Post Office Box Number 3275

(831)469-8341

Attorney for APPELLANTS

BLACK ROCK RESCUE, AND JOHN BOGARD, (collectively referred to herein as "appellants") hereby appeals the Decision of Record, Finding of No Significant Impact & Special Stipulations pertaining to Special Recreation Application and Permit No. BLM-NV-020-00-03, (hereinafter "Permit"). The Permit application was submitted by Will Roger of Black Rock City LLC, (collectively referred to hereinafter as the "promoters" for an event known as Burning Man 2000, (hereinafter the "Project", or "BM 2000") to be held on the Playa of the Black Rock Desert in September of this year.

Appellants, and each of them, have, and will continue to be adversely effected by the above referenced decision and FONSI. Individual appellant and members Black Rock Rescue are frequent users of the natural, environmental, scientific, recreational and aesthetic resources of the Black Rock desert and of that area of the Black Rock referred to in the above referenced environmental documents as the "Playa". Appellants’ use and enjoyment of these resources, and their interests therein will be substantially and irreparably impaired by the subject Action. Individual appellant and members of Black Rock Rescue have submitted comments and objections to the subject Action throughout the administrative proceedings culminating in the approvals challenged herein. Accordingly, the Appellants and their members are "aggrieved" entities and persons for the purpose of standing to bring this appeal.

Appellants base their appeal on the following five broad areas of concern:

1. The Permit approval violates the National Environmental Policy Act (42 USC 4321, (hereinafter "NEPA")) in that BLM has committed a prejudicial abuse of discretion in adopting a Finding of No Significant Impact (hereinafter "FONSI") in connection with the Project;
2. The Permit Approval violates NEPA in that the BLM has committed a prejudicial abuse of discretion in not requiring the preparation of an Environmental Impact Statement, (hereinafter "EIS") in connection with the Project;
3. The Permit approval violates NEPA in that BLM failed to adhere to the procedural requirements of NEPA in adopting the FONSI and approving the Project;
4. The Permit approval violates the Code of Federal Regulations adopted by the Department of the Interior to Implement NEPA, and;
5. The Permit approval Violates the Federal Lands Management Act in that the Project conflicts with numerous other public uses of the Playa, and therefore thwarts the multi-use function of the Act.

4) NEPA requires that an EA "…briefly provide sufficient evidence and analysis for determining whether to prepare an EIS or FONSI. Without sufficient information and analysis it is not possible to make the threshold determination whether a project will result in significant impacts." The information contained in the EA and FONSI are inadequate as a matter of law because they do not contain information or analysis sufficient to make the threshold determination. Neither the EA, the FONSI, nor any of the documents purportedly incorporated by reference therein, contain any baseline data upon which to base their "no significant impact" determinations. None of these documents contain or reference a single scientific study or assessment of the Project’s impacts on flora, fauna, wildlife, wildlife communities, geology, geomorphology, hydrology, air quality or water quality. No effort has been made to quantify the amount of fine sediments added to the Playa sediment budget by Burning Man, nor its impacts. No effort has been made to determine the amount of hydrocarbons, oil and grease, nitrates and coliforms entering the Playa’s vernal pools and wetlands. No effort has been made to quantify or assess the impacts of building an access road across the dunes on the western edge of the Playa. No effort has been made to ascertain the impact of the event on nearby hot springs, other than to provide for the promoter’s volunteers to visits to such sites. Simply stated, the record does not provide sufficient evidence and analysis for determining whether to prepare an EIS or FONSI. Accordingly, the failure to prepare an EIS violates NEPA as a matter of law.

5) The FONSI, at p. 1, states that a rationale for the determination of no significant impact was the supposedly "temporary" nature of BM 2000 impacts. It is well settled that effects do not have to be of a permanent nature to be considered "significant" for the purpose of triggering an EIS. Temporary impacts can, and often are considered significant, depending on the degree to which they effect the environment. Thus, to the extent BLM’s determination of the threshold question is based on the purportedly "temporary" nature of BM 2000’s impacts, it is without factual or legal basis.

6) The record in this case is replete with information demonstrating that neither the BM promoters, nor the BLM have been successful in mitigating impacts to the Playa from previous BM events. Considerable scaring, compaction, and rutting of the Playa surface remain after several years. Likewise, numerous burn scars remain from previous years, and a variety of debris associated with these past event can still be found on the Playa. Moreover, as the EA admits, the promoters have not been successful in their efforts to ensure that raw sewage and solid waste are not deposited or buried on the Playa by attendees. (Shockingly, the record shows that no effort has been made by BLM to determine water quality and wetland impacts resulting from the deposition of raw sewage.) The mitigation measures and stipulations approved for BM 2000 do not differ in any meaningful way from the mitigation measure and stipulations of prior, admittedly "unmitigated" BM events. Accordingly, the mitigation’s approved for this year cannot be said to reduce the impacts of BM 2000 to less than significant levels. Further, the ineffectiveness of mitigation measures for Burning Man past and present should have been considered in the EA’s cumulative impacts analysis, but was not.

7) Given the inability of BLM and the promoters to mitigate these significant impacts in the past, there is no factual basis for the BLM’s determination that these same impacts will not occur in connection with BM 2000. Accordingly, the issuance of the FONSI was an abuse of discretion.

8) The FONSI declares that BM 2000 is consistent with existing land use plans. (p. 2) However, as demonstrated in the next paragraph, this is not true. The project interferes with the multi-use function of the Playa, and so is inconsistent with the Code of Federal Regulations and the Sonoma-Gerlach Desert Management Plan. NEPA requires that such significant inconsistencies with approved land use plans be considered significant impacts.

9) The FONSI states that:

This statement at once admits that prior events were not completely mitigated and also admits that there are likely some significant impacts which have not yet been considered. The fact that this Action approves Burning Man events in the same location for three years militates more strongly in favor of an EIS, in that the impacts of three Burning Man events are obviously more significant than just one.

10) The FONSI states that re-use of the southern end of the playa entails no significant impacts. The fact that that this statement is conclusory and unsupported by the record is reflected by the very fact that BLM wants to monitor the event over three years to determine what the impacts are. BLM and the promoters cannot have it both ways. If the full extent of impacts are unknowable for three years, then it is gainsaid that BLM is in no position to declare that there are no significant impacts.

11) At page 6, the EA states that the event will include 28,000 participants. Accordingly, all environmental impact analysis is based on this number of attendees. However, in six of its nine years of existence, attendance of the event has more than doubled year to year, and grew by almost 65 percent between 1998 and 1999. In 1999, the number of attendees was purportedly 23,600. The projected attendance of 28,000 represents an increase of only eighteen percent, a lower year to year increase than has ever occurred. While it is not possible to predict with certainty what the actual attendance figures will be, the projected number of attendees is far lower than could be reasonably projected from the historical data. Because impacts to the Playa are largely a function of the number of attendees, BLM’s determination of no significant impact is misleading and unsupported by the record.

12) In order for the EA’s project description to pass must under NEPA, and in order to determine compliance with the Management plan and BLM regulations, the EA must be based on a rational projection for attendance. Based on historical trends, actual attendance will be far greater than reflected in the EA, with greater environmental impacts. Because the project description is flawed, the impacts analysis is flawed, and so violative of NEPA and the Management Act. The promoters’ conclusion as to the numbers, and hence the impacts, are contrived and misleadingly low.

13) To put the number of potential attendees in the context of the over all use of the Playa, Tables 3-4 and 3-5 in the Draft Sonoma-Gerlach and Paradiso-Denio Management Framework Plan Amendment EIS (hereafter "Black Rock EIS") show that, in 1997, approximately 20,600 people used the playa, not counting attendance at the BM event that year. Even the unrealistically conservative estimate for attendance this year vastly exceeds the total of all other users. Ironically, that EIS focuses on other, non BM uses and activities. If an EIS is required for the 20,600 visits not related to BM, then one must surly be required for the BM event, which will concentrate as many as twice that number over a 10 day period.

14) The Black Rock EIS also states that

This language from the proposed Black Rock EIS is clearly at odds with the approval of the BM 2000 permit, which authorizes an event anticipated to attract at least 28,000. The event population of the 1997 event was 10,000. Because the LAC has not yet been determined, the event is a de facto violation of the Draft Block Rock EIS. While this EIS has not yet been approved, and is therefore of no force or effect, it underscores the fact that the impacts associated with attendance in excess of the 1997 levels are at best unknown, and at worst, significant. An EIS should be prepared for BM 2000 to ascertain the impacts of placing a city of 30,000 people in a pristine environment. Failure to undertake an EIS was a violation of NEPA which must be reversed.

15) NEPA requires that the whole of an action be considered in the description and analysis of a project. Failure to consider the whole of an action results in segmentation or piecemealing of the environmental analysis. Segmentation of the analysis results in the true impact of the entire project being masked and trivialized. This "fallacy" of segmentation has occurred here. As a result, BLM has erroneously concluded that the approved action entails no significant impacts.

16) BLM permitted Black Rock City LLC to conduct its Burning Man Festival on the Playa throughout most of the 1990’s. In every year of the event, BLM processed and approved a separate permit application, and approved a separate EA and FONSI. Again this year, BLM has processed and approved a permit application for the year 2000 Burning Man event. The EA and FONSI do not, (and do not purport to) examine the impacts of Burning Man events over the years. This year, as in other years, BLM’s analysis is limited to the one time impacts of each individual event. Thus, BLM has committed the fallacy of segmentation and erroneously made a determination of no significant impact. In order to comply with NEPA, BLM must require the preparation of a programmatic EIS in which the continued use of the Playa for BM into the future is considered. Anything less masks the true environmental effect of BM over time.

17) The record establishes that Black Rock City has been incorporated under the laws of the State of Nevada for the primary purpose of conducting one Burning Man event on the Playa a year, year after year. Even if the EA contained a legally adequate cumulative impacts analysis, (which it does not), this would not by sufficient to excuse BLM from the requirement to prepare a programmatic EIS dealing with the impact of Burning Man on the Playa over time. For the purposes of NEPA, Burning Man’s activities over the course of years should be considered a single project, and its impacts over time considered as a whole. In the event of changed circumstances, or changes in the activity itself, supplemental environmental documents would be prepared per NEPA. Only in this way can the true environmental consequences of Burning Man be known.

18) The stipulations incorporated into the FONSI specify that Burning Man will be situated in the same locality of the Playa for the next three years. Neither the draft EA, nor the final considered the impacts associated with the occurrence of three Burning Man events at the same locality over three years. The EA only address the impact of BM 2000. It is gainsaid that the impacts to any given locality on the playa from three BM events will be greater and more significant than only one such event. Nevertheless, BLM has omitted any consideration of the impacts of this activity beyond year one. Accordingly, BLM’s determination of no significant impact is not supported by the record.

19) The Black Rock EIS states:

Despite the potential for serious environmental damage associated with activities near the dunes, BM 2000 is located closer to the dunes than any previous such event. The promoters of Burning man aim to place a mid size city within a few hundred yards of this fragile resource. Yet the EA contains absolutely no analysis of the impact of BM 2000 on the dunes. This is in and of itself a violation of NEPA. Moreover, the lack of any analysis renders the determination of no significant impact meaningless, since no factual basis for that statement visa-vis the dunes has been established. BLM must be required to prepare an EIS which deals with impacts to the dunes in a thorough and scientific manner. Only in this way can any potential impacts to the dunes be mitigated or avoided.

20) BLM has permitted the promoter to build a new access road from the highway to the Playa as the principal event access. The road will be constructed over a large expanse of parna dune habitat. Secondary effects of dust, foot traffic and noise will significantly alter large areas of adjacent dune habitat.

21) The approval of the FONSI was an abuse of discretion in that it failed to identify construction of this road a significant environmental impact. The dunes are highly erodable, and vulnerable to the slightest disturbance. Nevertheless, there is not one shred of analysis or information concerning the dune habitat or the potential impacts thereon.

22) In addition to the impacts the access road will have on the dunes, significant impacts are also likely to affect the Playa. This is because the road will remain after the event, and will serve as a new additional access point to the Playa. All existing Playa access points are significantly impacted by focused activity related to ingress and egress from the Playa. Such impacts are reasonably likely to occur in areas of the Playa adjacent to the new access road. However, BLM has not even considered such potential impacts, let alone take the required "hard look" at the potential impacts of that activity.

23) BM conflicts with the multiple use prescription for the Black Rock. Objective R-1 of the Black Rock Management Plan is "to provide as many recreation opportunities as possible without undue environmental damage in the Sonoma-Gerlach Resource Area". The Management Plan further states that it is BLM policy to provide a variety of outdoor recreation use on BLM administered land commensurate with public needs and resource potentials and consistent with environmental quality. As discussed in elsewhere in this appeal, BM will render a large expanse of the playa off limits to other uses for a period of weeks. In addition, during this time, users of the Playa will be forced to drive miles out of their way to move around the event site.

24) As further discussed in this appeal, BM activities in the past have created large numbers of transient dunes which pose a serious safety hazard to those traversing the Playa by auto. They also render the Playa useless, (or at least hazardous) to large numbers of land sail enthusiasts. Thus, it is clear that BM conflicts with other uses of the Playa not just during the event, but throughout the year as well. Not only is such conflict a violation of the Management Plan, but it must also be considered a significant environmental impact necessitating an EIS.

25) The Draft Burning Man 2000 EA gives the coordinates for BM 2000, and Maps 2 and 3 in the Draft EA purport to show the location of the event relative to other Playa and Black Rock features. The approved event site map clearly shows the approved event site has been relocated in a more southerly location, much closer to the Playa edge and dune habitat than shown in Maps 2 and 3 in the draft. Yet the coordinates setting forth the exact location of the event perimeters is the same in the Draft and in the Final EA. Accordingly, it would appear as if the Final EA does not accurately reflect the location of the event and its proximity to the dunes at the Playa edge. This renders the EA inadequate as a matter of law.

26) The EA contains only a short paragraph addressing the issue of dust abatement. The paragraph focuses only on abatement during event exit and post exit. However, the emission of fugitive dust from the event is perhaps the most significant impact associated with the event. Neither the EA, the FONSI, or any of the documents which have been incorporated in the EA address the impacts of fugitive dust on the Playa. This is a fatal omission.

27) Many parties, including BLM have observed a manifold increase in the existence of so called transient dunes on the Playa down wind of the 1998 and 1999 Burning Man sites. These events generate huge amounts of dust from Playa floor disturbance. The dust then settles on the Playa and is pushed by the wind and water into dunes. As the attached analysis by Craig Young demonstrates, the dunes appeared only in the last year, and are without geomorphologic precedence on the Playa. The Young report is attached hereto as Exhibit A, and is incorporated herein by this reference.

28) The failure of BLM to deal with the issue of fugitive dust in even the most cursory manner is a failure to proceed in the manner required by law and removes any vale of legal validity from the FONSI.

29) The Stipulations attached to the FONSI state that two water trucks will be utilized to water the Playa surface to control fugitive dust. However, such measures are likely to result in rutting and scaring of the surface, where the water turns the surface to mud. Such secondary impacts must be considered under NEPA. Failure to do so here renders to FONSI inadequate as a matter of law.

31) The Management Plan Amendment identifies the spread of noxious weeds as a significant threat to the ecology of the Black Rock. It also states that such weeds are spread chiefly by machinery, people and animals. BM 2000 will place an unprecedented number of people and dogs in close proximity to the vegetated dune habitats on the east side of the Playa. However, there is no discussion of the impact of BM on the dune habitats. In the absence of such analysis, there is no foundation for BLM’s determination of no significant impact to the dune environment.

33) The singular and unique visual characteristics of the playa are arguably the most important features of the Black Rock Desert. The Black Rock EIS states:

Thus, it is manifest that preserving integrity of the Playa viewshed is a key component of the environment of the Black Rock, and essential to the economic vitality of the region.

34) There are four visual management classes, with Classes I and II being the most valued, Class III representing a moderate value, and Class IV being of least value. Class I is assigned to all special areas where the current management situation requires maintaining a natural environment essentially unaltered by man. Minor visual modification is permitted in Class II areas but the predominant natural features of the landscape cannot be changed. Class III permits partial change of the existing landscape which may attract attention but should not dominate the view of the casual observer. Class 4 areas allow for activities which could result in major modification of the existing landscape. In all cases, however, a caveat exists that urges return to the original setting as much as possible.

35) The entire Playa is rated VRM II. Accordingly, project area is a significant visual resource which cannot tolerate more than minor modification.

36) The visual impacts of previous Burning Man events have been long lasting and significant. Views upon the Playa, and from upper elevation trails have been significantly altered by burn scars, tire tracks, compressed surfaces, and the increased generation of transient dunes. Other debris, such as nails, hay, wood and other event detritus have marred the otherwise pristine appearance of the Playa surface.

37) It is important to note in that context that the principal visual feature of the Playa is its flatness and smoothness. Anything which disrupts the continuity afforded by these qualities must be considered more than a minor modification of views to, from and within the Playa.

38) Another potential visual impact which has not been addressed in the EA is the impact to the Playa surface in the event rains occur during BM. The rutting and scaring of the Playa surface would be extensive and impossible to obliterate. The record shows that BLM considers rain during the event a real possibility, yet does not address the impacts to the Playa surface of tens of thousands of people, cars and trucks marring the Playa surface. Failure to consider this a potential significant environmental impact is just one more example of how BLM’s threshold determination is defective as a matter of law.

39) The failure to consider this contingency is a violation of NEPA, which requires that all potential significant impacts be identified, analyzed, and ascribed appropriate mitigation measures. BLM will use the failure of the EA to identify significant visual impacts to justify its determination to proceed with a FONSI as opposed to an EIS. However, if BLM had taken a "hard look" at the impact of BM on the Black Rock’s visual resources, as required by NEPA, it would have seen that visual impacts are significant and so require the preparation of an EIS.

40) Any doubt that these potential and actual visual impacts are significant within the meaning of NEPA is laid to rest by the fact that over 28 percent of those visiting the Playa do so do to sightsee. Because the visual impacts associated with BM are a threat to this activity, BM has further appropriated another important recreational use, in violation of the Black Rock Management Plan and the Code of Federal Regulations.

41) The FONSI states that any markings, burn scars, ruts, holes, or other disturbances to they Playa Surface will be eliminated through raking and "scarafication". Many acres of the Playa will need to be so treated. Markings for the layout of Black Rock City, the various camps, the airstrip, and art projects are just some of the activities entailing large markings which will need to be removed. Large amounts of dust are created in the process of raking. This dust is either immediately released into the air, or born aloft later by the winds. It is obvious that these visual impact mitigation measures will entail air quality impacts from fugitive dust, contributing further to the transient dune and other sediment related problems associated with Burning Man. Accordingly, the impacts associated with these so-called mitigation measures must themselves be considered significant for the purpose of making the threshold determination. Neither the EA nor the FONSI stipulations contain any mitigation measures for this component of the fugitive dust program.

42) A Bill entitled "The Black Rock Desert Emigrant Trail National Conservation Area Act of 2000", sponsored by Nevada Senator Richard H. Bryan is currently pending before the U.S. Senate. This bill would designate an area including the Playa as a conservation area, the purpose of which would be to " conserve, protect and enhance for the benefit and enjoyment of present and future generations the unique and nationally important historical, cultural, paleontological, scenic, scientific, biological, educational, wildlife, riparian, wilderness, endangered species, and recreational values and resources associated with the Applegate-Lassen and Nobles Trails corridors and surrounding areas". Section 5 of the Bill states that the conservation area so established shall be managed in a manner which "conserves, protects, and enhances its resources…".

44) BLM has failed to consider the potential conservation status of the Playa in making its determination of no significant impacts. However, the threshold of significance must reflect this potential status in order to preserve the attributes Congress is being asked to protect. By failing to require greater scrutiny of impacts in view of the proposed legislation, BLM is thwarting the purpose of the proposed legislation. BLM’s determination of impacts should be based on the Playa’s eventual designation as a conservation area.

45) NEPA requires that an agency approving an action consider the cumulative environmental effects of the project being proposed in conjunction with other past, present and reasonably foreseeable activities in the same area. If a project’s cumulative impacts are potentially significant, the agency must prepare an EIS, identifying and analyzing the cumulative impacts, and setting forth mitigation measures.

46) The EA in the case of the proposed action contains no cumulative impacts analysis, and no information or references in support of its determination that such impacts have been, or can, be mitigated to a level of less than significant. While the EA does state that cumulative impacts are possible, it does not even discuss what those impacts might be. There is simply no information in the EA, or in the record from which any conclusions concerning cumulative impacts can be drawn.

47) The BLM’s conclusory determination of no significant cumulative impact is a far cry from the "hard look" standard articulated by the courts. The lack of analysis is especially troubling given the fact that Burning Man events at the Playa have occurred overt the last ten years, and are reasonably likely to occur for another three years, or longer. Yet there is no discussion of the cumulative impacts associated with these repetitive activities.

48) The failure of BLM to perform any cumulative impacts analysis cannot be remedied by its representations that BM events at the playa will be monitored and evaluated for the next three years in order to determine impacts. This sort of post hoc analysis is precisely what NEPA was enacted to avoid. NEPA requires that impacts be ascertained as early in the planning process as possible. The approval of BM 2000 and the FONSI violate this provision of NEPA.

49) The Decision of Record/Finding of No Significant Impact (FONSI) states that:

This statement at once admits that prior events were not completely mitigated and also admits that there are likely some significant impacts which have not yet been considered. The fact that this action approves BM in the same location for three years militates more strongly in favor of an EIS, in that the impacts of three BMs are obviously more significant than just one.

51) Layout, surveying and flagging are to be started on August 1 and completed by August 14, and set up and construction are to be completed by August 27. The event area will be appropriated from other uses until takedown is completed around September 19. Final clean up will not be completed until October 3, rendering the entire site useless to other uses for as long as two months.

52) No criteria are set forth or referenced with respect to allowable tolerances for non-native debris. The EA must identify and describe such criteria, and any other factors which will control the authorized officer’s discretion. Because the record contains no criteria for determining allowable tolerances, it is not possible to determine what the impacts associated with allowable amounts of debris left behind will be.

53) The stipulations do state whether "backfill dirt" used to refill holes dug for the event and by event attendees must be native as opposed to imported. BLM must require the dirt to be native to maintain visual and surficial continuity of the playa. If native dirt is required, the stipulations must indicate how it is to be stored, and how deficits of available native backfill are to be provided.

54) BLM must require that the Promoters provide a clean-up plan for debris and burn scars before approval of the EA, or permit. Requiring the preparation of a clean up plan post event, as set forth in the FONSI, prevents any evaluation of, or public comment on the clean up plan prior to the event, when such input and evaluation would be most timely and relevant. This is a violation of NEPA.

55) Public review of an EA is not mandated by NEPA. Review and comment on FONSI is required only if the action is without precedent. 40 CFR 1501.4(e)(2). An event of the nature and scope of burning man in a remote and pristine area is unprecedented. Therefore, BLM was required to hold a public hearing in connection with the adoption of the FONSI and EA, which it did not do. This failure to adhere to the procedural requirements of NEPA requires that the approvals be withdrawn.

56) NEPA requires that an EA include a discussion of alternatives. While this discussion need not be as exhaustive as in the case of an EIS, the EA must still consider a reasonable range of alternatives.

57) The only alternatives considered in the EA deal with location of the Project. The EA contains to discussion of alternatives dealing with the size of the event. This is a critical flaw which frustrates the goal of avoiding significant environmental effects of government activity. It is obvious that one important means of reducing the impacts associated with Burning Man is to limit the number of attendees. However, this alternative was not considered, and so the EA and FONSI are inadequate as a matter of law.

58) The Promoters and the BLM acknowledge that certain "incidents" are possible which could threaten public health and safety. Social unrest, rain, or other natural or man made disasters could occur in conjunction with the Project. However, the extreme remoteness of the area makes highly unlikely that local and imported resources will be capable of coping with any sort of sizable disturbance. Such a disturbance is a significant impact under NEPA, and so must be addressed in an EA, FONSI, or EIS. Yet neither the EA, the FONSI, or associated documents deal with various outcomes in the case of disturbance or disaster, or with the potentially disastrous result of such upset on tens of thousands of attendees and local residents. The potential results of unrest or disaster are to serious that such contingencies must be considered a significant impact and treated as such in an EIS. Failure to do so is a violation of NEPA.

59) The Black Rock Desert playa is a seasonal wetland (playa lake) that may be very significant as a stopping point for migrant birds during the spring months. According to the National Water Summary on Wetland Resources (USGS, 199x, p. 268), the Black Rock playa and adjacent portions of the lower Quinn River constitute one of the three largest predominantly wetland areas in the State of Nevada. These wetlands are

along the same migration corridor as Walker Lake and the Lahontan Valley Wetlands, both of which have been designated as Globally Important sites by the American Bird Conservancy. Despite this, possible impacts of the proposed action on wetland fauna, including migrant waterfowl, shorebirds, and wading birds, are not even mentioned in the BM 2000 EA. See Report of Joel E. Greir, attached hereto as Exhibit B, and incorporated herein by this reference.

60) Because the Playa is seasonally inundated, and serves as an important habitat for migrating water fowl, these waters are within the jurisdiction of the U.S. Army Corp of Engineers, and under the purview of the Clean Water Act. Therefore, pollutants may not be discharged into the seasonal waters of the Playa without a National Pollution Discharge Elimination System (NPDEA) permit. (CWA Section 404)

1. As the Geir Report demonstrates, and as the EA admits, large quantities of

pollutants ranging from motor oil to detergent to human waste are deposited in the Playa Surface during the Burning Man event. The pollutants remain on or near the surface, until the next rainy season when they are inducted into the hydrological cycle of the lake and enter the seasonal lake that forms each winter. Neither the Promoters, nor the BLM has applied for a section 404 permit allowing for the discharge of such pollutants into the waters of the Playa, and so the Burning Man is in violation of the Clean Water Act. It goes without saying that such a serious violation must be treated as a de facto significant environmental effect, which the EA admits, has hitherto proven unmitigable. Therefore, an EIS should have been prepared in connection with BM 2000 to identify, analyze, and mitigate this impact.

62) Neither the EA nor the FONSI contain any information concerning the impact of individual and repeated BM events on the migratory bird species that rely on the Playa’s seasonal waters. BLM and the Promoters simply pronounce the Playa a barren waste and call it a day. In fact, it is a fragile ecosystem upon which numerous aviary species depend. Instead of dismissing the Playa as "dead", BLM must be made to take a hard look at the Project and its environmental consequences.

2. The location of BM 2000 is in an area not considered in the draft EA.

Accordingly, the public was denied any opportunity to comment on the appropriateness of the new location. Moreover, other responsible agencies were not able to comment on this topic. Most significantly, the Final EA does not deal with the impacts associated with the new location. In other words, the project described in the Draft EA is not the project described in the Final EA, but the analysis (what there is of it) is identical. BLM failed to proceed in the manner required by law under NEPA in not circulating the document that became the final EA prior to approval of the EA and FONSI.

1. CONCLUSION