The U.S. Forest Service has fined two filmmakers and a senior marketing executive at Aspen Skiing Co. $500 each for “conducting an unauthorized commercial activity” on Forest Service land last winter while shooting promotional film footage.
The fines resulted from a federal investigation that began after 22-year-old Wallace Westfeldt of Aspen died in an April 4 snowboarding accident in Tonar Bowl outside of the Aspen Highlands ski area while being filmed by a company hired by SkiCo.
“The proper authority for commercial filming had not been obtained,” said Jeff Dorschner, public affairs officer for the U.S. Attorney’s office in Denver, a prosecutorial arm of the U.S. Justice Department.
Forest Service regulations require a permit for shooting film or video for commercial purposes. Tonar Bowl is outside of the Highlands ski area boundary (in which a permit would not be required) and is on national forest land.
Brendan Kiernan and Frank Pickell of Futuristic Films in Denver, and Steve Metcalf, director of brand development for SkiCo, were each charged with a Class B misdemeanor and issued a citation for $500.
The citations were issued about two weeks ago. The men have the option either to pay the citation within 30 days of its issuance or contest the charges in a federal court in Grand Junction. Dorschner said that contesting the charges could lead to a trial.
Dave Bellack, senior vice president and in-house counsel at SkiCo, said he was not sure whether Metcalf will pay the fine or contest the charges.
“Whether Steve is going to contest or not will depend on what explanation we receive from the Forest Service on what the basis for the citation is,” Bellack said.
According to Bellack, the ticket-like citation issued to Metcalf doesn’t include many details, beyond a statement that Metcalf was “aiding and abetting unauthorized filming.”
The citation also includes a date of March 7, even though the accident in Tonar Bowl occurred on April 4. SkiCo had hired Futuristic Films to shoot footage throughout the winter, including early March, and it is possible that the Forest Service law enforcement officers determined that the film company was shooting on federal land on March 7 without a film permit and decided to make events of that day the basis for the citations.
However, when asked if the citations are connected to filming on federal land on April 4, the Justice Dept.’s Dorschner said, “certainly, the charges are related to that day.”
But neither the Forest Service nor the Justice Department would discuss the details of the citations until either the fines are paid or a court case has been resolved. “Because this is a criminal matter, there is little that I feel comfortable discussing,” Dorschner said.
The Pitkin County Sheriff’s Office investigated Westfeld’s fatal accident and closed its investigation in early April, having concluded that foul play was not involved.
However, the county coroner’s office expects to review the footage shot in Tonar Bowl that day soon, to ensure that the visual record supports their conclusions, said Pitkin County Sheriff Bob Braudis. The 35-millimeter film from April 4 was being processed into a digital format this week, Braudis said, and County Coroner Steve Ayers wanted to see it.
Kiernan, Pickell and Metcalf had worked together before on SkiCo’s “Mountain Town” film, which was well received as a piece of cinematography even though it was intended as a promotional film for SkiCo. Both Kiernan and Pickell have strong ties to Aspen.
Metcalf had served as a producer on “Mountain Town” and was in charge of overseeing the film company this past winter, according to Bellack.
While Bellack is providing legal advice to Metcalf because he is a SkiCo employee, he said he is not doing so for Kiernan and Pickell, and emphasized that Futuristic Films was working for SkiCo as an independent contractor.
“Their business is making films, and like any other independent contractor, how they select the means and methods of doing their work is up to them,” Bellack said. “Where they shot their films is their decision.”
On April 17, SkiCo issued a statement saying, “We have used independent film contractors in the past. In the future, when working with independent film contractors, we will more carefully scrutinize permit compliance.”
The Aspen Daily News tried to reach both Pickell and Kiernan Thursday for comment. While Kiernan did respond to an initial e-mail seeking comment, answers to detailed questions sent to him were still not available by press time Thursday.
After the April 4 accident, Kiernan and Pickell sent a letter to the local media expressing regret, but at the time they declined to answer questions from the media about the day’s events, and directed all inquiries to SkiCo.
Rich Doak, acting recreation staff officer for the White River National Forest, said that violations for commercial filming projects on forest land without a permit are becoming increasingly common, but that charges actually being filed by the Forest Service’s law enforcement division are relatively rare.
“In the last year, the Forest Service has sent out 10 or so letters to warn people that it appears what they are doing needs a permit,” Doak said. “The message is that folks that are going to be doing any filming on the national forest, other than for their home use, most likely need to have a permit. They should be contacting the Forest Service in advance.”
bgs@aspendailynews.com
