Pissing on the Playa or How I Beat a Federal Citation for Urinating on Public Lands

Text by Daniel H. Kolber, photo by Richard Ahlstrom

Sex, drugs, and rock ‘n roll — two of these are my favorite things. Actually, maybe three of my favorite things. But I usually don’t go around admitting to illegal acts.

Since around the turn of the century, certain friends of mine have been encouraging me to go to one of the most inhospitable places on earth, the Black Rock desert, 120 miles northeast of Reno, Nevada to party with 75,000 revellers at the Burning Man “festival”. I was told that in addition to sex, drugs, and rock ‘n roll, Burning Man would rock my sensations in so many other ways.

I finally went to my first Burn in 2015 and had such an amazing time I went again in 2016.

Party with 75,000 revellers at the Burning Man.

I am 63 years old and most of the other Burners are way younger. It’s nothing like the old Grateful Dead concerts I used to attend because to be a Deadhead you just needed to hitchhike or walk or ride a bike to get to the party surrounding the concert. At Burning Man you need quite a bit of bread, as we used to say, just to get a ticket, not to mention getting to the venue, which is called the Playa, which means beach in Spanish but is a great word for the event because of the word play on the word, Play.

I dislike authority. It is a wonder that I have survived as long as I have without any significant encounters with the law. I am a lawyer which means in the U.S., at least, that I swore to protect the constitutional rights of my fellow citizens. Which I always found a little strange, because part of being a lawyer is that I also swore to give up my first amendment right to say anything disrespectful about judges and the legal system. This irony blows my mind because there is a great deal to say about the injustices of our judges and legal system that could get me in trouble if it is deemed to be disrespectful.

Reaction of a passing car not respecting the speed limits.

I bring up my dislike of authority because on the surface, the people showing up for Burning Man have the rap for being the type of people who also view authority with suspicion. They like to run around in the nude, take drugs that are illegal in the outside or default world, and express themselves in all sorts of ways that may be shunned in the outside world. Yet, after attending Burning Man twice, I have concluded that actually most of the people attending Burning Man love authority. They love authority so much that they strike a devil’s bargain that goes something like this: if for a week you allow me to dress and act in a way that is different and less restrained than how I am expected to act for the rest of the year, I agree to respect and succumb to the powers to be of our temporary society and not break rules and not tolerate those who do break rules. For example, we won’t litter. We won’t place waste water on the Playa. In fact, we will carry our submission to the rules to such an extreme that at the end of the event, we will encourage volunteers to get on their hands and knees with magnifying glasses to leave not a trace!

“My hands are tied.”

Burning Man has ten principles that govern all Burners that make no sense linguistically or legally, at least to my legally trained mind. They are too vague and ambiguous and could mean whatever a particular Burner wants them to mean. I met many people who memorized all ten principles.
For example, most of the Burners will tell you they believe in climate change and protecting the environment, as I do. Yet, a big part of the celebration is burning stuff and pyrotechnics, as you may guess from the name. So many of the art installations, including the giant floats or mutant vehicles, involve pyrotechnics that during BM, the Playa suffers the worst case of man-made climate burn than probably anywhere else in the world. I guess it’s all how you define “not leaving a trace.”

The Man burns

Despite this hypocrisy seasoned with a bit of old-fashioned fascism, I love Burning Man. Anyone who would go to all that trouble to get to the Playa for no other purpose than to have a good time is my kind of person. I love to travel. I love to meet other travellers. I love to meet other people who want to party.

Most of the people at Burning Man drive in with camper vans or their cars. Some spend a lot of money and hire people to set up recreational vehicles in a circle to keep others out. These camps are called “plug and play” and include all the comforts you might find in an upscale hotel, including servants, who, on the Playa, are dubbed Sherpas. Some Burners fly in on private planes. Most Burners don’t even know about the temporary, international airport with customs control and everything, right there on the edge of the Playa.

Two citizens of the Playa.

I don’t think I ever camped out a day in my life until 2015. But when I experience something, I want the pure, authentic experience. So both years at Burning Man, I packed a one-person tent, a sleeping bag, enough food and water for nine days and all the other crap I would need and flew to Reno, where I caught an official Burning Man bus and arrived at Burning Man. In Reno, at Walmart I bought one of those old fashioned fat-tired, single-speed, coaster-braked bicycles which the Burning Man organization transported to the Playa on a separate truck.

I got to Burning Man a day before the gates opened in 2016 which was something BM offered in order to encourage people to use the bus. Burning Man said they wanted to encourage mass transportation for environmental sake, to offset the carbon footprint caused from all the motor vehicles, fires and pyrotechnics.

On my second day on the Playa in 2016 I was riding around on the Playa on my new bike, like a kid, no schedules, no appointments, no place to be, no place to go, nothing to worry about, other than if I were prepared for the biting sand storms that come up every few hours, finding a clean Port-a-potty, or whether I would be eating sardines from a tin that night instead of cadging a free dinner with a new-found friend.

No burner survive without his bike.

I happened to be riding my bike in front of a tent where there was a line of people. I am a sucker for lines of people because I am curious. I soon learned that this particular line of about a dozen people were people waiting to pick up their media credentials. I was at the Burning Man Media Center. Among the many rules at Burning Man are rules restricting how you can express yourself — a lot of rules about what you can photograph. The Burning Man Organization say that is to allow people the freedom to express themselves. I say “That’s Bullshit.” It’s a prior restraint on freedom of expression and a way to control their brand, their primary asset.

I write a monthly legal column aimed at business people for a company that publishes 43 business newspapers in cities across the U.S. After my first Burning Man in 2015 I wrote an article entitled, “10 Business Tips I Learned from Burning Man”. Sometimes I hold myself out as a part-time journalist.
So I got in line to get the prize of a media credential. I am looking at it now. It is beautiful. It is a 5 x 4 inch card with the Burning Man logo in the center and filigree designs on the margins, laminated and looking very official. In large green letters it says, MEDIA. On the very bottom, in the smallest, hardest to read lettering it says: “This entitles you to nothing in particular. Immerse yourself!” Which, of course, is more bullshit. When I caught my first glimpse of this card as people were proudly examining it as they left the Media Center, I knew I had to have one.

But first I had to earn it. To get one of these coveted adornments I was supposed to have completed online a detailed questionnaire weeks prior to BM, that presumably would have been analysed by Burning Man authorities and, if acceptable, based on some undisclosed standards, the credential would have been waiting for me when I had arrived at the Burning Man Media Center on the Playa. This was all explained to me as I entered the Media Center.

Offline media post.

“Why didn’t you fill out our questionnaire before you came to the Playa?” asked a beautiful, much-tattooed, multi-pierced, 6'3" androgynous agent of Burning Man.“

I didn’t have time as I was on assignment in Pamplona, Spain running with the bulls,” I answered. It was true. A month earlier I had spent a week at the Festival of San Fermin in Pamplona, Spain, fulfilling a lifelong dream of running with the bulls.

That was acceptable to her so we sat down on a couch with a dusty computer tablet and she helped me fill out the lengthy questionnaire that wanted to know what my “project” was, what I was going to write about, did I write anything in the past, did I have samples, a bunch of questions that I thought were none of their damn business. But I wanted that credential, so I held my tongue and cooperated.

As to what my project was, I said, “As a lawyer, I want to do a comparison between mass social events like Running of the Bulls and Burning Man as to how people behave so well with a minimum of police intervention.” 
And I got my credential.

From her back pocket, she presented me with my credential on a brown lanyard. Then she motioned to a fit looking guy in his early fifties with grayish longish hair to come over. She introduced us and told me, “Richard will be the photographer for your project” and that is how I met Richard. As I’ve said, you meet the most interesting people at Burning Man and Richard fits the bill. I later discovered that he is a world renowned photographer. Born in Stockholm, raised in Switzerland, he has worked and lived in Paris and other places all over the world. He told me that he had been coming to Burning Man for several years and each year he would bring a friend of his who had never been to Burning Man. He introduced me to his friend Roberto from Italy and then suggested we should go out to the Playa to take some shots. I agreed. He and his friend were so friendly, I didn’t have the heart to tell him I was just there to get the media credential.

We left the media tent. I felt bad because maybe I was keeping Richard from collaborating with someone else who really intended to do a project, not someone like me who would write something only if I felt like it.

So after taking a few steps from the media tent, I said, “Ok, Richard, take my picture.” But he was too much of a professional. He wanted to find somewhere better.

The three of us ended up in an art installation that had no roof, just walls upon which were hung several beautiful, framed, replica paintings in elaborate frames that were either copies of Da Vinci’s work or new pieces made to look like Da Vinci’s. The Burning Man theme in 2016 was Da Vinci’s Workshop.

I watched with amusement as Richard clapped his hands and got the attention of a dozen or so people who were admiring the art work. “I’m doing a photo here and I need you folks to pose for me,” he boomed. Silently, like zombies, they all came to him and he arranged them for the shot. I told you, Burners, at heart, respond well to authority and at that point, Richard was clearly in charge.

He had me sit at a table as if I were writing in a notebook with people around me, looking over my shoulder.

After that we took some shots of my jumping around on the Playa, with some interesting stuff in the background.

I had a lot of fun with my credential from the moment I hung it around my neck. The first time I used it was moments after leaving Richard. I saw a bar on the Playa giving out booze under a sign that said the “Pussy Bar”. I entered and the six or seven people hanging out there eyed my new credential. I said, “I read the New York Times (sort of mumbling the word ‘read’) and I am writing about the best bars on the Playa with the most interesting names.” They asked me to sit down on a couch, two cute girls were on each side of me and we spoke for a while. They gave me some vodka and an umbrella that lit up and I was on my way.

I learned that in some places it was better for me not to display the credential. One such place was where they had their very own encapsulate to manufacture whatever you manufacture with an encapsulator.

On the third day of the Burn it was time for my misting bath. Since I was sleeping in a tent, I had no choice but to be out and about as soon as the sun was up or else I would get cooked. Even though nudity is not against the law or rules on the Playa, my own modesty kept me from stripping down in the middle of the make-shift city of campers to spray myself off. So I bicycled out to the edge of the grid, where cars were parked. I stripped and behind a pick-up truck I sprayed myself down with water from a plastic spray bottle the best I could. Behind me was about a quarter mile expanse of desert that served as a buffer between where people were camping and the entrance gate where there was heavy security, mostly U.S. Bureau of Land Management rangers. The BLM controls the land where the Playa exists and also issues the permit allowing the privately-held Burning Man organization to hold the event. This buffer allows the rangers an easier way to thwart people sneaking in.

Every Burner knows about “pissing clear.” For many years, it was the name of the Burning Man newspaper. If your urine has no color to it, then that is the best evidence that you are well hydrated. I run four marathons and several long triathlons each year, and am very much aware of the importance of pissing clear. Earlier in the morning of the incident I am about to describe, I swear I was pissing clear.

There are a lot of rules imbedded in the Burning Man ten principles and there are several about leaving waste water and gray water and any kind of water anywhere on the Playa. I’m not sure if the penalty is scornful looks, a shout out or something more formal like a citation or arrest. I wasn’t quite sure if what I was doing by giving myself a mist bath was legal. It turned out it was. But I thought it was less burdensome to others than doing it in a port-a-potty and leaving behind an inch of bath water for the next person.

A Ranger who holds in his discrete binoculars.

It was 10:30 am in the morning, not a person was stirring and I was enjoying my mist bath. Just as I was pulling on my gym shorts to get on my bike and leave, a BLM green patrol truck with red lights flashing pulled up near me and a uniformed ranger in full paramilitary regalia and really cool sunglasses informed me that one of his colleagues had seen me urinating on the Playa.
“Impossible” said I. “Have him come here and look me in the eye and tell me I was peeing.” “We don’t have time for that,” he said. Some back and forth where I am denying I broke any law and finally he issues me a citation.
I’m looking at it now. I’ve been practicing law for 40 years and I have never seen anything like this and neither have any of my criminal lawyer friends or even the criminal lawyer in Reno I later thought I had retained to defend me on this charge.

At the top it is printed “United States District Court Violation Notice.” Under “offense description” the ranger wrote: “Human waest — Deposit (urine on Playa)”. I’m not such a great speller myself so I am not going to make fun of the ranger for not knowing how to spell “waste.”

At the bottom it says I could pay a “forfeiture amount of $100” and a” $30 processing fee” for a “total collateral due” of $130. Nowhere does it say the $130 is a fine or penalty.

After the ranger gave me the ticket and left, I folded the yellow citation and put it in my wallet to deal with after the Burn.

The citation I got for dumping on the Playa sort of threw a damper on the rest of my Burn but I vowed not to lose the citation as I knew a bench warrant for my arrest could be issued if it I ignored it, it said so on the back of the ticket.

When I got back home to Atlanta, I researched the ticket. I was surprised to learn that the legal status of what I received was unclear. I could find no evidence that this violation would not be considered a criminal conviction notwithstanding that when I called the central phone number in Texas that processed the “forfeiture” over the phone, I was assured “it would not be on my record.”

I researched the consequences of paying the fine and did not like what I found. I had obtained a Trusted Traveler card from the federal government that speeds me through U.S. customs and the TSA airport lines in the U.S., and I was concerned this may not be renewed if I had a violation against the federal government on my record. Also, what if Bernie Sanders had won the election and wanted to nominate me to some position? Hey, you never know. So I decided to fight the gross sounding charge of Human Waste Disposal, I mean, it sounded like I took a dump on the Playa.

First thing I did was to seek out a criminal defense lawyer in Reno I found online. He and I had a nice chat, he didn’t ask for any money and I didn’t send him any or even asked what his hourly rates were. Even though he grew up in Reno, he had never been to Burning Man. I find that lack of curiosity interesting but not unusual. For example, I live within 40 miles of the Atlanta Motor Speedway and although the idea of cars zooming around a track hour after hour does not appeal to me, the crowds of over 100,000 spectators, the excitement, the fun of it all draws me to it, even though most of my neighbors wouldn’t be caught dead at a race. Anyway, the Reno criminal defense lawyer told me that he would represent me at the arraignment at the U.S. federal court in Reno where he would enter my not guilty plea. But a week before the arraignment date of November 17, he dropped off the face of the planet. He didn’t answer my telephone calls, didn’t respond to my emails. So I decided to show up in person at the arraignment.

To get to Reno from Atlanta, I had to change planes in Salt Lake City. I arrived in Reno just before noon the day before the arraignment. I had nowhere else to go, so I told the cab driver to take me to the prosecutor’s office. I figured maybe I could appeal to the federal prosecutor’s ego not to waste time on a stupid little charge like the one I caught. So I showed up at his office unannounced.

Because the ticket was issued to me by an agent of the U.S. Bureau of Land Management, prosecution is done by the U.S. Attorney’s office in Reno. In Reno, the U.S. Attorney’s office is not in the same building as the federal courts, they are a block away in an office building. My timing was good because after waiting for about an hour in the lobby outside his office, the assistant U.S. attorney, who is responsible for prosecuting all 2016 Burning Man citations, arrived from court, apparently in a good mood because his office had just won a much publicized case against a man who had threatened the life of President Obama. I had emailed the prosecutor a couple of times and he had agreed to make available to me the evidence of my alleged crime when it became available from his client, the Bureau of Land Management. I had never received anything. This would be my excuse for showing up at his office without an appointment.

The prosecutor, who was in his late 40’s, politely greeted me and invited me into a conference room.

I said to him that the violation did not provide me due process because the federal regulation it said I violated has absolutely nothing to do with depositing waste on the Playa. The citation was to the regulation that allowed the Bureau of Land Management to close down the Playa to allow Burning Man to sell tickets to a private event.

“Hmmm,” he said. “You’re probably right on your due process argument, but so what? The judge will let me amend it and then I can charge you with something else, maybe something more serious, something that would be on your record. The charge you now have would not be on your record.”
“Are you sure?” I asked. I took out my government issued Trusted Traveler card from my wallet and showed it to him. He hadn’t seen one before and was honest enough to admit that he didn’t know what impact my paying the $130 would have on any future issuance of this valued card.

The proper way to pee on the Playa.

I then told him that not only did I not pee on the Playa, but even if I had, there are several legal defenses available to me. For example, if I had a medical issue such as an overactive bladder, or prostate problems or even if I had to go and no toilet was nearby. Besides, any water coming from my body evaporated in the morning heat which was hovering around 100 degrees, so I couldn’t be guilty of depositing a deposit if there was never a deposit on the Playa in the first place. “If there had been a deposit, the ranger would have taken a picture of it. He took a photo of me for identification purposes, where is a photo of any deposit?” I asked.

“We aren’t going to try the case here,” he responded.

I told him I was prepared to have a jury trial to defend myself. I asked him if I was entitled to a six or twelve person jury. He thought about it for a moment and said he wasn’t sure. Apparently, few people exercise their right to plead not guilty and have the government meet its burden of proof of proving the defendant guilty beyond a reasonable doubt.

Then I said, “I was pissing clear the day I was cited. I was giving myself a mist bath from a plastic spray bottle. The liquid dripping from my body was water not urine. Even had I been peeing, there is no way your accusing officer could discern if it was water coming off my body or urine even if he had a high powered telescope trained on my, my my ... “

I was in my professional mode so I didn’t want to say dick or cock or prick or any other such word for my penis as if you and I were sitting at a bar chatting, I just couldn’t come up with the proper synonym.

The prosecutor came to my rescue, “schwanz”, he said.

“Yeah, scwhanz,” I said laughing. I hate it when I end up liking my adversary, it takes the passion out of the fight. The more people I met as a result of the citation, the more I felt like I was at Burning Man.

The crime scene of the accused “schwanz”, indicated with an orange circle on the map at the 7:15 K location.

Finally, I asked him the same question I was asking almost every male acquaintance I knew who was willing to listen to my travail since I got the citation, “Do you know of any male over the age of 5, who never peed somewhere he wasn’t supposed to?”

The prosecutor laughed, and said, “No, of course, not. But I can’t just dismiss the charge, that is up to my client, the U.S. Bureau of Land Management. I’ll tell you what, I will recommend that the charge be amended to violating a closure order instead of depositing waste on the Playa and fine you $50. If that is acceptable to you, pull me aside tomorrow at court, and we will do the paperwork. I have over 300 Burning Man cases tomorrow.”

I guess it was because the prosecutor took the time to sit with me, he even showed me his office, we had a nice chat, sort of the type of chat you would have at Burning Man. I said “OK” even though I hadn’t really accomplished much other than changing the description of the offense. We continued chatting about the recent election and other things and I got up to leave. As we were walking down the hall, I said to him, “I really don’t like this idea of pleading guilty to violating a closure order. That could be worse than the original charge. How about if instead of fining me $50, you fine me, say $500, and I plead to something less evil sounding.”

He laughed and said, “I’ll tell you what I’ll do, $50 fine and you plead guilty to a broken tail light.”

“Done,” I said. We shook hands and he escorted me out of his office.
As I was going down the elevator, I thought to myself, “A broken taillight! I didn’t even have a car or a mutant vehicle there!”

Just a broken taillight on the Playa.

The next morning I arrived at the court an hour earlier than the 2 p.m. court date on my Notice to Appear.

No one was there except some lawyerly looking guy in a suit sitting on a bench outside the courtroom.

Maybe this was my lost lawyer, who I had stopped calling after he never responded. No, it was a lawyer sent by the Burning Man organization to help Burners like me who got cited. He was from California, not admitted to the Nevada bar and admitted to me he was a civil lawyer, not a criminal lawyer. We started to talk. I told him that on my ticket, I did not get proper notice, it cited to the wrong regulation. The Burning Man lawyer dismissed my argument (which the prosecutor had seemed to concede to me during our meeting the day before) saying, “Nah, that’s what they always put on the ticket.” As if that settled it.

During the next 45 minutes, two or three other accused violators showed up, certainly not the throngs of people I had expected. I guess everyone else who got violations thought it was smarter just to pay the $130 regardless of whether they were guilty or not.

Just then a fellow dressed as a ranger got off the elevator. He had a bushy red beard and other than the uniform, he looked like a Burner. I approached him and introduced myself. He said he was the ranger representing the BLM at the arraignment for the Burning Man violations. We started talking. He said he had never been to Burning Man (neither had the prosecutor). I told him I was innocent. He patiently listened to me. I took a different tack than I took the day before with the prosecutor. I said, “I know there are people who claim that urine is sterile and doesn’t hurt the Playa but I know that isn’t true. There are nutrients in urine that could mess with the shrimp larvae that live in the Playa dust.” I was just getting started.

The agent said, “I can’t dismiss the charge, that is up to the prosecutor.”
I was being whipsawed. I jumped. “But the prosecutor is saying his hands are tied, that it is your decision, not his, as to whether to dismiss the charge. Can’t the two of you just talk it over?”

Just then the prosecutor came out of the elevator into the hall outside the courtroom. I dashed over to him and asked him if he would talk it over with the BLM agent.

He said to me sternly, now I saw the prosecutor in him, “Hey, what’s the idea talking to my client? You’re a lawyer, you know that a lawyer is not allowed to talk to another lawyer’s client without the lawyer present.”

My first reaction was to inform him that I was representing myself pro se, I was not a member of the Nevada bar and that I had breached no such rule. But I thought better. I threw myself on the sword. “You’re right. I wasn’t thinking. I’m sorry.” That seemed to satisfy him and he said to sit tight in the courtroom.

Now there were a few other accused violators milling about, maybe a dozen in total. The prosecutor huddled with the BLM agent, came back into the court room, told me, “Come with me” and we went to the front of the court where the court clerk was sitting. The judge had not yet arrived.

The prosecutor said to the clerk, “Mr. Kolber here came all the way from Atlanta. We are going to dismiss his case.”

I shook the prosecutor’s hand, said thank you and scampered out the door. Just before I got on the elevator to get out of there, I decided I needed evidence of my victory. I went back to the clerk and she wrote on my Notice to Appear “Violation dismissed by the government” and signed and dated it.
I don’t know why at an age most people are collecting social security, I decided to spend ten days each year in the desert in a little tent. Or why when I got a federal citation I didn’t deserve, I decided to fight it even though by doing so I risked greater sanctions than the original $130 fine. Maybe it’s because I don’t want to be, in Theodore Roosevelt’s words, one of those “cold and timid souls who know neither victory nor defeat.”

So I plan to return to Burning Man next year. I’ve figured out some things about Burning Man but I still have a lot to learn. Its still a mystery to me how the magic of Burning Man brings people together in an uplifting ways. I feel I am better off for having had encountered everyone I mentioned in this story — all as a result of Burning Man. Richard, the photographer, who is now my friend and collaborator, the assistant prosecuting attorney whose job it was to prosecute me, but acted with good humor, the jack-leg lawyer who abandoned me causing me to do for myself what he probably would not have been able to do, the ranger with the cool shades who ticketed me but was only doing his job, and the judge I never met but who had the power to lock my ass up but luckily did not.

Hey, the 2017 Burning Man ticket sale starts this Wednesday, February 1.

Dan
Richard
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