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8th Circuit requires clarification in Mount Rushmore fireworks appeal

Photo courtesy of South Dakota Department of Tourism

Parties in the Mount Rushmore fireworks appeal have filed additional information at the request of the Eighth Circuit Court of Appeals. A three-judge appellate panel heard oral arguments in January. The state is fighting the Department of Interior and National Park Service over a 2021 denial of a fireworks permit. At issue is whether the state has a valid legal claim and an injury that can be redressed.

In court filings, the State of South Dakota challenges the authority of the U.S. Department of Interior (DOI) and National Park Service (NPS) to grant permits to hold fireworks shows at Mount Rushmore .

The state says the fact that NPS is charged with making permitting decisions indicates Congress has unconstitutionally delegated its legislative powers.

The state says the Eighth Circuit can grant relief by forbidding the agencies from refusing a fireworks permit in the future.

The Cheyenne River Sioux Tribe is an intervenor defendant in the case. The tribe says in its supplemental filing that the state is asking the court to invalidate the authority of DOI and NPS to issue fireworks permits, while at the same time asking the court to order those agencies to exercise their authority to issue permits.

The tribe points out that permits are granted on a year-to-year basis, depending on facts in existence at the time of application. In 2020, NPS granted a permit. In 2021, it did not, citing concerns about wildfires, the COVID-19 pandemic, and lack of consultation with tribes.

Cheyenne River says DOI is now consulting with tribes, but the pandemic is “fluctuating and unpredictable,” and the risk of wildfires varies annually.

The federal response comes from the U.S. Department of Justice, whose briefing letter points out that the state’s only injury is that it was denied a permit, and the court can’t grant relief by nullifying the authority of DOI because Mount Rushmore is located on federal land. Even if DOI doesn’t make the permitting decision, some other federal agency will, and so the decision-maker might be different, but the outcome could be the same.

The briefing letters have been submitted to the three judges who will deliberate further before issuing a ruling.

Rapid City freelancer Victoria L. Wicks has been producing news for SDPB since August 2007. She Retired from this position in March 2023.