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Appeals Court Tosses Noem’s Flawed Fireworks Lawsuit

Hump Day is turning to Dump Day on Kristi Noem. First Jamie Smith posts a brilliant video ridiculing her horsing around. And now the Eighth Circuit dismisses her Rushmore fireworks lawsuit.

Recall that, after hosting a hate-filled Trumpist political rally at Mount Rushmore with fireworks on July 3, 2020 (the costs of which rally Noem tried to hide from the press), Noem sought to launch more explosives over Mount Rushmore for Independence Day 2021. Under new management, the National Park Service came back to its senses and said no. Noem sued, dragging a whole bunch of attorneys general with her to complain that the federal government was arbitrarily and unconstitutionally preventing Kristi’s threatening the Black Hills National Forest with fire. U.S. District Court Judge Roberto Lange upheld the Park Service’s decision. Incapable of comprehending, let alone speaking truthfully about, the decision, Noem appealed, grasping for another year of publicity from her Rushmore fireworks tantrum.

However good Noem’s whining may have sounded on Fox, the Eighth Circuit found her argument uncompelling. In a ruling issued today, Trump-appointed Judge David R. Stras (a Federalist Society member born on the Fourth of July who thus must have a keen appreciation of the Independence Day fireworks) said the case was largely moot—”Time machines aside, to now order the Park Service to reconsider its decision to deny a permit for an event more than a year in the past would be the very definition of ‘[in]effectual relief’…. No matter what we decide, South Dakota cannot hold the event.”

But Judge Stras went on to crush the two arguments Noem made to keep the lawsuit alive: that the court needed to issue a ruling that would prevent the Park Service from repeating this “arbitrary and capricious” denial of her right to launch fireworks over Mount Rushmore, and that the Park Service’s say-so over Mount Rushmore fireworks was unconstitutionally delegated by Congress. Judge Atras didn’t address these two arguments directly (Judge Lange sufficiently demolished those contentions last year). Instead, he dug into two important technicalities that Kristi will not understand.

First, Judge Atras said Noem’s request that Eighth Circuit render judgment to prevent repeated NPS denials in future years fails because Noem and her high-priced Virginia lawyers did not prove that the same situation would arise again:

Even though South Dakota has established a “reasonable expectation” that it will regularly apply for a fireworks permit, the circumstances are likely to be different each time.… Last year, the barriers were the then-current state of COVID-19, an ongoing construction project, tribal opposition around a yet-to-be-completed survey, and fire and water-contamination risks. In the future, it may be some combination of these reasons, or none of them at all.

…[T]he same controversy will recur only if (1) the Park Service again denies a fireworks permit; (2) the administrative record is “materially similar”; and (3) the Park Service does not change its reasoning.… Far from convincing us this unlikely scenario is likely to repeat itself, South Dakota has not even suggested that it might [Judge David Stras, opinion, Noem v. Haaland, 2022.07.27, pp. 4–5].

Noem also threw good money at bad lawyers with her argument that the National Park Service lacks constitutional authority to manage the national parks. Judge Stras did not affirm or reject Judge Lange’s finding that the National Park Service can do what Congress created it to do. Instead, Judge Stras said that Noem lacks standing to make that argument, because even if he accepted the Noem’s argument, the relief she requests—strip the Park Service of its permitting authority—wouldn’t solve her problem but would actually make her problem worse. Mount Rushmore belongs to the federal government. “Nobody has a right to shoot off fireworks on someone else’s land,” observes Judge Stras. We have to ask permission to work our fire at Mount Rushmore. Judicially neuter the Park Service, and whom do we ask—George, Thomas, Teddy, and Abe? “With no substitute,” says Judge Stras, “doing away with this [NPS permit] process will only make it harder, not easier, for South Dakota to remedy its claimed injury.”

Noem lost at the District Court because she didn’t have her facts and law straight. Noem lost at the Appeals Court because she (and the out-of-state lawyers we paid to carry out this foolish, grandstanding lawsuit) couldn’t even structure her arguments correctly.


  1. Guy 2022-07-27 20:15

    Kristi’s appeal was moot all along. Mount Rushmore belongs to the National Park Service and they and ONLY they have the final say over how the land is used. Kristi thinks she has authority over National Park Service land located in South Dakota. Well, the Federal Government, by law, knows otherwise and their authority supersedes her in this case. CASE CLOSED.

  2. Guy 2022-07-27 20:24

    Cory: “Mount Rushmore belongs to the federal government.” Kristi thinks otherwise.
    This woman thinks she has the brains to be President of the United States?!?

  3. RST Tribal Member 2022-07-27 21:06

    Interesting. This lady is the best the republicans could scare up for governor! This proves beyond a reasonable doubt and with sound facts the Republicans are inept and inbreds.

    The governor wants to ban the National Park Service from their lands: welcome to Indian Country NPS.

    There might be some “good people among them” a former president is fond of saying. Might!

  4. Eddie 2022-07-27 22:36

    That was a brutal decision. How humiliating for SD, the attorneys, and Ms Noem

  5. All Mammal 2022-07-27 23:05

    Eeez. How humiliating. She prances around unaware of how painfully idiotic she makes us all look. The judges can barely hold back authoring eyerolls in their summations.

  6. DaveFN 2022-07-27 23:25

    The feds have legal jurisdiction over reservation lands in SD.
    The feds have legal jurisdiction over National Parks whether in SD or elsewhere.

    Noem is a squatter if she thinks she has any claim to either.

  7. 96Tears 2022-07-27 23:46

    Kristi’s gonna need a faster horse!

  8. Cory Allen Heidelberger Post author | 2022-07-28 07:48

    Ah, 96, she’s just riding off to the next fancy lawyer office to float another doomed lawsuit idea.

  9. Cory Allen Heidelberger Post author | 2022-07-28 07:49

    RST, Republicans had a choice between Noem and Jackley in 2018. Jackley at least was enough of a lawyer that he wouldn’t have floated lawsuits this dumb, just for the sake of Fox News airtime.

  10. Cory Allen Heidelberger Post author | 2022-07-28 07:50

    Guy, Noem has never sold her candidacy for office on brains. Her smarts extend only to winning beauty pageants, not law or policymaking.

  11. Guy 2022-07-28 08:28

    Cory, I agree with you on that. She has no business running for President. We can not even afford her shenanigans in this state.

  12. mike from iowa 2022-07-28 08:47

    Noem’s whinery is famous for sour grapes.

  13. Donald Pay 2022-07-28 09:47

    When I lived in Rapid City, very few people thought shooting off fireworks in the Hills was a good idea. Most communities in and around the Hills banned the sorts of fireworks that would cause fires. The fire districts and voluntary fire departments in the Hills certainly were opposed. Of course, there were the miscreants who violated these ordinances and state laws, Noem would have been one of the miscreants. My guess is most people living in and around the Black Hills today do not want Noem’s fireworks display. Certainly they don’t want it in the middle of summer when the threat of uncontrolled fire in a ponderosa pine forest is high.

    From what I’ve seen, Noem’s “celebrations” have nothing to do with “Independence. Day.” For one, they are not on July 4th, the official day of national celebration. There is an argument that the celebration of Independence should be on the day that Congress voted for independence, July 2, not July 4th. If Noem wanted to make that argument, she could, but she won’t. She has no understanding of the real history of our country, but she does know that most Fox viewers don’t, either. Certainly most of those viewers don’t live in a semi-arid ponderosa pine dominated environment, so they have no idea why a federal agency tasked to manage such land would not be in favor of an Independence Day fireworks celebration at Mt. Rushmore in the middle of a drought.

    And that’s it. Noem’s fake celebration is all about ignorance of her Fox News audience, ignorance of the law, ignornance the behavior of ponderosa pine environments and ignorance of history. It’s a celebration for the dumb.

  14. RST Tribal Member 2022-07-28 11:38

    Yep Cory the inept inbred Republicans had a choice between dump and crooked. At least dumb doesn’t have people covering up the stealing from Indian children, killing their family or themselves. Her fellow inept inbred top cop officer did the killing himself and got $hit canned for it.

    If 45 did not come to South Dakota to pimp out his dumbo there might have been a different outcome. Even the Democratic candidate in-laws would not have anything to do with him in the voting booth. Those fine family values of inept inbred Republicans on display.

    There is that clear memory when a Democratic Senator jumped into the political bed with a Republican Governor to legally steal Treaty lands along the big muddy river. He is a lobbyist today. I wonder WWBD if he won?

    Maybe dumb-nome is trying out for a spot on the show Yellowstone with Dances with Kevin as she had herself filmed riding a horse on the prairie. Not a cow, horse or fence for miles around just another hobby rider on a Tuesday ride avoiding work.

    Dumb or crooked. The inept inbred Republicans are stuck with dumb.

  15. Arlo Blundt 2022-07-28 14:37

    Who says we don’t have any money??? Who says we must be very conservative in our state spending as we fear the future??? Who says she can’t find an attorney employed by state government or an attorney practicing in South Dakota to represent the state in this misguided, “sure loser” of a lawsuit??? Who enjoys writing large checks to law firms composed of Republican Party and fringe, right wing foundation “hired guns” from states across the nation, excluding, of course, South Dakota?? Who’s crazy enough to believe the federal government cannot designate a federal government agency to govern a National Monument and National Forest??? Governor Noem is the only person in the room with their hand up.

  16. oldtimerDon 2022-07-28 19:13

    I hope Smith is developing a whole series of his humor to include this and foibles of the cavorting queen of crap!

  17. grudznick 2022-07-28 22:06

    It is very sad that the Democrat party, most libbies in general, and the Bureaucrat Park Hippies at the federal government hate our country so much they can’t let people enjoy a few fireworks in celebration. A few fireworks go a long way to mending the fences the libbies at the federal level have mowed down.

  18. Arlo Blundt 2022-07-28 23:41

    Grudz..must we burn down the forests to satisfy Trumpites love of flashing lights and loud noises. They already have a font of flashing lights and loud noises, named Governor Noem, and she lights up the sky with her nonsense everyday.

  19. Donald Pay 2022-07-29 08:04

    Grudz, Face facts. This isn’t about celebrating Independence Day. It’s about politicians scoring points and having a talking point. It makes more sense to spread the money spent on fireworks at Mt. Rushmore to communities so they can plan their own local celebrations. If they want fireworks, that’s fine, If they prefer art shows, that’s fine, too.

  20. Jenny 2022-07-29 08:48

    It’s odd for Noem to go after this. As Pay says, most South Dakotans don’t even care as they have their own fireworks celebrations in backyards and cow pastures. Since she’s running for president she must want people to remember her claim to fame 2020 Speech with Trump at Mt Rushmore.

  21. mike from iowa 2022-07-29 08:50

    Grudzilla’s whining again because Liberty Uni and Bob Jones Uni educaed lawyers don’t know smit about the law and the courts as they demonstrate every time one of them is hired by a magat and gets annihilated in court.

  22. Richard Schriever 2022-07-29 18:47

    grudz, can I pitch my tent in your front yard without your permission?

  23. oldtimerDon 2022-07-29 19:35

    Why do I see a cartoon of Noem and Lewindickinsideher riding a a rock to the great Whitehouse in the sky?

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