In further distraction, Governor Kristi Noem is taking her failure to get a July 3 fireworks show at Mount Rushmore to federal appeals court. July 3 is past, of course. Judge Roberto Lange doused Noem’s fireworks on June 2, and while our part-time Governor spent the month lying and tweet-pouting about her latest litigatory failure, she didn’t file any court response to Judge Lange’s refusal to overturn the National Park Service’s rejection of Noem’s pyromania until July 7, when Noem basically said, Fine, there’s no convincing you, Roberto, but we need to keep this campaign issue alive, so let’s go to the next judge:
The Court denied Plaintiffs’ motion for preliminary injunction on June 2. See Doc. 54. In doing so, the Court definitively decided the merits of Plaintiffs’ two claims in its likelihood of success analysis. Id. at 22-32 (“The NPS’s decision was not arbitrary and capricious.”); id. at 18-22 (“Congress’s delegation of authority to NPS is constitutional.”). Plaintiffs disagree with the Court’s decision. But they recognize that Defendants have fully prevailed in this Court. Plaintiffs thus request that the Court convert its order into a judgment under Federal Rule of Civil Procedure 65(a)(2) so that Plaintiffs may appeal a final order.
…Plaintiffs’ reason for this request is simple. Because they intend to apply every year for a permit for a fireworks show at Mount Rushmore, Plaintiffs are entitled to exhaust the appellate process pursuing a declaratory judgment on whether (1) the Defendants’ denial this year was arbitrary and capricious and (2) whether Congress unconstitutionally delegated NPS legislative authority to deny permits such as the one at issue here [Gov. Kristi Noem, through attorneys, Plaintiffs’ Motion to Enter Final Judgment, Noem v. Haaland, United States District Court of South Dakota, Central Division, 2021.07.07].
The State sought through this lawsuit to have this Court compel the Federal Defendants to approve the State’s request for a permit to allow a fireworks display at Mount Rushmore National Monument for Independence Day weekend in 2021. This Court on June 2, 2021, issued a lengthy Opinion and Order denying the requested preliminary injunction…. The State did not file anything between June 2 and Independence Day weekend to seek a final judgment or to appeal, so it would seem that issues surrounding the denial of the permit for 2021 are moot. The State now acknowledges that its claims raise only questions of law which this Court has already decided adverse to the State. There appears to be nothing left for this Court to do in this case. If any party had a right to protest entry of final judgment at this stage, it would be the State. Although the issue of whether there was an arbitrary and capricious denial of a permit now appears to be moot, the State evidently expects to seek permits in future years. At any rate, there is at least one non-moot appealable issue regarding this Court’s legal conclusion that the delegation of authority to NPS is constitutional. For these reasons, the Court grants the State’s motion to convert this Court’s order on the preliminary injunction into an entry of final judgment [Judge Roberto A. Lange, Order Granting Motion to Enter Final Judgment, Noem v. Haaland, 2021.07.12].
The Eighth Circuit will thus have the pleasure of considering whether Congress can actually give the National Park Service the authority to do its job, and we will have the pleasure of watching candidate Noem tire out the public with her whining about fireworks.