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It’s No-Go for Fireworks Show on Mount Rushmore, Judge Rules

June 3, 2021 by Dan McCue
It’s No-Go for Fireworks Show on Mount Rushmore, Judge Rules
Mount Rushmore

A federal judge in South Dakota sided with the Biden administration on Wednesday, upholding its decision to block Fourth of July fireworks at Mount Rushmore.

The decision by Chief U.S. District Judge Roberto Lange temporarily ends a contentious legal battle that has been going on between South Dakota Gov. Kristi Noem, the U.S. Department of Interior and the Cheyenne River Sioux Tribe since the middle of March.

But Noem has already vowed to appeal, saying “The Biden administration’s decision to cancel the Mount Rushmore fireworks celebration was ‘completely arbitrary.’

“I am disappointed that the court gave cover to this unlawful action … but rest assured, this fight is not over,” the governor said.

“My legal team will appeal this incorrect decision so that we can return the fireworks celebration to Mount Rushmore and celebrate our nation’s birthday at America’s shrine to Democracy for next year and in the future,” Noem said.

The governor sued Interior officials, including Secretary Deb Haaland, in early May, after the department refused to grant a permit for the Fourth of July event.

“After telling us they’d ‘circle back,’ the Biden administration has not responded to our request to uphold the Memorandum of Agreement between the State of South Dakota and the National Parks Service to host a safe and responsible national celebration and fireworks show,” Noem said in announcing the lawsuit.

“Unfortunately, the new administration departed from precedent and reneged on this agreement without any meaningful explanation,” she continued, adding that she was asking a federal court to block the Interior Department’s “denial of the fireworks permit and order it to issue a permit for the event expeditiously.”

Noem, a staunch ally of former President Donald Trump went on to note that a fireworks celebration was held “safely and responsibly and had a huge positive impact on the South Dakota economy.”

In fact, fireworks had been notably absent from Mount Rushmore’s 4th of July celebration since 2009. It was former President Trump who brought them back in 2020.

“We’re getting them. I got fireworks,” Trump said during a May 2020 podcast appearance. 

“For 20 years or something it hasn’t been allowed for environmental reasons. You believe that one? It’s all stone. So I’m trying to say where’s the environmental reason? Anyway, I got it approved, so I’m going to go there on July 3, and they’re going to have the big fireworks,” Trump said.

But on March 11 of this year, National Park Service Regional Director Herbert Frost informed South Dakota Tourism Secretary Jim Hagen that the Interior Department was unable to grant the state’s permit request this year.

“The 2019 Memorandum of Agreement between the State of South Dakota and the Department of the Interior commits us to work together to bring fireworks back to the Memorial in a safe and responsible manner,” Frost wrote in a letter to Hagen.

“Potential risks to the park itself and to the health and safety of employees and visitors associated with the fireworks demonstration continue to be a concern and are still being evaluated as a result of the 2020 event,” he continued. 

“In addition, the park’s many tribal partners expressly oppose fireworks at the Memorial. These factors, compiled with the COVID-19 pandemic, do not allow a safe and responsible fireworks display to be held at this site,” Frost concluded.

After the filing of the lawsuit, the Cheyenne River Sioux Tribe announced it would be joining legal arguments against Noem and the state of South Dakota. 

Representatives from the tribe disputed Noem’s contention that the tribe was consulted prior to a 2020 event, and it said that fireworks displays in the middle of their treaty land present an “extreme risk” to the Lakota people, citing wildfire risks as well as spiritual, cultural and moral injury.

Noem opposed the tribe’s intervention bid, arguing that the tribe has no legal standing or pressing interest in the “state-federal dispute,” and that the celebration doesn’t interfere with any religious or expressive rights or violate the National Historic Preservation Act.

“To be clear, this case is not a dispute between the State and Lakota Tribes over the merit of fireworks at Mount Rushmore for Independence Day weekend or the ramifications of the tribal position that all of the Black Hills are a central spiritual and cultural location,” the judge wrote in mid-May, when he said the tribe could intervene in the litigation. 

“The tribe and Vance have contentions sufficient to meet the standing requirement under the circumstances such that this court allows permissive intervention,” he said.

And the tribe wasn’t the only party that weighed in on the controversy.

At least 17 state attorneys general lent their names to a brief filed in the U.S. District Court of South Dakota, siding with Noem.

“The Fourth of July fireworks display at Mount Rushmore cannot lawfully be blocked by a federal agency’s erratic decision-making,” said Kansas Attorney General Derek Schmidt, one of the signers of the brief.

Like Noem, they contend South Dakota had reached a multi-year agreement with the Department of Interior, and believe that the Biden administration should uphold that agreement.

“Given the importance of the Fourth of July holiday and the special role of Mount Rushmore as a national monument, states have an interest in seeing the fireworks display take place again this year,” the attorneys general wrote. “But in rejecting South Dakota’s permit, the Department of the Interior offered only the flimsiest of rationales, unsupported by any evidence or reasoned explanation.”

For her part, Haaland said in May that the permit denial wasn’t an arbitrary and capricious agency action in violation of the Administrative Procedure Act because a DOI official “clearly explained” in a March letter that the denial was based on risks to “the health and safety of the public and employees during a pandemic … concerns related to a tribal cultural preservation survey requested by affiliated tribes … and concerns construction at the site and potential environmental hazards.

“The [Mount Rushmore] Memorial was established by Congress to be carefully managed by NPS for conservation and enjoyment of its resources within its discretion,” Haaland continued at the time. “The court should allow NPS to manage the Memorial within that discretion, not compel it to grant a permit that NPS has denied for reasonable and clearly stated reasons, and then attempt to accommodate an event of this magnitude with mere weeks to prepare.”

On Wednesday Judge Lange wrote that while fireworks on July 3 “at first blush” seems like a good idea, the “Court is not called upon to determine whether such a fireworks display is a good idea.”

“Ultimately, there are strong arguments in both directions as to the balance of harms, and the public interest in the short-term appears to lie with having the fireworks display, whereas more long-term interests militate against it at least for this year,” he said.

Legal disputes over the use of the Black Hills of South Dakota have been going on since as far back as 1876.

That’s when a small group of Sioux men agreed to give the land to the U.S. in exchange for subsistence food. 

The agreement went against terms of the Ft. Laramie Treaty of 1868, which required the consent of 75% of the tribe’s adult male population for any such waiver of rights.

After 60 years of litigation, the U.S. Supreme Court acknowledged the U.S. had wrongfully taken the Black Hills and decided to compensate the tribe with money, which the Sioux tribes refused to accept in order to keep alive their legal claims to the area.

Noem is represented by Jeffrey M. Harris, Bryan K. Weir and James F. Hasson of Consovoy McCarthy PLLC.

The Cheyenne River Sioux Tribe and Vance are represented by Nicole E. Ducheneaux, Leonika Charging-Davison, Rose M. Weckenmann, Calandra S. McCool and Amber E. Holland of Big Fire Law and Policy Group LLP.

Haaland is represented by Dennis R. Holmes and Diana J. Ryan of the U.S. Attorney’s Office for the District of South Dakota, and Jason Waanders and Tyson Powell of the U.S. Department of the Interior.

The case is Noem et al. v. Haaland et al., case number 3:21-cv-03009.

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