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Law360 (April 30, 2021, 5:29 PM EDT) -- South Dakota's governor Friday sued the federal government over the U.S. Department of the Interior's fireworks ban during this year's July Fourth celebration at Mount Rushmore, saying the ban is based on "vague" and unfounded concerns about coronavirus spread, tribal opposition and environmental impacts.
Gov. Kristi Noem claims President Joe Biden's DOI in March reneged on a Trump administration agreement to allow fireworks displays at the memorial, arguing that the new administration made no attempt to justify its "abrupt about-face," according to the complaint filed in South Dakota federal court.
Noem's suit hinges on a letter that Herbert Frost, the National Park Service's regional director, sent to the state's tourism department, denying its request to hold a fireworks show this year.
"Potential risks to the park itself and to the safety of employees and visitors associated with the fireworks show continue to be a concern and are still being evaluated as a result of the 2020 event," Frost wrote, according to Noem's suit. "In addition, the park's many tribal partners expressly oppose fireworks at the memorial."
"These factors, compiled with the COVID-19 pandemic, do not allow a safe and responsible fireworks show to be held at this site," he added.
Noem said the DOI's decision amounts to an arbitrary and capricious agency action in violation of the Administrative Procedure Act, and asked the court to override the fireworks ban and order the DOI to issue a permit for July Fourth.
Along with Frost, the suit names as defendants U.S. Secretary of the Interior Deb Haaland, DOI Assistant Secretary for Fish and Wildlife and Parks Shannon A. Estenoz and Acting Director of NPS Shawn Benge.
In early 2019, Noem said the Trump administration's DOI initiated talks with South Dakota to restart the traditional fireworks show on July Fourth weekend, which resulted in a memorandum of understanding that permitted the state to restart fireworks shows beginning in 2020. The state just needed to make sure there were no wind, weather or fire danger concerns on the day of the fireworks show, according to the suit.
On July 3, 2020, South Dakota hosted thousands of people for the fireworks show at Mount Rushmore, and Noem said the event went off without a hitch.
But when the state asked the DOI for another permit for 2021, the Biden administration's agency denied the request "with minimal explanation," according to the lawsuit.
In his letter, Frost expressed concern about the spread of COVID-19, but Noem said the agency is assuming people won't follow federal requirements to wear masks at national parks and isn't taking into account that about 52% of Americans have been vaccinated.
Noem also rejected the DOI's concerns about tribal leaders' opposition to fireworks at the memorial, saying the letter didn't cite any specific examples of opposition or what changed from last year in terms of tribal leaders' positions.
Despite the federal government's concerns, Noem said she tried to address them in a letter to Biden, but she said she didn't receive a response nor did the DOI change its mind.
"After telling us they'd 'circle back,' the Biden administration has not responded to our request to uphold the [agreement] between the State of South Dakota and the National Parks Service to host a safe and responsible national celebration and fireworks show," Noem said in a statement Friday.
"Unfortunately, the new administration departed from precedent and reneged on this agreement without any meaningful explanation," she added.
A representative for the DOI did not immediately respond to a request for comment Friday.
South Dakota and Noem are represented by Katie Hruska and Mark Miller of the South Dakota Governor's Office and Jeffrey M. Harris, Bryan K. Weir and James F. Hasson of Consovoy McCarthy PLLC.
Counsel information for the defendants was not immediately available.
The suit is Kristi Noem et al. v. Deb Haaland et al., case number 3:21-cv-03009, in the U.S. District Court for the District of South Dakota.
--Editing by Ellen Johnson.
For a reprint of this article, please contact reprints@law360.com.
