Nick Walden wrote an article about me for the Santa Rosa Press Democrat, "From Cotati to the Nevada Desert."
The US Department of the Interior denied the appeal on May 16, 2013. The appeal was IBLA 2012-225, I'm making it available for downloading. In the end, I'm glad that I appealed the permit. I had no idea it would take about 10 months for this to be resolved. At the time of the appeal in June, 2012, I could have applied for some sort of emergency stay, but that seemed out of proportion to my complaints.
Below I briefly address the some of the points in the IBLA 2012-225.
There was an interesting issue about whether I had any standing to appeal. IBLA 2012-225 states:
Brooks has failed to demonstrate that he uses lands and/or resources subject to or otherwise affected by the approved use of the public lands at issue, or that he otherwise has a legally cognizable interest that is or is substantially likely to be injured by BLM's decision to issue commercial SRPs for the Festival. He has simply failed to establish a causal relationship between the decision and any alleged injury to him.
We therefore conclude that Brooks has failed to demonstrate that he is adversely affected by BLM's June 2012 DR and FONSI, within the meaning of43 C.F.R. § 4.410(d), and that he lacks standing to appeal. In similar cases, we afford an appellant an opportunity to demonstrate that he is, in fact, adversely affected before dismissing the appeal. We will not do so in Brooks' case, however, since we also conclude that he has failed to establish any error of fact or law in BLM's decision to approve issuance of SRPs for the Festival to BRC.
My opinion is that if I had hired an attorney, then I would have had the correct wording that would supported my standing to appeal. The reality is that the dunes have caused the land sailers to sail elsewhere and the land speed record attempts to look at other locations. I'm grateful to the court for addressing my appeal even though I did not have standing.
1. Annual Performance Evaluation
My opinion is stil that the BLM's procedures for administering Special Recreation Permits (SRPs) is poorly documented and insufficiently rigorous. In particular, the process for Annual Performance Evaluations is incomplete. IBLA 2012-225 states:
"BLM does not establish in 43 C.F.R. Part 2930, the Handbook, or any other policy pronouncement, any particular format for an APE. Thus, we find no suggestion that the annual inspection reports, to which both Brooks and BLM refer, are not adequate to constitute APEs. We agree that, in preparing any APE, whatever its format, BLM should consider whether the permittee has complied with all stipulations and terms and conditions of the permit. However, we find no requirement that the APE disclose BLM's specific assessment of the permittee's compliance with each and every stipulation, term, and condition of the SRP. See Answer at 8. Rather, it is sufficient that BLM has, in fact, considered whether the
permittee has complied with all stipulations and terms and conditions, focusing, in writing, on matters of particular concern. Based upon the record, we conclude that BLM did so in the present case."
In any organization, when evaluating an employee or contract, it is a best practice to formally address each goal or stipulation. I encourage the BLM to address this shortcoming in their procedures.
2. Population Increase
IBLA 2012-225 states:
"BLM reports that it determined that BRC had exceeded the maximum number of Festival participants allowed by its SRP in each of the years 2006, 2007, 2010, and
2011. See Answer at 3-4 (citing Letter to BRC from District Manager, dated Oct. 8, 2010, and Notice of Noncompliance (NON), dated Oct. 24, 2011). It notes that the
first three violations were "resolved ... informally." Id. at 4. However, BLM also notes that since BRC had "failed for two years in a row to comply with the applicable
participant population cap" (2010 and 2011), it decided during the pendency of BRC's 2011 SRP application to issue the October 24, 2011, NON, placing BRC on
probationary status, such that "BRC could only obtain a single-year SRP for 2012, rather than a multi-year SRP." Id. 6"
6 BRC appealed the NON. BRC's appeal was pending before the Board while BLM reviewed BRC's 2011 SRP application. The appeal was resolved by the Board in an Order dated Nov. 15, 2012, styled Black Rock City, LLC, IBLA 2012-35, following issuance of the subject DR and FONSI."
...
15 BLM states that, even despite the 2011 noncompliance, it properly exercised its discretion to approve issuance of a 2012 SRP for 60,900 participants, on a
probationary basis:
In the absence of evidence that any of the prior years' population exceedances resulted in actual harm to any member of the public or any natural resource, and in light of the many years of successful Burning Man events and sufficient advance planning for safety and environmental concerns[,] ... there is no reason to disturb the
BLM's exercise [of] discretion to authorize the 2012 event for 60,900 participants.
Answer at 9.
Interestingly, there is no mention on the web about IBLA 2012-35, where Black Rock City, LLC appealed the Notice of noncompliance. Why is this? Also, what ever happened to the non-profit?
The BLM's argument could be used in any sort of case of violating a limit. Similar thinking would be that a person can exceed the speed limit because nothing bad happened. A reasonable person would not agree to this line of thought.
3. Dunes
"Brooks refers only to the "2007 trash fence dune," which started with the 2007 event and persisted until after the 2011 event, and which he believes was caused by
erection of the fence, since he notes that, as a consequence, the Festival "is not a 'Leave no trace' event[.]"17 SOR at 4. BLM agreed that the dune formed as a consequence of the perimeter fence, but noted that it was attributable to the particularly "intense dust storms" that occurred "[d]uring the 2007 event[.]" EA at 3-45; see 2008 Draft Burning Man Stipulation Monitoring Report at 93. Further, although the dune was "dragged/bladed" following the 2007 event, it was still evident, owing to the absence of intervening precipitation, by the time of the 2008 event. EA at 3-45; 2007 Burning Man Stipulation Monitoring Report at 30; 2008 Draft Burning Man Stipulation Monitoring Report at 84-94. It appeared
to have disappeared thereafter. See EA at 3-45 to 3-46."
The trash fence dune was visible in July, 2011. It is gone now.
However, even if the Festival has, at times, caused or contributed to the formation of dunes, Brooks does not show that this somehow violates any Federal statute or regulation. Rather, he simply argues that the dunes that are appearing in the Desert should be "formally surveyed," in order that "trends concerning the degradation of the desert can be quantified and used in planning."18 SOR at 4. Even though BLM admits that a study of dunes in the Desert may be a worthwhile effort in the future, from the standpoint of land-use planning, and may even inform future NEPA review concerning SRP authorization, we fail to discern how the absence of such a study at the present time undermines the legal validity or propriety of approving issuance of the SRPs at issue. See FONSI at 3 ("Additional comparative studies might help to clarify the[] issues [regarding the cause(s) of dune formation] at a future time if these trends continue"), 4.19
19 We note that the NCA RMP states that land-use decisions are "intended to allow for historical and traditional uses, while protecting significant resources from
use-related impacts." ROD and RMP at 2-49. It specifically provides that permit systems are to be implemented "to mitigate resource impacts in areas where visitation
is causing resource damage[] [or] user conflict":
Where monitoring indicates that large groups are causing resource damage or adversely impacting the visitor experience, limits on group size will be implemented for day or overnight use. . . . Limits on human activities may be set in areas that experience adverse impacts to resources or the visitor experience. These limits may affect areas of use, group size, duration of stay, number of people or vehicles, or type of activities allowed. Id. at 2-49, 2-50 (emphasis added).
My reading of the above is that a SRP holder can degrade the environment and prevent others from using it. This does not seem right to me.
In summary, I'm glad I appealed the permit and I'm hoping that the BLM will take this opportunity to improve their procedures. I initiated the appeal with a heavy heart, I believe that ultimately, Burning Man has been a positive influence on the lives of most of the participants. My issue is with the negative impact on a unique location. In speaking with people about Burning Man, I sometimes posed the question: "Is a Burning Man with 70,000 participants twice as good as a Burning Man with 35,000 participants?" Everyone I spoke with had a gut reaction of "No!".
My hope is that we have lots of wet winters and that some day Burning Man buys property elsewhere.
I've gone ahead and appealed the 2012 Burning Man Permit, see my June, 2012 appeal. Below are the three main points:
I've received no evidence that Burning Man has ever received a BLM-mandated Performance Evaluation. Thus, BRC has never had a completed Special Recreation Permit (SRP). The BLM Director has stated that if the SRP process cannot be completed by the field office, then no SRP shall be issued. The Performance Evaluation would determine if BRC fulfilled the stipulations of the SRP. Cory Roegner has provided me with inspection reports but these reports do not cover all the stipulations.
The 2011 Special Recreation Permit Decision states that there should be "a maximum of 50,000 participants.'' Stipulation 1 of the 2011 SRP permit states that the resources are "designed to handle an average of 50,000 participants per day.'' BRC has stated in the media that "the current permit allows 'in the neighborhood'' of 58,000 participants to be present at any one time.'' Is BRC in violation of stipulation 1? If so, then rewarding BRC by increasing the number of attendees is inappropriate.
Burning Man is not a leave-no-trace event. The dunes that appeared starting in 2000 have prevented other groups from using the desert. The 2007 trash fence dune persisted until after the 2011 event.
In addition, BLM found that Burning Man went over the limit of 50,000 in 2011 and although Burning Man is appealing that finding, why should the BRC be rewarded? Anyone can run a company that has increased income every year, but it takes a master to run a company that has roughly the same amount of income (tickets) per year. If Burning Man is about sustainability, then maybe the process should start with a population cap?
As part of the 2012 permit process, I contacted the BLM and informed them about the annual performance evaluation requirement and they failed to prepare such a document for the 2011 permit. In hindsight, I should have gone for a stay to prevent Burning Man from selling extra tickets. My guess is that the appeal will not be heard before the event.
Martin Griffith's July 20, 2012 AP wire news item about the appeal was picked up in various places:
KSRO Radio Interview (July 26, 2012)
Comments from the Land Sailing community (July 23, 2012)
HuffingtonPost (July 23, 2012)
EPlaya Discussion (July 21 and later, 2012)
SFGate AP Wire article updated (July 22, 2012)
KTVN Reno Video News Item (July 22, 2012)
KRNV Reno Print News Item (July 22, 2012)
Burners.me Discussion (July 21, 2012)
Laura Levy's "Burning Thoughts 2012" provides an good overview of the dunes and monitoring issues.
In hindsight, because of the news item, I had some good conversations with people about the desert. It seems like almost everyone, including the BLM and Burning Man focused on the dunes and land sailing and did not comment about the first two points (no performance evaluation, being rewarded for going over the population limit).