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.