The Eighth Circuit Court of Appeals heard arguments on Wednesday, Jan. 12, in South Dakota ’s ongoing battle to shoot off fireworks at Mount Rushmore for Independence Day. The state says the National Park Service wrongly denied a 2021 permit after a successful event the year before. But the feds say every year brings its own set of circumstances to be considered, and so each permit needs to be studied.
Nicole Ducheneaux represents the Cheyenne River Sioux Tribe, which has joined with the National Park Service (NPS) in defending the 2021 denial of a fireworks permit at Mount Rushmore .
Ducheneaux told the three-judge appellate panel that the permit approved in 2020 was illegal, because it did not comply with the National Historic Preservation Act to prevent harm to cultural properties and sacred sites.
“When the NPS denied the permit in 2021, it properly did so because that process is not over,” she said.
Ducheneaux said since then, several meetings have taken place and an additional 100 protected sites have been identified. She said the studies should not be rushed.
“It’s not just that the process is complete, but also that it is done meaningfully and in good faith,” Ducheneaux said.
The attorney representing South Dakota is Jeffrey M. Harris. He told judges that NPS completed those studies and tribal consultations in 2020, before issuing a permit for the fireworks show that hosted then-President Donald Trump.
“The alleged threat to many of the cultural and historical items would be from environmental or wildfire or other issues such as that which, of course, we have 100 pages of careful analysis saying why those are not likely to be concerns,” he said.
Harris said the same conditions existed the following year, when NPS denied a permit. He said NPS’s denial was arbitrary, and the agency should have to spell out what facts have changed before doing an about-face.
Although the 2021 permit application at the heart of this appeal is now moot, the state wants a ruling before it applies for a permit for fireworks this summer.
Judges will deliberate and release an opinion at a later date. The Eighth Circuit has agreed to expedite this appeal.
