Jenny Kane

jkane@rgj.com

The Burning Man organization is challenging a $2.8 million bill from the U.S. Bureau of Land Management after last year's 70,000-person arts festival in the Black Rock Desert, according to a federal appeal filed by the San Francisco-based arts nonprofit.

The arts organization submitted a 1,000-page appeal in April that accuses the BLM of trying to cover up budget shortfalls and financial missteps with an annual permit that Burning Man says has consistently been overpriced since 2012. The invoice for last year's permit was about $2.8 million, which Burning Man organizers have started paying off in installments.

“(Special recreation permit) costs are not intended to cover junkets for federal employees, a chance to try out fancy technology, or other fringe benefits that would never be approved for regular agency operations,” Burning Man attorney Elizabeth Stallard wrote in the appeal. “Quite simply, just because the BLM is spending someone else’s money does not mean it can do so recklessly.”

Read the entire Burning Man appeal here

The appeal comes a year after BLM officials retracted a request for a $1.2 million VIP compound reserved for higher-ups at Burning Man. The compound was just the tip of the iceberg, according to Burning Man organizers, who are appealing everything from $940,000 in law enforcement costs to a more than $1,000 bill for the shipping of an unknown item from Reno to Gerlach.

Organizers have taken issue with the permit cost since 2012 because BLM officials have failed to adequately justify expenses under the umbrella of the permit, according to the appeal.

Why did organizers not challenge the permit costs until now?

The BLM's leadership told them not to, otherwise future permits would be jeopardized, according to the appeal. Following the VIP compound controversy last year, however, new BLM leadership was put into place.

Burning Man organizers have taken the opportunity of new BLM leadership to file an appeal, which also addresses the organization's concerns with law enforcement behavior and the event's designation as an "emergency event," which is believed to contribute to the high cost of the permit, according to the appeal.

While Burning Man organizers concede that negotiations with BLM officials are running relatively smoothly this year regarding the 2016 permit, they are disappointed with the BLM's push-back on the appeal, according to Burning Man attorney Ray Allen. BLM officials submitted a 50-page response to the appeal on June 27 disputing all claims made by Burning Man organizers.

Read the entire BLM response here

"Although we can't comment on specifics while the case is before the Interior Board of Land Appeals, from my point of view, work on this year's event is going very well. We are working collaboratively and cooperatively with (Black Rock City LLC) to ensure the health and safety of workers and participants at the 2016 Burning Man event," said BLM Nevada spokesman Stephen Clutter told the Reno Gazette-Journal.

Black Rock City, LLC is the company under the arts nonprofit that organizes the Burning Man event.

This year's event is scheduled for Aug. 28 to Sept. 5. It will require a permit approved by the BLM's Winnemucca office, though the permit cost will not be realized until after the event. BLM officials told Burning Man organizers that the appeal would not interfere with the current permit process.

While the price of the permit has not gone up every year, BLM officials have failed to justify staffing levels, pay grades, work contracts and equipment purchases since 2012, according to the appeal, and costs certainly have not gone down since then. The annual permit cost surpassed $1 million in 2012, and rose to nearly $3 million over the past few years.

Many of the spikes in cost were attributed to an increase in law enforcement resources under the direction of former Special Agent-in-Charge Dan Love, who now oversees security operations for the BLM but no longer is involved with Burning Man.

When Burning Man organizers once asked for an explanation for all law enforcement costs, they were told that such an explanation was not necessary because law enforcement "costs what is costs," and the organization was "not entitled to any explanation of these costs but nonetheless would need to pay them," according to the appeal.

Other BLM costs -- including a land use fee and outside contracts -- also have risen, according to the appeal. Altogether, Burning Man organizers dished out more than $4.5 million to the BLM last year to put on the event.

At one point, former BLM Winnemucca District Director Gene Seidlitz told organizers that the Winnemucca office "could not function without the money that the Burning Man (permit) provides, which (Black Rock City LLC) understood to mean that (Black Rock City LLC) was perhaps responsible for covering budget shortfalls for his office," attorneys for Burning Man wrote in the appeal.

While Burning Man organizers understand that some of the costs may be justified, they want to know what they are paying for and why.

The largest contested expense in the appeal is $1.45 million in labor fees. Last year, several BLM employees made more than $20,000 for their Burning Man-related duties in just a few weeks' time, according to the appeal.

"We think there needs to be a limit to BLM's discretion and that decisions be based on common sense and the likely situations that might be encountered at the permitted event," Allen told the Reno Gazette-Journal. "Discretion is not the same thing as a blank check."

An increase in law enforcement resources -- from staffing to equipment -- largely has driven up the cost of labor on the playa, according to the appeal. About $940,000 -- or two-thirds of the labor costs -- went to BLM law enforcement.

BLM officials say that the number of law enforcement officials is based on the number in years past and aims to "ensure resource protection and public safety," according to the response.

There were about 50 BLM officers in 2012, when the event population was more than 56,000; there were more than 80 BLM officers in 2015, when the event population was more than 68,000, according to the BLM response.

BLM officers are not the only ones on patrol at the event. Last year, about 30 deputies from the Pershing County Sheriff''s Office assisted BLM agents. Burning Man also had about 700 volunteers helping with security.

BLM also arranged contracts with the Forest Service for nearly $60,000, though organizers are unclear on how many Forest Service employees worked at the event and what they were doing. The same goes for the U.S. Park Police, which received $110,000 for services not described in the BLM's reports, according to the appeal.

BLM officials responded that the contracts had been in place for years and were to prevent all BLM resources in the area from being exhausted on Burning Man, according to the BLM response. They also said in the appeal -- in response to Burning Man organizers' insistence that the contracts were unjustified and not explained -- "even if true, such complaints do not show that the BLM erred in its calculation of actual costs."

In 2012, the same year Love took the reins, he designated Burning Man an “emergency event” — the same classification given to a wildfire — qualifying federal employees for “premium pay” if they provided services at the event. The event has been qualified as such since 2012, according to Allen.

“It is a recreational event, not a natural disaster, carefully planned for months in advance as a collaborative effort among (Black Rock City), BLM and all cooperating agencies,” Burning Man attorneys wrote.

While it is unclear how BLM staff’s wages were calculated in 2015, 13 employees made more than $20,000 during or surrounding the period of the Burning Man event, including Love, who made more than $30,000 during the 2015 event. Compensation covered one- to three-week periods of work for most employees.

The Burning Man organization is requesting further information about each employee’s pay, including hourly wage, number of hours worked in a day, whether any overtime, hazard or premium pay was received; what the employee’s responsibilities were; why the work needed to be done by a person of that pay grade; and why the work was necessary to the permit, according to the appeal.

The emergency designation is not a misnomer, however, according to BLM attorney Janell Bogue. BLM officials attest that the designation allows the BLM to prioritize the event so that if an emergency breaks out, all the resources that would be required for a city of its size would be readily available despite its remote location.

"Given the size of the Burning Man event and the number of participants, as well as the rugged terrain, the BLM must be prepared for many different kinds of incidents," Bogue wrote.

Read the Burning Man appeal here:

Burning Man organizers believe that if they were able to learn more about crimes and other incidents on the playa, they would better be able to understand how BLM officials determine how many law enforcement officers and other contracted emergency staff are needed at the event.

The key to that information, attorneys explained in the appeal, is the data from the computer-aided dispatch system that last year cost the Burning Man organization about $138,000. It has been in place since 2013.

“BLM has provided no documentation or data showing that its extensive, proactive law enforcement efforts have improved public safety or reduced crime,” Stallard wrote.

Crimes are handled by either the BLM or Pershing County Sheriff's Department, depending on the nature, and some of the information is released to the public. Additional information is sent to Burning Man organizers after the event, although not as much as they would like.

While BLM officials reported the types of incidents responded to during the 2015 event, Burning Man organizers have been told to submit Freedom of Information Act requests for additional requested information, such as response times, how many officers responded, and what the outcome of the response was. After making dozens of written and spoken requests for dispatch records in years past, Burning Man sent a Freedom of Information Act request last year to the BLM for dispatch data, although it has not received a response, Allen said.

Some of the data collected is protected by the Privacy Act of 1974, according to the BLM's response, but officials did not clarify what kind of information the act protects.

Although Burning Man organizers argue that Black Rock City's crime rate is low, crime does occur on-site. Most of the incidents, however, are only worthy of citations, based on BLM reports.

BLM officials reported no arrests during the 2015 event, and of the nearly 2,000 incidents in 2015 that BLM agents responded to, they had 392 citations. Of the citations, the bulk were related to drugs, motor vehicles or human waste.

According to initial reports, BLM agents reported three times as many marijuana citations as citations for ecstasy and cocaine. BLM officials maintain that several hundred citations for possession of controlled substances over the past two years have resulted from the use of K9 units.

More than 130 citations last year were issued for motor vehicle violations, including speeding and driving without a license plate or registration.

Burning Man organizers called many of those violations “sham traffic stops” aimed at finding narcotics, and they pointed out that the U.S. Attorney’s Office dismisses the bulk of drug possession charges that come through federal court post-event, according to the appeal.

“Given the extremely low incidence of serious narcotics crimes at the event, BLM is using a sledgehammer to crack a nut. (Black Rock City LLC) should not be held responsible for BLM’s internal interest in artificially increasing citation numbers to justify further law enforcement expenditures at the event,” the appeal stated.

U.S. Attorney’s Office representatives were not immediately available for comment on the matter of how they prosecute drug-related crimes from Burning Man.

Some drug-related charges are not handled by BLM officers.

In 2015, sheriff's deputies arrested more than 40 people, a sixfold increase from the year before, according to the Pershing County Sheriff's Department. They handled the more serious person-on-person incidents, including an assault with a deadly weapon, a kidnapping, a grand larceny and nearly 20 possessions of controlled substance for trafficking, among other charges.

Cases handled by the Pershing County Sheriff's Office are taken to the local courts.

Read the BLM response here:

Aside from the cost of law enforcement, Burning Man organizers take issue with recent law enforcement behavior, which prompted a congressional inquiry by members of the House Committee on Oversight and Government Reform earlier this year.

The inquiry questioned the “conduct of BLM law enforcement personnel in Utah and Nevada, citing specific concerns around ‘bullying and intimidation’ of Burning Man participants,” Burning Man attorneys wrote. Law enforcement behavior during the 2015 event bordered on harassment and potentially could have infringed on the constitutional rights of participants, they said.

Burning Man organizers expressed particular concern with the resources spent on traffic stops (up to eight officers for a stop, according to the appeal), the use of K9 units and the seizure of postal packages sent to Burning Man participants during the 2015 event.

BLM officials have not shared whether any of the packages contained illegal substances or items, according to Burning Man attorneys, but officials did confirm to event organizers that the practice would be discontinued in the future.

Over the years, Burners have sent in hundreds of complaints to Burning Man staff about aggressive law enforcement behavior, according to Allen.

BLM officials countered that such complaints are irrelevant to the cost of the event.

Burning Man organizers insist that they have had to acquiesce to unjustified costs in the past because the BLM forced their hand with untimely, last-minute responses, as well as non-negotiable proposals.

Organizers said they were billed twice for some expenses, and had to pay for other charges that never should have been applied in the first place, they said.

The unnecessary charges contained, among other expenses, $67,000 in travel expenses, including a $10,000 bill for the travel of three people going to a "BLM executive managers, internal/external partners" meeting, and $1,400 for the shipment of a piece of unknown communication equipment from Reno to Gerlach, according to the appeal.

While the listed items can be considered indirect costs, they are only considered such if they cannot be "accurately or readily determined" with respect to the permit, according to the BLM's response.

Burning Man organizers also felt that some costs were simply a waste.

For example, they spent $4,200 on the purchase of 170 pairs of new, high-end goggles that BLM staff threw away after the 2015 event, according to the appeal. At the very least, Burning Man organizers would have liked the opportunity to reuse them, they said.

Organizers also protested the purchase of more than $4,000 worth of GPS cameras used for environmental enforcement, even though environmental compliance efforts were deemed adequate in the past and BLM officials complained that the equipment was ineffective, according to the appeal.

Another $56,500 was squandered on satellite tracking for BLM personnel, even though BLM officials told Burning Man staff that the devices were not used last year, according to the appeal.

BLM officials defend all of the expenses, explaining that the costs all were justified and no errors were made.

The goggles, for instance, are considered "personal protection equipment," which means they must be disposed of after use, according to the BLM response. The cameras helped with environmental compliance, and the tracking devices allow BLM officials to know where their staff is located at all times, the response said.

"If (Black Rock City LLC) feels that those costs are excessive, it may decide to hold the event in some place other than the public lands," wrote Bogue.

Burning Man attorneys, on the other hand, feel that BLM officials have misidentified the root of the organization's arguments.

"It missed the point of our appeal," Allen said of the BLM's response. "We asked for an explanation of why BLM needed so many resources. They replied and said they added up the numbers correctly."