Burning Man Sues Pershing County, Claims County Festival Ordinance Violates First Amendment

Burning Man (see my 2004 book about its history), a festival of art and community held on federal land operated by the Bureau of Land Management (BLM) but physically within Nevada's Pershing County, has filed a federal lawsuit in U.S. District Court in Nevada against Pershing County. The suit pushes back on some fresh demands for cash payouts from that county.

The root of the complaint, as I read it, is that Burning Man is questioning the county's right to impose certain extra requirements and fees on the event not contained in its agreement with the federal BLM (that agreement already includes paying the county for all its law enforcement costs at the event, which Burning Man does, and which amounted to $175,000 to Pershing last year. Many other Nevada state and local agencies also get payouts).

Burning Man has also made in the past agreements with Pershing, in lieu of the application of its "Festival ordinance" to Burning Man, to pay another $62,000 to the county yearly, $12,000 of which goes to local nonprofits serving county residents. Since 2005, under similar agreements, Burning Man has paid a total of $395,600, $108,600 of that to local nonprofits, according to the suit.

Last November, the suit claims, the county tried to amend its Festival Ordinance to apply to Burning Man in ways the event objected to. From the suit:

The proposed amendment would have made the ordinance applicable to Burning Man and severely restrict the content of the Burning Man Event.  Specifically, the proposal would have imposed hundreds of thousands of dollars of new fees on BRC [the LLC that runs Burning Man], 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 policies that could conflict, and in fact did conflict, with the terms of the 2012 BLM Permit….Notably, the proposed amendment would also have banned minors from the Burning Man Event.  

The suit also details an amazing example of local justice, in which a petition was filed against Pershing County earlier this year in Nevada state court trying to force it to apply the damaging festival ordinance rules to Burning Man. Burning Man was not informed of the petition.

The petition was approved–strangely, before it was even formally filed–by a Judge, Richard Wagner, who has earlier spoken out in public about his own desire to squash Burning Man. The county gave in to the petition, and as a result in May demanded Burning Man comply with its festival ordinance in the future.  This suit is claiming such application of the county ordinance to Burning Man is illegimate, not only for interfering with its pre-existing agreement with the federal BLM, but also for violating the First Amendment. From the suit:

The Festival Laws are directed towards speech and expressive conduct protected by the First Amendment.  They lack sufficient standards to guide the exercise of discretion by County licensing officials and therefore are facially void under the First Amendment…..

The imposition of arbitrary and excessive fees and charges on BRC in connection with the Burning Man Event is pretextual, content-based, and impermissibly restricts constitutionally protected speech and conduct.  If allowed to continue, these fees and charges would have the effect of substantially reducing the funds available to BRC for the direct funding of artistic and other expressive conduct at subsequent Events and the sponsorship of future events, resulting in the restriction of speech and other conduct protected by the First Amendment.

Burning Man's press release on the suit. Excerpt:

In early 2011, the county insisted that BRC pay a significantly higher fee by entering into a new agreement. BRC complied with this request in order to maintain good relations with the county. But then in May of this year, the county breached this agreement with BRC and imposed a much higher fee of $400,000.

This fee is $280,000 more than the county incurred in event-related expenses for the 2011 event and much more than the estimated $180,000 law enforcement cost for the event in 2012 cited by a representative from the Pershing County Sheriff's Office. County commissioners said the 2013 fee would be $600,000 to $800,000 and could exceed $1 million in the future.

"These fees are arbitrary and capricious," Harvey said. "It is wrong for the county to bully us in an attempt to balance its books. We are being treated like a piggy bank. We do not think that this government or any government has the right to do this."

The release also stresses the economic benefit brought to Nevada by the 50,000 or so people the event attracts to the area. None of this affects the 2012 event, which starts On August 26.

I wrote about the early days of Burning Man's relationship with government authorities in Reason back in the year 2000. I blogged back in May on the event's recent attempts to lobby the federal government.