(CN) — South Dakota Governor Kristi Noem’s battle with the National Park Service for the right to put on Independence Day fireworks displays at the Mount Rushmore National Memorial suffered a setback Wednesday when a federal appeals court declared her case against the government moot.
Noem sued the U.S. Interior Department after the Park Service denied the state’s application for a permit to hold a fireworks display on the Fourth of July in 2021, in part due to concerns about Covid-19 and the potential for wildfires. A South Dakota federal judge ruled in favor of the Park Service.
The Republican governor appealed to the St. Louis-based Eighth Circuit, which ruled the case moot Wednesday.
In entering final judgment following the Fourth of July last year, the district court correctly observed that the “issues surrounding the denial of the permit for 2021 are moot,” U.S. Circuit Judge David Stras wrote for the appeals court's three-judge panel. “Time machines aside, to now order the Park Service to reconsider its decision to deny a permit for an event more than a year in the past would be the very definition of ‘[in]effectual relief.”’
Stras, a Donald Trump appointee, was joined on the panel by U.S. Circuit Judges Bobby Shepherd and Duane Benton, both George W. Bush appointees.
The panel said that even if South Dakota keeps trying to get fireworks permits in the future, “nothing we say today can turn back the clock to 2021." Issuing an opinion about “standards an agency should apply to an out-of-date application would amount to an advisory opinion,” the ruling states.
Even if the state applies again for fireworks permits the circumstances surrounding the agency’s decision are likely to be different each time, Stras wrote.
“Last year, the barriers were the then-current state of Covid-19, an ongoing construction project, tribal opposition around a yet-to-be-completed survey, and fire and water contamination risks. In the future, it may be some combination of these reasons, or none of them at all,” he wrote.
In fact, South Dakota did apply for a permit for a fireworks display at Mount Rushmore this Fourth of July, and the permit was denied by the Park Service for much the same reasons as the year before.
Independence Day fireworks shows at Mount Rushmore, which began in 1998, were canceled for nearly a decade due to wildfire concerns until the Park Service under the administration of former President Donald Trump resumed the show in 2020 – which Trump attended.
“President Biden should want to celebrate America’s birthday in a unifying way with fireworks at Mount Rushmore,” the office of Governor Noem said in a statement Wednesday. “Unfortunately, the Biden Administration ran out the clock, blocking both our celebration and any serious judicial review. The Court should have ruled on the merits to set a standard for future fireworks celebrations; we disagree that a ruling from the Court would constitute an 'advisory opinion.' We have already submitted our permit application for the 2023 Mount Rushmore Fireworks. The National Park Service should grant that application immediately."
A spokesman for the Department of Interior said it had no comment.
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