By Andrew Westney

Law360 (May 19, 2021, 8:12 PM EDT) -- U.S. Interior Secretary Deb Haaland and the Cheyenne River Sioux Tribe have urged a federal judge to reject South Dakota Gov. Kristi Noem's bid to go ahead with a July Fourth fireworks display at Mount Rushmore, with Haaland saying the government explained its public safety and tribal cultural concerns for denying a permit and it's too late to change course.

Noem sued in late April asking the court to order the U.S. Department of the Interior's National Park Service to issue a permit to allow fireworks at the sculpture in South Dakota's Black Hills. The governor argued that the agency's refusal was based on unfounded concerns about coronavirus spread, tribal opposition and environmental impacts, and that the Biden administration made no attempt to justify its "abrupt about-face" from the Trump administration's approval of fireworks in 2020.

In her response Tuesday, Haaland said the permit denial wasn't arbitrary and capricious agency action in violation of the Administrative Procedure Act because a DOI official "clearly explained" in a March letter that the denial was based on risks to "the health and safety of the public and employees during a pandemic," "concerns related to a tribal cultural preservation survey requested by affiliated tribes," construction at the site and potential environmental hazards.

"The [Mount Rushmore] Memorial was established by Congress to be carefully managed by NPS for conservation and enjoyment of its resources within its discretion," Haaland said. "The court should allow NPS to manage the Memorial within that discretion, not compel it to grant a permit that NPS has denied for reasonable and clearly-stated reasons, and then attempt to accommodate an event of this magnitude with mere weeks to prepare."

The Independence Day celebration has stirred up a conflict going back to at least 1876, when a small number of Sioux men agreed to give the Black Hills to the U.S. in exchange for subsistence food — against terms of the Ft. Laramie Treaty of 1868, which required the consent of 75% of the tribe's adult male population for any such waiver of rights. After 60 years of litigation, the U.S. Supreme Court acknowledged the U.S. had wrongfully taken the Black Hills, and decided to compensate the tribe with money.

Noem said in her April 30 complaint that the DOI "reneged" on a 2019 agreement to bring back the traditional fireworks show. The suit hinges on a letter that Herbert Frost, the National Park Service's regional director, sent to the state's tourism department in March, denying its request to hold a fireworks show this year. Noem said the DOI's decision amounted to an arbitrary and capricious agency action in violation of the APA and asked the court to override the fireworks ban and order the DOI to issue a permit for July Fourth.

The Cheyenne River Sioux Tribe and Steve Vance, the tribe's historic preservation official, sought to intervene in the case May 13, disputing Noem's contention that the tribe was consulted prior to the 2020 event, which featured the first fireworks show at the monument in over a decade. The tribe contended that fireworks displays in the middle of their treaty land presents an "extreme risk" to the Lakota people, citing wildfire risks as well as spiritual, cultural and moral injury.

Noem has opposed the tribe's intervention bid, arguing that the tribe has no legal standing or pressing interest in the "state-federal dispute," and that the celebration doesn't interfere with any religious or expressive rights or violate the National Historic Preservation Act.

Haaland said in her brief Tuesday that the state is seeking force action by the DOI, going beyond the scope of a typical injunction request. But "however it is characterized, the motion should be denied," as the agency laid out multiple reasons for its decision and "a fireworks permit does not warrant extraordinary judicial intervention," she said.

Frost "was concerned about the lack of social distancing at the prior fireworks show" last year, and "could not in good faith encourage large gatherings where people cannot social distance and are not wearing face coverings well into July of 2021," according to the brief.

Although the threat from the pandemic may appear less than it was last year, the DOI's decision "must be evaluated on the record as it existed in March, when the projected risk of such a large gathering was unacceptable," Haaland said. And "even though more recent CDC guidance has relaxed restrictions for vaccinated people, that would only be relevant if NPS were somehow able to police vaccination for thousands of people at the event," according to the brief.

And while the state claimed it would lose business income and tax revenue without a 2021 fireworks show, "visitation to the Memorial ultimately decreased greatly as a result of last year's show, rather than increased," which "seems to undermine all of plaintiffs' speculations," Haaland said.

Furthermore, Frost "is committed to building stronger relationships with the tribes associated with the Memorial, and the 2020 fireworks decision continues to strain these relationships," the DOI said.

In its own proposed opposition filed Tuesday, the Cheyenne River Sioux Tribe said South Dakota "asserts speculative economic harm that does not even remotely approach the severe financial injury required for an injunction." The state's claim of "reputational harm from the perception that visiting the Memorial is unsafe" also doesn't hold water, the tribe said.

The claim "presumes that nationwide public interest in the 2020 fireworks event was positive (it was not) and that a public perception that South Dakota is unsafe during this unprecedented pandemic is the fault of the DOI's permit denial rather than the Governor's infamous rejection of lifesaving COVID-19 restrictions," according to the tribe.

The tribe also said the state's decision not to appeal the DOI's permit denial administratively was meant to prevent the tribe and others from weighing in on the state's challenge.

Nicole E. Ducheneaux of Big Fire Law and Policy Group LLP, which represents the tribe, said in a statement Wednesday that the "destruction of religious property essential to our religion would violate our rights under the First Amendment and the Religious Freedom Restoration Act," and that issuing the permit "would abort an ongoing tribal-federal consultation on cultural properties" required by the National Historic Preservation Act.

"In light of these clear deficiencies in the state's and governor's case, this lawsuit seems as much a politically motivated spectacle as the fireworks show itself," said Ducheneaux, who is an enrolled member of the tribe.

Noem's communications director, Ian Fury, wrote in a Tuesday tweet, later retweeted by Noem, that the tribe's "claim that we didn't consult with the tribes prior to the Fireworks Celebration is 100% false." Fury said that a declaration by Frost included with the DOI's filing showed that the Cheyenne River Sioux Tribe and other tribes "were consulted on multiple occasions."

The meetings referenced in the tweet were held on February 20 and 21, 2020, and involved NPS officials and tribal representatives, according to transcripts attached to Vance's declaration. Both were attended by Vance, and the latter was also attended by Bryce in the Woods, a representative of the Tribal Council. No representatives for the state were listed in the transcripts as being present at either event.

Cheyenne River Sioux Tribal Chairman Harold Frazier told Law360 on Wednesday that full consultation must be conducted with the tribe's council itself rather than tribal representatives, and said South Dakota "didn't consult with us at all."

"The Black Hills is sacred to our people," Frazier said, and criticized Noem's calling for a celebration of "Independence Day" at Mount Rushmore.

"Celebration for who? For what? As Indian people, we still don't have our independence," Frazier said. "So why would we want to celebrate something that was truly a detriment to our way of life?"

Frazier said the tribe has "no relationship" right now with the state and Noem.

"I think that at some point, in order for it to be a relationship, they need to quit looking down on us," Frazier said. "And the only way to begin is she herself and the state truly should try to learn our ways, our culture, how we live and how we want to live. That respect has to be there."

He added that the federal agencies are "no heroes to us," but said he was "pretty happy" to see the DOI addressing tribes' concerns in its brief.

Noem is represented by Jeffrey M. Harris, Bryan K. Weir and James F. Hasson of Consovoy McCarthy PLLC.

The Cheyenne River Sioux Tribe and Vance are represented by Nicole E. Ducheneaux, Leonika Charging-Davison, Rose M. Weckenmann, Calandra S. McCool and Amber E. Holland of Big Fire Law and Policy Group LLP.

Haaland is represented by Dennis R. Holmes and Diana J. Ryan of the U.S. Attorney's Office for the District of South Dakota, and Jason Waanders and Tyson Powell of the U.S. Department of the Interior.

The case is Noem et al. v. Haaland et al., case number 3:21-cv-03009, in the U.S. District Court for the District of South Dakota.

--Additional reporting by Victoria McKenzie and Lauren Berg. Editing by Breda Lund.

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