Of Permits, Preliminary Injunctions, and Pine Beetles

By: James Trusty

Last Independence Day, there was a big firework show at Mt. Rushmore, the first one since 2009. President Trump joined Governor Kristi Noem, and the show was well-attended by South Dakotans and tourists alike. Governor Noem liked it so much that she put in for a permit this year, only to be rejected by the National Park Service. That’s when the real fireworks began.

The Service cited five different reasons for its rejection:

• COVID-19 – opining that there will be a risk of spreading the disease, and noting that last year people apparently did not universally wear their masks or maintain adequate social distance;
• Native American perspective – the Service was still awaiting the collective position of various tribes on the issue, and they claimed this would be an important factor;
• Wildfires – there were wildfires sparked by last year’s celebration (although quickly put out) and there is an ongoing drought;
• Crowds – the popularity of last year’s show meant there will likely be overflow and related complications this year; and
• Construction – there is ongoing construction at the site, and it might be damaged by the attending crowd.

Suspecting these justifications were political at heart, Governor Noem filed suit in the U.S. District Court for South Dakota to seek a preliminary injunction that would mandate the Park Service to reverse itself and allow the show to go on. The Court would be called upon, then, to apply procedural standards that accompany this kind of “extraordinary” relief, and among other things, to determine whether the Service’s grounds for rejection were “arbitrary and capricious.”

Judge Roberto Lange, an Obama appointee, wrote an interesting 36-page opinion that acknowledges the unifying effect of Independence Day celebrations and seems to genuinely appreciate the sincerity and well-intended motivation of the Governor in filing suit. In reviewing the five justifications for denying a permit, he appropriately cast doubt on almost all of them. As to July 2021’s COVID risk, Judge Lange concluded this is a less compelling consideration now and that if it served as the only basis it might fail. He accepted that it is “not irrational” to wait for the position of the tribes, although the Lakota reverence for Black Hills (which subsumes the monument location) makes their ultimate position on such a celebration highly predictable. The judge accepted the fact that wildfires might be triggered again, but noted that they were put out easily last time.  Similarly, the concerns about crowd size and construction are ones that the Court deemed rational but also ones that can be easily overcome with some work-around solutions.

So if the Court calls into question each of the five bases for rejection, how does it ultimately deny the Governor’s request? Is this just politics masquerading as judicial reasoning? The answer to both is a good reminder about seeking pre-trial equitable relief:  winning a preliminary injunction that forces a complete reversal of an administrative act is institutionally uphill. The plaintiff typically has to show irreparable harm stemming from the current state of affairs, and a likelihood of eventual success on the merits. And the merits, here, would require showing that the administrative action (denial of a permit) was based upon arbitrary and capricious decision making. Why such challenging standards? Well, because the Governor is asking for the court to award her the win before ever hearing a stitch of evidence. This procedural hurdle should ring familiar from the election challenges of late last year—the vast majority of those filings were asking for preliminary injunctions (“stopping the count,” or forcing a recount) and while a variety of procedural hurdles proved lethal around the country, the one consistency in those rejected efforts to overturn Biden’s victory was that the courts balked at accepting a “likelihood of eventual success on the merits.” In other words, an institutional distaste for prejudging a plaintiff victory where the merits are hotly contested. With Mt. Rushmore, the judge even noted that he would have been unlikely to stop the celebration last year had someone challenged the Park Service’s issuance of a permit – making the point that courts require a lot to take early action.

Between the tunnel vision of litigants and the abbreviated nature of media coverage, the difficulty in successfully obtaining preliminary relief is often overlooked – the simplistic transformation of a failed effort to a crushing loss on the merits is an unfair one. Preliminary injunctions regularly include sworn statements in support of the complaint, but none of these witnesses have been subjected to even a moment of cross examination. Further, the opposing side is usually adept at lining up their own sworn statements, and ones that muddy the water for any judge inclined to view the plaintiff’s pleadings as establishing a likelihood of eventual success on the merits. In a case like the Mount Rushmore challenge, it is not so much the court having stony indifference to the plaintiff’s call for celebration as it is an unwillingness to dismiss all five bases for rejection as outrageous lies.

The hidden villains who burrowed away at the foundation of the Governor’s challenge, however, were not lawyers or Deep State permit bureaucrats, but critters known as Pine Beetles. The Pine Beetles have had years of population explosion, and consequently, they have laid waste to pine trees around Mt. Rushmore. When lightning, or fireworks, hooks up with dead and dried tinder, well, sparks fly. Those beetles had been the primary reason why there had not been fireworks celebrations since 2009, and that context—where fireworks were the exception, not the rule—makes it considerably harder to dismiss permit naysayers as being arbitrary and capricious. So, while it is always tempting to blame lawyers, judges, or bureaucrats for “raining on our parade,” this case is more about villainous bugs and procedural hurdles than any legal shenanigans.