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AFTERBURN REPORT 2007

LEGAL TEAM

John Law Lawsuit

In 2007, Burning Man saw an increase in legal activity. The most notable was the lawsuit filed by John Law against Larry Harvey, Michael Mikel, PaperMan, LLC and Black Rock City, LLC early in the year. Law sought cancellation of the Burning Man trademark that he, Harvey and Mikel jointly owned through their partnership, PaperMan LLC since 1997. Law had been one of the organizers of Burning Man in the early days until 1996 when he chose to relinquish his involvement, but wanted to hold on to part of the Burning Man trademark. The three former partners established PaperMan LLC so that the Burning Man Project could continue without Law. Harvey and Mikel, along with others, eventually created Black Rock City, LLC the organization that has produced the Burning Man event since 1997.

The arrangement was a bit awkward, what with PaperMan owning the trademark and Black Rock City producing the event—especially since Harvey and Mikel were on the boards of both organizations. Law was only on the PaperMan board. Other Black Rock City board members had no ownership interests in the Burning Man trademark. The arrangement met its purpose in ensuring that the Man burned each year, but the awkwardness eventually spawned the aforementioned lawsuit.

The first phase of the litigation resulted in the Court disqualifying Law’s attorney for having a conflict of interest, since he had represented both Harvey and Mikel back when they had been in a partnership with Law. In the next phase, the court granted Black Rock City, LLC’s Motion to Dismiss Law’s complaint, since the allegations showed no proof that Black Rock City, LLC had done anything wrong since it had a legal right to use the trademark. That still left the litigation against PaperMan, Harvey and Mikel, as well as the awkward arrangement that brought everyone to court in the first place. The final phase resulted in a confidential settlement between all parties, whereby Black Rock City bought the Burning Man trademark from PaperMan, in exchange for Law dropping his claims against the other parties.

Bureau of Land Management Appeal

In 2006 the Bureau of Land Management (BLM) charged Burning Man for local law enforcement costs, in addition to the $4 per person per day that Burning Man already pays for land usage. Since the BLM’s fee regulations don’t allow this type of double-dipping, Black Rock City, LLC appealed the permit to the Interior Board of Land Appeals (IBLA). Since the IBLA had a backlog of cases it ordered the parties to mediate the issue. The first mediation involved representatives from Burning Man and BLM along with a neutral mediator. The discussions were fruitful, but it became clear that representatives of Pershing County needed to have a voice since the issue of local law enforcement costs impacted the County. The second mediation added the Sheriff and a County Commissioner to the table. The mediation was extremely productive in mapping out the cost arrangements for the 2007 event, but the BLM was inflexible on its decision to double-charge for 2006. They went on to reject a subsequent settlement offer by Black Rock City.

In November 2007 the IBLA decided the appeal in favor of Burning Man. The Judge wrote:

“[W]e agree with BRC that BLM did not have authority … to add a stipulation, the effect of which was to take direct or indirect costs of the Federal Government, compensated and covered by the fee schedule rate … and impose them on the permittee.  … [T]he Department revealed its intention, for group permits such as BRC's, to ensure that BLM charges either a fee based on the minimum fee schedule, or a cost recovery fee, but not both.  BLM has effectively charged both here.”

Accordingly, the IBLA ordered the BLM to refund 2006 local law enforcement costs to Black Rock City, LLC. Justice prevailed for the Man!

Discovery Times: “Only In America”

In 2005 Discovery Times registered through Media Mecca to produce an episode of ‘Only In America‘ in Black Rock City. A Burning Man participant took issue with the decision to allow Discovery Times to film on the playa, even though other news shows have been coming to the event for years. The participant claimed that the news piece was a “reality TV show” that was going to destroy the event. She created a website where she tried to rally support for her cause.

Ironically, the show ended up capturing a couple of seconds of the offended participant spinning fire at night in the dark. Although virtually unrecognizable in the piece, the participant nevertheless brought a lawsuit against Burning Man and the producer of the show. She never served the complaint on the producer and chose to go after Burning Man instead. She alleged that a representative from Burning Man had told her before the event that Burning Man would require the producer to get written consent from every single person that would be caught on tape, and that Burning Man would not allow the producer to air the piece unless there were consent forms on file for every person in the video (whether recognizable or not).

Burning Man’s General Counsel had conversations with the participant’s lawyer to explain that Burning Man had not violated any law, let alone any of its participants’ rights. The participant’s lawyer was not willing to drop the suit unless he got paid for the work he had already done. Since Burning Man had never made the alleged representations, this left no option for BRC except to file what’s called an Anti-SLAPP suit against both the participant and the lawyer. SLAPP stands for “Strategic Lawsuit Against Public Participation,” which is basically a fancy way of saying that the plaintiff filed a frivolous lawsuit against Burning Man in violation of the Burning Man Organization’s First Amendment rights to allow the media to report the news in Black Rock City to the rest of the world.

Upon receiving the Anti-SLAPP Motion, the participant and her lawyer agreed to drop the suit. Burning Man had the right to collect its own legal fees from either the participant or her lawyer, but decided that an apology would be sufficient. A link to the apology can be seen at http://www.savebrc.org.

The Burning Man Project is choosing to look at this lawsuit as a communication tool to educate the community about media presence at the event. Media are required to register, which includes signing an agreement that they will comport themselves accordingly in Black Rock City. This includes getting signed consent forms from anyone who will be recognizable in the final piece. The enforcement of this provision is the responsibility of the whole community. If a participant is being filmed then the participant has the responsibility to tell the camera person that he or she does not want to be filmed. If the filming does not cease upon request then the participant should report the camera tag number (if there is one) to the Black Rock Rangers of Media Mecca immediately. The Organization will then take necessary action against the offender.

Arson of the Man

Around the time of the lunar eclipse, late Monday night at the event, allegedly a man in face-paint shimmied up the foundation of the Man in the Green Man Pavilion, lit the Man on fire and then quickly fled the scene of the crime. The Black Rock Rangers immediately responded to the situation by waking up two participants under the Man, presumably there to watch the eclipse, who had dozed off. One participant did not wake up quickly and had to be dragged out from the burning structure. Luckily no one was hurt. Other Black Rock Rangers tackled the suspect, apprehended him and then turned him over to Pershing County Sheriff’s Deputies.

The Fire Branch of Black Rock City’s Emergency Services Department (ESD) extinguished the fire within minutes while Black Rock Rangers and the Department of Public Works (DPW) established a safe perimeter around the Pavilion. The Man did not completely burn, but was structurally unsafe due to the fire damage.

The next morning at the DPW meeting, representatives from every Burning Man department affected by the arson were present, including the Man Crew, the Pavilion Crew, DPW, Rangers, ESD and others. The volunteers who had already spent so much time building the Man decided on their own accord that they would do the impossible—rebuild the Man on playa in two-and-a-half days—a task that ordinarily takes more than a week. Once again, the impossible became another feather in the Man’s cap as the crew worked around the clock to ensure that the Man would safely burn on Saturday as scheduled.

After examining all the circumstances of this crime, the District Attorney of Pershing County charged the alleged perpetrator with first-degree arson, reckless endangerment of human life, destruction of property and possession of illegal fireworks. The alleged perpetrator was released on bail. He returned to Pershing County for the preliminary hearing; but not for the arraignment. Since this is a criminal matter, Burning Man is cooperating with the authorities; but is not a party to the action.

After the event, a handful of Internet blogs tried to portray the alleged perpetrator as a sort of folk hero—someone who was trying to bring the spontaneity of the early days of Burning Man back to the community. Of course this perspective completely misses the fact that the community has grown to over 47,000 participants, and that the community will not tolerate spontaneity that could very likely inflict injury or death on innocent bystanders. The perspective also bypasses the fact that certain types of spontaneity are illegal and will not be tolerated by the authorities—even if the community were to condone it.

But, this minority perspective seemed to vanish when the alleged perpetrator was arrested for attempted arson at Grace Cathedral in San Francisco, not eight weeks after the arson at Burning Man. The alleged perpetrator is currently being held without bail in San Francisco. There is a warrant for his arrest in Nevada.

Whether the alleged perpetrator’s motives were to bring more spontaneity or not, crimes of this sort can only result in more rules at Burning Man; not fewer. The Burning Man Organization will absolutely not tolerate crimes that destroy other people’s artwork and endanger lives. Several departments are looking into the issue of protecting art from vandalism and other destructive acts.

Lawyers for Burners

In 2007 there were significantly more Bureau of Land Management (BLM) citations than in years past. Moreover, reports from participants indicated that the BLM may have conducted some illegal searches on playa. A group of concerned citizens in the Burning Man community, many of whom are lawyers, decided to take action. Calling themselves ‘Lawyers for Burners,’ the grassroots movement met with participants at San Francisco Decompression and heard the same story from numerous participants.

The group then launched http://www.lawyersforburners.com and posted to the Jack Rabbit Speaks and Tribe.net. Their message is that burners should not simply pay citations without getting legal advice first. Too often participants will simply pay a fine since it is easier than paying for a lawyer and traveling to court in Reno—especially when many burners live far enough away to make this burdensome. Those that do go to court to try and fight the citations on their own are not even given a Public Defender, and they are not allowed to talk to the prosecuting US Attorney. Instead they are met in court by BLM law enforcement officers who tell the participants to just pay the fine without any regard to the participants’ civil rights, such as due process, right to counsel and right to no illegal search and seizure.

Lawyers for Burners is of the opinion that the community’s apathy toward fighting citations is only reinforcing the BLM’s already questionable tactics. The only solution is to challenge every citation that was not issued lawfully. In meetings with the BLM on-playa and after the event, the BLM admitted that many of the officers working at the Burning Man event were from out-of-state and had not been trained on Nevada law. Instead of admitting that this had resulted in some injustices and dropping some of the cases, the BLM chose to fight every citation and set them all for trial. The good news is that at this point the cases were out of the BLM’s hands and into the US Attorney’s. Since then, Lawyers for Burners have had several meetings with the US Attorney, who has proved to be a very reasonable man. He has already dismissed some cases outright, plea-bargained others and is cooperating on the trials for the others. The US Attorney bases his plea bargains on the merits of the case and the soundness of the BLM’s search.

The defense of these citations is ongoing and will continue into 2008. Check http://www.lawyersforburners.com for up to date information.

Submitted by,
The Legal Team

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