An order handed down last week by Federal District Court Judge Robert Jones denies a motion to vacate his decision in January to dismiss a lawsuit filed by Black Rock City, the organizers of Burning Man, against Pershing County. The lawsuit contended that a county event ordinance applicable to the festival would be unconstitutional under the First Amendment.
In response to the lawsuit, Pershing County District Attorney Jim Shirley last year filed a motion to dismiss the litigation. This week, he said Jones' latest ruling could be appealed by Black Rock City in the Ninth Circuit Court of Appeals.
"Jones basically said he's not going to overturn his order to dismiss the lawsuit," Shirley said. "They (BRC) can appeal it but this probably won't be decided for a year or two."
The 2012 lawsuit originated due to Pershing County's enactment of a county event ordinance to require a festival permit. BRC contended the ordinance would negate prior agreements, impose excessive fees and violate constitutional rights at Burning Man.
However, at the state level, the 2013 legislature amended state law to allow large events to be exempted from county ordinances by county officials. During negotiations regarding the legislation, Pershing County commissioners agreed to exempt Burning Man from the local county event ordinance.
Last fall, BRC and the county reached a settlement agreement to cover the next ten years of county law enforcement costs at the event while protecting free speech at the event. BRC and county officials said the deal resolves budget and constitutional issues and BRC filed a motion to dismiss their lawsuit against the county.
In January, when Jones struck down BRC's lawsuit and granted Shirley's motion for summary judgment, he also attacked what he called a "preposterous" law enforcement settlement agreement between BRC and Pershing County but stated he didn't have the jurisdiction to invalidate the settlement agreement.
"The proposed settlement agreement is illegal, it is unenforceable and absurd," Jones stated in his ruling.
"The plaintiff moves for the court to retain jurisdiction to enforce (the contract) and therefore seeks the Court's approval of its terms. In light of the illegal provisions, the Court will not grant such approval."
Shirley said this week that his motion for summary judgment corrected some of the issues that were "problematic" for Judge Jones. "Base upon that, there was no reason for the lawsuit to continue."
Black Rock City officials did not respond on Tuesday to an e-mail request for comment on Jones' latest order. Shirley said he will not be surprised if BRC decides to appeal the decision.
"I think they're in violation of the settlement agreement because all of the litigation was to end and they have continued to litigate," he said. "They could still continue up to the Ninth Circuit Court of Appeals."
The final law enforcement budget for this year's Burning Man Festival was recently presented to county commissioners with $165,000 allotted for the Sheriff's office to hire 24 commissioned law enforcement officers for the event. BRC is expected to pay a total of $240,000 for all county costs for the event.[[In-content Ad]]
