Burning Man Sues the Federal Government Over Permitting Fees and a Sketchy Appeals Process
A federal lawsuit demands that the government honor its appeals process regarding the costs it imposes on the annual event.
Burning Man, a week-long art party/experimental community held yearly on the Black Rock playa in Nevada, exists on the sufferance of the Bureau of Land Management (BLM), the federal agency that controls the land on which the annual event occurs.
In a lawsuit filed last week in U.S. District Court in D.C. against the Winnemucca District Office of the BLM (plus other involved federal agents and agencies), Burning Man is complaining that the suffering imposed on them in terms of fees and delays while seeking permitting violates their rights and the government's own procedures.
Specifically, the suit (Black Rock City v. Bernhardt et al) claims the event is being harmed by:
the costs imposed by Defendant Winnemucca District Office for the Bureau of Land Management ("BLM"), the process by which those costs have been demanded, the inadequate justification for the costs, and the unreasonable delay confronted by BRC [Black Rock City LLC, which throws the event] during the appeal of those costs.
In addition to unreasonable conduct on the part of BLM, Defendant Interior Board of Land Appeals ("IBLA") has unlawfully withheld and unreasonably delayed decisions in multiple cost recovery appeal proceedings that have been filed by BRC over the past four years. These appeals filed with the IBLA are necessary to challenge the burdensome, unjustified, and excessive costs and other unlawful practices imposed…
The suit goes on to insist that there are not sufficient legal reasons for some of the BLM's "inflated and unnecessary" cost demands, and that the process does not allow Burning Man to do anything other than pay them in order to hold the annual event at its set time, the week prior to Labor Day.
By law, Burning Man insists, the "BLM must provide the permittee with a reasoned, written explanation for all assessed costs supported by the facts of record to demonstrate that such costs are not arbitrary, capricious, or an abuse of discretion" and that the agency has failed to do so. (In addition to coverage of their costs in permitting and managing the event, the BLM also takes a straight 3 percent of the event's gross receipts on top of that.)
Burning Man has filed six appeals about the imposed fees, and insist the IBLA has "unlawfully withheld and unreasonably delayed decisions" on their appeals. Since BLM doesn't have to change its cost-imposing behavior until that appeals process leads to some conclusion, the suit insists that IBLA's "unreasonable delay creates a condition of unfettered and unchecked control by Defendant BLM over BRC and threatens the continued viability of the Burning Man Event. IBLA's failure to act is effectively a denial without recourse…."
The lawsuit is pushing to make "this Court declare IBLA's inaction an unlawful abuse of discretion, treat such inaction by IBLA as constructive denial of BRC's appeals, and…provide judicial resolution." And if they can't get that result, Burning Man wants the Court to just force IBLA to actually come to a decision on its own regarding the appeals.
The agency made a complicated new series of demands on the event before issuing the permit in 2019, many with only tenuous connections to any issue actually related to land management.
In an emailed statement, the Burning Man Project writes that the suit was necessary because "BLM has been charging our organization for unreasonable costs related to the annual Burning Man event in Northern Nevada. Burning Man Project has been seeking IBLA relief from these costs for nearly four years, and the IBLA has unreasonably denied that relief in violation of the Administrative Procedure Act. This case is our attempt to break this cycle."