Mount Rushmore fireworks. KELO.com News file photo.
(Reuters) – A coalition of 16 Republican attorneys general asked a federal appeals court to reverse a ruling that tossed claims by South Dakota Governor Kristi Noem alleging the denial of a federal permit for a July 4th fireworks display at Mount Rushmore was unconstitutional.
The coalition led by Kansas Attorney General Derek Schmidt told the 8th U.S. Circuit Court of Appeals in an amicus brief that its interest in a future fireworks celebration at the landmark in South Dakota’s Black Hills region is threatened by the Department of the Interior (DOI) “arbitrary and capricious” refusal to allow a display this past year and that it has an interest in “reasoned permitting decisions more generally.”
DOI spokesperson Tyler Cherry declined to comment.
Noem said in a statement Wednesday that the cancellation “sets a bad precedent for other states who want honest and predictable federal processes.”
The National Park Service (NPS), which the DOI oversees, notified South Dakota in March that it could not, this year, hold the fireworks celebration that draws thousands of people. The agency cited concerns about COVID-19 and risks of wildfires.
The decision prompted a lawsuit by Noem in U.S. District Court for the District of South Dakota. The governor claims among other things that the statutes authorizing NPS to issue permits fail to articulate standards that are sufficiently precise to limit that authority, and that this amounts to an unconstitutional delegation of Congress’ legislative power.
The amici states argue in their filing that, “The pandemic did not provide an excuse for refusing to allow a fireworks display” at Mount Rushmore, especially considering NPS allowed a Fourth of July fireworks celebration at the National Mall in Washington, D.C.
Noem, whose counsel includes lawyers from Consovoy McCarthy, appealed in July a judgment dismissing her claims. The July 12 judgment notes that although the issue appears moot because the case was dismissed after the date for which Noem sought a permit, her constitutional claims were appealable. She seeks a declaratory judgment reversing the lower court’s ruling, noting in a brief that South Dakota intends to seek a permit again next year.
Other states who signed the amicus brief include Louisiana, Montana, Texas and Tennessee.
The case is Kristi Noem, et al v. Deb Haaland, et al, 8th U.S. Circuit Court of Appeals, No. 21-2542.
For Kristi Noem, et al: Jeffrey Harris of Consovoy McCarthy and Katie Hruska with the Office of the Governor of South Dakota
For Deb Haaland, et al: Michael Raab with the U.S. Department of Justice
For amici: Brant Laue, Solicitor General of Kansas
Read more:
Judge maintains feds’ Mount Rushmore fireworks cancellation
S. Dakota sues Park Service over Mount Rushmore fireworks cancellation
