A judge says South Dakota cannot force the federal government to allow fireworks at Mount Rushmore National Memorial.
Gov. Kristi Noem wants a fireworks show on July 3. The National Park Service denied her request.
Noem sued the park service and other federal officials. She claimed the power granted to the park service is unconstitutional. She also claimed the permit denial was arbitrary and capricious.
Judge Roberto Lange issued a 36-page opinion Wednesday. He said the state’s claim of unconstitutionality has “virtually no support in existing law.” In response to Noem's claim of an arbitrary and capricious process, Lange listed five reasons cited by the park service to deny the permit.
Those reasons include the possible spread of COVID-19, the presence of a toxic fireworks chemical called perchlorate in Mount Rushmore’s drinking-water wells, disruptions to a renovation project on the memorial grounds, and opposition from Native Americans whose traditional spirituality includes sacred status for the Black Hills.
“A fireworks event carries some risk of unvaccinated and unmasked attendees spreading the virus, perchlorate levels increasing in drinking water, a wildfire, disruption of typical visitation to the Memorial, and damage to the relatively new concrete pour at the Memorial,” Lange wrote. “A fireworks event at the Memorial does causes some harm to the federal-tribal relationship that has been frayed through the years.”
Lange acknowledged that despite all those arguments against fireworks, most of the public “would favor fireworks at the memorial for Independence Day weekend.” He also acknowledged the heightened awareness that Mount Rushmore fireworks bring to South Dakota’s tourism industry.
“Ultimately, there are strong arguments in both directions as to the balance of harms, and the public interest in the short-term appears to lie with having the fireworks display, whereas the more long-term interests militate against it at least for this year,” Lange wrote.
The judge also affirmed the park service’s discretion in deciding whether to issue a fireworks permit.
“If the NPS had granted a special use permit to the State for fireworks at the Memorial for Independence Day weekend for 2021, this Court almost certainly would have denied a preliminary injunction to any group seeking to prohibit such a display from occurring,” Lange wrote.
Noem immediately issued a statement condemning the decision and promising an appeal.
“The Biden Administration cancelled South Dakota’s Mount Rushmore Fireworks Celebration on completely arbitrary grounds,” the statement said, in part.
Noem and then-President Donald Trump brought fireworks back to Mount Rushmore last summer. The park service had previously prohibited the shows for more than a decade because of the same concerns it listed in its defense against the lawsuit.
Noem is widely considered a potential candidate for the Republican presidential nomination in 2024, based partly on the elevated status she gained from hosting Trump at the Mount Rushmore fireworks event last summer.