Case 3:21-cv-03009-RAL Document 43 Filed 05/20/21 Page 1 of 5 PageID #: 927
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF SOUTH DAKOTA
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`CENTRAL DIVISION
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`GOVERNOR KRISTINOEM, in her official
`capacity as the Governor of South Dakota; THE
`STATE OF SOUTH DAKOTA,
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`3:21-CV-03009-RAL
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`Plaintiffs,
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`ORDER GRANTING PERMISSIVE
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`vs.
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`INTERVENTION
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`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;
`HERBERT FROST, in his official capacity as
`National Park Service Director of the Midwest
`Region,
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`Defendants,
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`and
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`CHEYENNE RIVER SIOUX TRIBE and its
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`Tribal Historic Preservation officer STEVE
`VANCE,
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`Intervenor Defendants.
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`Governor Kristi Noem (Noem) and the State of South Dakota (the State) sued various
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`federal officials in their official capacities after the Department of Interior (DOI) denied a permit
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`request to conduct a fireworks show at a July 3, 2021, celebration at Mount Rushmore. Doc. 1.
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`Noem and the State have filed a motion for a preliminary injunction asking this Court to order the
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`defendants to grant the State's permit request.' Doc. 3.
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`I
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`Case 3:21-cv-03009-RAL Document 43 Filed 05/20/21 Page 2 of 5 PageID #: 928
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`On the same day that the federal officials filed their answer to the complaint, Doc. 23, the
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`Cheyenne River Sioux Tribe (the Tribe) and its Tribal Historic Preservation Officer Steve Vance
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`(Vance) filed a motion to intervene in the lawsuit as well as a memorandum in support thereof.
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`Docs. 30, 31. The Tribe and Vance contend that they are entitled to intervene as a matter of right.
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`Alternatively, they request that this Court grant permissive intervention. Noem and the State have
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`filed a memorandum in opposition to the motion to intervene, suggesting that the Tribe and Vance
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`file an amicus brief instead. Doc. 32. The Tribe and Vance have replied. Doc. 33. For the reasons
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`briefly discussed herein, this Court grants permissive intervention to the Tribe and Vance.
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`Federal Rule of Civil Procedure 24 allows for non-parties to a suit to intervene in the
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`proceedings. The rule provides for both intervention of right and permissive intervention. Fed.
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`R. Civ. P. 24. A court must permit anyone to intervene where (1) a federal statute gives the party
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`the right to intervene or (2) the party "claims an interest relating to the property or transaction that
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`is the subject of the action, and is so situated that disposing of the action may as a practical matter
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`impair or impede the movant's ability to protect its interest, unless existing parties adequately
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`represent that interest." Fed. R. Civ. P. 24(a). A court may permit anyone to intervene who (1)
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`"is given a conditional right to intervene by a federal statute," or (2) "has a claim or defense that
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`shares with the main action a common question of law or fact." Fed. R. Civ. P. 24(b).
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`When ruling on a motion to intervene, this Court must accept as true all material allegations
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`in the motion to intervene. Nat'l Parks Conservation Ass'n v. U.S. E.P.A.. 759 F.3d 969, 973 (8th
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`Cir. 2014). This Court is obligated to eonstrue the motion in favor of the prospective intervenor.
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`Id. As the Eighth Circuit has emphasized, "Rule 24 should be construed liberally, with all doubts
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`resolved in favor of the proposed intervenor." Id. at 9,75 (cleaned up and citation omitted).
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`Case 3:21-cv-03009-RAL Document 43 Filed 05/20/21 Page 3 of 5 PageID #: 929
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`Noem and the State in their Complaint assert two claims: (1) that the DOI acted arbitrarily
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`and capriciously contrary to the Administrative Procedure Act in denying the State a permit for its
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`planned fireworks display; and (2) that Congress unconstitutionally delegated legislative power to
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`the National Park Service. Doc. 1 at 56-72. The DOI's letter denying the permit cited, among
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`several other things including the pandemic and environmental concerns, tribal leaders' opposition
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`to the State's proposed fireworks display. Doc. 1 at | 8. The State's Complaint, among other
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`things, takes issue with the DOI basing the denial in part on tribal leader opposition. Doc. 1 at
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`43, 52. The State asks this Court not only to declare the DOI denial to be arbitrary and capricious,
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`but also to issue a preliminary injunction ordering the DOI to issue the permit. From Noem's and
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`the State's perspective, not permitting fireworks for Independence Day weekend at Mount
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`Rushmore is, to put it bluntly, unjustified and un-American.
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`The Tribe and Vance emphasize the religious and cultural significance to the Dakota people
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`of the Black Hills, where Native American peoples lived for thousands of years and which tribes
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`negotiated to include as part of the Great Sioux Indian Reservation under the Fort Laramie Treaty
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`of 1868. After discovery of gold in the Black Hills in 1877, however, the United States illegally
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`abrogated the Treaty prompting the Supreme Court of the United States later to write, "[a] more
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`ripe and rank case of dishonorable dealings will never, in all probability, be found in our history .
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`..." United States v. Sioux Nations of Indians. 448 U.S. 371, 388 (1980) (cleaned up and citation
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`omitted). The Dakota continue to regard the Black Hills as sacred, have multiple traditional
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`cultural properties there, and conduct traditional cultural practices there.
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`The Tribe and Vance on one hand and Noem and the State on the other debate whether
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`there are grounds for intervention. Once again, Noem and the State seek not just setting aside the
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`denial of the permit, but also directing the DOI to issue the permit. The Tribe and Vance raise
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`Case 3:21-cv-03009-RAL Document 43 Filed 05/20/21 Page 4 of 5 PageID #: 930
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`grounds for resisting a fireworks display at Mount Rushmore. The DOI's denial letter and the
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`Complaint itself address tribal leaders' concerns. In short, the Tribe and Vance appear to have a
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`"claim or defense that shares with the main action a common question of law or fact" to justify
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`permissive intervention.
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`Noem and the State argue that the Tribe and Vance lack standing to intervene. Before a
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`court can grant a motion to intervene under Rule 24, a prospeetive intervenor must first establish
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`Article III standing. Naf 1 Parks Conservation Ass'n. 759 F.3d at 974. To establish Article III
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`standing, the intervenor must show (1) injury, (2) causation, and (3) redressability. Id. First, the
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`intervenor must allege an injury in fact, that is "an injury to a legally protected interest that is
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`conerete, particularized, and either actual or imminent." United States v. Metro. St. Louis Sewer
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`Dist.. 569 F.3d 829, 833-34 (8th Cir. 2009) (cleaned up and citation omitted). Second, the
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`intervenor must show that the alleged injury is "fairly traceable to the defendant's conduct." Id.
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`at 834 (citing Luian v. Defenders of Wildlife. 504 U.S. 555, 560-61 (1992)). Finally, the
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`intervenor must show that a favorable deeision will redress the injury. Id
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`The Tribe and Vance contend that they will suffer the following three injuries if this Court
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`grants a preliminary injunction to require the DOI to issue the requested permit: (I) imposition of
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`a substantial burden on the Tribe's and its individual members' religious practices in violation of
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`the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb; (2) a violation of the Tribe's
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`and its individual members' rights under the Free Exercise Clause of the First Amendment; and
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`(3) violation of Section 106 of the National Historic Preservation Act (NHPA) by forcing the
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`federal defendants to illegally bypass evaluation of historic properties in the Black Hills. Doc. 31
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`at 10. Accepting the material allegations of the motion to intervene as true, which at this stage this
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`Court must do, Nat'l Parks Conservation Ass'n. 759 F.3d at 973, these contentions are sufficient
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`Case 3:21-cv-03009-RAL Document 43 Filed 05/20/21 Page 5 of 5 PageID #: 931
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`to establish standing for permissive intervention. See Lowrv ex rei. CroAV v. Watson Chapel Sch.
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`Dist.. 540 F.3d 752, 762 (8th Cir. 2008) ("[T]he loss of First Amendment freedoms, for even
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`minimal periods of time, unquestionably constitutes irreparable injury." (quoting Elrod v. Bums.
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`427 U.S. 347, 373 (1976)); South Dakota v. Ubbelohde. 330 F.3d 1014, 1024-25 (8th Cir. 2003)
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`(finding that the proposed intervenors presented sufficient evidence of a threatened injury to give
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`them standing).
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`To be clear, this case is not a dispute between the State and Lakota Tribes over the merit
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`of fireworks at Mount Rushmore for Independence Day weekend or the ramifications of the Tribal
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`position that all of the Black Flills are a central spiritual and cultural location. This case has just
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`two central claims to it: (1) whether the DOI acted arbitrarily and capriciously in denying the
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`requested permit, and the Intervenors' concerns were one factor in that denial; and (2) whether
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`Congress unconstitutionally delegated legislative power to the National Parks Service. The Tribe
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`and Vance have contentions sufficient to meet the standing requirement under the circumstances
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`such that this Court allows permissive intervention. Therefore, it is
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`ORDERED that the Tribe and Vance's motion to intervene. Doc. 30, is granted in part to
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`allow permissive intervention. It is further
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`ORDERED that the Tribe and Vance may file their proposed answer. Doc. 30-2, but need
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`not refile their memorandum. Doc. 37, which is now in the CM/ECF record and will be considered
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`by this Court.
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`DATED this 30^ day of May, 2021.
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`BY THE COURT:
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`ROBERTO A. LANGE
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`CHIEF JUDGE
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