Burning Man vs. the Bureaucracy
The Bureau of Land Management threatens to impose new restrictions on the famous desert festival.
If you've been to Burning Man—the annual gathering dedicated to interactive art, intentional community, and wild revelry, whose gates open Sunday—you've noticed that the Black Rock playa on which you are camping is utterly dry and featureless, except for endless stretching miles of flaking cracked clay. It is devoid of any visible animal or plant life that didn't come in on a Burners' truck. You can do Burning Man for decades, as I have, and if you are lucky you might have one weird, miraculous sighting of a confused bird.
It's curious, then, how much attention the Bureau of Land Management (BLM) gives to birds in its latest Environmental Impact Statement (EIS) on Burning Man. The BLM controls the federally owned land—a tiny portion of the vast Black Rock Desert playa, about 100 miles northeast of Reno—where 80,000 gather for the event.
In the public comment process between draft and final EIS, some commenters asked for some documented proof of bird impact, or even bird presence. The agency gave this dryly salty reply: "At the request of [Burning Man], biological resources surveys were not conducted as part of this EIS. This is typical of other proponents not wanting to bear the cost of wildlife surveys; therefore, the BLM assumes that wildlife are present." That's what you get for not wanting to pay for something a bureaucracy wants!
Having discussed the event with media and with many curious strangers in the 15 years since writing the book This Is Burning Man, the first detailed history of the event, I've often been asked why the federal government permits the event at all, given its reputation for unusually sexy and unusually druggy partying. The surface answer is: A legal process exists for seeking permits for gatherings on such federal lands, and the Burning Man Project (the nonprofit that now runs the event) goes through that tortuous process.
Dave Cooper—now an enthusiastic Burner, formerly the manager of the BLM's Black Rock National Conservation Area—says that despite the "pushback to Burning Man" that he frequently encountered when he was responsible for processing its permits, the event "always met the stipulations in their permit, and I saw no reason not to allow it to continue on the playa." Things have seemed a little different this year, with the BLM issuing the first full-on environmental report on the event since 2012. The nearly 1,000 pages that fill its two volumes hint at many curious and colorful, and onerous and expensive, demands that the government might want to impose on the event.
When the draft version of the EIS came out in March, baffling and infuriating many in the Burning Man community, the agency received more than 2,000 public comments; contentious crowds showed up at a series of public meetings in Nevada, though only 5 percent of the event's attendees live in that state. Some of the more eyebrow-raising demands, such as a nine-mile concrete barrier around the event, were then walked back, or at least held in abeyance for some potential future year.
Despite an April Vanity Fair headline declaring "Burning Man Readies for War with the Federal Government," the event got its official permit in July without too much in the way of new bureaucracy that an attendee would notice—for now. The BLM is applying what it calls "adaptive management" to the event this year. That means it will be keeping an eye on nearly everything—while making Burning Man pay for the cost of its monitoring—and retaining the right to impose new restrictions moving forward.
What might have changed to create these public tensions isn't clear. Burning Man's organizers declined to speak for this story about their relationship with the BLM and what seemed like a contentious permit process, beyond public statements on their website.
However things roll at the event next week, the process shows that the BLM, on the surface dedicated to preserving and protecting public lands, can become niggling event managers when it sees the need—and can threaten attendees' Fourth Amendment rights in the process.
Bureau of Human Environment Management
The Black Rock playa was chosen for the event in the first place, back in 1990, because of its virtual imperviousness to harm (and, ironically, for its presumed isolation from the eyes of authority). But many of the BLM's concerns—drugs, weapons—seem to have nothing to do with preserving or managing the land per se, focusing instead on managing the event and its attendees. To those who object to that, the agency points out that the "human environment" and the safety and health of citizen-land users are also its legal concern.
When the EIS discusses the physical environment—air, soil, dust, light, birds, animals, plants, historic trails and artifacts—its comments seem both picayune and vague. The EIS isn't specific about what level of measured impact, if any, would reach some sort of threshold requiring specific action. As one commenter noted, "Without any objective description of what kind of impact is to be considered significant and how much impact is likely to occur, the imposition of mitigation measures would be both subjective and indefensible."
Yes, a part of the vast featureless playa that mostly has no artificial light now for a few weeks has artificial light; the BLM is thinking of requiring artists' worklights to be shielded so their beams don't go skyward. And yes, Burning Man is famously dusty. This is utterly unavoidable, given the nature of the playa: Human and vehicular movement disrupt the surface and loosen dust, which wind inevitably swirls into the air. The BLM notes that during the event, the quantity of a certain size of small particulate matter in the air is 10 times the National Ambient Air Quality Standards, and so it orders Burning Man to supply its workers and vendors with masks to help filter them. It's also requiring the organizers to keep monitoring the air.
The EIS does a lot of that—turning understood realities of the event into things allegedly requiring tabulation, monitoring, and management, without much explanation of what benefits are supposed to come from the action. It makes sure to note that it is not legally required to do a prudent cost-benefit analysis of its mitigation demands.
The EIS also worries over the dripping of oil and depositing of greywater and other non-native effluent on the playa, noting that in 2018 the BLM issued "74 warnings and 40 violation notices for fuel storage." More encouragingly, it notes that past oil-drip surveys of parked vehicles at Burning Man show a downward trend in the number of junkers dripping oil on the pristine playa, with 16 percent doing so in 2002 but only 4 percent in 2012.
While all attendees are instructed to not let any kind of wastewater, whether soapy or foody or uriney, hit the ground, the BLM is aware that with 80,000 people, this sometimes happens. But when you read the EIS fine print, you find that in the agency's own estimation the "playa has been classified as a 'discharging playa,' which means that through evaporation and capillary forces, groundwater is actively discharged into the atmosphere [and] hydrocarbons deposited on the playa would be subject to biological, physical, and chemical breakdown and dispersion, and would therefore likely be eliminated from the system over time….Therefore, groundwater quality is not anticipated to be greatly affected by the Event because groundwater is actively discharged to the atmosphere." In other words, none of the dripping of Burning Man attendees studied and investigated and cited and ticketed in such detail matter that much to the environment. But they do give an excuse for lots of monitoring and citations.
One of the more utterly head-shaking petty demands in this purported "leave no trace" environment is insisting Burning Man make and disseminate pamphlets with trail maps of historical trails in the larger region around the event.
Some of the BLM's event-managing proposals seem in direct conflict with its land-managing concerns. The most clearly absurd suggestion, which they retreated from between the draft version of the EIS in March and the final release in June, was that the entire 9-mile border of the encampment be surrounded by concrete Jersey barriers. (Some suspect this was a result of the Department of Homeland Security fantasizing about a scenario from a thriller novel regarding an attack on Burning Man, or worrying about potential repeats of a Vegas shooter scenario.) In the revised version, the Jersey barriers are no longer specifically demanded, but the possibility of an order "to implement physical perimeter barriers and controls" remains.
The concrete Jersey barrier solution would likely require more than a thousand big rig round trips and multiple thousand of crane operations to build that wall. That would damage both roads and playa far more than anything else happening at Burning Man, and it would create miles of dunes from piled particulates. (Talk about dust!) It could conceivably add $10 million to the cost of running the event, and in one commenter's words shows such a "lack of any reasonable consideration" that it alone "calls into question the integrity of the whole EIS document."
This absurd concrete wall around the city would also trap everyone inside with just one road out. That would be dangerous even in the unlikely "shooting driver running amok" fantasy that it was supposed to prevent, not to mention the far more likely trouble of rain making the playa difficult to drive on, or any other incident requiring a multi-path evacuation.
Burning Man already has a sophisticated radar and patrol system of its own—they hate gate crashers as much as the next ticketed event—and law enforcement officers on the premises are always patrolling the borders as well. The BLM can point to only one case of someone getting through it, and not for the purpose of criminal mayhem.
Cooper sees signs that "other people got their fingers in the process" this year outside the BLM, especially Homeland Security, who are the only reason he can think of for "extravagant recommendations for concrete barriers." He also sees the hands of law enforcement in the document's most controversial and rights-damaging proposal—one not instituted this year, though the BLM insists it likely will next year.
The BLM wants to institute what its representatives at public meetings now call a warrantless "screening" of every vehicle entering the event. It does not define what that would entail, but it would clearly be a further step beyond the lame, officious traffic pretexts for stops and searches that already hassle Burners on their way to the event. (Last year the vast majority of the drug arrests from such an operation didn't go to trial.)
Caveat Magister (that's his Burning Man name; he's also known as Benjamin Wachs) has a new book out called The Scene That Became Cities: What Burning Man Philosophy Can Teach Us About Building Better Communities. He says such searches would inject a "culture of suspicion; when everyone is worried about what could happen when they step out of line, people stop expressing themselves in ways they otherwise would. When you tell people they have no rights, it inevitably damages the culture, makes it angrier."
It would also be what should be seen as a clear violation of the Fourth Amendment. But in practice, Fourth Amendment law has lots of balancing considerations of government goals, citizen burdens, and "reasonableness," despite the apparent clarity of the Constitution's language. The BLM blithely insists in the EIS that "the constitutionality of the proposed security screening is well supported in instances where the Department of the Interior contracts for or requires security at points of entry to large outdoor mass gatherings."
When asked to provide any case law litigating such issues, especially when "security" becomes arrests, the BLM had no further comment. It is true, as BLM spokesperson Ronald Evenson says, that the park service has done security screenings on people entering a concert venue on its land in Virginia for years with no known successful challenges. There are areas, like airports and some sports stadiums, where for security purposes such mass searches are practiced and have not been authoritatively declared unconstitutional.
But a 2008 article in the Suffolk University Law Review explains that, while the Supreme Court has taken no unequivocal position on the question, there are lower-court cases that support the notion that simply searching everyone entering a ticketed public event raises actionable Fourth Amendment concerns. Specifically, in the 2004 case of Bourgeois v. Peters, the 11th Circuit invalidated a city policy to force everyone going to a protest to submit to a metal detector search:
The Bourgeois decision cautioned that allowing mass suspicionless searches could lead to searches at a variety of large events, including sporting events, contrary to the Fourth Amendment's requirement of "searches based on evidence-rather then potentially effective, broad, prophylactic dragnets…." Under the unconstitutional conditions doctrine, the Bourgeois court analyzed the government's conditioning of access to a public event upon submission to a search, regardless of whether the individual relinquished a right or a privilege…
As a 2007 article in The International Sports Law Journal summed it up, "The general rule is that warrantless, suspicionless searches are unconstitutional unless they fit within certain recognized categories that are considered exceptions to this rule. There are three such categories: special needs beyond normal law enforcement (e.g., airport searches due to past hijackings); exigent circumstances (e.g., imminent destruction of evidence; danger to a police officer); and situations in which a diminished expectation of privacy exists (e.g., searches incident to arrest; searches of open fields or objects in plain view)." It is hard to see how searching people or vehicles going into Burning Man meet any of those criteria.
That said, nothing is completely predictable in Fourth Amendment litigation. But there's a good chance a judge would see the Burning Man case as distinct and even more troublesome than searching allegedly for dangerous weapons at protests or sports events. The EIS language explicitly mentions drugs, not restricting such searches to protection from violent mayhem. And it's one thing to ask people to withstand a simple patdown, and maybe a quick search of a purse or backpack, as they enter a concert, or protest, or sporting event. To have any hope of effectiveness, Burning Man searches would involve unpacking vehicles and trailers containing a week or more of one's possessions, food, tent, art, medicine, equipment—everything for a week in a harsh environment—that took hours to pack and would take hours to repack.
The burden of submitting to the search—or refusing and being denied entry to an event you likely spent anywhere from 5 to 15 hours driving to, plus around $500 for a ticket—ought to make any sane judge see a Burning Man search as qualitatively different from a concert or sports game. So should the possibility of extending what can already be hours-long lines to get into the event. As the EIS comments show, people are chomping at the bit to sue the BLM if it actually starts this warrantless, traffic-pretext-free mass "screening."
A more reasonable law enforcement demand, following a Salon article on problems in the treatment of sexual assaults during the event, is for Burning Man to contract for a new "sexual assault response team."
On the random bureaucracy front, BLM suggests it might in the future insist that any DIY living structure that a Burning Man camper builds that's over 10 feet tall would need to be inspected, possibly by a "Nevada-certified building inspector prior to occupancy." As commenters noted, that's crazy, given that such inspectors typically "inspect buildings to ascertain compliance with either the applicable building codes in the county, and/or the drawings as prepared and stamped by a licensed structural engineer." Without some state law regarding people's jerry-rigged lodging at Burning Man, "the inspectors are in a legal bind that is unfair to them personally and professionally."
Most building inspectors don't deal with the special requirements of short-term buildings and tent-like structures, and the number of potentially available Nevada-certified building inspectors of any sort in such a remote location—where a city's worth of such inspections would have to happen over a couple of days—is a completely unreasonable thing to consider, especially since BLM hasn't even demonstrated that there is a problem here that needs to be solved.
Where the EIS does bring up problems at Burning Man, they typically amount to single anecdotes. For example, it mentions the presence of one "individual inside the Event during build week with an assault rifle and approximately 40 grams of cocaine." (He harmed no one with the weapon.) And: "During the 2018 Event, a large moving truck traveling back from the playa overturned on a curve on SR 447 [which] resulted in multiple gallons of diesel leaking onto the highway." And then there's "an incident of a participant being gifted a substance that contained fentanyl."
One commenter summed up a range of Burner bemusement over the EIS: "It is, in fact, telling, that most of the ENVIRONMENTAL IMPACT statement has absolutely nothing to do with the environment, impacts of the event upon it, nor facts—rather there are vague suggestions not based on well-sampled data and mostly non-environmental assessments."
The Burning Man organizers, and large parts of their fanbase, are strenuously attached to not having dumpsters on site. The BLM thinks they might be a good idea. Letting people know they don't have to take their own waste away with them, as they now have to, will almost certainly make them generate more trash. And does the BLM really want to suddenly add the waste of a whole 80,000-population city to the local system, rather than the current decentralized system of having each individual vehicle take its trash to wherever the people in it are going? Imagine how much space the BLM approach would require—and how many 200-mile round trips to Reno-area landfills.
The BLM points out that poorly loaded trash on the back of trucks or trailers sometimes ends up on the side of the road back to Reno. Cooper agrees with Burning Man's counterargument, that when it comes to those regrettable unintended dumpings, "Burning Man is already required to pick it up, and they do it; not only that week's trash but trash that was left there all year." Cooper knows some attendees abuse private dumpsters at rest stops and in Gerlach or Reno, but he thinks the organizers do the best they can to educate their attendees about taking care of their own waste. Forcing the entire Burning Man trash stream into Reno-area landfills, robbing local tribes of their current business of charging people $5 a bag to take their trash, and destroying the delicate cultural balance that has Burners doing a better job of cleaning up after themselves than one would expect from partying Americans, seems an overkill response to a small existing problem.
The event undoubtedly has an unbalanced impact on some of the small communities that its 80,000 attendees wend through on their way to the playa, including Paiute tribal land and the towns of Nixon and Gerlach. Matthew Ebert, who used to manage a nearby ranch for Burning Man and rent trailers for playa events, is a former Gerlach resident who still owns a home there. He says that environmental complaints from locals often just reflect that they "find Burning Man to be an imposition on their regular lives," especially to the extent that passers-through are often a personality and social type that a desert hermit might find just plain annoying to deal with—especially if, as has sometimes happened, they left trash or even feces around town.
But the armies of invading art-techies have a brighter side. As the EIS states, the event's economic impact on Nevada alone is around $63 million a year. Total direct spending for the event and participants, minus labor expenses for the organizers, is "estimated at $132.6 million" annually. Burning Man is also required to help pay to maintain the last paved county road on the way to the playa, a rare though not unique case of a private entity forced to subsidize a public road because they cause it to be used a lot.
The average attendee spends around $666 in Nevada. The local BLM field office gets 3 percent of the event's gross revenue, as well as cost recovery for its expenses in managing the event. In 2017 that amounted to over $3.7 million paid from Burning Man to the BLM.
Localities in Nevada on the way to the event also collect lots of fuel and lodging taxes from the Burners. Nevada grocery stores, storage units, hotels, casinos, and airports all profit handily in sales. (The Reno airport says Burning Man "increases revenue at the airport between 11 and 15 million dollars.") The state of Nevada imposes a 9 percent tax on Burning Man ticket sales, which earned the state over $3.2 million in 2017.
So, beyond the simple civics textbook reasons why this weird counterculture event has had in the past a mostly complementary and congenial relationship with the government, there are millions of reasons to not scare Burning Man out of Nevada.
But could they ever leave? The EIS itself discusses a mutual effort on both sides to see if there was someplace better suited for the event, which came up zero. Burning Man has become a big landowner in the area, with the purchase, with the help of various wealthy techies in their orbit, of the nearby Fly Ranch, where the owners intend to experiment with more year-round versions of aspects of the Burning Man experience and ideology. The event has shown a demonstrated preference for the Black Rock playa, and organizers have every incentive to stick it out no matter how hard BLM leans on them. Surely the BLM knows this.
Still, as Caveat Magister says, "It's absurd to think that Burning Man hasn't spent all these years of negotiations wondering, do we have other options?"
Does Donald Trump Care What Happens at Burning Man?
Many in the Burner community see one big difference since the last environmental assessment was done by BLM for the event in 2012: Donald Trump is president. Neil Shister, a former Time correspondent and the author of the new book Radical Ritual: How Burning Man Changed the World, thinks the BLM's behavior is so rationally inexplicable that some sort of political "vindictiveness" seems at play, some "subtext" of "political revenge." But he grants that he knows no specifics. Many in the Burner community share those suspicions, though I have seen no hard evidence for them, and some familiar with the process insist D.C. has little concern for Burning Man permitting and lets localities have their head.
National politics do seem to be on the event organizers' minds more than before. Burning Man has hired a squad of lobbyists from Holland & Knight, including one former Trump staffer. (None of them responded to requests to talk about their work for the event.)
There's a certain sort of Republican orthodoxy for which the event has a natural attitudinal appeal. (GOP tax-cut king Grover Norquist, to give a prominent example, is a very public fan.) You could see how that could play out over, say, the dumpster fight. Burning Man's theory of radical self-reliance and its efforts to convince attendees to manage and haul out their own trash, with great though not perfect efficiency, may save Burning Man money; but it also teaches their audience to be responsible for themselves, to not coddle them in this harsh environment.
As the EIS notes, there's a sense in which this is bigger than either the organizers or the government. The agency could choose to not permit the event, or Burning Man could choose not to throw it, and many thousands of people would still show up at the Black Rock playa to gather, make art, and blow each others' minds. They'd just leave a way bigger mess without someone renting all the porta-johns. It's the kind of inevitability that even a federal bureaucracy might see fit to bow to rather than recklessly throw their weight around, especially with more than $3 million on the line.