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Why Burning Man Is Suing the US Government

Black Rock City -- the operational body that mounts Nevada's annual Burning Man arts and music festival -- is burning mad at the U.S. Department of the Interior and has filed suit against it in U.S…

Black Rock City — the operational body that mounts Nevada’s annual Burning Man arts and music festival — is burning mad at the U.S. Department of the Interior and has filed suit against it in U.S. District Court.

Filed Dec. 13 in the District of Columbia, the complaint accuses the department’s Interior Board of Land Appeals of failing to resolve a series of appeals Black Rock City filed over “excessive” permitting costs for the festival, which is held yearly on federal public land in northern Nevada. Black Rock City claims it has faced “severe economic harm” due to the board’s failure to address those appeals, costing more than $18 million in permitting costs since 2015.

Black Rock City alleges that for the past four years, the department’s Bureau of Land Management has failed to provide a “reasoned, written explanation” for the escalating and “burdensome” costs it has assessed — known as cost recovery charges — in order to hold Burning Man in Nevada’s Black Rock Desert on an annual basis. They additionally allege that the Interior Board of Land Appeals has ignored their appeals of those costs going back four years.

The company notes that the cost recovery charges demanded by the Bureau of Land Management have risen dramatically since 2011, increasing 60% year-over-year in 2012 (to over $1.3 million), more than doubling year-over-year in 2013 (to $2.93 million) and increasing by another $700,000 in 2014, amounting to an increase of $2.8 million (or 291%) over just a three-year period. It claims the bureau’s estimated cost recovery for Burning Man 2019 amounted to just under $3 million.

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The complaint includes a granular level of detail regarding Black Rock City’s interactions with the Interior Department and its assorted agencies over the past several years, including a detailed look at the process of obtaining the annual Special Recreation Permits required to hold Burning Man on federal land. In order to acquire the permits each year, Black Rock City is required to submit upfront payment to the Bureau of Land Management in an amount determined by the bureau. This amount — contained in a document known as a cost recovery estimate agreement — is what the bureau predicts it will pay in administrative costs at the next year’s festival.

Black Rock City alleges that the bureau has continually flouted federal regulations that require it to provide documentation proving that the costs they assess are not “arbitrary” or out of line. It further accuses the bureau of continually presenting its cost estimates too close to the event, leaving the company too little time to effectively review and negotiate its terms.

“This abusive pattern and practice results in an administrative ‘Hobson’s choice’ for BRC to either accept [the bureau’s] charges and conditions, however unreasonable, or cancel the already-scheduled Burning Man Event,” the complaint reads.

In addition to the Interior Department, Defendants named in the complaint include the Secretary of the U.S. Department of the Interior David L. Bernhardt, the Winnemucca District Office for the Bureau of Land Management and the Interior Board of Land Appeals. Black Rock City is asking the court to declare that the appeals board’s “unreasonable delay and failure to take action” constitutes an “improper” denial of the multiple appeals the company has submitted to the body since 2015.

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Among other things, Black Rock City also wants the court to declare that the named defendants have “unlawfully withheld and unreasonably delayed actions” related to its appeals; issue an injunction compelling the appeals board to take immediate action; and award Black Rock City assorted costs and attorneys’ fees.

“Defendants’ pattern and practice of delay has also had the effect of institutionally biasing the administrative decision-making process against [Black Rock City], causing damage to [Black Rock City] and threatening the rights of [Black Rock City] and its participants to use public lands, as well as the viability of the Burning Man Event on a year-to-year basis,” the complaint reads. “Defendants’ decisions and unreasonable delays therefore require judicial intervention.”

This isn’t the first time the ongoing clash between Burning Man and the bureau have spilled over into the media. In a preliminary April 2019 report, the bureau called for capping attendance at the rapidly-growing festival to 80,000, citing concerns over attendee safety and leftover trash; it additionally recommended the erection of a concrete barrier around the festival mandatory security screenings to thwart potential terrorist attacks. That report — which arose from Black Rock City’s ongoing attempt to secure a new ten-year deal with the bureau that would have raised festival capacity to 100,000 — resulted in an outcry from Burning Man organizers, who characterized the proposed regulations as an “existential threat” to the festival. A subsequent report eliminated the barrier and screening requirements but left the attendance cap intact.

Friday’s complaint also broaches the subject of that report, noting that, in keeping with Burning Man’s communal and environmental ethos, Black Rock City previously developed a “Leave No Trace” standard for Burning Man alongside the bureau that governs the “installation, operation and deconstruction” of the event, which includes the burning of elaborate art installations at its conclusion. Under the standard, Black Rock City is required to return the utilized area to “its natural desert state” in the weeks following the festival — a standard it claims to have met each and every year.

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In addition to increasing costs, Black Rock City claims the bureau has made excessive demands in other areas. During the permitting review process for Burning Man 2015, they note the bureau requested the construction of a $1 million compound for its employees that would include washing machines, flushing toilets and 24-hour access to snack food, among other amenities. As the complaint points out, that episode gave rise to various media reports and indignation from then-U.S. Senator Harry Reid, who slammed the bureau’s “outlandishly unnecessary” demands in a letter to former U.S. Interior Secretary Sally Jewell.

In January 2017, a report implicated high-ranking bureau agent Daniel Love in that scandal, resulting in Love’s removal from the agency later that year. Among other things, the report found he had used his role overseeing Burning Man security to buy otherwise sold-out tickets. Love had previously been involved in a command role in the bureau’s notorious 2014 standoff with Nevada rancher Cliven Bundy, whose cattle were rounded up by the bureau when he refused over the course of two decades to pay federal grazing fees for his use of federal land. (A criminal case against Bundy was thrown out of court in January 2018, though the decision was subsequently appealed by federal prosecutors.)

Under the administration of President Donald Trump, the Interior Department has become a frequent subject of controversy. In December 2018, the President’s first Interior Secretary Ryan Zinke resigned from his post amid a Department of Justice inquiry over assorted ethical violations, including a Montana real estate deal that may have violated federal rules. His successor Bernhardt is the subject of a current ethics investigation by the Interior Department’s Inspector General over alleged conflicts of interest.

Burning Man — which last year drew 78,850 attendees — has been held on federal land in the Black Rock Desert every year since its 1990 launch with the exception of 1997, when it was thrown on private land known as the Hualapi Playa. Since 2014, Black Rock City has been wholly owned by the non-profit organization Burning Man Project, which assumed responsibility for producing the festival in 2019. All earnings from the festival are dedicated to the Burning Man Project’s charitable activities.