Court Rejects Judicial Activism, Upholds Denial of Noem’s Rushmore Fireworks Request

It was clear from the beginning that Governor Kristi Noem and her out-of-state Republican attorney general friends had no grounds for suing the National Park Service and Secretary of the Interior Deb Haaland for denying her request to hold another campaign-fireworks show at Mount Rushmore this July. Yesterday, Judge Roberto Lange agreed and declined to contravene the National Park Service’s authority in favor of one woman’s vanity.

Judge Lange opened his 36-page ruling with a more honest argument for a good Independence Day celebration to bring the country together than any of Governor Noem’s slickly self-serving propaganda:

A fireworks display at Mount Rushmore on July 3, on first blush, seems like a good way to celebrate the Independence Day weekend. This country could use a good celebration of its foundational principles of democracy, liberty, and equal protection of law, after a pandemic that has disrupted society and business and has killed nearly 600,000 United States citizens to date, after an insurrection and physical incursion of the United States Capitol while Congress was convening to certify the outcome of the presidential election, and after this nation has become so sadly divided by the politicization of so many issues, likely to include even the outcome of this case. The United States would benefit immensely from greater unity in its efforts to continually form a more perfect union [Judge Roberto Lange, U.S. District Court of South Dakota, Opinion and Order Denying Preliminary Injunction Motion, Noem v. Haaland, 2021.06.02, pp. 1–2].

But even that noble patriotic sentiment, never mind Noem’s petty partisan attention grab, cannot take precedent over the rule of law and the proper separation of powers:

However, this Court is not called upon to determine whether such a fireworks display is a good idea. It would be improper judicial activism for this Court to disregard settled law establishing the arbitrary and capricious standard for review of the fireworks permit denial and to mandate issuance of such a permit [Lange, 2021.06.02, p. 2].

To support this legal position, Judge Lange points to one key line in the Special Use Permit NPS issued for last year’s show: “Issuance of this permit is for the current year 2020 and does not mean an automatic renewal of the event in the future.” Governor Noem premised her suit on the claim that “I have the contracts” and that the federal government had issued a multi-year agreement. That claim appears to be flatly counterfactual.

The feds and tribal intervenors actually lost two of their three arguments. Judge Lange rejected defense arguments that the court had no jurisdiction in this matter and Noem had waited too long to challenge the NPS ruling in court. But all the defense needed was its third argument, that in denying Noem’s fireworks request, the Park Service exercised its Constitutional authority as delegated by Congress. Lange notes that Noem made this argument in her initial complaint, then dropped it in her motion for preliminary injunction. “As it turns out,” writes Lange, “the State’s non-delegation claim finds virtually no support in existing law, which perhaps explains why the State did not argue it in briefing.”

The only way to reverse the Park Service’s constitutional exercise of its statutory mandate to “regulate the national parks with the goals of conservation of the scenery, natural and historic objects, and wildlife in order to preserve them for future generations” would have been to demonstrate that the Park Service’s denial of the Rushmore fireworks permit was “arbitrary and capricious.” Judge Lange notes that long-standing precedent tells the courts to be “highly deferential” to the judgment of agencies exercising their statutory authority

It is not the court’s job to consider “whether a regulatory decision is the best one possible or even whether it is better than the alternatives.… Rather, a court must restrict its analysis to whether the agency’s decision was based on relevant factors and was a clear error of judgment.… As part of this limited inquiry, a court should examine whether the agency offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise…. At a minimum, an agency must provide “a satisfactory explanation for its actions based on relevant data.”… Although courts cannot “supply a reasoned basis for the agency’s action that the agency itself has not given,”… courts should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,”… “If an agency’s determination is supportable on any rational basis,” then a court must uphold it… [citations omitted; Lange, 2021.06.02, p. 23].

Judge Lange says all five of the reasons the Park Service gave back in March for denying the Rushmore fireworks request—coronavirus concerns, tribal opposition, pollution and wildfire risk, restrictions on Rushmore visits, and construction projects—had rational and plausible bases. To the fifth reason, delay of construction projects, Judge Lange notes that the Park Service is reasonably trying to avoid the repeat of costly damage done by last year’s fireworks show:

In 2019, the NPS began an extensive construction project at the Memorial including replacement of the plaza paver walkway system through the Avenue of Flags, with a widening of the existing walkway. The 2020 event caused damage from too much weight on concrete that had not cured long enough. The cost of replacement concrete is estimated at $60,000 and work is ongoing presently with concrete to be replaced in June. A repeat of the same damage to the newly poured concrete could occur from a one-time gathering of some 7,500 or more people at the Memorial…. Under §1.6(a), a worry about repeating a construction project multiple times is a “management responsibility,” and §2.50 supports permit denial where the activity would “[c]ause injury or damage to park resources.” The concern about disruption of the construction is rational based on the damage to the concrete cause during the 2020 event and thus not implausible [Lange, 2021.06.02, p. 30].

Judge Lange ultimately concludes that the state has some legitimate short-term interest in throwing a party and getting some publicity to boost its tourism industry, but those short-term gains from 15 to 30 minutes of fireworks are balanced by the long-term interests of protecting Mount Rushmore, tribal relations, and the forest. We may argue about the balance of those interests, but Judge Lange recognizes that the Park Service has offered a rational assessment of those interests and that the Court has no legal basis on which to reject the Park Service’s rational assessment and rational denial of a permit for Rushmore fireworks.

Noem is already squawking that she’ll spend more of our taxpayer dollars on her private lawyers to appeal Judge Lange’s sound ruling and fight for fireworks in 2022. Bob Mercer reported last week that the Noem Administration hadn’t issued any request for bids for the Governor’s deeply craved fireworks show at Mount Rushmore. Last year, Mercer reports, the Department of Tourism issued its request for bids on Rushmore fireworks on February 14 and required responses by March 13. That timeline and Noem’s failure to follow it this year suggest that she knew all along there wouldn’t be a show and that the only fireworks would be the duds she set off in court and the media attention she’d get for it. Her noise about appealing Judge Lange’s ruling show she’s mostly interested in extending her courtroom and media pyrotechnics for as long as she can to stay in the news and promote her campaign, be it her 2022 gubernatorial campaign or her 2024 Presidential campaign.