South Dakota asks appeals court to allow July 4 fireworks at Mount Rushmore

(CN) — In the hope of seeing the rockets’ red glare over the Mount Rushmore National Memorial this Fourth of July and in future years, South Dakota Governor Kristi Noem urged a federal appeals court Wednesday to rule that last year’s planned show was illegally canceled by the National Park Service.

The Republican governor sued the U.S. Interior Department after the Park Service denied a permit for fireworks at the monument in 2021 and took her case to the St. Louis-based Eighth Circuit after a federal judge in South Dakota held that the Park Service had reasonable grounds for its decision, including the potential for spreading Covid-19 and triggering wildfires.

“The Biden administration cancelled South Dakota’s Mount Rushmore fireworks celebration on completely arbitrary grounds,” Noem said in a statement at the time her appeal was filed in August. “We are appealing the district court’s incorrect decision so that we can return the fireworks celebration to Mount Rushmore and honor our nation’s birthday at America’s Shrine to Democracy for next year and in the future.”

The South Dakota Department of Tourism has already submitted an application to the Park Service for a permit for a 2022 Mount Rushmore fireworks event.

A key issue in Wednesday’s oral arguments before an Eighth Circuit panel was the question of whether the case is moot.

U.S. Circuit Judge Duane Benton, a George W. Bush appointee, questioned South Dakota’s appellate counsel as to whether the state had obtained a final judgment from the trial court.

“We did not,” responded Jeffrey Harris of the Washington-based firm Consovoy McCarthy, representing the governor.

“My goodness gracious,” Benton said, “how can this case not be moot?”

In response, Harris said the fireworks show is an annual event, and without a ruling on the legality of the Park Service’s permit denial, the same thing could happen again this year. “This is not just a one-off permit” issue, the attorney said, but an “egregious administrative law error.”

“If this court finds this case moot,” he said, “we will find ourselves back in the same position” before this year’s planned event.

Brian Springer, a Justice Department attorney representing the Interior Department, told the three-judge panel that the case should be dismissed as moot, and said the Park Service’s latest permit decision should not be seen as policy decision that would dictate future permit decisions.

“The National Park Service decision was context-specific action based on actual circumstances at the time,” Springer said. “We know the same factors won’t affect” a decision on a permit in 2022.

Benton was joined on the panel by U.S. Circuit Judges Bobby Shepherd and David Stras, appointed by George W. Bush and Donald Trump, respectively. The judges did not indicate when they would issue a ruling.

July 4 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. The agency at the time issued a 66-page report justifying its decision to issue a permit despite continuing worries over fires and new Covid-19 concerns.

The Park Service subsequently reversed course and denied a fireworks permit for last summer’s planned show, citing those same concerns it had studied in 2020 in reaching the opposite conclusion.

South Dakota argues the Park Service failed to adequately explain its flip-flop, and its one-and-a-half-page letter explaining the decision was arbitrary and capricious under the federal Administrative Procedure Act.

“NPS failed to acknowledge and explain its departure from its prior findings regarding fireworks at the park,” the state argued in a brief filed with the appeals court, saying the agency's "short denial letter...offers only a jumbled assortment of ‘factors’ that are incomplete, conclusory, and internally inconsistent.”

In response, the Interior Department countered in a brief filed by the U.S. Justice Department that the state’s challenge to the Park Service’s denial of the permit for 2021 is moot because the 2021 event is long past.

“The Park Service based its decision on the particular factual conditions at the time, and plaintiffs cannot demonstrate a reasonable expectation that the same issue will recur even if they seek permits in subsequent years,” the brief states.

 “The basic thrust of plaintiffs’ response is that the agency should have issued a longer letter and should have disregarded the relevant factors and evidence because it granted a permit in 2020,” the government argued, adding that the Park Service “amply described the Covid-19 and other rationales” in denying the permit. “Although the agency must have an adequate evidentiary basis for its findings and conclusions, the Park Service was under no obligation to enumerate that evidence in excruciating detail, as plaintiffs imply.”

The federal government’s brief also pointed out that 13 Indian tribes objected to the proposed fireworks display, including the Cheyenne River Sioux Tribe, which was an intervenor in the case. The tribes “expressed deep dissatisfaction with holding a fireworks show in a location considered sacred to the tribes,” according to the brief.

The National Park Service did not respond to a request for comment Wednesday.

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