AFTERBURN REPORT 2006
The Legal Team faced unique successes and challenges in the areas of permits, trademark, copyright, intellectual property, and Legal Team human resources. Regrettably, one Burning Man contract attorney took another counsel position in 2006; however, just when we needed a lawyer to review a vendor contract, a new one appeared out of the dust to fill the void! Playa serendipity?
Also in 2006, the Legal and Media Teams continued with trademark and copyright enforcement issues, as well as negotiated the occasional contract for books and movies featuring Burning Man.
One intellectual property is particularly noteworthy: Burn on the Bayou is a documentary that tells the story through photographs and home movies of Burners Without Borders (BWB), a group of Burning Man participants who created an outpost of camps—not unlike Burning Man camps—to provide relief efforts to decimated gulf coast inhabitants after Hurricane Katrina. The agreement that licensed BWB to use the Burning Man name in the movie proved particularly challenging as BWB is more of a concept borne out of a grassroots movement than a legal entity.
The major legal issue in 2006 stemmed from the Bureau of Land Management's (BLM) Special Recreation Permit (SRP) stipulations.
As 2005 was the second year of a two-year permit with the BLM, and because the BLM's permit application process requires a costly and time-consuming Environmental Assessment (EA), in 2006 Burning Man applied for a five-year SRP at the request of BLM's Winnemucca Field Office. This meant that the BLM processes one application and conducts one EA for the next five years instead of five separate applications and assessments. The mutually-beneficial result is more resources for the stewardship of the Black Rock Desert-High Rock Canyon Emigrant Trails National Conservation Area (NCA). Burning Man cooperated with BLM in the application process, submitted a Five-Year Operations Plan, and the BLM conducted the EA. For the first time in Burning Man's twenty-year history, BLM issued a five-year SRP (for more information, read BLM Issues a Five-Year Permit to Burning Man). All processes went quite smoothly, with the exception of stipulations negotiations.
Each time an SRP application is submitted, its stipulations are negotiated by Burning Man and BLM. Stipulations are the detailed terms of the SRP that outline the requirements that Burning Man must fulfill in order to produce the event. In 2006 these negotiations were made difficult by several new, troubling, and seemingly arbitrary stipulations (read the Government Relations Afterburn report for details on the specifics of the SRP negotiations).
After long hours over the negotiation table workable compromises were reached on three of the four stipulations at issue; however, The BLM was inflexible about its decision to make Burning Man pay for local law enforcement on top of fees already paid by Burning Man and we were stuck with the bill for local law enforcement -- even though the BLM has always paid for costs of inviting local law enforcement to enforce state and local laws at the event, from existing Burning Man revenue fees. For more information about a successful letter-writing campaign from participants to BLM, and the population capacity debate, read the Government Relations Afterburn report.
Consequently, Burning Man exercised the right to appeal the stipulation and retained a law firm with expertise in public land use disputes. Currently the appeal is in the docket of the Interior Board of Land Appeals (IBLA). If the IBLA finds in favor of Burning Man then the BLM will have to reimburse the funds to Burning Man. Either way, the decision will give some legal guidance to both Burning Man and the BLM about how local law enforcement should be funded. In the meantime Burning Man is exploring Alternative Dispute Resolution (ADR) with the BLM about how to address the issue of paying for local law enforcement in the 2007 stipulations.
2007 promises to have its share of challenges and successes as the Legal team continues to represent Burning Man in areas of permits, trademark, copyright, and intellectual property, just to name a few of our areas of legal work.