Noem et al v. Haaland et al

Filing 54

OPINION AND ORDER denying #3 Motion for Preliminary Injunction. Signed by Chief Judge Roberto A. Lange on 6/2/2021. (CLR)

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UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION

GOVERNOR KRISTINOEM,in her official

3:21-CV-03009-RAL

capacity as the Governor of South Dakota; and
THE STATE OF SOUTH DAKOTA,
Plaintiffs,

OPINION AND ORDER DENYING
PRELIMINARY INJUNCTION MOTION

vs.

DEB HAALAND, in her official capacity as
United States Secretary of the Interior;
SHANNON A. ESTENOZ, in her official

capacity as Principal Deputy Assistant Secretary
of Interior for Fish and Wildlife and Parks;
SHAWN BENGE, in his official capacity as
acting Director and Deputy Director of
Operations of the National Park Service; and
HERBERT FROST, in his official capacity as
National Park Service Director of the Midwest

Region,
Defendants,
and

CHEYENNE RIVER SIOUX TRIBE, and its
Tribal Historic Preservation Officer STEVE

VANCE,
Intervenor/Defendants.

, A fireworks display at Mount Rushmore on July 3, on first blush, seems like a good way
to celebrate the Independence Day weekend. This country could use a good celebration of its

foundational principles of democracy, liberty, and equal protection of law, after a pandemic that
has disrupted society and business and has killed nearly 600,000 United States citizens to date,
after an insurrection and physical incursion of the United States Capitol while Congress was

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convening to certify the outcome of the presidential election, and after this nation has become so
sadly divided by the politicization of so many issues, likely to include even the outcome of this
case. The United States would benefit immensely from greater unity in its efforts to continually

form a more perfect union. So a national show ofunity and celebration, such as a fireworks display
at Mount Rushmore for Independence Day, is appealing. However, this Court is not called upon

to determine whether such a fireworks display is a good idea. It would be improper judicial
activism for this Court to disregard settled law establishing the arbitrary and capricious standard
for review ofthe fireworks permit denial and to mandate issuance of such a permit. Accordingly,
this Court must deny the requested injunctive relief in this case,
Governor Kristi Noem, in her official capacity as Governor ofthe State of South Dakota,
along with the State of South Dakota (collectively referred to as "the State") filed a lawsuit against

numerous federal officials (collectively referred to as "the Federal Defendants") after the National
Park Service(NFS)denied the State's request for a special use permit to conduct a fireworks event
at Mount Rushmore on July 3, 2021. Doc. 1. The State seeks what is considered a mandatory

preliminary injunction, akin to a writ of mandamus, to require the NFS to grant the special use
permit. Doc. 3. The Federal Defendants oppose any preliminary injunction, invoke the doctrine
of laches, and defend the decision to deny the special use permit. Doc. 34. The Gheyenne River
Sioux Tribe and its Tribal Historic Preservation Officer Steve Vance (collectively referred to as

"the Tribal Defendants") filed a motion to intervene in this action. Doc. 30, which this Court

granted, Doc. 43. The Tribal Defendants assert that this Court lacks subject matter jurisdiction
and that the NFS's denial of the permit is not subject to judicial review. Seventeen attorneys

general have filed an amicus brief supporting the State's position. Doc. 51. For the reasons

explained herein, this Court concludes that it has subject matter jurisdiction, that the NFS special

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use permit denial is a final agency action subject to review, and that the doctrine of laches does
not bar the State's claims. However, the State has not met the requirements for the extraordinary

remedy of a mandatory injunction or writ of mandamus, so this Court must deny the motion for
preliminary injunction.
I.

Facts

Mount Rushmore National Memorial lies in the central Black Hills of South Dakota. The

Black Hills is an isolated mountain range oftremendous scenic beauty covering nearly two million
acres. Doc. 3-2 at 13. To the State, the Black Hills is the premier destination driving the State's

tourism industry, which employs some 50,000 South Dakotans and is the second largest industry
next to agriculture in the State. Doc. 3-4 at ^ 10. The State has a strong economic interest in

attracting visitors to enjoy the many activities, tourist sites, businesses, and attractions that the
Black Hills offers. Doc. 3-4. To the Tribal Defendants and the Lakota peoples, the Black Hills,
known as Paha Sapa, is the sacred center of the world, integral to Lakota traditional spiritual

practices, and part of the lands the Lakota negotiated to preserve as exclusively their own in the
Fort Laramie Treaty of 1868. Though that Treaty preserved the Black Hills as part of the Great
Sioux Indian Reservation, a gold rush beginning in the 1870s resulted in abrogation ofthe Treaty

and dispossession of the Black Hills from the Lakota, which ninety years later prompted the
Supreme Court of the United States to observe: "A more ripe and rank case of dishonorable
dealings will never, in all probability, be found in our history ...." United States v. Sioux Nation
of Indians. 448 U.S. 371, 388(1980)(citation omitted).

Sculptor Gutzon Borglum engaged in an audacious and amazing project beginning in 1927

and through 1941 to carve enormous busts of George Washington, Thomas Jefferson, Theodore
Roosevelt, and Abraham Lincoln into a mountain side at what is known as Mount Rushmore.

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Mount Rushmore, a one-of-a-kind marvel, attracts many visitors annually and is a symbol of

national pride, hoiioring four of the greatest presidents in the history of the United States. The
Lakota sentiment toward the carvings runs the gamut from inspiring feelings of patriotic pride to

a sense ofdesecration oftheir sacred land and the mountain they call Six Grandfathers.'
Mount Rushmore came under the stewardship of the NFS in 1933, when sculpting the

mountain was still ongoing. Mount Rushmore National Memorial("the Memorial" or "the park")
contains 1,278 acres, including the massive granite outcrops, intermingled with old growth

ponderosa pine forest. The land within the Memorial contains wildlife, streams, wetlands, flora,
j

and fauna, representing five different biomes. Doc. 35 at ^ 3. The Memorial's grounds contain
evidence ofhuman habitation and development for thousands ofyears,from the earliest stone tools

oftribal populations to some ofthe first homesteads in the Black Hills. Doc. 35 at ^ 3. Within the
Memorial are historic sites related to the mining boom and early development and tourism ofthe

park. Doc.35 at 13. The Memorial borders on the Black Elk Wilderness Area,the Peter Norbeck
Wildlife Preserve,the Hell Canyon and Mystic Districts ofthe Black Hills National Forest, as well

as some private land including land adjacent to the town of Keystone. Doc. 3-2 at 13.
The Fourth of July, our nation's Independence Day, commemorates the signing of the

Declaration of Independence in July of 1776 whereby the original thirteen colonies declared

independence from Great Britain. Washington and Jefferson ofcourse were central figures in the

'Native Americans do not lack patriotism; Native peoples in the United States, for instance, have
had the highest per-capita involvement of any population in military service.
www.nicoa.org/american-indian-veterans-have-highest-record-of-military-service/. However,the
history of the treatment of American Indians in North America has a great deal of misfortune and

tragedy to it. The Native American view ofthe Founding Fathers is justifiably complicated. An
outline of American Indian history for those who wish to better understand why many Native
Americans have such complicated feelings is attached to United States v. Erickson, 436 F. Supp.
3d 1242,1259-1272(D.S.D. Jan. 28, 2020), affd. No.20-1861, 2021 WL 2212699(8th Cir. June
2, 2021).
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American Revolution, with Jefferson drafting the Declaration of Independence and Washington
I

leading the new nation's military against the British in the war for independence and later serving

as the first president ofthe United States after the Constitution's ratification in 1789. Many people
visit Mount Rushmore over the Independence Day weekend as a way to observe and celebrate the
Fourth of July by viewing with patriotic pride the sculptures, which include two of this nation's
founding fathers.

Fireworks displays throughout the United States have become a traditional way of
celebrating the Fourth of July and Independence Day weekend. Starting in 1998 and,continuing
for eleven consecutive years (except for in 2002 when there was an elevated fire risk), the
Memorial had annual fireworks displays to celebrate Independence Day. The fireworks display

attracted many people to the Memorial and grew in popularity as a way ofobserving the Fourth of
July and feeling patriotic pride.

The NFS stopped the annual fireworks display for several reasons, including that the event
had become a chaotic "free-for-all" with far more people attending than the Memorial could
handle. Doc. 35-2 at 29. The Memorial's parking lot with 1,100 parking spaces would be full by

9:00 a.m., people would arrive at the Memorial as early as 6:00 a.m. to camp out and hang around
all day, and roughly 8,000 people would crowd into the developed area ofthe Memorial. Doc. 352 at 29-32. Other visitors ended up in restricted areas or in positions where they could not even

see the fireworks display, the number of visitors complicated emergency vehicle access, and trash
accumulated both from the all-day visitors and from the fireworks themselves. Doc. 35-2 at 29-

32. In 2001, over 30,000 people flooded the Memorial to watch the fireworks display. Doc. 3-2
at 13. Over,the course of years, eighteen wildfires started as a result of the fireworks displays,

although those generally were quickly suppressed with just two acres ofthe Memorial buming as

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a result. Doc.3-2 at 13. In April of2003,the NPS issued a very detailed environmental assessment
of Independence Day fireworks at the Memorial, including an exhaustive listing of the pros and
eons, as well as discussing the safer alternative ofa laser light show. Doe. 3-2 at 5-74. Meanwhile,
the Black Hills itself was undergoing environmental changes, with a multi-year drought and the
mountain pine beetle Dendroctonus ponderosae infestation, killing pine trees and providing tinder
for wildfires. Thus, the fireworks display to commemorate the Fourth of July ceased after 2009.
After a ten-year hiatus, the State and the Department ofInterior(DOI)began discussing in
early 2019 the possibility offireworks for Independence Day returning to the Memorial. Doc. 33 at 2. On May 6,2019,the State and DOI entered into a Memorandum ofAgreement under which
they "committed to an agreement to exercise their full authorities under State and Federal law to
work to return fireworks to Mount Rushmore National Memorial in a safe and responsible manner

on July 3, July 4, or July 5, beginning.in the year 2020." Doc. 3-2 at 76-77. The NPS completed
an environmental assessment in April of 2020 concerning the proposed resumption of the
fireworks display. Doc. 3-2 at 108-142.
The NPS, on June 15, 2020, issued a Special Use Permit to the State "to hold an event for

up to 10,000 ticketed and VIP participants at [the Monument] on July 3, 2020, which includes a
pyrotechnic (fireworks) display." Doc. 35-14. Specific Condition 20 of the Special Use Permit
stated in part: "Issuance ofthis permit is for the current year 2020 and does not mean an automatic
renewal of the event in the future." Doc. 35-14 at 4. As part of the Project Agreement, the State
committed to use a "GO/NO-GO Checklist" designed to mitigate fire risks, and the State took

other measures designed to assure a safe event. Doc. 3-3 at 2-5. The cost ofthe event, described

as "approximately $787,000 [and] expected to reach $800,000," was divided between the NPS
contributing $350,000 and the State an amount not to exceed $500,000. Doe. 3-2 at 84. The

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President of the United States and about 7,500 others attended the event. Doc. 3-4 at 2; Doc. 35

at 5. The State's Secretary ofTourism estimates that the advertising value ofthe event was at least
$22 million and cites an all-time high for Google searches for "Mount Rushmore" during and after

the event, as well as dramatically increased web traffic to the State's tourism website.^ Doc. 3-4
at 2. The State documented no cases of spread of COVID-19 from the event.
On October 19, 2020, the State submitted a new application for a special use permit to the

NPS to have a fireworks display around Independence Day 2021. Doc. 3-2 at 93-94. There were
some email exchanges between the State and NPS, but little activity on the permit application in
2020. Doc. 3-2 at 96-98. The NPS Regional Director affirms in an affidavit that the State's

application prompted discussions among federal officials at the local, regional, and national levels,
with the involvement of subject matter experts. Doc. 35 at 5.
On March 11, 2021, the NPS Regional Director sent a two-page letter to the State denying

the grant of a special use permit. Doe. 3-2 at 101-102. The letter contains five reasons for denial
ofthe permit, which are quoted in this section but discussed factually at length later in this opinion
and order. The first such reason related to concerns ofspread ofCOVID-19,on which the Regional
Director wrote:

The health and safety of the public and our employees remain the
highest priority for the National Park Service. While we have
recently been seeing encouraging progress in combating the
COVID-19 pandemic, the situation remains dynamic and it is only
prudent to make plans based on the best available science and public
health guidance available today. As the nation continues to respond
to the ongoing COVID-19 pandemic, planning an event of this size
and magnitude that draws people from across the country raises very
serious concerns about the ability to adhere to Center (sic) for
Disease Control guidance which currently recommends that large

gatherings be avoided, particularly those in which physical social

^Part of what drove this sort of web traffic likely was the attendance in 2020 ofthe President of
the United States at the fireworks event and the resulting news coverage.

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distancing cannot be maintained between people who live in
different households. With an event this size it would be difficult,

if not impossible, to comply with social distancing protocols ifthey
continue to be in place in early July. Also, as we saw last year, most
participants were not wearing face coverings, which now are
required in all national parks where physical distancing cannot be
maintained.

Doc. 3-2 at 101. The second reason for the permit denial related to tribal concerns, on which the
Regional Director wrote:

In addition, the park's many tribal partners expressly oppose
fireworks at the Memorial... W] are eommitted to respecting tribal
[ e
connections with the site and building stronger relationships with
assoeiated tribes. The park committed to the 13 affiliated tribes to
conduct a Tribal Cultural Sites / Traditional Cultural Properties
Survey of the Memorial in 2020; however, due to the pandemic it
has been delayed until summer 2021.
\

Doc. 3-2 at 101. The third reason for the permit denial centered on two environmental eoncems:

"The park continues to monitor levels of perehlorates in the water and the potential for wildfire."
Doc. 3-2 at 102. The fourth reason for the denial was:"The 2020 event was limited in attendance

due to safety concerns which consequently impacted tens ofthousands who were not able to visit
the memorial or had their visit cut short." Doc. 3-2 at 102. And the fifth and final ground for
denial involved disruption of construction at the park:
Also, we are in the final phase of a significant construction project

in the park. While the work is scheduled to be complete in June
2021, any delay in the project would result in the work not being
complete by July. A second demobilization to accommodate an
event would be costly to the agency and impact the visiting public
further based on the 2020 experienee.

Doc. 3-2 at 102. The letter concluded by expressing that the NPS valued its relationship with the

State and wished to work with the State on other plans to eommemorate the nation's history. Doc.
3-2 at 102.

I
I

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The State contests the validity ofthese grounds to refuse issuing the permit. On April 13,
2021,the State's Governor sent a three-page letter to the President ofthe United States noting that
the very day of March 11 when the NPS issued the denial letter, the President had said:

[B]y July the 4"^, there's a good chance you, your families, and
friends will be able to get together in your backyard or in your
neighborhood and have a cookout and a barbeque and celebrate
Independence Day ... After this long hard year, that will make this
Independence Day something truly special, where we not only mark
our independence as a nation, but we begin to mark our
independence from this virus.
Doc. 3-2 at 104. The State's Governor wrote that the 2020 display was done in a safe and effective

manner, detailed the precautions taken, referenced the April of 2020 environmental assessment,
and asserted that the State had consulted with the nine tribes within its state boundary before the
2020 event and would do so again. Doc. 3-2 at 104-107. The State seeks to have this Court
reverse the permit denial and direct that a special use permit enter.
The Tribal Defendants in their intervention criticize the State for attempting to elevate "a

holiday party" over what the Tribal Defendants regard as their constitutional and statutory religious
liberties as well as safety interests. Doc. 37 at 6. The Tribal Defendants make two arguments that
the Federal Defendants do not—^that this Court lacks subject matter Jurisdiction and that the NPS's
denial is not final agency action from which the State can seek relief. The Tribal Defendants join
with the Federal Defendants in defending the denial of the permit as not being arbitrary and

capricious, emphasizing in particular the Tribe's religious and cultural interest in the area and the
ongoing process under the National Historic Preservation Act to identify sites within the Memorial
of traditional, cultural and in turn historical significance. Doc. 37. The Federal Defendants raise
a laches defense, argue that the permit denial was based on good reason and thereby was not

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arbitrary and'capricious, and assert that the State cannot at any rate justify the extreme relief of a
writ of mandamus or mandatory injunction. Doc. 34.

The State's arguments include that the March 11 denial is not a reasoned explanation, that
r

the Federal Defendants are now offering altered explanations to justify denial of the permit, that

the grounds for denial were arbitrary and capricious, and that this Court should reverse the NFS's
decision because otherwise the NFS could run out the clock on the time remaining before the

Independence Day weekend. Docs. 3, 49. Seventeen state attorneys general have filed an amicus
brief echoing the State's position. Doc. 51.
IL

Standard for Considering Motion for Preliminary Injunction

Rule 65(a) of the Federal Rules of Civil Procedure governs entry of a preliminary

injunction. A preliminary injunction is considered an "extraordinary remedy never awarded as of
right." Benisek v. Lamone. 138 S. Ct. 1942, 1943 (2018)(per curiam) (citation omitted). In
determining whether to grant a preliminary injunction, this Court considers'the factors set forth in
Dataphase Svstems. Inc. v. CL Svstems. Inc.. 640 F.2d 109, 113 (8th Cir. 1981)(en banc):(1)the

movant's probability ofsuccess on the merits;(2)the threat that the movant will suffer irreparable
harm in the absence of relief; (3) the balance of that harm against the injury that granting the

preliminary injunction will inflict on the nonmovant; and (4)the public interest. Memt. Registry.
Inc. V. A.W. Cos.. 920 F.3d 1181, 1183(8th Cir. 20191: South Dakota v. Frazier. 4:20-CV-03018-

RAL, 2020 WL 6262103, at *3 (D.S.D. Oct. 23, 2020). The movant, here the State, bears the

burden of proving these factors. CDI Energy Servs. v. West River Pumps.Inc.. 567 F.3d 398,402
(8th Cir. 2009)(citation omitted).
That burden becomes that much heavier when the movant is seeking affirmative relief as

the State does in this case. Unlike the sort of preliminary injunction sought here, a typical
A

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preliminary injunction is "prohibitory," and "merely freezes the positions of the parties until the
court can hear the ease on the merits." Heckler v. Lopez. 463 U.S. 1328, 1333 (1983). In other

words, a preliminary injunction is usually meant only to "preserve the relative positions of the

parties until a trial on the merits can be held." Ahmad v. Citv of St. Louis. 995 F.3d 635, 641 (8th
Cir. 2021)(quoting Univ. of Texas v. Camenisch. 451 U.S. 390, 395 (1981)). Even so, such a
typical preliminary injunction is considered an "extraordinary remedy." Benisek. 138 S. Ct. at
1943 (per curiam); Watkins Inc. v. Lewis. 346 F.3d 841, 844(8th Cir. 2003).
But where the injunction, like the one requested by the State, is "mandatory . . . like a
mandamus," such reliefshould be granted sparingly. Heckler. 463 U.S. at 1333(citation omitted).

Such injunctions are never granted as a matter of right, but rather in the exercise ofsound judicial
discretion. Id (citation omitted). The burden on the movant is particularly demanding for a
mandatory injunction because "granting the preliminary injunction will give the movant
substantially the relief it would obtain after a trial on the merits." United Indus. Corp. v. Clorox
Co.. 140 F.3d 1175, 1179 (8th Cir. 1998)(cleaned up and citation omitted). This Court must
exercise its discretion with "caution," and grant the preliminary injunction only ifthe movant has
shown that "the balance of other factors tips decidedly toward the movant." Id (emphasis added)
(citation omitted),
in.

Discussion

A. The State is unlikely to succeed on the merits.

Although no single Dataphase factor is determinative, the Eighth Circuit has emphasized
that"the probability ofsuccess factor is the most significant." MPAY Inc. v. Erie Custom Comput.

Applications. Inc.. 970 F.3d 1010, 1015 (8th Cir. 2020)(cleaned up and citation omitted). The
defendants assert two general arguments why the State's case should not even be considered on

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the merits. First, the Tribal Defendants assert that this Court lacks subject matter jurisdiction over
the case. Second, the Federal Defendants assert that the State's claims are barred by laches.

Finally,the Federal Defendants,echoed by the Tribal Defendants,argue that Congress's delegation
of authority to the NFS is constitutional, that the agency action at issue was not arbitrary and

capricious or contrary to law, and thus that the State's case will fail on the merits.
1. This Court has subject matter jurisdiction.
Before considering the merits of the State's claims, this Court must ensure that it has the
jurisdiction to do so. See Steel Co. v. Citizens for a Better Env't 523 U.S. 83, 101 (1998)

(reaffirming that jurisdiction is a prerequisite to determining the merits ofthe case). As such, the
Tribal Defendants' argument on subject matter jurisdiction must be addressed first. The State
alleges that this Court has subject matter jurisdiction under 28 U.S.C. § 1331 to hear its claims
arising under the Administrative Procedure Act (APA). Doc. 1 at ^ 10. However, the Tribal
Defendants argue that the APA deprives this Court ofthe power to hear the case for two reasons:
(1)the challenged action is committed solely to agency discretion; and (2)the challenged decision
i'

did not constitute a final agency action.^

\

First, the Tribal Defendants argue that issuing special use permits are decisions committed
solely to the NPS's discretion. Under the APA, there is "a basic presumption ofjudicial review
for one suffering legal wrong because of agency action." Dep't of Homeland Sec, v. Regents of
the Univ. of California. 140 S. Ct. 1891, 1905 (2020)(cleaned up and citation omitted); see also
Tamenut v. Mukasev. 521 F.3d 1000, 1003 (8th Cir. 2008)(per curiam). That presumption can
only be overcome by showing that a statute precludesjudicial review, 5 U.S.C. § 701(a)(1), or that

^The Federal Defendants do not raise either ofthese arguments.
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the decision is committed to agency discretion, id § 701(a)(2). The latter exception is at issue
here.

To honor the presumption ofjudicial review, the Supreme Court has emphasized that the

exception in § 701(a)(2) should be read "quite narrowly." Regents ofthe Univ. of Gal.. 140 S. Ct.

at 1905 ("quoting Weverhaeuser Co. v. United States Fish and Wildlife Serv.. 139 S. Ct. 361, 370
(2018)). The.Supreme Court has instructed that the § 701(a)(2) exception applies only in "those
rare circumstances where the relevant statute is drawn so that a court would have no meaningful
standard against which to Judge the agency's exercise ofdiscretion." Dep't ofCom, v. New York.

139 S. Ct. 2551, 2568 (2019)(cleaned up and citations omitted). The Eighth Circuit has further
explained that "even a decision that is wholly discretionary by statute may be reviewed [under the
APA] if regulations or agency practice provide standards by which an agency's conduct may be
judged." Abdelwahab v. Frazier. 578 F.3d 817, 821 n.6 f8th Cir. 2009")("quoting Spencer Enters..
Inc. V. United States. 345 F.3d 683, 691 (9th Cir. 2003)); see also Tamenut. 521 F.3d at 1004

(considering whether either the statute,or regulation provided a meaningful standard against which
to judge the agency's exercise of discretion).
The NPS's decision not to issue a special use permit is not one of"those rare administrative

decisions traditionally left to agency discretion." Regents ofthe Univ. of Cal.. 140 S. Ct. at 1905
(cleaned up and citation omitted). Here, there is a meaningful standard against which to judge the
agency's exercise of discretion. The NFS has promulgated regulations in accordance with 54

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U.S.C. §§ 100101(a)and 100751(a)^. The regulation concerning the issuing ofpermits sets forth
the factors the superintendent must consider in deciding whether to issue a permit. The regulation
provides in relevant part:
[T]he superintendent may issue a permit to authorize an otherwise
prohibited or restricted activity or impose a public use limit. The
activity authorized by a permit shall be consistent with applicable
legislation. Federal regulations and administrative policies, and
based upon a determination that public health and safety,
environmental or scenic values, natural or cultural resources,

scientific research, implementation of management responsibilities,
proper allocation and use of facilities, or the avoidance of conflict
among visitor use activities will not be adversely impacted.
36 C.F.R. § 1.6(a). In turn, § 1.6(c) states that "the superintendent shall deny a permit that has
been properly applied for only upon a determination that the designated capacity for an area or
facility would be exceeded; or that one or more ofthe factors set forth in paragraph (a)[of § 1.6]

would be adversely impacted." See also 36 C.F.R. § 2.50^. The regulations articulate the grounds

'^Section 100101(a) states, "The Secretary, acting through the Director of the National Park
Service, shall promote and regulate the use ofthe National Park System by means and measures
that conform to the fundamental purpose of the System units, which purpose is to conserve the
scenery, natural and historic objects, and wildlife in the System units and to provide for the

enjoyment of the scenery, natural and historic objects, and wildlife in such manner and by such
means as will leave them unimpaired for the enjoyment offuture generations."

^Section § 100751 states,"The Secretary shall prescribe such regulations as the Secretary considers
necessary or proper for the use and management of System units."

^Although none of the parties involved in this case cited 36 C.F.R. § 2.50 in their briefing, this
regulation discusses the issuing of permits for special events. Section 2.50 provides:
(a) Sports events, pageants, regattas, public spectator attractions,
entertainments, ceremionies, and similar events are allowed:
Provided, however, there is a meaningful association between the
park area and the events, and the observance contributes to visitor
understanding of the significance of the park area, and a permit
therefor has been issued by the superintendent. A permit shall be
denied if such activities would:

(1) Cause injury or damage to park resources; or
(2) Be contrary to the purposes for which,the natural, historic,
development and special use zones were established; or
unreasonably impair the atmosphere of peace and tranquility
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on which a permit request can be denied. In other words,the NPS's discretion is not so broad that
it can deny a permit request for any reason at all; rather, at least one ofthe factors listed in § 1.6
must be implicated. As such, the NPS's decision to deny the permit request is not the kind of

agency decision that was meant to be precluded from review under 5 U.S.C. § 701(a)(2).'
Second,the Tribal Defendants contend that the NPS's denial letter did not constitute a final

agency action. The APA authorizes judicial review of"final agency action for which there is no

other adequate remedy." 5 U.S.C. § 704; Sierra Club v. U.S. Armv Corps ofEngineers. 446 F.3d

maintained in wilderness, natural, historic, or commemorative
zones.

(3)Unreasonably interfere with interpretive, visitor service, or other
program activities, or with the administrative activities of the
National Park Service; or

(4) Substantially impair the operation of public use facilities or
services of National Park Service concessioners or contractors; or

(5)Present a clear and present danger to the public health and safety;
or

(6)Result in significant conflict with other existing uses.
36 C.F.R. § 2.50(a).

^The Tribal Defendants cite Drakes Bav Qvster Co. v. Salazar. 921 F. Supp. 2d 972 (N.D. Cal.
2013), in arguing that there are no meaningful standards by which to judge the NPS's exercise of
discretion. That case involved a unique congressional enactment authorizing the NPS to issue a
single ten-year special use permit for oyster farming to a single company at a single location. Id
at 977-78, 988. The congressional enactment did not provide the NPS with any criteria for
deciding whether to grant or deny the special use permit. Id at 980. Further, the NPS never

promulgated any regulations in accordance with that congressional enactment. Id at 987 n.l4.
The company argued that § 1.6 provided NPS with guidance in its decision; however, the court
rejected that argument because § 1.6 governs permit decisions generally and was not applicable to
the unique congressional enactment at issue in that case. Id at 988-99. The court went on to hold
that it was left without meaningful guidance to determine whether the NPS abused its discretion
in denying that company its special use permit for oyster farming, and therefore, the case was
unreviewable under the APA. Id at 990. The case at hand is distinguishable because it does not
involve issuing a special use permit under a unique congressional enactment, and as such, § 1.6 is
applicable here. Indeed, the court in Drakes Bav Qvster recognized that where the federal agency
has promulgated regulations setting forth the factors under which the decision to issue a permit
should be made,the court does have a meaningful standard by which tojudge the agency's exercise
ofdiscretion and can review its decisions under the APA. Id at 787(citing KOLA.Inc. v. United
States. 882 F.2d 361 (9th Cir. 1989)).
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808, 813 (8th Cir. 2006). An agency decision is considered "final".when two conditions are met:
(1)the action marks the consummation ofthe agency's decision-making process, meaning that the

decision is not merely tentative or interlocutory in nature, and(2)the action is one by which rights
or obligations have been determined, or from which legal consequences will flow. U.S. Armv
Corps of Engineers v. Hawkes Co.. Inc.. 136 S. Ct. 1807, 1813 (2016)(quoting Bennett v. Spear.
520 U.S. 154, 177-78 (1997)); "[I]f the agency has issued 'a definitive statement of its position,
determining the rights and obligations of the parties,' that action is final for purposes ofjudicial

review." Sierra Club.446 F.3d at 813(quoting Bell v. New Jersev. 461 U.S. 773, 779-80(1983)).
Here, the Tribal Defendants argue that the State failed to exhaust its administrative

remedies. In particular, the Tribal Defendants posit that the State could have appealed the decision
to the Director of the NFS instead of writing a letter to the President of the United States. The
Tribal Defendants assert that the State's failure to appeal to the proper authorities deprives this
Court ofthe power to review the case.
"Under the A?A, administrative exhaustion is required when it is mandated by statute or
agency rule." Conservation Force v. Salazar. 919 F. Supp. 2d 85, 89(D.D.C. 2013)(citing Darbv
V. Cisneros. 509 U.S. 137, 146 (1993)). Neither the statute nor regulations set forth an appeal
process for the denial of a special use permit, and no party has cited to any statute or regulation or
caselaw requiring such an appeal. This Court has examined other subparts within Chapter I of
Title 36 of the Federal Code of Regulations. In subparts elsewhere in the chapter, the NFS has
clearly articulated an appeal process relating to other kinds of decisions. Yet no such appeal

process is found in Subpart 1 or Subpart 2, the subparts concerning the issuing ofpermits.

36

C.F.R. §§ 1.6,2.50. That the NFS has not set forth an appeal process indicates that the denial itself
is meant to be a final agency action. See Yousuf v. Samantar. 451 F.3d 248, 251 (D.C. Cir. 2006)

16

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("An agency's denial of a request is final agency action for the purpose of § 704."); S. Forest
Watch. Inc. v. Jewell. No. 3:13-CV-116-JMH-HBG, 2014 WL 1207734, at *8 n. 1 (E.D. Term.

Mar.24,2014)(noting that the plaintiffs were not required to exhaust their administrative remedies

in challenging the NPS's online permit system because neither the statutes nor regulations require
exhaustion before pursuing judicial review). Further, the denial letter. Doc. 3-2 at 101-02,
constitutes a "definite statement of[the NPS's] position," Sierra Club. 446 F.3d at 813 (quoting
Bell. 461 U.S. at 779-80), and is not interlocutory or tentative in nature, id, The letter determines
the State's right, or here lack ofright, to conduct a fireworks event at Mount Rushmore, and legal
consequences flow from that decision. Id, In sum, the denial letter is a final agency action.
Therefore, this Court has subject matter jurisdiction over this case.
2. The State's claims are not barred by laches.

The Federal Defendants argue that the State is unlikely to prevail on the merits because its

claims are barred by laches. Whether the defense oflaches applies is an appropriate consideration
in evaluating the movant's likelihood of success on the merits. Hubbard Feeds. Inc. v. Animal

Feed Supplement. Inc.. 182 F.3d 598, 601 (8th Cir. 1999); see also Benisek. 138 S. Ct. at 1944
("A party requesting a preliminary injunction must generally show reasonable diligence."). Laches
is an equitable remedy to be applied "when a claimant inexcusably delays in asserting its claim
and thereby unduly prejudices the party against whom the claim ultimately is asserted." Hubbard
Feeds. Inc.. 182 F.3d at 602. Whether laches applies is in the sound discretion ofthe district court.
Brown-Mitchell v. Kansas City Power & Light Co.. 267 F.3d 825, 827(8th Cir. 2001).
Here,the Federal Defendants point out that the State could have brought its claims sooner.

The NFS denied the application for a special use permit on March 11, 2021. Doc. 3-1 at 15.
Instead ofimmediately pursuing this case, one month after the denial letter, on April 13,the State's

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Governor chose to write a letter to the President instead. Doc. 3-1 at 17. On April 30, the State
filed this action along with its motion for preliminary injunction. Docs. 1,3. When the State filed
this action and the motion for preliminary injunction, nearly seven weeks had passed since the
NPS denied the State its permit—nearly halfofthe then-remaining time before July 4. The Federal
Defendants argue that they are unduly prejudiced by this delay because if the Court were to grant

the preliminary injunction, it "would face the nearly impossible task of preparing for this major
event in about four weeks." Doc. 34 at 22.
V

The State responds that the NPS is to blame for the delay. The State points out that it filed

its permit request on October 19, 2020. Doc. 3-1 at 15; Doc; 49 at 7. The State followed up with
the NPS, which at no point requested any additional information from the State. Doc. 3-1 at 15.
The NPS waited almost five months after the State's application to issue the denial letter. Doc. 31 at 15; Doc.49 at 7. The State argues that any prejudice that the NPS may now face is ofits own

doing. Doc. 49 at 7("DOI sat on its hands for nearly five months before denying the permit with
virtually no explanation. DOI now claims that it is too late for this Court to offer any meaningful

relief, but this Court should not allow DOI to evade its obligations under the APA by merely
running out the clock.").
Ultimately, neither side has been perfectly diligent, and the delay by the Federal

Defendants in considering the permit application was longer than that by the State in bringing the
action to challenge the permit denial. This Court declines to apply the doctrine of laches to
foreclose the State's request for injunctive relief.
3. Congress's delegation of authority to the NPS is constitutional.

Because there is subject matter jurisdiction and the State's claims are not barred by laches,

this Court now turns to analyzing the merits ofthe State's claims under the firs^ Dataphase factor.

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One of the claims asserted in the State's complaint is that Congress unconstitutionally delegated

legislative power to the NPS. The State does not argue this claim in support of its motion for
preliminary injunction.

Docs. 3, 3-1, 49. As such, the Federal Defendants assert that this

claim should be afforded no weight in considering the State's likelihood of success on the merits.

Doc. 37 at 34. A party's failure to make an argument in its brief may constitute waiver of that

argument. United States v. Cooper. 990 F.3d 576, 583 (8th Cir. 2021); Eckert v. Titan Tire Corp..
514 F.3d 801, 805 n.2 (8th Cir. 2008). However, the State did assert this claim in its Complaint,

and if the claim has validity, then the State is likely to prevail on the merits. As it turns out, the
State's non-delegation claim finds virtually no support in existing law, which perhaps explains
why the State did not argue it in briefing.

Under the non-delegation doctrine. Congress may not delegate to another branch "powers
which are strictly and exclusively legislative." Gundv v. United States. 139 S. Ct. 2116, 2123

(2019)(citation omitted). However,the Constitution does not"deny to the Congress the necessary
resources offlexibility and practicality that enable it to perform its functions." Id (cleaned up and
citation omitted). Indeed, Congress may enlist the help of other branches. Mistretta v. United
States. 488 U.S. 361, 372 (1989). In particular. Congress "may confer substantial discretion on

executive agencies to implement and enforce laws." Gundv. 139 S. Ct. at 2123. This is based on

the recognition that "in our increasingly complex society, replete with ever changing and more
technical problems. Congress simply cannot do its job absent an ability to delegate power under
broad general directives." Mistretta. 488 U.S. at 372.
Thus, whether Congress has unconstitutionally delegated its legislative power or merely
conferred discretion on the executive branch to implement and enforce its law turns on whether
Congress has supplied an "intelligible principle" to guide the delegee's use of discretion. Gundv.

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139 S. Ct. at 2123. The Supreme Court has explained that"a delegation is permissible if Congress
has made clear to the delegee the general policy he must pursue and the boundaries of his

authority." Id at 2129 (cleaned up and citation omitted). This standard is not demanding. Id.
Indeed, only twice in history has the Supreme Court ever found that Congress unconstitutionally
delegated its power to the executive branch. Id (citation omitted). Both instances occurred in
1935, in A. L. A. Schechter Poultry Corp. v. United States. 295 U.S. 495 (1935) and Panama

Refining Co. v. Rvan. 293 U.S. 388 (1935), where the Supreme Court found that "Congress had

failed to articulate any policy or standard to confine discretion." Gundv. 139 S. Ct. at 2129
(cleaned up and citation omitted). The Supreme Court has since "over and over upheld even very
broad delegations." Id The Supreme Court has provided the following examples:

We have approved delegations to various agencies to regulate in the
"public interest." We have sustained authorizations for agencies to

set "fair and equitable" prices and "just and reasonable" rates. We
more recently affirmed a delegation to an agency to issue whatever
air quality standards are "requisite to protect the public health." And
so forth.

Id (citations omitted).
Against this backdrop. Congress's delegation to the NFS passes muster. Congress's core
mandate to the NFS,54 U.S.C. § lOOlOI, provides as follows:

(a)
In general.—^The Secretary, acting through the Director of
the National Park Service, shall promote and regulate the use ofthe
National Park System by means and measures that conform to the
fundamental purpose of the System units, which purpose is to
conserve the scenery, natural and historic objects, and wildlife in the
System units and to provide for the enjoyment ofthe scenery, natural
and historic objects, and wildlife in such manner and by such means
as will leave them unimpaired for the enjoyment of future
generations.

(b)

Declarations.—

(I)

1970 declarations.—Congress declares that—
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(A) the National Park System, which began with establishment of
Yellowstone National Park in 1872, has since grown to include
superlative natural, historic, and recreation areas in every major
region ofthe United States and its territories and possessions;
(B)these areas, though distinct in character, are united through their
interrelated purposes and resources into one National Park System
as cumulative expressions of a single national heritage;

(C) individually and collectively, these areas derive increased
national dignity and recognition of their superb environmental
quality through their inclusion Jointly with each other in one System
preserved and managed for the benefit and inspiration of all the
people ofthe United States; and
(D)it is the purpose ofthis division to include all these areas in the
System and to clarify the authorities applicable to the System.
(2) 1978 reaffirmation.—Congress reaffirms, declares, and directs
that the promotion and regulation of the various System units shall
be consistent with and founded in the purpose established by
subsection (a), to the common benefit ofall the people ofthe United
States. The authorization of activities shall be construed and the

protection, management, and administration of the System units
shall be conducted in light of the high public value and integrity of
the System and shall not be exercised in derogation of the values
and purposes for which the System units have been established,
except as directly and specifically provided by Congress.
The statute provides an "intelligible principle" in Subpart(a), stating that regulations shall conform
to the purpose, which is "to conserve the scenery, natural and historic objects, and wildlife in the
System units and to provide for the enjoyment of the scenery, natural and historic objects, and
wildlife in such manner and by such means as will leave them unimpaired for the enjoyment of
future generations." 54 U.S.C. § 100101(a). The other relevant statute, 54 U.S.C. § 100751,
empowers the NFS to "prescribe regulations" for the management of System units under the
mandate of § 100101. Thus, the delegation to the NFS passes constitutional muster because it
conveys Congress's general policy that the NFS regulate the use of the national parks with the

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goals of conservation ofthe scenery, natural and historic objects, and wildlife in order to preserve
them for future generations. Stated another way, there is an "intelligible principle" to guide the
NPS in issuing special use permits. The State appears to have no chance to prevail on its nondelegation claim.
4. The NPS's decision was not arbitrary and capricious.

This Court next turns the State's main claim in this case. The State alleges that the NPS's
decision to deny the permit request was arbitrary and capricious. The Federal Defendants,Joined
by the Tribal Defendants, argue that the State is unlikely to succeed on the merits because the
agency action at issue was not arbitrary and capricious. Under 5 U.S.C. § 706,the reviewing court
shall:

(1)

compel agency action unlawfully withheld or unreasonably

delayed; and

(2)

hold unlawful and set aside agency action, findings, and

conclusions found to be—

(A)

arbitrary, capricious, an abuse ofdiscretion, or otherwise not
in accordance with law.
\

Here, the State asks this Court to first hold unlawful and set aside the NPS's denial ofthe special

use permit as "arbitrary and capricious" under § 706(2) and then compel the NPS to grant the
special use permit under § 706(1). The State's requested remedy frames two issues:(1) whether
the NPS's decision to deny the special use permit was arbitrary and capricious, and (2) if the
decision was arbitrary and capricious, whether this Court should compel the NPS to grant the
permit.
This Court first considers whether the NPS's decision to deny the permit was arbitrary and
capricious. The APA permits a federal district court to set aside a federal agency decision if that
decision is "arbitrary" or "capricious." 5 U.S.C. § 706(2)(A); Regents ofthe Univ. of Cal.. 140 S.

22

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Ct. at 1905. This is considered a narrow standard of review, Regents of the Univ. of Cal.. 140 S.

Ct. at 1905 (citation omitted), as courts must be "highly deferential" to the agency under this
standard, Org. for Competitive Markets v. U.S. Dep't of Agric.. 912 F.3d 455,459(8th Cir. 2018);
Ranchers Cattlemen Action Legal Fund v. U.S. Dep't of Agric.. 566 F. Supp. 2d 995,997(D.S.D.

2008) (citation omitted), especially when dealing with matters within the agency's expertise,
Mausolf V. Babbitt. 125 F.3d 661,667(8th Cir. 1997).
A court should not substitute its judgment for that ofthe agency. F.C.C. v. Fox Television
Stations. Inc.. 556 U.S. 502, 513-14(2009)(citation omitted). It is not the court's job to consider

"whether a regulatory decision is the best one possible or even whether it is better than the
alternatives." F.E.R.C. v. Elec. Power Suppiv Ass'n. 577 U.S. 260, 292(2016). Rather, a court

must restrict its analysis to whether the agency's decision was based on relevant factors and was a
clear error ofjudgment. Regents of the Univ. of Cal.. 140 S. Ct. at 1905 (citation omitted). As
part ofthis limited inquiry, a court should examine whether the agency offered an explanation for
its deeision that runs counter to the evidence before the agency, or is so implausible that it could

not be ascribed to a difference in view or the product of agency expertise." Sugule v. Frazier. 639
F.3d 406, 411 (8th Cir. 2011)(cleaned up and citation omitted). At a minimum, an agency must

provide "a satisfactory explanation for its actions based on relevant data." Niobrara River Ranch.
L.L.C. V. Huber. 373 F.3d 881, 884(8th Cir. 2004)(citing Motor Vehicle Mfrs. Ass'n ofU.S.. Inc.
V. State Farm Mut. Auto. Ins. Co.. 463 U.S. 29, 30 (1983)); see also Encino Motorcars. LLC v.
Navarro. 136 S. Ct. 2117, 2125 (2016). Although courts carmot "supply a reasoned basis for the

agency's action that the agency itself has not given," Mausolf. 125 F.3d at 667(quoting Bowman
Transp.. Inc. v. Arkansas-Best Freight Svs.. Inc.. 419 U.S. 281, 285-86 (1974)), courts should
"uphold a decision of less than ideal clarity if the agency's path may reasonably be diseemed,"

23

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Fox Television. 556 U.S. at 513-14 (citation omitted). "If an agency's determination is
supportable on any rational basis," then a court must uphold it. Ore,for Competitive Markets. 912
F.3d at 459 (citation omitted)(emphasis added).
Here, the NFS denied the permit request for five reasons. First, the NFS was concerned
about the risk that a large gathering during the COVID-19 pandemic would pose to the health and
safety of the public and its employees. Doc. 3-2 at 101. Second, the NFS was committed to
strengthening its relationship with the Tribes and completing a Tribal Cultural Sites / Traditional
Cultural Froperties Survey before approving a fireworks event. Doc. 3-2 at 101. Third, the NFS
was concerned about increased levels-of perchlorates in the water and the potential for wildfire.
\

Doc. 3-2 at 102. Fourth, the NFS explained that the 2020 fireworks event prevented tens of

thousands from visiting the Memorial or cut their visit short. Doc. 3-2 at 102. Finally, the NFS
noted that there is ongoing construction at the Memorial that may not be completed by July and
would be costly to pause so that the fireworks event could take place. Doc. 3-2 at 102.

To evaluate whether such reasons provide a "satisfactory explanation"® for the NFS's
decision, Huber. 373 F.3d at 884,this Court will focus on three questions;(1) whether the reasons
were proper considerations under 36 C.F.R. §§ 1.6(a) and 2.50;(2) whether the reasons are based

on relevant data or instead run counter to the evidence before the NFS;and(3)whether the reasons

are rational or instead so implausible that they could npt be ascribed to a difference in view or the
product of expertise. Of course, "[i]f the agency's decision is supportable on any rational basis.

®The State attacks the brevity of the denial letter and asserts that the NFS is providing new
justifications in giving more details to this Court. Doc. 49 at 8-14. The NFS's denial letter may
offer "less than ideal clarity [but] the agencyIs path may reasonably be discerned" fi-om the twopage letter. Fox Television. 556 U.S. at 513-14. The NFS submitting an affidavit providing what
information it had when denying the application does not constitute a change in the reasons for
denial.
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the court must uphold it." Foster v. Vilsack. 820 F.3d 330, 333 (8th Cir, 2016)(citation omitted)

(emphasis added).^
The first reason for denial in the March 11 letter concerned health and safety surrounding
the risk of COVID-19 spread, which dovetails with the language in § 1.6(a) and § 2.50(a)(5) that
a determination on a permit application consider "public health and safety." The concern about
COVID-19 spread,from the perspective ofsomeone writing on March 11,2021, was very real and

based on relevant data; the Federal Defendants have filed documents reflecting that there were
"high transmission" and "substantial transmission" rates in the Black Hills area in March of2021.

Doc. 35-9. This nation, very fortunately, is in a much better position in dealing with the COVID19 pandemic today than it was in March of 2021, with vaccination rates continuing to rise and
accordingly infection and death rates continually lowering. Since March of2021,the Centers for
Disease Control and Prevention has revised guidance to allow vaccinated individuals to
congregate, and an outdoor gathering of vaccinated individuals poses virtually no risk of COVID19 spread. Unvaccinated individuals can mitigate their risk of contracting the virus by mask
wearing and physical distancing, and, thanks in large measure to those who got vaccinated, are at
a lower risk for contracting the virus now than in March of2021. IfCOVID-19 concerns were the
NPS's only reason for the permit denial, this Court would be tempted to remand the decision for

two reasons:(1)the outdoor event at the Memorial last year appears to have been relatively safe;

^In its reply brief, the State argues that if any of NPS's five proffered reasons are arbitrary and
capricious, then the decision itself is arbitrary and capricious. Doc. 49 at 8-9. In support of this
argument,the State cites two cases from the D.C. Circuit, Nat'l Fuel Gas Supplv Corp. v. F.E.R.C..
468 F.3d 831 (D.C. Cir. 2006), and Mid-Tex Elec. Co-op.. Inc. v. F.E.R.C.. 773 F.2d 327, 353
(D.C. Cir. 1985). However, Eighth Circuit precedent eontrols here, and the Eighth Circuit has
repeatedly emphasized that a court must uphold an agency decision if there is any rational basis
for it. S^ Ore, for Competitive Markets. 912 F.3d at 459: Foster. 820 F.3d at 833; Vovageurs
Nat. Park Ass'n v. Norton. 381 F.3d 759. 763 r8th Cir. 2004T
,

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and (2)this nation has made such dramatic progress in just the last few months in combatting the
pandemic that an assessment of health and safety from March 2021 is outdated now. Still, a court
reviewing an agency decision must limit its inquiry to "the administrative record that was before
the agency when it made its decision." Norton. 381 F.3d at 766 (citation omitted). In March of

2021,the NFS had information suggesting ongoing high to substantial spread ofGOVID-19 in the
Black Hills area, although the President's remarks indicate that he in March of 2021 had hopes

that the pandemic would allow for barbeque gatherings for the Fourth of July. From the

perspective of March of 2021, the concern about C0VID-i9 spread from a gathering of some
7,000 to 10,000 people at the Memorial was rational, even if a similar gathering a year prior had
been relatively safe. The health and safety concerns are less compelling now, and there are more
grounds for denial to consider.
The second reason for the NPS's permit denial relates to tribal concerns. Some additional
facts deserve mention to describe what the NFS knew at the time ofthe denial. Under 54 U.S.C.

§ 306108, commonly referred to as § 106 ofthe National Historic Preservation Act, the NFS had

invited 20 tribal nations to consult prior to the proposed fireworks event that ultimately took place
in 2020. Doc. 35-6. Eleven tribes responded in opposition to the proposed fireworks at the
Memorial, either in writing or by attending a consultation meeting. Doc. 35 at 6-7; Doc. 35-2;
Doc. 35-3; Doc. 35-4; Doc. 35-5; Doc. 35-6; Doc. 35-7; Doc. 35-8. During one ofthe consultation

meetings, the NFS invited tribal historic cultural preservation officers to do an on-site Tribal
Cultural Froperties (TCF) survey to identify significant tribal cultural resources in the park. A
2006-2008 areheological survey ofthe Memorial had identified two prehistoric cultural sites and
an isolated artifact listed as a prehistoric lithic found within the Memorial's boundaries. Doc. 353 at 117-25. During the tribal consultation, the tribes raised thirteen separate concerns. Doc. 35-

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3; Doc. 34 at 10-11, and then felt betrayed when during the tribal consultation in 2020 over
whether any fireworks display at the Memorial should occur, the President announced that there
would be a "big fireworks display" at the Memorial for Independence Day in 2020, Doc. 35-3;

Doc. 34 at 9. The planned TCP survey was delayed due to the COVlD-19 pandemic, had not been
completed when the NPS denied the 2021 permit application, and is to be completed in spring and
summer of2021. Doc.35 at 7. Section 1.6(a) authorizes consideration of"cultural resources" and

"management responsibilities" in deciding whether NPS should grant a permit, and § 2.50(a)(2)
directs denying a permit that would "unreasonably impair the atmosphere of peace and tranquility
maintained in ... natural, historic, or commemorative zones." There is some data supporting the
tribal concerns for their cultural sites within the Memorial, and this Court cannot say that NPS's

choice to honor those tribal concerns as one ground for permit denial was not rational, or was so

implausible that it could not be ascribed to a genuine difference of view.

The third basis cited by the NPS for permit denial was environmental concerns about
perchlorate levels and wildfire risk. The 2020 precautions of a GO/NO-GO procedure and
stationing offire suppression services address some ofthe wildfire risk, but the Federal Defendants
note that the Black Hills remains in a drought, that the Wildland Fire Potential Outlook issued in
March of2021 characterizes that the Black Hills area ofwestern South Dakota is in severe drought,

and that such conditions exert extreme pressure on firefighting personnel and equipment. Doc. 35
at 14. This concern cannot be dismissed as not rational or implausible, as there is evidence

supporting it, as well as a history of eighteen, thankfully all small and quickly contained, wildfires
at the Memorial from past fireworks displays. Doc. 3-2 at 13.

An additional explanation of what the NPS knew about perchlorate contamination at the

time of the permit denial is warranted here. The United States Geological Survey ("the Survey")

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in 2011 detected high levels of perchlorate—a contaminant that can cause human thyroid

dysfunction—in soils, surface water, and groundwater at the Memorial. Doc. 35 at 10; Doc. 35-1.
The fireworks events between 1998 and 2009 were the most probable source for perchlorate

contamination. Doc. 35-1 at 30. The Survey stated: "The potential exists that the levels of
I

[perchlorate] in drinking water could become elevated following a fireworks display, especially
when considering the existing levels of perchlorate in the Memorial's drinking water." Doc. 35-1
at 32. The Environmental Protection Agency (EPA) Drinking Water Health Advisory level for

perchlorate is 15 ppb, and the perchlorate levels at the Memorial have been contintjally monitored
since 2013 with levels generally declining over the years ofno fireworks displays from around 29
ppb to a low of 12 ppb. Doc. 35 at 10-11. After the 2020 fireworks event at the Memorial, the

perchlorate level in drinking water increased at some sites within the Memorial, and at the time
the permit was denied in March of 2021 remained above the EPA health advisory level. Doc. 35
at 11; Doc. 35-11. Accordingly, this third basis for denial finds roots in § 1.6(a)'s criteria of

"public health and safety [and] environmental . . . values," as well as § 2.50(a)(5)'s criteria of
"public health and safety." There is some data to support connecting the increase in perchlorate
levels in drinking water at the Memorial to fireworks displays. The decision to deny the permit
on this basis cannot be characterized as not rational or so implausible not to be ascribed to a
genuine difference in view.
The fourth reason given for denial of the permit was that the fireworks display would

disrupt enjoyment ofthe Memorial by others. The State noted the incongruity between the NPS's
first concern about overcrowding during the pandemic and this concern that the fireworks display
keeps people away. What seems incongruous at first is made clear in information provided by the
Federal Defendants and available to them in their decision making. The Memorial historically

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hosts between 20,000 and 39,000 visitors on July 3.^°

Doc. 35 at 12. Those who visit the

Memorial typically stay perhaps a couple of hours, to stroll the Avenue of Flags, view the
impressive sculpture from the terrace, read and view education displays, walk around the site and
the "Presidential Trail" to the base of the mountain, visit the sculptor's studio, and stop at the gift

shop. Very few visitors would ever stay an entire day at the Memorial, though those arriving
nearer to dusk often remain to see the lighting ceremony. As described earlier in this opinion and
order, when there were fireworks displays prior to 2010, people were arriving as early as 6:00 a.m.,

filling up the parking lot by 9:00 a.m., and jamming up the park all day, preventing normal
visitation ofthe site. Doc. 35-2 at 29-32. The State for the 2020 Presidential visit and fireworks

display restricted access to around 7,500 people, and the permit the State sought for the event in
2021 contemplated no more than 10,000 people. Despite this sound crowd management decision

by the State in 2020, the NPS reported a decline in visitation of the Memorial on July 3, 2020.''
Doc. 35-12; Doc. 34-16. Part of § 1.6(a) contemplates considering whether "management

responsibilities, proper allocation and use of facilities, or the avoidance of conflict among visitor
use activities will not be adversely impacted." Similarly, § 2.50(a) directs permit denial ifthe use
would "[ujnreasonably interfere with interpretive, visitor service, or other program activities" or
"[sjubstantially impair the operation of public use facilities or services," or "[rjesult in significant
conflict with other existing uses." 36 C.F.R. § 2.50(a)(3),(4),(5). Thus, consideration on the

impact on other visitors is legitimate under §§ 1.6(a) and 2.50(a). The NPS has data on visitor
numbers, and this ground for denial appears to be rational. This Court cannot help but think that

^°July 3 is the date the State had the 2020 fireworks display and proposed to have the 2021
display.
"The decline could be related to less tourist activity generally in the Black Hills during the
pandemic, but that is unclear in the record.

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there could be some accommodation, for instance, where the Memorial is open to regular visitors

until 6:00 p.m., and those arriving for fireworks cannot enter the parking area or park before 7:30
or 8:00 p.m., to allow the usual flow of visitors throughout the morning and afternoon. But it is
not for a court, ill-positioned to know about road or parking congestion or necessary setup time
and event management, to devise a solution to legitimate concerns that an agency has in denying
a permit.
The fifth and final reason given for denial was disruption of construction inside the
Memorial. In 2019, the NFS began an extensive construction project at the Memorial including

replacement ofthe plaza paver walkway system through the Avenue of Flags, with a widening of
the existing walkway. The 2020 event caused damage from too much weight on concrete that had

not cured long enough. The cost of replacement concrete is estimated at $60,000 and work is
y

ongoing presently with the concrete to be replaced in June. A repeat of the same damage to the
newly poured concrete could occur from a one-time gathering ofsome 7,500 or more people at the
Memorial. Doc. 35 at 9. Under § 1.6(a), a worry about repeating a construction project multiple
times is a"management responsibility," and § 2.50 supports permit denial where the activity would
"[cjause injury or damage to park resources." The concern about disruption ofthe construction is
rational based on the damage to the concrete caused during the 2020 event and thus not

implausible. Again,this Court would think that there could be a way to work around the issue, but
that is not the role of a courtjudging whether an agency decision is arbitrary and capricious. See
Mausolf. 125 F.3d at 668 ("Consistent with the NPS's responsibility to manage and regulate Park
resources,the NFS has been given wide latitude to make management decisions regarding the type

and scope of activities permitted on Park property.").

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The State argues that even if there is a rational basis for the decision, the NPS's decision

is nonetheless arbitrary and capricious because the NFS did not "explain why it changed positions
from last summer when it approved a substantially similar event." Doc.3-1 at 24. When an agency
changes its existing position, it must "display awareness that it is changing position" and "show

that there are good reasons for the change in policy." Encino. 136 S. Ct. at 2126; Fox Television.
556 U.S. at 515. However, the agency need not demonstrate that "the reasons for the new policy
are better than the reasons for the old one; it suffices that the new policy is permissible under the
statute, that there are good reasons for it, and that the agency believes it to be better, which the.
conscious change ofcourse adequately indicates." Lion'Oil Co. v. E.P.A.. 792 F.3d 978, 983 (8th,
Cir. 2015)(quoting Fox Television. 556 U.S. at 515).
At issue in Encino was a regulation that the Department of Labor had adopted in 2011

which reversed a position the Department had held since 1978. 136 S. Ct. af2123-24. In ruling
that the Department's decision was arbitrary and capricious,the Supreme Court explained that "[a]

summary discussion may suffice in other circumstances, but [in this case]:—in particular because
of decades ofindustry reliance on the Department's prior policy—^the explanation fell short ofthe
agency's duty to explain why it deemed it necessary to overrule its previous position." Id. at 2126.

Here, the State argues that the NFS had an existing policy of allowing a fireworks event at
Mount Rushmore during Independence Day weekend. To support this argument, the State points
to a 2019 Memorandum of Agreement between the DOT and the State. Doc. 3-2 at 76-77. In that

agreement, the State and the DDI agreed "to exercise their full authorities under State and Federal
law to work to return fireworks to Mount Rushmore National Memorial in a safe and responsible
manner on July 3, July 4, or July 5, beginning in the year 2020." Doc. 3-2 at 77. The Federal
Defendants, on the other hand, argue that Encino and Fox Television Stations are not applicable

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here because those cases involved regulations or guidance documents. As such, there has not been
the kind of change in policy contemplated by the Supreme Court. This Court agrees. The NPS's
denial of the 2021 permit after it granted the 2020 permit is not the sort of a change in policy
requiring fuller explanation as to the reason for the change. But, in any event, the NFS
acknowledged the 2020 event in its letter and explained some of the problems that arose from

having the event and how those issues factored into its decision.

Doe. 3-2 at 101 ("Potential

risks to the park itself and to the health and safety of employees and visitors associated with the
fireworks demonstration continue to be a concern and are still being evaluated as a result of the

2020 event."); id ("Also, as we saw last year, most participants were not wearing face coverings,

which are now required in all national parks where physical distancing cannot be maintained.");

id. at 102("The 2020 event was limited in attendance due to safety concerns which consequently
impacted tens ofthousands who were not able to visit the memorial or had their visit cut short.");
id. ("A second demobilization [of the ongoing construction project] to accommodate an event
would be costly to the agency and impact the visiting public further based on the 2020

experience."). In sum, this Court cannot say that NPS's decision was arbitrary and capricious
under § 706(2).
5. The State is not entitled to the mandatory injunctive relief sought.
Even if the NPS's decision somehow were arbitrary and capricious, the State has failed to

establish that it is entitled to the relief sought. The APA, codified at 5 U.S.C. § 706(1), provides,

"The reviewing court shall . . . compel agency action unlawfully withheld or unreasonably
delayed." Norton v. S. Utah Wilderness All.. 542 U.S. 55, 62 (2004); Flandreau Santee Sioux
Tribe v. United States Dep't ofAgric.. No.4.T9-CV-04094-KES,2019 WL 2394256,at *2(D.S.D.
June 6, 2019). The Eighth Circuit has found that relief under § 706(1) is akin to a writ of

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mandamus. Org. for Competitive Markets. 912 F.3d at 462; Flandreau Santee Sioux Tribe. 2019
WL 2394256, at *2. Relief under § 706(1), like a writ of mandamus, is considered "an
extraordinary remedy reserved for extraordinary situations." Org. for Competitive Markets. 912
F.3dat462.

The Supreme Court has held that"a claim under § 706(1)can proceed only where a plaintiff

asserts that an agency failed to take a discrete agency action that it is required to take." Norton.
542 U.S. at 64. Under this rule;^ relief under § 706(1) is only available when the federal agency
has failed to take some action. Id. at 62. The Supreme Court has clarified that a "failure to act" is

not the same thing as a "denial." Id. at 63. A "denial" is the agency's way of saying "no" to a
request whereas a "failure to act" is simply the omission of an action without formally rejecting a
request. Id Section 706(1) relief is limited to "protect agencies from undue judicial interference

with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements
which courts lack both expertise and information to resolve." Id at 66.
This is not an extraordinary situation in which relief under § 706(1) is warranted. Relief
under § 706(1) is only appropriate where the federal agency has failed to take a discrete action that
it is legally required to take. Norton. 542 U.S. at 64. The NFS did not fail to take action here.

Rather, the NFS did take action; it denied the State's permit request. As the Supreme Court has
made clear, there is an important distinction between the failure to act and a denial. Id at 63. The

"extraordinary remedy" afforded under § 706(1) is not available when a federal agency merely
denies a request. Thus, even if the State had established that the NFS's decision were arbitrary
and capricious, this Court is precluded from granting the State the reliefit seeks. For these reasons,
this Court concludes that the State is unlikely to prevail on the merits of its claims.

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B. The remaining Dataphase factors do not alter the outcome.

Having concluded that the State is unlikely to prevail on the merits and is seeking a form
of injunctive relief the Court cannot grant under the eircumstances, this Court considers the
remaining Dataphase factors. This Court determines that the remaining Dataphase factors favor

the State, but do not tip so "decidedly" as to justify the injunctive relief sought. Clorox Co.. 140

F.3d at 1179. Indeed, the failure to show a likelihood of success on the merits,"by itself strongly
suggests that preliminary injunetive relief should be denied." MPAY Inc.. 970 F.3d at 1021
(cleaned up and eitation omitted).

The second Dataphase factor is the threat that the movant will suffer irreparable harm in

the absence ofrelief. "Failure to show irreparable harm is an independently sufficient ground upon

which to deny a preliminary injunetion." Lewis. 346 F.3d at 844. To show irreparable harm, the
movant must show that "the harm is certain and great and of such imminence that there is a clear

and present need for equitable relief." Iowa Utils. Bd. v. F.C.C.. 109F.3d418,425(8th Cir. 1996).
The movant must demonstrate that the irreparable harm is likely in the absence ofinjunctive relief,
not just a mere a possibility. Winter v. Nat. Res. Def. Council. Ine.. 555 U.S. 7, 22(2008). The
State has a good argument that a well-publieized fireworks display at the Memorial for
Independence Day weekend provides hard to quantify marketing benefits for the State, drives web
traffie to the State's tourism sites, attracts visitors to the Memorial, and benefits the State's tourism

industry and in turn its sales tax collections. In short, the State argues that a fireworks display at
the Memorial is good for the State and its tourism business and in turn the absence ofone produces

irreparable injury. After all, the State would not be able to sue the Federal Defendants for money
damages, so any injury to the State is irreparable. S^ Gen. Motors Corp. v. Harrv Brown's. LLC.

563 F.3d 312, 319(8th Cir. 2009)("Irreparable harm occurs when a party has no adequate remedy

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at law,typically because its injuries cannot be fiilly compensated through an award ofdamages.").
This argument of substantial irreparable harm is somewhat offset by the fact that the absence of
entry 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. The likelihood of irreparable
harm weighs in favor of an injunction, but of course a party may not justify injunctive relief to
which it is not entitled simply because the injunctive relief would prevent irreparable injury to the
movant.

The balance of harms and the public interest are the two final Datanhase factors that this
Court must consider. "[Wjhen the federal government or agency is the defendant, the final two

factors can 'merge' into one." Flandreau Santee Sioux Tribe. 2019 WL 2394256, at *5 (citing
Nken v. Holder. 556 U.S. 418, 435 (2009)). The balance of harms factor requires this Court to
weigh the severity of the impact on the defendants should the injunction be granted against the
hardship to the plaintiff should the injunction be denied. S^PCTV Gold. Inc. v. SpeedNet. LLC.
508 F.3d 1137, 1145 (8th Cir. 2007). A fireworks event carries some risk of unvaccinated and

unmasked attendees spreading the virus, perchlorate levels increasing in drinking water, a wildfire,

disruption oftypical visitation to the Memorial, and damage to the relatively new concrete pour at
the Memorial. A fireworks event at the Memorial does cause some harm to the federal-tribal

relationship that has been frayed through the years. Yet the public interest seems to favor the State

in that most of the public^—^weary of COVID-19 restrictions and being unaware of the Tribal

Defendants' concerns, perchlorate levels that increase in the Memorial's drinking water from
fireworks displays, the impact that such a display has on regular visitation to the Memorial or its
upkeep and construction project—^would favor fireworks at the Memorial for Independence Day
weekend. The Tribal Defendants and Dakota tribes, as well as those looking out for the long-term

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interests of the Memorial, strongly disagree that a fifteen to thirty-minute fireworks display is
worth disregarding the five legitimate bases the NFS cited for denial of the permit. Ultimately,

there are strong arguments in both directions as to the balance of harms, and the public interest in
the short-term appears to lie with having the fireworks display, whereas more long-term interests
militate against it at least for this year.
IV.

Conclusion

This Court is bound to follow governing law and apply the deferential arbitrary and
capricious standard when evaluating whether to enjoin the NPS's permit denial. If the NFS had
granted a special use permit to the State for fireworks at the Memorial for Independence Day

weekend for 2021, this Court almost certainly would have denied a preliminary injunction to any
group seeking to prohibit such a display from occurring. This Court fully understands the State's

position and why this suit was brought, but under governing law, the State is unlikely to succeed
on the merits of its claims and has not met the requirements for the sort of mandatory injunction
or writ of mandamus sought. For the foregoing reasons, it is hereby
ORDERED that the State's Motion for Freliminary Injunction, Doc. 3, is denied.

DATED this 2"'' day of June, 2021.
BY THE COURT:

ROBERTO A. LANGI
CHIEF JUDGE

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