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August 17, 2012

Burning Man Sues Pershing County

The Reno Gazette-Journal is one of the Gannett newspapers where it feels like an honorable, decent business transaction when they ask you for a few bucks to access their online site, unlike the Thing On Gene Autry where 3rd grade spelling and grammatical errors go to live out their long years of retirement, which seems to include a daily exercise regimen of publication in the paper.

But I mean that only as an introduction to this news article about Burning Man filing a lawsuit against Pershing County in federal court. This is looking ahead to 2013, so it has no effect on the 2012 event. Also, the attorneys for Black Rock City LLC (the corporate name for Burning Man) are Gross Belsky Alonso LLP in San Francisco. This firm successfully assisted Spike Lee to obtain some chunk of money from Viacom to help him with the fear that TV viewers might think Spike TV had some sort of link to Spike Lee. I must be slow, because until I read that, it would never have occurred to me to consider any sort of link between the two Spikes. I wonder what kind of negotiations have gone on between Mr. Lee and the Golden Spike National Historic Site.

But as for Black Rock City LLP vs the County of Pershing, BRC has been paying 100% of the county's law enforcement expenses associated with the Burning Man event. That came to $175,000 in 2011. Pershing County wants to impose an additional $1.50/ticket/day tax on Burning Man. In addition, the county wants to double the number of law enforcement personnel on the playa. BRC says that will bring the total paid to Pershing County to $600,000 in 2013. They predict the fees could rise to as much as a $1 million. I suppose that would be when the event hits the BLM maximum of 70,000-something. BRC already pays about $1.5 million in permit fees to BLM, since the desert is federal land. Total expenses for BRC were $20.6 million in 2011.

This may indicate the nub of the matter:

"I'm very concerned about what the community standards are becoming in this community," [Pershing County District Judge Richard] Wagner is quoted saying at the Nov. 16 meeting, according to the court filing. "When they first came, everyone was shocked. Now, we've accepted them and now we're embracing them, because what? They bring money to the community? Something's wrong with that."

It is ordained that something which shocks you must always shock you and you must never accept money as compensation.

"This really isn't about regulation, it's about revenue," said Larry Harvey, the founder of Burning Man, in an interview Wednesday. "It's our contention that Pershing County is proposing to charge us fees that are essentially unlinked to any service and that it's simply motivated by a desire to increase county revenues. Period."

BTW, Goldenvoice has no connection with Burning Man.

In the comments on that news article you will learn that all three Pershing County Commissioners are Republicans. One person calls them "Nanny state republicans." There are suggestions to slide the event over to Washoe County, which is technically possible.

Pershing-&-Washoe-Counties-at-Burning-Man
The county line runs north-south on this map.

The PDF of the filing is available here.

Right off I've spotted a typo in the filing. It says that the 2007 event was held on private property. The correct date is 1997, but what's 10 years to a law firm?

When Pershing County first enacted its festival ordinance in 2004, the county and BRC agreed that rather than subject Burning Man to the ordinance, the county would accept a flat fee payment plus contributions to non-profits. BRC had threatened to sue because the event takes place under a federal permit.

It seems that the shocked Judge Wagner testified before the county commissioners in favor of their festival ordinance and then later, in his role as judge, upheld its lawfulness.

After the 2011 event, Pershing County provided these law enforcement statistics to BRC:

  • 1 arrest for battery
  • 3 arrests for domestic battery
  • 2 arrests for possession of controlled substances
  • 2 citations for battery
  • 7 trespass advisements
  • 6 reports relating to missing/found children
  • 0 serious criminal violations

That's for a week-long event with more than 50,000 people. Compare that to Stagecoach and Coachella in 2012: 235 arrests over two weekends at Coachella and 174 arrests at Stagecoach.

THere were 22 Pershing County Sheriff's Deputies patrolling Black Rock City in 2011 and the Sheriff's Office reported "[t]here were sufficient personnel most of the time to handle the incidents as they occurred."

Since the Pershing County festival ordinance was enacted, no one has applied for a permit under it, and no festival has occurred that would be covered by the ordinance. The ordinance only covers festivals with more than a thousand attendees. In the 2010 census the population of Pershing County was 6,735. The U.S. Census has updated that to 6,734 in July 2011 - a clear downward trend.

Judge Wagner used to be District Attorney in Pershing County. The suit says that the current District Attorney, James Shirley, was asked by Judge Wagner to amend the county's festival ordinance so that it would apply to Burning Man.

In addition to more money for Pershing County, District Attorney Shirley and County Commissioner Bloyed want the law interpreted so as to ban children from Burning Man. That would lead to unintended consequences, I think. While there is a party atmosphere during much of Burning Man, and nudity is permitted everywhere, all the laws of Nevada apply. This means public lewd behavior is not permitted. I believe this restriction is endorsed and supported by Burners because of the presence of children. Public behavior at Burning Man is no worse than a drunken family barbecue. Take away the kids and make this an adult-only event, and the whole tone of Burning Man is going to shift, and not for the better, I'm afraid.

Here's an enlightening statement from Judge Wagner that he made while testifying in favor of amending the festival ordinance: "You want to see what a lawless culture, built like 49ers and Deadheads and Cyber Punks leads to? National Magazine, I would say it in two words, 'Penn State.'" I'm not entirely sure of his reasoning, but he does seem to be linking child molestation at Penn State with Burning Man. It'd be interesting to know if any Penn State coaches ever attended Burning Man, or if there have been any substantiated charges of child molestation at Burning Man. I never heard of any.

Nevada law required Judge Wagner to recuse himself from ruling on a petition filed by the District Attorney that would have removed Burning Man's exemption from the county's festival ordinance. Rather than recuse himself, Judge Wagner granted the petition without hearing on the day before it was filed! BRC was never notified of the filing or granting of the petition.

BRC is asserting that...

  1. Federal laws (the BLM agreement) take precedence over state and local;
  2. The Pershing County festival ordinance is directed to restricting freedom of speech;
  3. Due process has not been followed; and
  4. Pershing County is attempting to breach its contract with BRC.

Filed under Burning Man | permalink | August 17, 2012 at 12:17 PM

Comments

The Reno Gazette-Journal editorializes about the lawsuit and Pershing County's actions:

No amount of law enforcement is going to turn Burning Man into a Boy Scout Jamboree, however, and it’s not the job of Pershing or any other county in Nevada to try to control what happens on public land far away from the county seat in Lovelock. It can’t be done, nor should it.

Any fees charged the festival should have a firm grounding in the actual costs to the county created by Burning Man, not to boost the county’s general fund and not to recast the event to meet county officials’ personal standards.

Posted by: Ron's Log at Aug 19, 2012 9:47:47 PM

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