Judge chides Burning Man, county but deal intact
January 11, 2014
RENO — A federal judge who refused to affirm a settlement agreement between a Nevada county and Burning Man organizers because he says it is "illegal, unenforceable and absurd" has issued a new ruling declaring the county the winner in a First Amendment fight that both sides insist was over long ago.
Lawyers for Burning Man's Black Rock City LLC and Pershing County say they settled their differences in October over a proposed ordinance governing the counterculture festival and had been asking U.S. District Judge Robert C. Jones since then to give their agreement his blessing.
Both sides said late Friday they believe the deal intended to head off a legal showdown over constitutional limits on obscenity remains intact without Jones' endorsement. Burning Man's lawyers consider the judge's latest ruling to be moot, while the county continues to review any potential legal ramifications.
Jones, who dressed down both sides' lawyers and accused them of fraud before refusing their most recent request in his Reno courtroom Nov. 29, acknowledged in the new written order earlier this week he lacks jurisdiction to void the contract.
He ordered the federal case closed but not before he again accused both sides of collusion, fraud and an abuse of process, and repeated his concerns about exposing children to public nudity at the festival in the Black Rock Desert about 100 miles north of Reno.
In an unorthodox move, he also granted a motion the county had filed July 31 seeking approval of its right to enact an ordinance banning children from attending the event. And he renewed his sharp criticism of the county's legal team's willingness to negotiate a deal that he says ensures no such ban will take place under a new 10-year-law enforcement agreement.
The annual weeklong celebration of self-expression and eclectic art leading up to Labor Day draws 60,000 free spirits to the desert playa, where costumed characters perform guerrilla theater and dancers spin — sometimes sans clothes.
Black Rock City filed suit in 2012 arguing the county's proposed ordinance would be unconstitutional if it banned children, or prohibited "obscene, indecent, vulgar or lewd exhibitions" protected under the First Amendment as free speech.
Jones said in his ruling on Monday the county should have stuck to his guns because he would have upheld their right to pursue such rules.
"BRC, in collusion with the county's counsel, filed and prosecuted this contrived, pre-textual lawsuit in order to obtain its new and illegal agreement with Pershing County, and in doing so, committed a fraud on this court, Pershing County and the Nevada Legislature," Jones wrote.
"County counsel mimicked BRC's charade, encouraging its client to settle on such obviously unfavorable and illegal terms," he said. "It raises serious questions regarding the county's decision to settle."
Jones said the agreement implies the county cannot prevent minors from attending the event "even when state and local laws concerning child endangerment, child delinquency or child trafficking are implicated."
"Such a contract is obviously illegal and no court would enforce it," he said.
Jones said he recognizes he lacks jurisdiction to void the contract but that he does have jurisdiction "to declare an abuse of process and the commission of fraud upon the court in the filing and prosecution of this federal action." He also said the county could revive the case in state court.
Annette Hurst, a San Francisco lawyer for Burning Man, said Jones' order has "no legal effect" and the contract "remains valid, binding and in full effect."
"BRC has every intention of performing in accordance with its terms," she said in an email to AP on Friday.
Pershing County District Attorney Jim Shirley said he has not taken an official position on the effect the order has on the agreement, but believes Hurst is correct.
"At present time, there is an agreement in place and the parties intend to comply with the agreement," he said.