Burning Man Organizer Balks at Fee Maneuver

CARSON CITY, Nev. (CN) - Buoyed by a disapproving judge, county officials are trying to run the Burning Man festival out of town by doubling permit fees, its organizer claims in Federal Court.

Though this year's event, which runs Aug. 27 to Sept. 3, will not be affected, the 2013 festival is in jeopardy after Pershing County allegedly hiked the fees from $154,000 in 2011 to $448,000 this year.

"Defendants have acted not out of a neutral and objective concern for public safety issues, but because of their opposition to what they consider to be the content and culture of Burning Man, in violation of the First Amendment," the lawsuit states.

Black Rock City has held Burning Man event in the Black Rock Desert of Pershing County, Nev., since 1991. According to its website, the experimental arts event - which runs on a "free market" system and bans advertising - draws more than 50,000 people each year.

One of the festival's "primary purposes is to encourage communication and individual expression through art and other media, all directed towards exploring a common theme," according to the complaint.

Because the event is held on federal land, Black Rock City has paid the Bureau of Land Management for services ranging from security to emergency response since 1995. In 2006, the bureau switched from a flat-fee format to a cost-recovery system. The switch also required Black Rock City to contract directly with state and local government agencies for local services, including law enforcement. From 2006 to 2011, Black Rock entered into such agreements with the Pershing County Sheriff's Office.

Black Rock City says its payments have steadily risen from $66,000 in 2006 to $154,000 in 2011, but actual law enforcement expenses were only $120,000.

The organizer also made annual payments to Pershing and its nonprofits since 2005 as part of an agreement to avoid litigation over whether federal law pre-empts application of the local festival law against Burning Man. Since 2005, Black Rock City has allegedly paid Pershing and its nonprofits $395,600 under these agreements.

But the arrangement came under fire in November 2011 when Defendant District Attorney James Shirley advised Black Rock City that Judge Richard Wagner of the Nevada's Sixth District Court had asked him to amend the festival law in a way that would "severely restrict the content of the Burning Man event," according to the complaint.

"Specifically, the proposal would have imposed hundreds of thousands of dollars of new fees on BRC, subjected Burning Man to local law enforcement inconsistent with the terms of the BLM permit, and otherwise make the conduct of the Burning Man event contingent upon and subject to county and state laws and polices that could conflict, and in fact did conflict, with the terms of the 2012 BLM permit.

"This was not Judge Wagner's first effort to drive the Burning Man Event out of Pershing County," the lawsuit states, noting that two different commissioners have said Wagner opposed the "expressive activities occurring at the event, and was pressuring them to void the 2005 and 2011 agreements and, through the imposition of huge fees and heavy regulation, effect the content of the Burning Man event and cause BRC to seek to relocate the Burning Man event out of Pershing County."

Wagner, who is not a party to this action, allegedly supported the festival law amendment at a November 2011 public hearing, "commenting that Burning Man 'purveys titillation.'"

Once enacted in February 2012, the amendment raised the permit fee for outdoor assemblies to $1.50 per person per day.

"Because the Burning Man Event is expected to draw up to 60,000 attendees, with an average daily attendance of approximately 50,000 people, this fee would amount to approximately $75,000 per day for the eight-day duration of the event," according to the complaint.

When the county gave Black Rock City a proposed law-enforcement agreement in May 2012 that gave the sheriff's office a budget of $346,700, plus fees, the deal allegedly contained a provision stating that the proposed agreement "does hereby rescind, revoke, and supersede any and all prior agreements."

Interpreting this provision as revoking the agreements that barred application of the festival law, Black Rock City says it refused to sign the law-enforcement deal. The organizer says the costs were then incorporated into its license fee, but those charges were excessive.

Plaintiff says it paid all fees to host this year's event for fear of being sued by ticket purchasers if the event was not held. Next year might be a different story.

"The charges that BRC has been forced to pay in 2012, and that it expects to pay for Burning Man events in the years that follow, will substantially limit and curtail BRC's ability to fund the creation of art and other expressive conduct in the future, resulting in events that will have less expensive conduct and be less of a forum for protected speech and activities," the lawsuit states.

Concerned that the county could not apply the revised festival ordinance to Burning Man, the district attorney filed a petition on behalf of Nevada to make Burning Man comply with the festival law, according to the complaint. But Black Rock City says it was not a party to this "collusive litigation."

"At this point an even more astonishing series of events ensued," the lawsuit states. "The petition was assigned to Judge Wagner - the very individual who had spoken out at a public hearing against the Burning Man event, had provided a public statement that the agreement between BRC and the county was not valid, had privately pressed commissioners to implement the relief requested in the petition, and who had witnessed the affidavit in support of the petition."

Then, "without the benefit of any briefing, Judge Wagner granted the petition," but "inexplicably" signed the order on May 15, 2012 - the day before the petition was even filed, according to the complaint.

Black Rock City says it received no notice that the petition had been filed or that an order had been issued.

On May 24, Wagner granted the petition and directed that the commissioners require plaintiff to apply for an outdoor assembly license for the Burning Man festival, and to notify Black Rock City that it "would no longer comply with the agreements between the county and BRC."

It also gave notice to the organizer that it considered the prior agreements to be terminated.

The County Festival License imposes a total fee of $448,000 in addition to a requirement that BRC provide certain services, including provision of a trailer and space to park trailers at a trailer park, provision of fuel to the sheriff's office, installation of telecommunications equipment and services for use by the sheriff's office, "with a value of at least $36,605," the lawsuit states.

Of that money, $398,000 is allocated for law enforcement expenses; $25,000 goes to costs incurred in prosecuting anyone who gets arrested; $5,000 for county recover/secretary services; and $20,000 for an emergency contingency fee.

"The law enforcement costs imposed under the license fee are almost $280,000 more than the $120,000 in actual costs incurred by the county for the 2011 Burning Man event."

Black Rock City says the festival ordinance has never been applied to any group other than the Burning Man event.

It sued the county, District Attorney James Shirley, Sheriff Richard Machado, and Commissioners Pat Irwin, Carol Shank and Darin Bloyed.

Black Rock City says federal law pre-empts the festival ordinance, that the defendants are liable for breach of contract, and that the alleged conduct amounts to a violation of the due-process clause.

It is represented by Tamara Reid with Holland & Hart in Reno.

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Burning Man Organizer Balks at Fee Maneuver

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