By Joyce Hanson

Law360 (May 20, 2021, 9:47 PM EDT) -- A federal judge on Thursday granted the Cheyenne River Sioux Tribe's bid to intervene in South Dakota's suit over a disputed July Fourth weekend fireworks display at Mount Rushmore, saying the tribe can join because it has a legitimate interest in the action.

U.S. Interior Secretary Deb Haaland, the tribe and its tribal historic preservation officer on Tuesday had urged Chief Judge Roberto A. Lange of the South Dakota district court to reject Gov. Kristi Noem's attempt to go ahead with the fireworks display. Haaland argued that the federal government had explained its public safety and tribal cultural concerns for denying a permit, and it's too late now 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 monument 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.

On Thursday, Judge Lange wrote that the Cheyenne River Sioux Tribe and Steve Vance, the tribe's historic preservation officer, contended that they are entitled to intervene as a matter of right or, alternatively, that the court should grant them permissive intervention as a party claiming a common question of law or fact shared with the main action.

Judge Lange ruled in favor of the latter and tossed Noem and the state's argument that the tribe and Vance lack standing to intervene. The judge said the issue is not one of tribal or religious rights, but simply whether the DOI acted arbitrarily with the tribe's concerns in mind when denying the permit and whether Congress had impermissibly granted legislative power to the National Parks Service.

"To be clear, this case is not a dispute between the State and Lakota Tribes over the merit of fireworks at Mount Rushmore for Independence Day weekend or the ramifications of the tribal position that all of the Black Hills are a central spiritual and cultural location," the judge wrote. "The Tribe and Vance have contentions sufficient to meet the standing requirement under the circumstances such that this court allows permissive intervention."

Haaland said Tuesday the permit denial wasn't an 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 Fourth of July 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. The agreement went 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, which the Sioux tribes refused to accept in order to keep alive their legal claims to the area.

Noem said in her April 30 complaint that the DOI "reneged" on a 2019 agreement to bring back a 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 tribe and Vance sought to intervene in the case May 13, disputing Noem's contention that the tribe was consulted prior to a 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.

Nicole E. Ducheneaux of Big Fire Law and Policy Group LLP, which represents the tribe, said in a statement Thursday that Judge Lange's order acknowledges that the tribe's constitutional and statutory rights grant it standing to participate in the suit.

"The court's comment that this case is about whether the DOI acted arbitrarily and capriciously and whether Congress impermissibly granted legislative power to the NPS is a comment upon the scope of the merits of this case, which the court will consider when it determines whether the state is likely to succeed on the two claims set forth in the state's complaint," Ducheneaux said.

However, she added, the judge did not say that the tribe's rights were irrelevant in this case.

"To the contrary, the tribe's rights will factor heavily when the court considers the harm to other parties and the public interest, which is precisely why the court granted our intervention," Ducheneaux said.

Noem's communications director, Ian Fury, said in a statement Thursday that the state believes "that the tribe doesn't have a right to be part of the suit."

"Mount Rushmore is the best place to celebrate America's birthday," Fury said. "Further, we appreciate that the court emphasized in its ruling that this case is really about what we've said all along – whether the Biden administration illegally denied our fireworks permit."

Representatives for Haaland and the DOI did not immediately respond Thursday to a request for comment.

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 Andrew Westney. Editing by Ellen Johnson.

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