approval for access,
and some areas may be off-limits altogether. Aside from legal issues, they
may also have different cultural expectations that should be respected.
Among them, the 29 federally recognized tribes in Washington control
millions of acres, so be sure you know where you are and what rules pertain.

Of course this is also true of various Federal and State lands, including
wilderness areas, reserves, military installations, Hanford, etc. I have
certainly encountered curtailment of access and photography rights on the
water (at gunpoint) in the course of doing my job (environmental cleanup of
harbors and rivers), even though waters of the State are technically
supposed to be navigable by the public. Just try that around an oil
refinery, navy base, or ferry dock these days and see what happens,
especially with binoculars or camera.

Teresa Michelsen

North Bend, WA

From: tweeters-bounces at mailman1.u.washington.edu
[mailto:tweeters-bounces at mailman1.u.washington.edu] On Behalf Of Timothy R
Sent: Thursday, January 28, 2016 3:13 PM
Cc: Kevin Lucas; Izzy Wong
Subject: [Tweeters] Legal vs Ethical

Hello Tweets,

I assume part of the motivation of posting of these is in relation to the
relatively recent demise of the Northern Hawk Owl.

As a professional film-maker/Journalist / artist / author I have been in
touch with Mr. Krages personally. He may be the single most knowledgeable
photographers rights attorney in the US. I've never had to do much more than
assert my rights or show previous accreditation as a member of the media and
the press, but clarifying exactly what they are, while I am carrying a
camera within the United States- is. Being in a foreign country is NOT the
same as being in the USA and I would suggest that anything I say below- may
not apply in any foreign country - including Canada.

While you are in the USA or any states, territories, etc- Photographers have
very broad rights to photograph nearly anything if the photographer is in a
clearly public place and after numerous court rulings, that includes nearly
anything, but invasion of privacy and even more special cases like military
bases or secret fighter jets you are going to lose.

I have had my share of run-ins with morons over my 25 years of filming, and
have been harassed by unexpected sources in situations where a simple
request politely put, would have done so much more than screaming and trying
to surround me- while standing near the shoulder of a public highway... Even
occurring in Washington State on the Sammish Flats. I could have sued and
filed harassment charges, in that incident, but that is just not my style.

Recently there have been so many incidents of people confronting the press
in public places, from the University of Missouri Quadrangle to the armed
occupation of Malhuer National Wildlife Refuge. Threatening, intimidating or
preventing access to a member of the press to public places is clearly
illegal and just plain wrong. Whether Law enforcement officers must provide
access under all circumstances to crime scenes or areas or restrictions is
difficult to always assess. There may be some justification where an officer
may advise a journalist that hazards or other danger lies beyond and into a
restricted area. In most of these situations, the general public may be
denied access but a journalist may not. But if a journalist, had a specific
appointment -say with the nut-cases in the refuge, I suspect the F.B.I. may
not like it- but they would probably be required to allow a legitimate
journalist pass into blockaded areas. A court order to allow access would
most certainly be the final result, if the journalists could show their
safety was not in jeopardy and in some cases -even if it were.

The fine line is always: what does cross into privacy.

So in the situation, had I been standing on a given public road and filmed a
Bird of any species, on private land, and come back later to find that bird
in the act of being shot or already killed, I have that right as an American
citizen and even more so as a journalist because of specific protections
given to the press. In most cases, where you are in any public situation-
anyone does. You can be asked to leave certain areas of questionable "
public " ownership, say a Mall, but only if you are in violation of laws or
are involved in harassing someone who has an equal right to expect a certain
amount of privacy. In special venues which are owned by corporations, you
may be asked to abide by certain guidelines or "rules". But you are still
subject to your constitutional rights.

If that road is private, anyone can be charged with trespassing.

So Students camping in tents on the University of Missouri Quadrangle are
clearly in a public area. They may not restrict journalists of other members
of the public from passing freely on public ground. Do they have a
reasonable right to expect to NOT have a journalist or other member of the
public barge into a private tent on that public ground- I would say yes.

But one is not barging into a private home on private property if a dead
bird is clearly viewed from public places. However, if photos were taken
with a long lens of a person inside of that building who can reasonably
expect privacy, then again you are not going to be able to use the film.

But privately proving someone did something is not in most of our interests.
Providing material evidence which can aid in criminal prosecution I would
suggest is in everyone's interest, as long as it was legally obtained. So
any violation of wildlife codes, can be taken to the appropriate
governmental agencies. There are well trained people to handle these cases
with in appropriate divisions of government.

Private property rights are clear and extensive, but preventing photography
from a public place is not one of them.

Hopefully, this discussion is helpful.

Very Best,


Timothy Barksdale

Birdman Productions

P.O. Box 1124

65 Mountain View Dr.

Choteau, MT 59422

timothy -dot- barksdale -at- gmail- dot- com

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