SD Gov. Undaunted After Judge Snuffs FireworksCrusade

South Dakota Gov. Kristi Noem vowed to continue the fight after a federal judge denied her plea for fireworks-by-injunction at Mount Rushmore this July Fourth — and the Cheyenne River Sioux Tribe remains hunkered down for a long-haul fight for recognition of its constitutionally protected treaty rights to the Black Hills. 

In an order Wednesday, Chief U.S. District Judge Roberto Lange said the state’s case did not meet standards for the “extraordinary remedy” of injunctive relief, much less affirmative relief, and denied Noem’s motion asking that the court mandate issuance of a fireworks permit after weighing economic losses against the risk of wildfire, contamination of drinking water, damage to federal-tribal relationships and other “long-term” considerations. 

The state is “unlikely to succeed on the merits” of its case, according to the order. Contrary to Noem’s claims, the judge found that the National Parks Service did not deny the permit for “arbitrary and capricious” reasons. The order marked a victory for the Cheyenne River Sioux Tribe, which intervened in the case in May and told the court a fireworks display in the middle of its treaty land presents an “extreme risk” to the Lakota people. 

While Judge Lange recognized the likelihood of irreparable harm to the state in loss of tourism dollars, the absence of an injunction “simply returns the state to the position it was in from 2010 through 2019 when no fireworks displays of any nature occurred at the memorial,” he explained — whereas an order compelling the National Park Service to allow the event would be similar to the outcome of a trial. 

Noem, who in late April sued the federal government over the fireworks ban, immediately declared her intent to appeal in a series of tweets Wednesday afternoon, saying the “fight is not over” to return the fireworks celebration to “America’s Shrine to Democracy.” Despite the judge’s decision, Noem continued to publicly call the NPS’ reasons for the ban “arbitrary and capricious.” 

In a statement to Law360, the governor’s office acknowledged that the order “addressed the merits of our claims as the trial court sees them,” and said it “will be taking the necessary steps to proceed with the underlying administrative law issues framed by the case on appeal.” 

Counsel for the Cheyenne River Sioux Tribe, meanwhile, dismissed Noem’s actions as “political theater” intended to stir up the Trump base. 

“In light of the high burden in this case, which the state did little to meet, Governor Noem’s lawsuit does not appear to have been a serious effort to win an injunction,” said Nicole Ducheneaux of Big Fire Law and Policy Group LLP. “The Cheyenne River Sioux Tribe is committed to finishing this fight in the Eighth Circuit and beyond if Governor Noem wants to take it there.” 

Cheyenne River Sioux Tribe Chairman Harold Frazier told Law360, “We were successful, so we’re overall pretty satisfied.” But he added that “we’ve got to be prepared for the long haul.” 

Frazier’s focus is trained on the tribe’s constitutionally protected treaty rights to the Black Hills, which, according to its counsel, are at the heart of Lakota treaty land that the United States illegally took in the 1870s in violation of the Fort Laramie treaty. In his opinion Wednesday, Judge Roberto Lange quoted the Supreme Court’s opinion on the theft in U.S. v. Sioux Nation : “A more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history.” The Supreme Court opinion “shows we have ownership, and they acknowledge that,” Frazier said. 

“In my belief, in my heart, the tribe and the Great Sioux Nation are not fully consulted,” he told Law360. “They need to start getting consent from us. In the [Fort Laramie] treaty, it says that for any non-Indian to cross our land or reside on our land, they must get consent of the Indians. And we have never given that consent.” 

The National Park Service did not immediately respond to requests for comment. 

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

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

U.S. Department of the Interior Secretary Deb Haaland is represented by Diana J. Ryan of the U.S. Attorney’s Office in Sioux Falls, South Dakota. 

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