Patagonia-produced video violates BLM film permit guidelines, promotes irresponsible destruction of cultural artifacts in Bears Ears region

by Monte Wells

Most companies find it prudent to keep politics out of their business. If a company manages to justify to itself that taking a strident political position is more important than delivering good products and services to customers, it will soon find that strident political positions alienate somewhere around half of their customer base. And that’s just the starting point when it comes to ascertaining the risk of surrendering a company to political ideology. In addition to alienating customers, companies that put politics before products also invite government and public scrutiny of their actions.

Anyone who has been paying attention to politics in Utah will be familiar with Patagonia’s economic jihad against the state of Utah. Patagonia, a company that utilizes third-world sweatshops to produce overpriced outdoor gear, has recently decided that the best way to get a policy outcome that they want is to economically threaten the constituents of a state that has adopted policies they disagree with. Naturally, this effort to position itself as a moral leader on the issue of protecting public land has led others to question Patagonia’s own record as a steward of the public lands it proclaims so dearly to want to protect.

On Feburary 16, 2014 the Deseret News published an article called “Group criticizes actions in Bears Ears film” By Ben Lockhart@benlockhart89. The article referred to a video that Patagonia and Friends of Cedar Mesa produced on Bureau of Land Management (BLM)-managed land in San Juan County, Utah. The video is watermarked with Patagonia’s logo and published on a page Patagonia owns, and the video clearly presents the message that the Bears Ears area of Utah needs to be protected as a national monument. While the overt message of the video is clear, the video contains clear violations of federal law while also promoting irresponsible and negligent treatment of protected cultural artifacts.

Those who support the creation of Bears Ears National Monument have complained loudly and often about alleged widespread looting, vandalism, and destruction of natural and cultural resources in the area. They also claim that the public, and especially the locals, failed to obey the laws that were in place to protect this area. However, casual scrutiny of Patagonia’s “Defined by the Line,” promotional video shows that the biggest threat to the natural and cultural resources in Bears Ears are the participants in the outdoor recreation economy and their corporate enablers.

First and foremost, Patagonia failed to comply with BLM regulations that require those producing commercial films on federal land to get a special permit to film. These special permits to use the public lands for commercial film production are issued by the BLM under Section 302(b) of the Federal Land Policy and Management Act. Regulations governing filming on public lands are covered in 43 Code of Federal Regulations (CFR) part 2920, Leases Permits, and Easements.

The permit was issued to a company out of Seattle Washington called “Duct Tape Then Beer, LLC” who is a partner with Patagonia. The permit was issued on December 02, 2014 until December 7, 2014 and lists the areas where they would be filming.

This special permit listed the approved area(s) for filming in as well as other conditions.

The permit rules also require an authorized Department of Interior representative to accompany the film crew at all times. This representative is there to monitor to make sure that all the rules as outlined are followed. This would include any damage to the area, disturbance of archaeological sites, and to make sure the filming is being done in the approved locations.

The Deseret News article reports what is also clear in the video itself: Josh Ewing, executive director of Friends of Cedar Mesa and brand ambassador for Patagonia, “[picks] up a pottery shard. The video cuts away to a different shot before it becomes clear what he did with the artifact.”

Josh Ewing said he put it back in its exact location. He went on to say that picking up pottery sherds is a “widely accepted action.”

“The rules are that you should not take or remove artifacts from public lands,” Ewing said. “But certainly, to pick up a pottery shard and put it back down in its place is common practice. … It’s a very common practice by archaeologists and the public.”

Josh Ewing is not an archaeologist, and his statement seems to conflict both with common sense and with the BLM’s position concerning artifacts.

“ARTIFACTS: The most common disturbance to surface sites is the collection of pottery sherds and chipped stones — either taking them home or moving them from one part of the site to another. Pottery sherds provide one of the primary methods of dating surface ruins, help determine the cultural affiliation of the people, and identify trade patterns and work areas. The loss or movement of surface artifacts seriously affects an archaeologist’s ability to understand a site. Examine artifacts in place and leave them where you found them.

The big issue here is that contrary to his claims, Ewing did damage the archaeological record by picking up the artifact, and he appears to have done so without any guidance or sanction from the BLM. One also has to wonder if he violated the filming permit terms and conditions by unnecessarily disturbing the archaeological site. The Department of the Interior (DOI) monitor should have been consulted and according to the permit, any changes need to be approved. There was nothing in the permit authorizing Josh Ewing to disturb that artifact.

In addition to violating a clearly-stated BLM policy regarding the handling of artifacts, Patagonia and Ewing doubled down in asserting that this is responsible use of cultural resources. This is not a responsible use of cultural resources, and the cavalier attitude presented by Patagonia and Ewing when confronted with this fact undermines and discredits their moral credibility when they try to position themselves as leaders on issues pertaining to the protection of public land.

Beyond the vandalism of cultural resources, the clearest violation of law in the video is that “Duct Tape Then Beer, LLC and Josh Ewing filmed part of the video completely outside of the authorized permitted area that was approved in their permit UTU-90997.

The following description from the permit clearly lists where they are authorized to film.

Despite this the film crew from Duct Tape Then Beer, LLC who is a partner with Patagonia and Josh Ewing violated the filming permit. At the beginning of the video they show Josh Ewing walking through some rocky terrain and coming upon an oil pump. It appears they ignored their permit and filmed the first section of their video on non approved BLM land in Recapture Pocket. Recapture Pocket is located south east about 9 miles as the crow fly’s away from the closest approved filming area.

Still frame of Josh at Drill site

This was not the only incident of filming outside of the permitted area. They filmed the below ruin which is located in Ruin Park which is north of Beef Basin.

Picture of same ruin taken by The Petroglyph

This ruin in Ruin Park is about 45 miles NW of the approved filming area and again clearly shows an intent to violate the BLM filming permit. They also filmed Josh climbing in Indian Creek on BLM land. Indian Creek was not listed on the permit either.

Six Shooter in Indian Creek
Josh Ewing looking at the Six Shooter from the top of a cliff in Indian Creek

Clearly “Duct Tape Then Beer LLC” a partner with Patagonia and Josh Ewing violated the BLM issued filming permit several times during the filming of this video. If an oil company were to drill for oil on BLM land without a permit, there would be consequences. Here, Patagonia increased the value of their brand through unauthorized utilization of public land resources.

Where in the world was the DOI monitor that is supposed to prevent things like this from happening? The permit never mentioned if a monitor had been assigned. Either way, it didn’t seem to matter to Patagonia. They made it clear they didn’t care about the permit being violated and issued the following statement to the Deseret News regarding the issue.

“Patagonia stands by the film, Josh Ewing and its depictions of Native American heritage. The image of the oil rigs was deliberate: This is an area that if unprotected will be exploited and drilled,” she said.

It appears to me that it is Patagonia and Friends of Cedar Mesa that believe they are above the law and that BLM regulations don’t apply to them. It appears they are the ones exploiting the area for their own deliberate selfish wants.

Along with Patagonia and Friends of Cedar Mesa willfully violating the BLM regulations the BLM itsself ignored the evidence when they were presented with it.

Bureau of Land Management spokeswoman Kimberly Finch said in an email that the agency “is not investigating any participants in Patagonia’s video ‘Defined by the Line.’”

“Picking up a pottery shard on public lands is not a crime, but taking one home is,” Finch said, speaking in general terms.

While a company exploiting public lands for their own gain is nothing new, the BLM was made fully aware of the many violations in this video. They have yet to provide an adequate response to several pertinent questions. Why does the statement from their spokesperson directly contradict theircleary state policy on handling artifacts? Did Patagonia produce a commercial video on public lands that violated their permit to film on public lands? If so, what are the consequences for this violation? Was there a Department of Interior monitor onsite during the filming of this video? If so, why did the monitor not prevent the film permit violations?

Part of the reason that so many westerners oppose large national monuments is because they empower agencies like the BLM, that tend to be arbitrary and capricious when it comes to upholding and enforcing the law. Unfortunately, it appears that the BLM is willing to ignore the law to protect their corporate friends in the outdoor recreation industry.

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