South Dakota sues N.P.S. to allow Rushmore fireworks

South Dakota’s Mount Rushmore fireworks lawsuit is getting national media coverage, so let’s take a look-see at it. I can use this as an opportunity to talk a little about law and how courts operate.

Fireworks displays at Rushmore were an annual event, and a big tourist draw, until 2010 when they were suspended because of wildfire risks exacerbated by a beetle infestation that made the surrounding pine forest more susceptible to burn.

Then last year, Trump — exhibiting his characteristic indifference to the environment and penchant for showmanship — held a campaign rally there which included fireworks. This year, the National Park Service denied the state a permit for a July 4 fireworks show. The state’s Republican governor filed a lawsuit on Friday, April 30, 2021, to contest that permit denial, The Hill reported (read story here).

Gov. Kristi Noem contends N.P.S. signed “a multi-year agreement” last year, when Trump appointees ran the agency, for the fireworks displays to continue in the futre, according to a Sioux Falls TV station (read their story here). Noem’s lawsuit seeks to enforce that agreement. But that’s tricky, because it was in the form of a Memorandum of Understanding, which isn’t necessarily legally enforceable (you can delve into the legal considerations here).

Accordingly, the state’s complaint in federal district court (read it here) takes a different tack. It contends the permit denial was “arbitrary and capricious” under the Administrative Procedures Act, because it’s based on “brief and vaguely worded concerns” with “minimal explanation” and lacks “substantive analysis.” This is a standard argument lawyers use to overturn agency decisions on the grounds they violated administrative law principles.

The state’s legal filing also makes arguments about supposedly unconstitutional delegations of legislative power to the Department of Interior that look less persuasive to me (I’m a lawyer with significant background and experience in government law).

Local politics are involved; the events attract thousands of tourists and bring revenue to local businesses. National politics are involved, too; the Biden administration is more partial to Native American concerns, and local tribes oppose the fireworks. They consider Mount Rushmore, which sits on land ceded to the Sioux tribe in 1868 but seized in 1876 as a result of the Sioux Wars (read history here), a symbol of white supremacy. In its announcement on March 12 that the permit would be denied, the Park Service cited among its reasons, “In addition, the park’s many tribal partners expressly oppose fireworks at the Memorial.”

But in its explanation of the permit denial, the Park Service’s primary reasons appeared to be, “Potential risks to the park itself,” which seems to, but doesn’t expressly, allude to wildfire danger, and “the health and safety of employees and visitors,” which it claims “continue to be a concern and are still being evaluated as a result of the 2020 event,” a spokesperson wrote.

Trump’s rally attracted protesters, but that’s not a factor this year. Rather, this appears to refer to the fact that during the 2020 event, “Few people in the crowd were practicing social distancing or wearing masks,” ABC News reported at the time (see story here). However, the state’s health department denied an “uptick in cases” occurred, according to an MSN story here, and the complaint (linked above) contends “face coverings were not required in federal parks in July 2020,” and “weeks of contact tracing” after the 2020 event failed to trace “a single case of Covid-19” to that event. The lawsuit also cites rising vaccination rates, as a further effort to downplay Covid-19 risks from staging the event.

Are the Biden appointees who now run Interior (the secretary is a Native American) and N.P.S. (whose director signed the denial letter) just pandering to tribal opposition to fireworks at Rushmore, and using environmental and Covid-19 concerns as a smokescreen to justify shutting down a major tourist event that’s important to local businesses? Good question.

I do think the Park Service should justify its decision in court, and can be made to do so, but if there’s a reasonable basis for it, it’s not for the courts to interfere with either a policy decision or one grounded on factual judgments within the agency’s authority, purview, and expertise. The former would include a decision to give precedence to the tribes’ wishes, and the latter includes factors like fire danger, health and safety risks, traffic, law enforcement, and the like.

With respect to health risks, the important thing to remember is that Covid-19 infection risks are constantly changing, whether masks are (or are not) formally required have no bearing on what those risks currently are (mask requirements are the cart behind the horse), and while vaccination rates are useful for assessing transmission risks, they’re only a piece of information, and shouldn’t override a reasonable overall transmission risk assessment.

So I don’t know how the court should decide this case, or how it will decide the case. The state has some legitimate arguments, but my best guess is that if the court decides the agency’s explanation is deficient and/or concludes the decision-making was sloppy, it will kick it back to N.P.S. for reconsideration. I don’t rule out the possibility the court may overturn the denial and order N.P.S. to issue the permit, but in cases of this nature, courts usually order agencies to cure the deficiencies, and make them do the work.

Photo below: Rock doesn’t burn

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  1. Mark Adams #

    The 2020 fireworks show was approved prior to COVID. The documents are on line and the NPS found in favor of holding a fireworks show at Mt. Rushmore. There is only one significant change since then and that is a change of who is in the White House. There have been no hearings or any public repudiation of the agreement between the Bureau of the Interior and the State of South Dakota. Yes an agreement was signed to bring back the fireworks. Studies were done and meetings held.
    The logic used in 2010 is open to debate. If an emergency existed in that year because of drought or high fire danger it surely was not the case in subsequent years. The proper administrative process should have been followed in 2010 and afterward.
    The Indian tribes have concerns, but the tribes logic and complaints would apply to the National Mall in DC. The fact all or most of the tribes engage in the sale of fireworks also makes their arguments disingenuous. It is also entirely possible that the crew who would set up the fireworks and do the show would consist partially or completely of native Americans. The argument against the show frankly trivializes the legitimate gripes the tribes have over the Black Hills and the US government.

  2. Roger Rabbit #

    The 2020 fireworks show was approved on April 24, 2020, eight weeks after the U.S. went into Covid-19 lockdown. The document is here. The NPS didn’t approve it; Trump ordered it, as reported here. As for your other contentions, Wikipedia says here, “A 2016 investigation by the U.S. Geological Survey found unusually high concentrations of perchlorate in the surface water and groundwater of the area …. The report concluded the probable cause of the contamination was the aerial fireworks displays that had taken place on Independence Days from 1998 to 2009. The National Park Service also reported that at least 27 forest fires around Mount Rushmore in that same period (1998 to 2009) have been caused by fireworks displays.” The danger of fireworks polluting water supplies and starting fires is ongoing and exists every time there’s a fireworks show. That’s why NPS doesn’t want them to resume.

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