IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ... · CASE NO: 4:12-cv-03027 PLAINTIFF’S...

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEBRASKA

OGLALA SIOUX TRIBE,

Plaintiff,vs.

JASON SCHWARTING, LICENSEE OFARROWHEAD INN, INC.; JASONSCHWARTING D/B/A ARROWHEADINN, INC.; SANFORD HOLDINGS, LLC,LICENSEE OF D & S PIONEER SERVICE;SANFORD HOLDINGS, LLC D/B/A D & SPIONEER SERVICE; STUART J. KOZAL,LICENSEE OF JUMPING EAGLE INN;STUART J. KOZAL D/B/A JUMPINGEAGLE INN; CLAY M. BREHMER,PARTNER, LICENSEE OF STATE LINELIQUOR; CLAY M. BREHMER, PARTNERD/B/A STATE LINE LIQUOR; DANIEL J.BREHMER, PARTNER, LICENSEE OFSTATE LINE LIQUOR; DANIEL J.BREHMER, PARTNER D/B/A STATELINE LIQUOR; PIVO, INC. D/B/A HIGHPLAINS BUDWEISER; DIETRICHDISTRIBUTING CO., INC.; ARROWHEADDISTRIBUTING, INC.; COORSDISTRIBUTING OF WEST NEBRASKA,INC.; D/B/A COORS OF WESTNEBRASKA; ANHEUSER-BUSCH, LLC.; MILLERCOORS, LLC.; PABST BREWINGCOMPANY,

Defendants.

CASE NO: 4:12-cv-03027

PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS

4:12-cv-03027-JMG-CRZ Doc # 141 Filed: 06/20/12 of 57 - Page ID # 627

TABLE OF CONTENTS

TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i.

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv.

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

JURISDICTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II.

NEBRASKA LAW SPECIFICALLY DESCRIBES THE DEFENDANTS’ CONDUCT AS ANUISANCE AND SPECIFICALLY AUTHORIZES THE COURTS TO “PADLOCK” OR SHUTDOWN THE RETAIL DEFENDANTS’ OPERATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

III.DEFENDANTS URGE A READING OF THE NEBRASKA LIQUOR CONTROL ACT WHICHVIOLATES THE DUE PROCESS AND OPEN COURTS CLAUSES OF THE NEBRASKACONSTITUTION AS WELL AS LONG STANDING RULES OF CONSTRUCTION. . . . . . . . 9

IV.THE COMPLAINT ALLEGES THAT DEFENDANTS INTENTIONALLY AID AND ABET ANONGOING CRIMINAL ENTERPRISE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

V.DEFENDANTS CAN EASILY STOP THE ILLEGAL USE OF THEIR PRODUCT WITHOUTANY ADVERSE IMPACT ON THEIR LEGITIMATE BUSINESS. . . . . . . . . . . . . . . . . . . . . . 18

VI.NEBRASKA STATUTES DO NOT REQUIRE THE DEFENDANT BREWERS TO VIOLATESTATE, FEDERAL AND TRIBAL LAWS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

i.


VII.STANDING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

A. Constitutional Requirement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19B. Standing of Tribe to Sue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19C. Tribe as Parens Patriae.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19D. The Tribe has Standing in its Individual Capacity.. . . . . . . . . . . . . . . . . . . . . . . . 21E. The Tribe owns the Right to Sue for the Damages caused by the

Defendants’ Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22F. The Prudential Standard Strongly Supports Federal Action in this Case. . . . . . . 23G. A Private Party can Enforce Nebraska Law when acting ex rel. . . . . . . . . . . . . . 24

VIII.PERSONS ACTING IN CONCERT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

A. Defendants Aid and Abet and Act in Concert with Eery Tort and Crime Committedby Those Whom They Supply with Alcohol in Violation of the Law. . . . . . . . . . 29

IX.CIVIL CONSPIRACY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

X.PUBLIC NUISANCE UNDER THE COMMON LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

A. The Defendants Actions crate a Nuisance Per Se. . . . . . . . . . . . . . . . . . . . . . . . . 37B. Nebraska Law Expressly Permits a Private Cause of Action for Damages arising from

Illegal Sales of Alcohol. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37C. Official Admission that Whiteclay is a Public Nuisance. . . . . . . . . . . . . . . . . . . . 38D. The Law of the Oglala Sioux Tribe must be Applied. . . . . . . . . . . . . . . . . . . . . . 38

XI.PRIVATE NUISANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

XII.ELIMINATING UNLAWFUL BEER SALES IN WHITECLAY WILL DRAMATICALLYREDUCE THE DEVASTATING PROBLEMS CAUSED BY ALCOHOL ON THE PINE RIDGEINDIAN RESERVATION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

XIII.NO FLOOD OF LITIGATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

XIV.NEBRASKA, FEDERAL AND OGLALA SIOUX TRIBAL LAWS DO NOT CONTEMPLATE,MUCH LESS DEMAND, RACIAL DISCRIMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

ii.


XV.

REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

A. Injunction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44B. Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

XVI.

IN THE ALTERNATIVE, IF THE COURT FINDS THAT PLAINTIFF HAS NOT SUFFICIENTLYPLED SOME FACT OR ALLEGATION TO SUPPORT ITS CAUSES OF ACTION, PLAINTIFFREQUESTS LEAVE TO AMEND ITS COMPLAINT TO ADDRESS SUCH ISSUE. . . . . . . . 45

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

iii.


TABLE OF AUTHORITIES

CASES:

Acree v. North, 110 Neb. 92, 192 N.W. 947 (1923). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel. Barez, 458 U.S. 592, 102 S.Ct. 3260 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315 (1984), rehearing denied, 468 U.S. 1250 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Ashby v. State, 279 Neb. 509, N.W. 2d 343 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Ashley County, Ark. v. Pfizer, Inc, 552 F.3d 659 (8th Cir. 2009). . . 11, 13-16, 18, 21, 22, 28, 36,44

Battle Creek State Bank v. Preusker, 253 Neb. 502, 571 N.W.2d 294 (1997). . . . . . . . . . . . 17, 33

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Bergman by Harre v. Anderson, 226 Neb. 333, 411 N.W.2d 336 (Neb 1987). . . . . . 11, 17, 27, 45

Brown v. Wallace, 957 F.2d 564 (8th Cir.1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Bugenig v. Hoopa Valley Tribe, 229 F.3d 1210 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . 3

City of Chicago v. Beretta U.S.A. Corp., 213 Ill.2d 351, 821 N.E.2d 1099 (2004). . . . 11, 22, 28,42, 44

City of New York v. Beretta U.S.A. Corp., 401 F.Supp.2d 244 (E.D. N.Y. 2005). . . . . 22, 34-36

City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415 (3rd Cir. 2002). . . . . . . . . . . . . . . . . 16

Colton v. Dewey, 212 Neb. 126, 321 N.W.2d 913 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Cooney v. Burke, 11 Neb. 258, 9 N.W. 57 (1881).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Cranford v. Tyrrell, 128 N.Y. 341, 28 N.E. 514 (1891). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Delorme v. United States, 354 F.3d 810 (8th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Dickinson v. Lawson, 125 Neb. 646, 125 N.W. 656 (1933). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

iv.


Freels v. Northrup, 678 S.W.2d 55 (Tenn. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Furry v. Miccosukee Tribe of Indians of Florida, (2011 WL 2747666 (S.D. Fla July 2011). . . . . 3

G & A Contractors, Inc. v. Alaska Greenhouses, Inc., 517 P.2d 1379 (Alaska 1974). . . . . . . . . 10

Gamma-10 Plastics, Inc. v. American President Lines, 32 F.3d 1244 (8th Cir.1994).. . . . . . . . . 46

Gergen v. Western Union Life Ins. Co., 149 Neb. 203, 30 N.W.2d 558 (1948). . . . . . . . . . . . . . 17

Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601 (1979).. . . . . . . . . . . . . 23

Goeke v. National Farms, Inc., 245 Neb. 262, 512 N.W.2d 626 (1994). . . . . . . . . . . . . . . . . . . . 44

Kickapoo Tribe of Oklahoma v. Lujan, 728 F.Supp. 791 (D.D.C.1990).. . . . . . . . . . . . . . . . . . 19

Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130 (1992). . . . . . . . . . . . . . . . . . . . . 24

Macku v. Drackett Products Co., 216 Neb. 176, 343 N.W.2d 58 (1984). . . . . . . . . . . . . . . . . . . 10

Narragansett Indian Tribe of Rhode Island v. Narragansett Elec. Co., 89 F.3d 908 (1st Cir. 1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Navajo Nation v. Superior Court of State of Wash. For Yakima County, 47 F. Supp.2d 1233 (E.D.Wash. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Papasan v. Allain, 478 U.S. 265, 269 n. 1, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986).. . . . . . . . . . . 8

Pasquantino v. United States, 544 U.S. 349, 125 S.Ct. 1766 (2005).. . . . . . . . . . . . . . . . . . . 32, 33

Petersen v. Cisper, 231 Neb. 450, 436 N.W.2d 533 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Powers v. Flansburg, 90 Neb. 467, 133 N.W. 844 (1911).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 25

Republic of Venezuela ex rel. Garrido v. Philip Morris Companies, Inc., 827 So.2d 339 (Fla.App.2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Rice v. Rehner, 463 U.S. 713, 103 S.Ct. 3291 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Ritchie v. St. Louis Jewish Light, 630 F.3d 713 (8th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Schaaf v. Residential Funding Group, 517 F.3d 544 (8th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . 2

Schleisinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S.Ct. 2925 (1974).. . . 23

v.


Spear T. Ranch, Inc. v. Knaub, 269 Neb. 177, 691 N.W.2d 116 (2005). . . . . . . . . . . 10, 11, 17, 33

Stahl v. U.S. Dep’t of Agric., 327 F.3d 697, 700 (8th Cir.2003). . . . . . . . . . . . . . . . . . . . . . . . . . . 8

State ex rel. Grigsby v. Ostroot, 75 S.D. 319, 64 N.W.2d 62 (1954). . . . . . . . . . . . . . . . . . . . . . 25

State ex rel. Johnson v. Hash, 144 Neb. 495, 13 N.W.2d 716 (1944). . . . . . . . . . . . . . . . . . 6, 7, 18

State ex rel. Towle v. Eyen,130 Neb. 416, 264 N.W. 901 (1936). . . . . . . . . . . . . . . . . 6, 11, 17, 39

State of Louisiana v. State of Texas, 176 U.S. 1, 20 S.Ct. 251, 44 L.Ed. 347 (1900). . . . . . . . . . 20

State of West Virginia v. Charles Pfizer & Co., 440 F.2d 1079 (2nd Cir. 1971). . . . . . . . . . . . . . 21

Stephens v. Pillen, 12 Neb.App. 600, 681 N.W.2d 59 (2004).. . . . . . . . . . . . . . . . . . . . . 40, 44, 45

Tadros v. City of Omaha, 273 Neb. 935, 735 N.W.2d 377 (2007). . . . . . . . . . . . . . . . . . . . . . . . 17

Thompson v. Johnson, 180 F.2d 431 (5th Cir.1950). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Thomsen v. Greve, 4 Neb.App. 742, 550 N.W.2d 49 (1996). . . . . . . . . . . . . . . . . . . . . . . . . 44, 45

U.S. v. Santee Sioux Tribe of Nebraska, 254 F.3d 728 (2001).. . . . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Mazuire, 419 U.S. 544, 95 S.Ct. 710 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

United States v. Oceanside Oklahoma, Inc., 527 F.Supp. 68 (W.D. Okla. 1981). . . . . . . . . . . . . . 3

Williams v. Little Rock Municipal Water Works, 21 F.3d 218 (8th Cir.1994).. . . . . . . . . . . . . . 46

STATUTES:

18 U.S.C. § 1154. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 12, 14

18 U.S.C. § 1156. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 12

18 U.S.C. § 1161 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 29, 34

28 U.S.C. § 1362 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Neb.Rev.Stat § 53-190.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Neb.Rev.Stat § 53-192.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

vi.


Neb.Rev.Stat. § 53-175. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Neb.Rev.Stat. § 53-176. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Neb.Rev.Stat. § 53-186. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 34

Neb.Rev.Stat. § 53-186.01.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 34, 37

Neb.Rev.Stat. § 53-190 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Neb.Rev.Stat. § 53-197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Neb.Rev.Stat. § 53-404 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 37, 38

Neb.Rev.Stat. § 84-202. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Neb.Rev.Stat.§ 53-198 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-7, 12, 26, 27, 29, 30, 37-39, 41, 43

OTHER AUTHORITIES:

1 Complete Session Laws of Nebraska, 1855-1865, p. 144. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Am.Jur.2d Torts § 66 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Article I, Sec. 13, Constitution of Nebraska. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Prosser and Keeton on the Law of Torts, Joint Tortfeasors § 46 (5th ed. 1984).. . . . . . . . . . . . . . 27

Prosser on Torts at p. 617-618 (5th Ed.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Restatement (Second) of Torts § 825.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 45

Restatement (Second) of Torts § 876. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

vii.


INTRODUCTION

A stark question for the Court: Can an enterprise which exists to profit solely from

knowingly aiding and abetting the commission of crime operate with impunity, free even from civil

liability for the resulting devastation?

STATEMENT OF FACTS

The Brewer Manufacturing, Distributor and Retail Defendants acting in concert sell between

4.3 and 4.95 million twelve-ounce servings of beer every year in Whiteclay, a Village with 11

residents. Virtually all of the beer is possessed and consumed in violation of the laws of the United

States, Nebraska and Oglala Sioux Tribe. The Defendants all have had actual notice of the illegal

trade for over a decade without taking any action to ensure that the beer sold out of Whiteclay is

delivered and possessed in accordance with the law.

The results of this illegal trade are nothing less than horrific. On the Pine Ridge Indian

Reservation the average life expectancy is between 45 and 52 years. As compared to that of the

United States as a whole at 79 years. Diabetes rates are approximately 50% of the adults on the

Reservation over the age of 40. Approximately 90% of all crimes committed on the Pine Ridge

Indian Reservation involve alcohol. One out of four children born on the Pine Ridge Indian

Reservation are diagnosed with either fetal alcohol syndrome (FAS) or Fetal Alcohol Spectrum

Disorder (FASD).

Virtually every day on the streets of Whiteclay ten to thirty or more heavily intoxicated

human beings are arguing, urinating, begging, hallucinating, fornicating, fighting or simply passed

out. They buy single cans or six packs of high alcohol malt liquor and openly consume it on the

streets and vacant lots. They then return for more and more until they have no money or cannot

1


walk. And the list of misery goes on and on.

The reality of life on the reservation is even more horrific because of the children. Beer is

openly loaded in cars in front of the Defendants’ retail stores and driven directly onto the reservation.

This suit is filed by the Oglala Tribe to protect its rights under a direct grant of authority from

Congress to control the sale and possession of alcohol on the Pine Ridge Indian Reservation. The

Complaint alleges causes of action for persons acting in concert, civil conspiracy, public nuisance

and private nuisance as well as a prayer for injunctive relief.

STANDARD OF REVIEW

In a motion to dismiss the standard set by the Court is very clear.

Federal Rule of Civil Procedure 8(a) requires that a complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief” in order to “give the defendant

fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007).

“To survive a motion to dismiss, the factual allegations in a complaint, assumed true, must

suffice ‘to state a claim to relief that is plausible on its face.’” “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. Ritchie v. St. Louis Jewish Light, 630 F.3d 713, 717

(8th Cir. 2011) (citations omitted).

To defeat a Motion to Dismiss for failure to state a claim, a plaintiff need not provide specific

facts in support of their allegations, but they must include sufficient factual information to provide

the grounds on which the claim rests and to raise a right to relief above a speculative level. Schaaf

v. Residential Funding Group, 517 F.3d 544, 549 (8th Cir. 2008).

2


ARGUMENT

I.

JURISDICTION

A federal question is presented under 28 U.S.C. § 1362 because 18 U.S.C. § 1161 specifically

addresses the very issues raised by this lawsuit. Congress has stated that alcohol may be sold,

possessed or consumed in Indian Country only in accordance with the law of both the reservation

and the state in which it is located. A number of Federal Courts from the Supreme Court of the

United States to Circuit and District Courts have addressed issues arising out of this statute.

For example:

In Rice v. Rehner, 463 U.S. 713, 103 S.Ct. 3291 (1983), the Supreme Court took up the issue

of whether a Federally licensed Indian Trader was required to obtain a state liquor license to sell

liquor for off premise consumption. In United States v. Mazuire, 419 U.S. 544, 95 S.Ct. 710 (1975)

the Court examined the Congressional power to regulate alcohol in Indian Country and whether it

could validly delegate that power to tribal councils. The Court upheld the statute.

The Court in United States v. Oceanside Oklahoma, Inc., 527 F.Supp. 68 (W.D. Okla. 1981)

addressed the question of what was Indian country for purposes of the 18 U.S.C. § 1161 et seq. See

also Furry v. Miccosukee Tribe of Indians of Florida, (2011 WL 2747666 (S.D. Fla July 2011)

(personal injury through driving while intoxicated): Bugenig v. Hoopa Valley Tribe, 229 F.3d 1210

(9th Cir. 2000) (could tribe regulate alcohol on nearby land during biennial dance and pow wow).

In addition, violation of related laws constitute a federal criminal offense. (See e.g. 18 U.S.C.

§ 1154 and 18 U.S.C. § 1156). Recently five individuals were indicted for smuggling alcohol onto

the Pine Ridge Reservation. They face trial in the United Stated District Court, District of South

3


Dakota, Western Division. The penalty, if convicted, could be up to one year in prison and

$100,000.00 dollars in fines for a first offense.

1. USA v. Lamont - Case No. 5:12-cr-50013-VLD

2. USA v. Water et al. - Case No. 5:12-cr-50017-JLV

3. USA v. Spotted Elk - Case No. 5:12-cr-50012-JLV

4. USA v. Chipps et al - Case No. 5:12-cr-50016-JLV

5. USA v. Leighton - Case No. 5:12-cr-50016-JLV

Brewer Defendants’ interpretation of these statutes as set forth on page 21-26 of their brief

is incomprehensible in light of these indictments. Do Brewer Defendants seriously submit that

knowing and intentional acts to further the illegal smuggling of alcohol into the Pine Ridge Indian

Reservation could not be the basis for aiding and abetting violations of 18 U.S.C. §§ 1154 and 1156?

Or that a conspiracy charge could not be based on a scheme to violate §§ 1154 and 1156? If so, this

extraordinary interpretation of the law is absolutely unsupported by precedent.

It has been said that civil jurisdiction can be found where criminal jurisdiction lies. That

is particularly apt in this case where the allegations include charges that the Defendants have under

civil law aided and abetted the very same criminal activity. The courts have found the very same,

that criminal jurisdiction purposes of these statutes also apply to the question of civil jurisdiction.

See Narragansett Indian Tribe of Rhode Island v. Narragansett Elec. Co., 89 F.3d 908, 915 (1st Cir.

1996).

4


II.

NEBRASKA LAW SPECIFICALLY DESCRIBES THE DEFENDANTS’ CONDUCT AS ANUISANCE AND SPECIFICALLY AUTHORIZES THE COURTS TO “PADLOCK” ORSHUT DOWN THE RETAIL DEFENDANTS’ OPERATION

A cursory look at Nebraska law explodes most of the arguments raised by every Defendant.

These arguments include but are not limited to prudential standing; adequacy/futility of a remedy;

whether the Defendants’ conduct is tortious, causation and other defenses.

All the Plaintiff asks this Court to do in this lawsuit is enforce longstanding Nebraska law.

Neb.Rev.Stat.§ 53-198 states:

Places operated in violation of act; declared common nuisances; violations;penalty.

Any room, house, building, boat, structure, or place of any kind wherealcoholic liquors are sold, manufactured, bartered, or given away in violation of theNebraska Liquor Control Act or where persons are permitted to resort for the purposeof drinking same in violation of the act, or any place where such liquors are kept forsale, barter, or gift in violation of the act, and all such liquors and all property keptin and used in maintaining such a place, are each and all of them hereby declared tobe a common nuisance. Any person who maintains or assists in maintaining suchcommon nuisance shall be guilty of a violation of the act. If it is proved that theowner of any building or premises has knowingly suffered the same to be used oroccupied for the manufacture, sale, or possession of alcoholic liquors contrary to theprovisions of the act, such building or premises shall be subject to a lien for and maybe sold to pay all fines and costs assessed against the occupant of such building orpremises for any violation of the act. Such lien shall be immediately enforced bycivil action in any court having jurisdiction by the county attorney of the countywherein such building or premises is located or by one of the assistant attorneysgeneral assigned to the commission when directed by the commission. (Emphasissupplied).

Whiteclay and the retail stores are “buildings” and a “place” “where persons are permitted

to resort for purpose of drinking same in violation of the act” within the meaning of the statute. All

of the beer sold out of Whiteclay is consumed in public in violation of the Act (Neb.Rev.Stat. § 53-

186 and § 53-186.01) or transported and resold in the Pine Ridge Indian Reservation, also in

5


violation of the Act. (Neb.Rev.Stat. § 53-175 and § 53-176).

Under Neb.Rev.Stat. § 53-198, each Defendant is a “person who maintains or assists in

maintaining such common nuisance” and therefore is “guilty of a violation of the act”. As will be

argued more extensively later, there could be no Whiteclay without the beer brewed, packaged,

transported and cooled by the Brewer and Distributor Defendants.

The case law regarding alcohol sales in Nebraska is compelling and on point. In State ex rel.

Towle v. Eyen,130 Neb. 416, 264 N.W. 901 (1936), the Nebraska Supreme Court held:

Decree enjoining continued operation of dance hall which was found to be a nuisanceheld justified, where proprietor could not control patrons’ conduct and behavior. Id. at 902-03.

This of course completely destroys the Defendants’ arguments that the actions of the

purchasers in drinking the beer in public, or transporting it into the Pine Ridge Indian Reservation

are efficient intervening causes breaking the chain of causation.

Proof of the maxin “There is nothing new under the sun” can be found in the case precedent.

The Nebraska Supreme Court held:

“a place of business in a rural district, where sale of intoxicants by the drink may notbe made, [Whiteclay is such a place], which provides necessary equipment andingredients for mixed drinks other than the liquor and invites the public to bring itsown liquor is evasion of liquor control act and is a ‘public nuisance’ which may beabated by injunction.” State ex rel. Johnson v. Hash, 144 Neb. 495, 13 N.W.2d 716(1944).

In the instant case, the actual alcohol itself is furnished with absolutely no lawful place to

consume it in Whiteclay. A person cannot consume the alcohol in the retail stores themselves as

they are not licensed to sell liquor by the drink (Neb.Rev.Stat. § 53-186.01). Pursuant to Neb. Rev.

Stat § 53-186, a person cannot consume alcohol on the public streets in Whiteclay. A person cannot

possess or consume alcohol on the Pine Ridge Indian Reservation under Federal and Tribal law.

6


Violations of these statutes are specifically described as a nuisance by statute and the Defendants are

identified as those creating it. Neb.Rev.Stat.§ 53-198. See also State ex rel. Johnson v. Hash, 144

Neb. 495, 13 N.W.2d 716 (1944).

The Defendants’ arguments that the various remedies prayed for are not authorized, effective

or beyond the prudential jurisdiction of this Court evaporate in light of the case law. In State ex rel.

Johnson v. Hash, 144 Neb. 495, 13 N.W.2d 716 (1944), the Nebraska Supreme Court held:

“In suit to abate a roadhouse as a public nuisance, where main business contravenedlaw and legitimate business was either a sham or a minor part of the whole,injunction would issue to abate nuisance by closing rather than merely enjoining actsfound to be unlawful. Id. at 502.

Here, in the Complaint Plaintiff had suggested that only sales of beer that must be used or

possessed in violation of the law be enjoined. Various Defendants have argued that it is impossible

to identify and sell only to the 11 residents of Whiteclay who have a place where they can lawfully

possess and consume beer (one of three houses). Given that of the 4.3 to 4.95 million 12-ounce

servings of beer sold each year in Whiteclay, virtually none could be possessed and consumed

lawfully. As stated above, no person can legally consume the alcohol in the retail liquor stores, no

person can legally consume alcohol on the public streets of Whiteclay, and no person can legally

consume or possess alcohol on the Pine Ridge Indian Reservation. It is clear that under Nebraska

law the “legitimate” part of Defendants’ business is a “minor” part or a sham. Accordingly, the

entire business of Defendants should be shut down in Whiteclay under the law of Nebraska.

This leaves then only the question of who may bring suit to abate this nuisance. Obviously

the Nebraska Attorney General, The Nebraska Liquor Commission and indeed the State of Nebraska

7


have refused to enforce the liquor laws in Whiteclay. (See Exhs. 2, 4, and 5)1

The refusal of the State of Nebraska to enforce its liquor laws in Whiteclay is, under those

same statutes, criminal:

§ 53-197 Violations; peace officer; duties; neglect of duty; penalty.

Every sheriff, deputy sheriff, police officer, marshal, or deputy marshal who knowsor who is credibly informed that any offense has been committed against theprovisions of any law of this state relating to the sale of alcoholic liquors shall makecomplaint against the person so offending within their respective jurisdictions to theproper court, and for every neglect or refusal so to do, every such officer shall beguilty of a Class V misdemeanor.

Can there be any doubt that if the Attorney General filed the appropriate action to shut down

these businesses, that an injunction would issue and the human misery would have been abated?

In the face of such injustice, Nebraska law again provides a remedy. The Court, in Powers

v. Flansburg, 90 Neb. 467, 133 N.W. 844, 845 (1911), held:

“A private individual may maintain an action to suppress a public nuisance when hesustains some special injury caused thereby, other than that sustained by the publicat large.”

The Oglala Tribe must house all criminals whose crimes involve alcohol from Whiteclay

even though only a percentage of Pine Ridge residents are assaulted, raped, or injured by drunk

drivers. The Oglala Tribe must try to provide social services and special education for all children

affected by alcohol from Whiteclay even though 3 out of 4 are not born with Fetal Alcohol

Syndrome and only 58% of grandparents are raising grandchildren because the parents are addicted

to alcohol. The Oglala Tribe must find money to hire police to protect the borders of the Pine Ridge

1In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court is “not precluded in [its]

review of the complaint from taking notice of items in the public record.” Papasan v. Allain, 478 U.S. 265, 269 n. 1, 106 S.Ct.2932, 92 L.Ed.2d 209 (1986); Stahl v. U.S. Dep’t of Agric., 327 F.3d 697, 700 (8th Cir.2003). (“The district court may takejudicial notice of public records and may thus consider them on a motion to dismiss”).

8


Indian Reservation from smugglers of alcohol. The Oglala Tribe must find money for medical care

for residents whose health is damaged by alcohol from Whiteclay. The fundamental respect due to

a sovereign nation is severely assaulted by the activities of Whiteclay. These and many other special

injuries give the Tribe standing to maintain this action.

The refusal of the State of Nebraska to enforce its laws “because the problem will just move

elsewhere” (See Exhs. 2 and 4) makes it essential that the Oglala Tribe (which cannot move

elsewhere), in order to protect itself, be permitted to maintain this lawsuit.

III.

DEFENDANTS URGE A READING OF THE NEBRASKA LIQUOR CONTROL ACT WHICH VIOLATES THE DUE PROCESS AND OPEN COURTS CLAUSES OF THENEBRASKA CONSTITUTION AS WELL AS LONG STANDING RULES OFCONSTRUCTION.

Anchored in ancient common law, the right to protect ones property from a nuisance caused

by the provision of alcohol by petitioning the Courts has existed for centuries. The Defendants argue

that the Liquor Control Act is now the exclusive remedy and can only be enforced by the County

Attorney and Attorney General. As a result injured parties, like the Plaintiff in this case, are barred

from seeking redress in the Courts.

The relevant provisions of the Constitution are as follows:

“No person shall be deprived of life, liberty or property without due processof laws nor be denied equal protection of the laws.” Article I, Sec. 3, Constitution ofNebraska.

“All Courts shall be open for any injury done him or her in his or her lands,goods, person or reputation, shall have a remedy by due course of law and justiceadministered without delay . . .” Article I, Sec. 13, Constitution of Nebraska.(emphasis added).

The Nebraska Legislature has no power to abolish a right that is vested. Petersen v. Cisper,

231 Neb. 450, 436 N.W.2d 533 (1989). The right of an individual to protect his property interest

9


from injury by nuisance is embedded in the common law of England and is part of the common law

of the State of Nebraska. “So much of the common law of England as is applicable to and not

inconsistent with the Constitution of the United States, with the organic law of this territory (state),

or with any law passed or to be passed by the Legislature of this territory (state),” was adopted and

declared to be, and now is, the law within Nebraska. 1 Complete Session Laws of Nebraska, 1855-

1865, p. 144. The right to protect ones land is a vested right and is enshrined in the Constitution

and may not be taken away by the legislature. Petersen v. Cisper, 231 Neb. 450, 436 N.W.2d 533

(1989).

Of course the ordinary and long standing rules of construction avoid such an unconstitutional

result.

“The Legislature is free to create and abolish rights so long as no vested right is disturbed.”

Spear T. Ranch, Inc. v. Knaub, 269 Neb. 177, 195, 691 N.W.2d 116, 133 (2005) (citing Colton v.

Dewey, 212 Neb. 126, 321 N.W.2d 913 (1982).

“Statutes which change or take away a common law right must be strictly construed.” Id.

“Any statutory construction restricting or abolishing common law rights should not be

adopted, unless the plain words of the statute compel such result”. Id. (citing Macku v. Drackett

Products Co., 216 Neb. 176, 343 N.W.2d 58 (1984)).

Moreover, courts commonly hold that actions seeking damages for nuisance or other

common-law tort actions for impairment of water rights are traditionally cognizable by the courts

without reference to agency expertise or discretion. Accordingly, exercise of the primary jurisdiction

doctrine is inappropriate in those cases. See, e.g., Freels v. Northrup, 678 S.W.2d 55 (Tenn. 1984);

G & A Contractors, Inc. v. Alaska Greenhouses, Inc., 517 P.2d 1379 (Alaska 1974);

10


Spear T. Ranch, Inc. v. Knaub, 269 Neb. 177, 691 N.W.2d 116 (2005).

The Nebraska Liquor Control Act is absolutely silent on the subject of the abolition of

common law rights. The Defendants ask this Court to adopt a construction absolutely unsupported

by the statutory language, clearly disfavored by long held rules of construction and forbidden by the

Constitution. Reduced to the raw essentials, Defendants demand, as wealthy and politically powerful

entities, that this Court acknowledge that they can conduct business in a manner that maximizes

profit but devastates those who live on land near Whiteclay. The Defendants instruct this Court that

the State of Nebraska’s refusal to enforce its laws grants them this right. Plaintiff prays that this

Court rule to the contrary.

IV.

THE COMPLAINT ALLEGES THAT DEFENDANTS INTENTIONALLY AID AND ABET AN ONGOING CRIMINAL ENTERPRISE

The Defendants all build their arguments on a false premise, that they are charged with

negligently supplying their product to people who independently use it to commit a crime. In

fact the Defendants are all charged with intentional torts by actively and knowingly

participating in, furthering, and profiting from the crimes. Since the Defendants are charged

with intentional torts and not negligence, this changes everything from duty, to breach, to

causation and the scope of recoverable damage. Nebraska law is clear on this issue. See State

ex rel Towle v. Eyen, 130 Neb. 416, 264 N.W. 901 (1936); Bergman by Harre v. Anderson, 226

Neb. 333, 336-37, 411 N.W.2d 336 (Neb 1987).

None of the cases or statutes cited by Defendants offer any comfort to a participant in

a criminal enterprise. In fact all of the leading cases such as Ashley County, Ark. v. Pfizer,

Inc, 552 F.3d 659 (8th Cir. 2009) and City of Chicago v. Beretta U.S.A. Corp., 213 Ill.2d 351,

11


821 N.E.2d 1099 (2004) strongly support the Plaintiff’s case, in that the keystone in each of

those cases is the Courts’ explicit statements that the Plaintiff did not allege the Defendant

violated the law. In this case, the Plaintiff does allege the Defendants all violate the law in that

“all help to maintain” the common nuisance as provided in Neb.Rev.Stat.§ 53-198. And every

Defendant knowingly and actively participates in a criminal enterprise to smuggle alcohol on

to the Pine Ridge Indian Reservation in violation of 18 U.S.C. §§ 1154 & 1156.

The continued conduct of the Defendants in supplying and selling beer in Whiteclay

constitutes the intentional invasion of the interest of the Oglala Tribe.

Sec. 825 - Restatement (Second) of Torts provides:

An invasion of another’s interest in the use and enjoyment of land or aninterference with the public right, is intentional if the actor

(a) acts for the purpose of causing it, or(b) knows that it is resulting or is substantially certain to result from his

conduct.

The comments b and c of Section 825 are informative:

b. The rule here stated applies to conduct that results in a privatenuisance, as defined in § 821D. It also applies, when it is pertinent, to conductresulting in a public nuisance, as defined in § 821B. Most public nuisances involvecriminal liability for intentional interferences with a public right, but in some casesthe intent may have particular importance. Thus a special statute may require that fora particular type of public nuisance the interference with the public right must beintentional; or, under the rule stated in § 908, punitive damages may be recovered bya private individual for harm resulting to him from a public nuisance (see § 821C)only when the defendant’s conduct is intentional and outrageous. When questionsof this nature arise in connection with public nuisance, the rule here stated iscommonly applied.

c. Meaning of “intentional invasion.” To be “intentional,” an invasionof another’s interest in the use and enjoyment of land, or of the public right, need notbe inspired by malice or ill will on the actor’s part toward the other. An invasion soinspired is intentional, but so is an invasion that the actor knowingly causes in thepursuit of a laudable enterprise without any desire to cause harm. It is the knowledgethat the actor has at the time he acts or fails to act that determines whether the

12


invasion resulting from his conduct is intentional or unintentional. It is not enoughto make an invasion intentional that the actor realizes or should realize that hisconduct involves a serious risk or likelihood of causing the invasion. He must eitheract for the purpose of causing it or know that it is resulting or is substantially certainto result from his conduct. For a special application of the general rule of § 826 tothe case in which the actor desires to produce the invasion, see § 829. (Emphasisadded)

The Defendants’ intentional conduct has created an unreasonable situation in Whiteclay and

its intentional continuation of that conduct renders it liable to the Tribe in damages and subject to

an order abating the conduct by injunction.

The Defendants each know to a certainty that virtually every ounce of beer brewed for,

shipped to, and sold out of Whiteclay must be possessed and consumed in violation of one or more

laws. The Defendants have not cited any case that absolves the manufacturers, distributors and

retailers on similar facts. All of their cases discuss negligence-based theories. This is a case of

intent. The leading case relied on by Brewer Defendants, Ashley County, Ark. v. Pfizer, Inc., 552

F.3d 659 (8th Cir. 2009), in the language actually quoted on p. 14 of their brief demonstrates this fact:

“The sale of pseudoephedrine is and was at the time highly regulated, and theDefendants sold their product to legitimate independent retailers”.

All four Retailer Defendants in Whiteclay are not “legitimate” in that virtually every ounce

of alcohol they sell aids and abets the violation of State, Federal and Oglala Sioux Tribal law, and

every Defendant knows this to be true. In Ashley County the vast majority of the pseudoephedrine

went to hundreds if not thousands of retailers spread out throughout the State of Arkansas and

presumably most was sold to folks with stuffy heads. What would the result have been if all of a

vast quantity of pseudoephedrine sold from four stores in a block long town of 11 people was

established to be used to manufacture the methamphetamines which flooded Ashley County and

Pfizer knew that for at least a decade and yet continued to supply it?

13


The vast difference between Ashley County and the facts alleged in this case is even more

apparent in the second quote from the Ashley County opinion as selected and edited by the

Defendants:

The criminal actions of the methamphetamine cooks and those further down theillegal line of manufacturing and distributing methamphetamine are “sufficient tostand as the cause of the injury” to the Counties in the form of increased governmentservices, and they are “totally independent” of the Defendants’ actions of selling coldmedicine to retail stores . . , even if the manufacturers knew that cooks purchasedtheir products to use in manufacturing methamphetamine . . . . Arkansas law will notsupport a conclusion that the “natural and probable consequences,” . . . ofmanufacturers selling cold medicine to independent retailers through highly regulatedlegal channels is that the cold medicine will create a methamphetamine epidemicresulting in increased government services.

Id. at 670-71 (citations omitted).

First, Brewer Defendants are not just making a component of an illegal drug subsequently

manufactured, transported and sold by others. They make the banned substance itself; then

attractively package and transport a heavy, bulky, perishable item that must be cooled for

consumption, to a place which has no location where it can be lawfully consumed and on the very

door step of a jurisdiction that bans it entirely. The equivalent to Ashley County is if the Defendants

made oxycodone, delivered that item in a volume and to a place where they knew it could and would

only be sold, possessed and consumed in violation of the law. This case is clearly distinguishable

from that of Ashley.

For over 130 years the vulnerability of the Native American people to alcohol addiction has

been so well known and understood it was illegal to sell alcohol to a Native American in Indian

Country until 1948. (See e.g. 18 U.S.C. § 1154-Notes of Decisions-Historical). The illegal trade in

alcohol out of Whiteclay exists on the very doorstep of the Pine Ridge Indian Reservation and the

Village of Pine Ridge only through the intentional and daily efforts of each of the named Defendants.

14


The Defendants attempt to argue that they unknowingly supply a simple component, like

sugar to a bootlegger, which is unforeseeably distilled into moonshine. That characterization is far

removed from reality. The illegal use of all alcohol delivered to Whiteclay is not only a “natural

and probable consequence” it is in fact inevitable. Over a decade of publicity ensures that

Defendants each know without a doubt that they are the key components in a criminal enterprise.

(See Exhs. 2, 3, 4, 5 and 6) The Brewer Defendants are the cooks of the banned substance. Without

their manufacturing, transportation, marketing and packaging expertise the illegal trade in alcohol

could not exist in Whiteclay. These Defendants are not independent from the criminal

enterprise, they are the essential and substantial embodiment of it. In Whiteclay, the

systematic violation of the law is essential to the Defendants’ business model.

Look at what the court actually considered in deciding Ashley County. First the Ashley

County court noted as in the analogous gun cases “. . . the counties make no allegation that any

manufacturer violated any federal or state statute or regulation governing the manufacture and

distribution of [pseudoephedrine], and no direct link is alleged between any manufacturer and any

specific criminal act.” Id. at 671 (citations omitted).

In this case Plaintiff alleges each Defendant violated numerous Federal, State and Oglala

Tribal laws and every complained-of illegal act occurred with their very substantial assistance.

On this issue of causation, look at what the Ashley County court actually concluded:

“The intervening causes asserted by the Defendants include: the conduct of theindependent retailers in selling the products; the illegal conduct of methamphetaminecooks purchasing the cold medicine along with numerous other items with the intentto manufacture methamphetamine; the illegal conduct of cooking the items intomethamphetamine; and the illegal conduct of distributing the methamphetamine toothers in Arkansas. The alleged injury is the cost to the Counties of providinggovernment services to deal with the methamphetamine epidemic in Arkansas:expenditures related to law enforcement, inmate housing, treatment, and family

15


services. The question then is whether the intervening causes are the natural andprobable consequences of the Defendants’ sales of cold medicine to retail stores andwhether the Counties’ expenditures for government services to deal with themethamphetamine epidemic “might reasonably have been foreseen [to the coldmedication manufacturers] as probable.” Ashley County, 552 F3d at 668 (citationsomitted.

None of these factors apply in this case. The Defendants take on all logistics of manufacture,

transportation and marketing in the criminal enterprise of illegal sales of alcohol out of Whiteclay.

There are and can be no legal uses for the alcohol sold out of Whiteclay. Relying on analogous gun

cases, the Ashley County court summarized as follows:

“There the city of Philadelphia brought suit against gun manufacturers, alleging thatthe manufacturers’ conduct in the marketing and distribution of handguns allowedthe guns to fall into the hands of criminals, creating and contributing to their criminaluse in Philadelphia”. Id. at 669 (citing City of Philadelphia v. Beretta U.S.A. Corp.,277 F.3d 415, 426 (3rd Cir. 2002) (emphasis supplied).

Here Plaintiff alleges each and every Defendant intentionally puts alcohol into the hands of

every customer buying out of Whiteclay knowing that each customer must possess and consume the

beer in violation of the laws of the United States, Nebraska and the Oglala Tribe. Now if

Philadelphia could have alleged and proven that every gun Beretta manufactured and delivered to

four retailers in a town of 11 on the door step of Philadelphia was knowingly sold to persons who

intended to and in fact then used the guns to commit crimes in that city, and Beretta knew that and

for over a decade continued to supply a huge number of guns to those retailers, what would have

been the result?

The Ashley County court then observed:

“critical to the Third Circuits’ analysis was the ‘long and tortuous’ route the gunstook from the manufacturers, who complied with the law, in selling guns, to thestreets of Philadelphia.” Id at 669.

16


There is no long and tortuous route for the beer in this case. It flows in a high pressure

pipeline from the Brewer Defendants through the Distributors and Retailers onto the Pine Ridge

Indian Reservation where it causes misery of Biblical proportions. A more foreseeable, efficient,

direct delivery system and profitable operation could not be forged, even with all the resources and

ingenuity of American business.

Under various pretexts Defendants argue that causation cannot exist and then quote

negligence formulations. The rule on causation of damages in an intentional crime/tort is far

different and quite simple:

“And where two or more persons unite in a common enterprise is an unlawful one,in which case all are answerable for any injury done by anyone of them, although thedamage done was greater than foreseen . . .” Bergman by Harre v. Anderson, 226 Neb333, 336-37, 411 N.W.2d 336 (1987) (Emphasis added).

See also Tadros v. City of Omaha, 273 Neb. 935, 735 N.W.2d 377 (2007); Gergen v. Western Union

Life Ins. Co., 149 Neb. 203, 30 N.W.2d 558 (1948).

“A plaintiff, however, need not join all tort-feasors as defendants in an actionfor damages. Every joint tort-feasor is liable for all damages to which his or herconduct has contributed, and it is no defense that these damages would not haveoccurred without the concurring misconduct of another person.” Spear T. Ranch,Inc. v. Knaub, 269 Neb. 177, 204, 691 N.W.2d 116, 138 (2005) (citing Battle CreekState Bank v. Preusker, 253 Neb. 502, 571 N.W.2d 294 (1997). (Emphasis added).

Foreseeability, the natural and probable consequence formulations, do not apply to

intentional tortious or criminal acts. As we have seen, Nebraska specifically recognizes this in

the context of liquor sales. See State ex rel. Towle. What the Defendants ask this Court to do is

unprecedented. The Defendants demand in the name of corporate profit, civil immunity when

knowingly and intentionally aiding and abetting the violation of Federal, State and Tribal law, an

activity that is destroying an entire people.

17


V.

DEFENDANTS CAN EASILY STOP THE ILLEGAL USE OF THEIR PRODUCT WITHOUT ANY ADVERSE IMPACT ON THEIR LEGITIMATE BUSINESS

The defendants in Beretta and Ashley County v. Pfizer line of cases all properly claim that

separating the legal user and use of their products, from the illegal was impossible and attempting

to do so would deeply damage their legitimate business. That is absolutely not true in this case. If

the Defendants don’t know and can’t distinguish the 11 individual residents of Whiteclay who might

buy the handful of beer every year that can be legally possessed and consumed, then simply stop all

sales of beer in Whiteclay. Given the statistics this would have no measurable effect on the

legitimate business of Defendants. Such a remedy is expressly authorized by the law of Nebraska.

See State ex rel. Johnson v. Hash, 144 Neb. 495, 13 N.W.2d 716 (1944).

This is an illegal scheme limited to an outlet of four retailers in a small geographically

isolated town and could easily be stopped without any effect whatsoever on Defendants’

legitimate business. The Defendants ask this Court to step in to an abyss. Heretofore, no court

in this country has faced these facts and sanctioned profit over the rule of law.

VI.

NEBRASKA STATUTES DO NOT REQUIRE THE DEFENDANT BREWERS TOVIOLATE STATE, FEDERAL AND TRIBAL LAWS

The Defendant Brewers argue that Nebraska statutes prohibit them from interfering with or

controlling in any way the supply of beer to Whiteclay, even if they know it is being used for a

systematic and immense criminal enterprise.

The idea that certain statutes control and force these Defendants to aid and abet violations

of State, Federal and Tribal law is not credible. If in fact Brewers truly believed they were caught

18


in such a trap, they can and should plead and prove that each notified the Nebraska Liquor Control

Commission, the U.S. Attorney and the Oglala Tribal authorities and asked for guidance and

intervention. Such behavior is routinely required of law abiding citizens who fear they are caught

up in a criminal enterprise and wish to withdraw.

VII.

STANDING

A. Constitutional Requirement

The Plaintiff has alleged injury due to the unlawful conduct of the Defendants in violation

of the Acts of Congress, the tribal ordinance and the Nebraska Statutes, and has asked for relief for

the injuries suffered. Thus, Plaintiff has satisfied Article III of the Constitution which limits the

jurisdiction of the Federal courts to actual cases and controversies. Allen v. Wright, 468 U.S. 737,

751, 104 S.Ct. 3315 (1984), rehearing denied, 468 U.S. 1250 (1984)

B. Standing of Tribe to Sue

Each of the moving Defendants concede that an Indian Tribe can have standing to protect its

own interest or in appropriate situations the interest of its members through third party standing

called “parens patriae” action. Delorme v. United States, 354 F.3d 810 (8th Cir. 2004).

C. Tribe as Parens Patriae

The Oglala Tribe is acting on behalf of all its members in filing a suit designed to stop the

violation of its reservation border by the import and consumption of alcohol in the reservation in

violation of tribal laws, and thus is entitled to litigate in its capacity as parens patraie.

The case of Kickapoo Tribe of Oklahoma v. Lujan, 728 F.Supp. 791 (D.D.C.1990),

illustrates when the plaintiff is representing part but not all of an Indian tribe and therefore cannot

19


appear and litigate as parens patriae. The difference from this case is apparent. Each member of the

Tribe whether on the reservation or not has an interest in the rule of law and upholding tribal law.

Again in U.S. v. Santee Sioux Tribe of Nebraska, 254 F.3d 728 (2001) garnishment

proceedings by the United States were not subject to attack by the tribe in its capacity as parens

patriae, since the funds attempted to be garnished were not shown to belong to the tribe. The Santee

Sioux Tribe case is clearly distinguishable from the present case in which the Oglala Tribe brings

an action on behalf of all members in its sovereign capacity.

The case of State of Louisiana v. State of Texas, 176 U.S. 1, 20 S.Ct. 251, 44 L.Ed. 347

(1900) and other cases cited by the Defendants are equally distinguishable from the present case as

stated above, i.e., attempt to establish rights of a dozen or so members of the tribe as representing

the entire tribe in Navajo Nation v. Superior Court of State of Wash. For Yakima County, 47 F.

Supp.2d 1233 (E.D. Wash. 1999) is also greatly different from the facts in this case.

In order to maintain a parens patriae action, the state must express quasi sovereign interests -

a state has a quasi sovereign interest in the health and well being, both physical and economic, of its

residents in general. Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel. Barez, 458 U.S. 592, 102

S.Ct. 3260 (1982).

The Plaintiff submits it has standing in it sovereign capacity to bring this action, since it

represents the effort to protect all of the Tribe’s territory and uphold and enforce the boundary and

laws of the reservation for the benefit of the entire Oglala Tribe, and indeed all residents of the Pine

Ridge Indian Reservation.

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The state’s interest in the health, comfort and welfare of the people and the general economy

is sufficient to support it action as parens patriae. See State of West Virginia v. Charles Pfizer &

Co., 440 F.2d 1079 (2nd Cir. 1971).

D. The Tribe has Standing in its Individual Capacity

The Oglala Tribe has incurred expenditures for public safety, for health and additional

expenses, all caused by and directly related to Defendants’ intentional and illegal sale of alcohol.

The Oglala Tribe has and continues to expend funds for law enforcement due to the illegal

importation of alcohol onto the reservation. The Tribe suffers damages in attempting to pay for

treatment for addiction, diabetes, as well as the personal injuries resulting from alcohol induced

accidents and domestic violence. Each and every expenditure is directly related to and proximately

caused by the alcohol illegally furnished by the Defendants.

In support of its claim for relief the Plaintiff has alleged:

1) The Defendants intentionally manufacture or supply alcohol to the distributors and

retailers which cannot be legally consumed either in Nebraska or the tribal lands.

2) The Defendants at all times knowingly and intentionally provide alcohol for

importation to the tribal lands where both possession and consumption is illegal.

As will be seen in subsequent sections of this brief, the case law strongly supports the claims

of the Oglala. Unlike Ashley County, Ark. v. Pfizer, Inc., 552 F.3d 659 (8th Cir. 2009), where the

pseudoephedrine was legally sold to pharmacies and thereafter to individual purchaser who used the

drug for illegal purposes, the manufacture; and distribution for licensee sale of alcohol at Whiteclay

is at all times illegal. The sale of 4.3 to 4.9 million cans of beer a year in a community with 11

residents next to a dry Indian reservation, can only lead to one conclusion; that at all times the

21


Defendants knew that the beer would be illegally consumed in Whiteclay, Nebraska and/or illegally

imported to Indian country.

The injury to the Oglala Sioux Tribe, law enforcement and resulting financial damage is

proximately caused by the knowing and intentional acts of the Defendants and is so pled and

plausible on its face.

The Courts in Ashley, Chicago v. Beretta and City of New York v. Beretta U.S.A., Corp.

(infra) all found that common law nuisance pleading could provide a sufficient theory of recovery,

so long as proximate cause was established. Here no such difficulty is present because of the

Nebraska statutes, the intentional actions of Defendants and the unique facts of Whiteclay. Thus,

the Tribe has standing to sue the Defendants in its individual capacity.

E. The Tribe owns the Right to Sue for the Damages caused by the Defendants’ Action

Some Defendants argue that this case is in fact a subrogation claim and therefore the Plaintiff

cannot maintain the action. The doctrine of parens patriae in nuisance actions specifically

overcomes this objection. This is an action for an intentional invasion of a soverign nation, public

nuisance, not a single tort like negligence in a car wreck. The Oglala Tribe owns the causes of

action. The case cited by Defendants dealt with the third party payer who did not own the products

liability claim against the tobacco companies along with damages. Republic of Venezuela ex rel.

Garrido v. Philip Morris Companies, Inc., 827 So.2d 339 (Fla.App. 2002). To compare this action

to cases of insurers of a single victim in a single event is at the least disingenuous. Nebraska’s

statutes specifically authorize this suit as does the extensive common law as discussed in this brief.

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F. The Prudential Standard Strongly Supports Federal Action in this Case

In Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601 (1979)

the question was whether the community’s interest in preventing intentional segregation was

sufficient to satisfy the requirement that the plaintiff’s interest must at least be arguably within the

zone of interest to provide standing.

In reversing the trial court and holding the Village had standing, the Supreme Court discussed

the interest of the Village in challenging certain practices. “In addition to claiming the loss of social

and professional benefits . . . convincing evidence that the economic value of one’s home has

declined as a result of the conduct of another certainly is sufficient under Article III to allow standing

to contend the legality of that conduct.” Id. at 114.

The Court will note the similarity of the holding of the U.S. Supreme Court and the

allegations of the Plaintiff’s Complaint, respecting the damage to the value of land on the Pine Ridge

Indian Reservation.

Here, unlike Schleisinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S.Ct.

2925 (1974) where the court denied standing, this Court is called on to decide real issues of injury

and damage caused by illegal conduct, and not abstract questions of public significance. In this case

given the State of Nebraska’s absolute refusal to act, it would be positively imprudent for this Court

to tolerate the massive and ongoing violations of Nebraska, Federal and Oglala Sioux Tribe law,

where other governmental institutions have refused to address the question.

The Plaintiff submits the action of the Oglala Tribe is properly before the Court and satisfies

the Article III standard, the prudential standard due to the injury to the Tribe in its individual capacity

and as parens patriae.

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The integrity of Federal law is directly at issue in this case. Congress gave to the Indian

Tribes the power to determine whether and if alcohol could be sold and consumed on their territory.

The Oglala Tribal Council has clearly exercised that power to outlaw all alcohol on the Pine Ridge

Indian Reservation. (See Exh. 1). The Defendants are charged with knowingly and intentionally

providing substantial, indeed essential, assistance to those who violate these laws.

The State of Nebraska has abdicated its responsibility to enforce liquor laws in Whiteclay.

In addition to Attorney General Bruning’s statement that enforcement of existing law would simply

move the problem to communities 18 and 30 miles away (See Exh. 2), the Legislature refused to act

for the same reason. (See Exh. 3). Defendants seek to capitalize on this reprehensible refusal to act

(as they have profited from it for so many years) by claiming that no one except the State and Liquor

Control Commission can enforce these laws. The Defendants again misstate the law.

G. A Private Party can Enforce Nebraska Law when acting Ex Rel.

The Plaintiff has demonstrated that it has suffered injuries in fact, a casual connection

between the Defendants’ conduct and the injury and that the injury will be redressed by a favorable

decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130 (1992).

The Attorney General of Nebraska is designated as an executive officer under Article V

Section 1 of the Nebraska Constitution and as head of the Department of Justice in charge of “all

actions and legal proceedings” of the State. Neb.Rev.Stat. § 84-202.

Nevertheless, there exists in Nebraska the well recognized practice of private Attorney

General, where actions are undertaken in the name of the State on the relation of a private citizen or

organization. The classic example are the cases entitled State ex rel Nebraska State Bar

Association. It is entirely conceivable and allowable under the Private Attorney General practice,

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to take actions in the name of the State, as the Oglala Tribe is doing in this action; whether or not

the Attorney General agrees with the action. The authority of the Tribe to so act is expressly

acknowledged in the case law of Nebraska. See Powers v. Flansburg, 90 Neb. 467, 133 N.W. 844

(1911).

The practice in Nebraska is similar to neighbor South Dakota, where the Court held:

An individual in his capacity as a resident and taxpayer may invokeprerogative jurisdiction of Supreme Court by and for the state where the sovereigntyof the state or its franchises or prerogatives or the liberties of the people have beenor are about to be infringed, even though Attorney General refuses to bring action orconsent to its institution. State ex rel. Grigsby v. Ostroot, 75 S.D. 319, 324, 64N.W.2d 62 (1954).

In effect, the Defendants here demand that this Court acknowledge that because the State of

Nebraska refuses to enforce its laws, they have the right to operate a safe haven supply depot for

criminals ideally located only 250 feet from the Pine Ridge Indian Reservation and within walking

distance of its only significant population center, the Village of Pine Ridge. (See Exh.7 and 8) That

arrangement mocks the congressional grant of authority. It is profoundly ironic that the State of

Nebraska demands the same sovereign right it so openly denies to the Oglala Sioux Tribe by refusing

to enforce its own laws on the sale of beer out of Whiteclay. See Neb.Rev.Stat § 53-192 which

controls the entry of all liquor and beer into the state. The Defendants argue that the failure, and

indeed refusal of Nebraska to enforce its law insulates them from liability for violating Federal law.

This is a staggering and unprecedented challenge to the supremacy of Federal law.

When Federal authority is so brazenly challenged, the rule of law depends on an effective

remedy. Accordingly, prudence demands the exercise of jurisdiction in this case.

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VIII.

PERSONS ACTING IN CONCERT

Transportation into, possession and/or distribution of alcohol in the Pine Ridge Indian

Reservation is a serious crime with a penalty of up to a year in prison and a $100,000.00 fine. It is

also a civil wrong or tort under Oglala Tribal law. Every day for years the Retailer Defendants have

sold beer to persons who they know live on the Pine Ridge Indian Reservation. Every day for years

they have watched these same people load cars and trucks with beer and drive back onto the Pine

Ridge Indian Reservation. In fact, the Retailer Defendants have essentially no customers other than

residents of the Pine Ridge Indian Reservation. Almost always, a dozen or more residents of the

Pine Ridge Indian Reservation are to be found drinking or passed out, some lying in their own urine,

on the sidewalks, streets and vacant lots of Whiteclay. (See Exh. 3) Frequently they stumble back

into the Pine Ridge Indian Reservation with alcohol in their blood (a violation of the law) and create

havoc due to their inebriation. Neb.Rev.Stat § 53-198 simply codifies the common law by holding

all persons who help maintain the nuisance as violators of the law.

The Restatement (Second) of Torts succinctly outlines the approach the law has taken to deal

with situations such as Whiteclay:

Sec. 876. PERSONS ACTING IN CONCERT

For harm resulting to a third person from the tortious conduct of another, one issubject to liability if he(a) does a tortious act in concert with the other or pursuant to a common design withhim, or (b) knows that the other’s conduct constitutes a breach of duty and gives substantialassistance or encouragement to the other so to conduct himself, or ( c) gives substantial assistance to the other in accomplishing a tortious result and hisown conduct, separately considered, constitutes a breach of duty to the third person.

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Nebraska has adopted this rule for torts in general and not just the creation of a nuisance under Neb.

Rev.Stat. § 53-198. In Bergman v. Anderson, the Nebraska Supreme Court held:

“Plaintiffs-Appellants invoke the settled principles of law covering concertedwrongful action: that in addition to persons who actually participate in an assault andbattery, persons who aid, abet, or procure the commission thereof, are subject to acivil action therefor; that on the theory that the act of one is the act of all, the rule ofjoint and several liability of tort feasors prevails where the tort feasors act in concertor unity of action, and, therefore, applies to tort feasors who intentionally unite in thewrongful act or who are present, assist, or participate therein; and that where two ormore persons engage in a common enterprise is an unlawful one, in which case allare answerable for any injury done by any one of them, although the damage donewas greater than was foreseen or the particular act done was not contemplated orintended by them.

Thompson v. Johnson, 180 F.2d 431, 433-34 (5th Cir.1950). See Prosser andKeeton on the Law of Torts, Joint Tortfeasors § 46 (5th ed. 1984). As a general rule,one who counsels, commands, directs, advises, assists, or aids and abets anotherindividual in commission of a wrongful act or tort is responsible to the injured partyfor the entire loss or damage. See, Dickinson v. Lawson, 125 Neb. 646, 125 N.W.656 (1933); 74 Am.Jur.2d Torts § 66 (1974). See, also, Acree v. North, 110 Neb. 92,192 N.W. 947 (1923); Cooney v. Burke, 11 Neb. 258, 9 N.W. 57 (1881) .”

Bergman by Harre v. Anderson, 226 Neb. 333, 336-37, 411 N.W.2d 336 (1987) (Emphasis

added).

Any number of usually lawful acts can render the donor liable for assisting in a crime or tort.

The act of selling diesel fuel and fertilizer is perfectly legal and innocent, unless the vendor knows

the buyer intends to blend the two to make a bomb. Handing over a baseball bat, not on the diamond

but in an alley to be used as a weapon is another example. Context and mental state readily

transform the lawful into the tortious and criminal.

Normally one who sells beer to an of age apparently sober person has every reason to believe

the product will be possessed and consumed lawfully. The vast majority of beer sales in the United

States fit this fact pattern, even if, in some cases, the beer is subsequently illegally resold to minors.

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This was the point of Ashley County and Chicago v. Beretta et al. There the defendants could not

reasonably separate the illegal from legal uses to which their product would be put when it left their

control.

Sales of beer in Whiteclay are, however, unique in that no reasonable belief can exist

on the part of any Defendant that the product could possibly be used in accordance with the

law. Simple demographics and geography, not to mention the streams of people returning to the

Pine Ridge Indian Reservation with the just sold beer in tow, make it certain that virtually all alcohol

is possessed and consumed in violation of one or more laws.

The equivalent in Nebraska would be a retailer selling vast amounts of beer to an adult only

to watch him resell the beer to minors in the parking lot and then returning day after day, year after

year, to resupply and resell to minors. No one would tolerate such brazen violations of law, and yet

Whiteclay remains open for business.

How often do the Retailer Defendants see their customers violate the law with the beer?

Simple math reveals in some years on average over 13,000 twelve-ounce servings of beer are sold

each day in Whiteclay. All of it illegally consumed in public or illegally smuggled and resold on the

Pine Ridge Indian Reservation. Normally the Distributors and Brewer Defendants also could not

reasonably be accused with assisting in the illegal sale of alcohol because in the vast majority of

situations they fairly believe their product is being sold, possessed and consumed in accordance with

the law. Not in Whiteclay.

The publicity surrounding Whiteclay and its vast illegal sales of beer has been extensive and

damning and precedes the filing of this suit. For over a decade, news reports, legislative hearings,

sit ins and road blockades, along with other events, have given all Defendants notice of the illegal

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use of the beer sold out of Whiteclay. (See Exhs. 4, 5, and 6). There is an award winning

documentary “The Battle for Whiteclay” that was filmed over six years ago. A website advertises

this film and its creators have traveled far and wide showing it to audiences. This film graphically

depicts the reality of Whiteclay. National news shows such as 20/20 have done stories on Whiteclay

before this suit was filed. The New York Times and preeminent newspapers have covered the matter

and yet the beer continues to flow. (See Exhs. 3, 7 and 8)

In short there is nothing more that could have been done in the way of drawing the attention

of the entire world, and along with it the Defendants, to Whiteclay and the illegal trade in alcohol.

The Defendants’ mental state judged under the standard “knew or should have known” certainly rises

to a level that supports this cause of action.

There can be no reasonable debate that the activity to which the Defendants have given

substantial assistance and encouragement is condemned by public policy and constitutes a breach

of duty. (See Neb.Rev.Stat. § 53-198). Like hazing and assault and battery, smuggling alcohol onto

the Pine Ridge Indian Reservation is a serious crime. 18 U.S.C. § 1161 et seq. Without the brewing,

distribution and marketing support of these Defendants, the illegal trade in alcohol out of Whiteclay

could not exist. This squarely falls within the Restatement’s iteration of the cause of action.

Whether one chooses the statutes or common law of Nebraska, the law of the Oglala Sioux

Tribe, or the United States, the basic tenets of the Restatement apply because the alcohol sales at

Whiteclay violate the law of all three jurisdictions. As the Restatement, Prosser on Torts, and the

Nebraska Supreme Court observe: the law on this issue is well settled.

A. Defendants’ Aid and Abet and Act in Concert with Every Tort and Crime Committedby Those Whom They Supply with Alcohol in Violation of the Law

The sum of these abusive, dangerous and destructive acts is characterized by Nebraska law

29


as a “nuisance”. The specific crimes/torts which combine to become a nuisance include assaults,

batteries, driving while intoxicated, public indecency, disturbing the peace and many others.

The Defendants argue that there is no underlying tort so the doctrine of persons acting in

concert cannot apply. This is inaccurate on many levels. First, the sale of alcohol by Defendants to

persons who possess it in violation of the Liquor Control Act is a common nuisance and each of the

Defendants who have maintained that common nuisance have as a matter of Nebraska law acted in

concert with the purchasers to create a public nuisance. (Neb.Rev.Stat. § 53-198).

Second, Oglala Tribal law does not have any dram shop protection for sellers of alcohol. The

allegations of the Complaint are quite clear that the Defendants, are actually making sales into the

Pine Ridge Indian Reservation through agents who complete the sale by delivery of the product. All

of the injuries fueled by this illegal trade, injuries from driving while intoxicated, assaults, rapes,

etc., whether or not foreseeable to Defendants, are recoverable. (See e.g. Bergman v. Anderson,

infra).

Third, the Defendants by selling alcohol to residents of the Pine Ridge Indian Reservation

whom they know are taking alcohol on to the reservation are providing material assistance and

encouragement to the creation of a nuisance in Oglala territory.

Fourth, much of the alcohol sold by Defendants is to minors. Both Nebraska and the Oglala

laws do allow suits against the sellers of alcohol to minors for injuries caused by such intoxicated

minors. See Neb.Rev.Stat. § 53-404.

IX.

CIVIL CONSPIRACY

The pleadings allege that the Defendants’ mental state rises to a level establishing an actual

30


agreement to violate the law. Such agreement may be inferred from the parties conduct. Though

perhaps unnecessary in light of the less stringent requirements of Persons Acting in Concert, this

cause of action is well supported by the flagrant longstanding behavior of all Defendants involved

in the alcohol trade out of Whiteclay.

In Nebraska “a civil conspiracy is a combination of two or more persons acting in concert

to accomplish an unlawful or oppressive object, or a lawful object by unlawful or oppressive means.

A party does not have to prove a civil conspiracy by direct evidence of the acts charged. It may be

proved by a number of indefinite acts, circumstances which vary according to the purpose to be

accomplished. Furthermore, a civil conspiracy is only actionable if the alleged conspirators actually

committed some underlying misconduct”. Ashby v. State, 279 Neb. 509, 526, 779 N.W. 2d 343

(2010).

As pointed out elsewhere in this brief, in spite of the scandalous situation in Whiteclay, of

open and notorious violation of the Nebraska Liquor laws, Federal law and the rights and law of the

Oglala Tribe, as the Court reads the Brewer Defendants continue to brew and market, the Distributor

Defendants deliver and the Retailer Defendants sell beer for open and notorious illegal consumption

and possession.

The conduct of the Defendant conspirators amounts to an intentional tort of harm to the

Plaintiff as well as the imposition of a private and a public nuisance.

One myth pushed by the Defendants that must be dispatched is their contention that since the

sale and purchase of beer in Nebraska is “legal”, the Defendants cannot be held responsible for the

violation of law when it is smuggled into the Pine Ridge Indian Reservation. As has been seen, this

is clearly wrong as a matter of Nebraska law. These sales are not legal in Nebraska. In addition it

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is Federal and Oglala Sioux Tribe law that primarily is the target of the Defendants’ actions, though

Nebraska law is also violated in the process.

The United States Supreme Court upheld a wire fraud conviction of defendants who quite

legally obtained liquor in Maryland, paying very little tax and then placed it in the hands of others

to smuggle into Canada, where it would be sold at great profit by means of evading the much higher

tax on alcohol. Pasquantino v. United States, 544 U.S. 349, 125 S.Ct. 1766 (2005).

After a long discussion of the Revenue rule (whether the use of the wire fraud statute was the

improper enforcement of another sovereigns tax laws through the Federal Courts) the conviction was

upheld. No member of the Court even appeared to question that supplying alcohol to others to

smuggle into another jurisdiction in violation of its laws could constitute a criminal act. This was

true even though the defendants themselves simply supplied a legally obtained product and hired

others to carry across the border to Canada:

Petitioners Carl J. Pasquantino, David B. Pasquantino, and Arthur Hilts were indictedfor and convicted of federal wire fraud for carrying out a scheme to smuggle largequantities of liquor into Canada from the United States. According to the evidencepresented at trial, the Pasquantinos, while in New York, ordered liquor over thetelephone from discount package stores in Maryland. See 336 F.3d 321, 325 (C.A.42003) (en banc). They employed Hilts and others to drive the liquor over theCanadian border, without paying the required excise taxes. Ibid. The drivers avoidedpaying taxes by hiding the liquor in their vehicles and failing to declare the goods toCanadian customs officials. Id., at 333. During the time of petitioners’ smugglingoperation, between 1996 and 2000. Canada heavily taxed the importation ofalcoholic beverages. See 1997 S.C., ch. 36, §§ 21.1(1), 21.2(1); Excise Act Schedule1.(1), R.S. C., ch. E-14 (1985); Excise Act 2001, Schedule 4, ch. 22, 2002 S.C. 239. Uncontested evidence at trial showed that Canadian taxes then due on alcoholpurchased in the United States and transported to Canada were approximately doublethe liquor’s purchase price.

In this case it is the Defendants who are knowingly, and for great profit, providing alcohol

to persons to smuggle it into the Pine Ridge Indian Reservation. A six pack of beer costs more in

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Whiteclay than in Manhattan, New York (See Exh. 3). The Supreme Court in Pasquantino even

upheld a compensatory award to Canada under the Mandatory Victims Restitution Act of 1996, 18

U.S.C. §§ 36.63 A(c)(1)(A)(ii) id at p. 364. The parallel to this case could not be closer.

Evaluating the scheme to smuggle alcohol in this case is not hampered by the common law

revenue rule or the presumption against extraterritoriality which so occupied the Supreme Court in

Pasquantino. The importance of Pasquantino is that it should explode any notion that alcohol legally

obtained in one jurisdiction, placed in the hands of another to smuggle across the border in violation

of the laws of the second jurisdiction, cannot be a crime committed by the person who provided the

alcohol but never crossed the border. Here, of course, the scheme is to violate the law of the United

States by smuggling beer into protected Indian Country.

Various Defendants have argued that the Complaint is deficient because it does not name the

individual purchasers of beer (to whom the Defendant sold) who brought the beer into the Pine

Ridge Indian Reservation or otherwise violated the law. Plaintiff clearly alleges that every single

purchaser of beer in Whiteclay must inevitably violate the law in possessing and consuming the beer.

The Defendants have each individually contributed to and collectively created the illegal trade and

resulting nuisance and each is individually liable for all resulting damages.

“A plaintiff, however, need not join all tort-feasors as defendants in an actionfor damages. Every joint tort-feasor is liable for all damages to which his or herconduct has contributed, and it is no defense that these damages would not haveoccurred without the concurring misconduct of another person.” Spear T. Ranch,Inc. v. Knaub, 269 Neb. 177, 204, 691 N.W.2d 116, 138 (2005) (citing Battle CreekState Bank v. Preusker, 253 Neb. 502, 571 N.W.2d 294 (1997). (Emphasis added).

This is more than sufficient notice under the Federal Rules of Civil Procedure.

Similarly, these Defendants argue the Complaint does not allege the times and sales that

33


violate the law. This too is not true. As alleged, every sale, made on every day, at every moment

furthers the illegal trade in alcohol. Plaintiff contends that statistically every sale of beer in

Whiteclay furthers the conspiracy to illegally smuggle alcohol into the Pine Ridge Indian

Reservation. Again the pleadings could not be more complete, specific or plausible on its face.

This more than complies with the Federal Rules regarding an adequate pleading.

X.

PUBLIC NUISANCE UNDER THE COMMON LAW

In an opinion of great scholarship, Judge Weinstein took up the question of nuisance in City

of New York v. Beretta U.S.A. Corp., 401 F.Supp.2d 244 (E.D. N.Y. 2005). He wrote without the

aid of a statute like Neb.Rev.Stat § 53-198. And though this decision was ultimately reversed on

other grounds, the basis of the Circuit Court’s opinion (see City of New York v. Beretta U.S.A.

Corp., 524 F.3d 384 (2nd Cir. 2008)) and the host of similar “gun” cases actually strengthens its

precedential value in the matter of Whiteclay. The Circuit Court found that an action could not be

maintained against gun manufacturers because of specific legislation passed by Congress protecting

them from suit except when plaintiffs could prove they had violated state or federal law in their sales

and marketing practices. Id. at 524 F.3d at 401-03. No such law protects these Defendants and yet

multiple violations of law is exactly what Plaintiff has pled and will prove. And in this case there

is specific legislation actually protecting the Pine Ridge from beer manufacturers, distributors and

retailers. (See Exh. 1 and 18 U.S.C. § 1161). There are also state laws against drinking in public,

a retailer selling beer for resale and selling to visibly intoxicated persons. (See Neb.Rev.Stat. §§ 53-

186, 53-186.01 and 53-190) Thus, Judge Weinstein’s opinion remains very persuasive.

In Beretta, Judge Weinstein determined the City of New York had sufficiently pled facts to

34


support a cause of action for public nuisance. Essentially New York claimed that the gun

manufacturers, allowed and even encouraged, an excessive sale of fire arms in jurisdictions such as

Virginia when they knew or should have known a certain percentage of those weapons would be

imported into and resold in New York City.

The facts establishing knowledge on the part of Defendants pled in this case are far more

compelling than that available to the City of New York. In light of decades of watching customers

take beer sold to them immediately across the border into the Pine Ridge Indian Reservation, no

Retailer Defendant can reasonably deny actual knowledge of the illegal use of virtually every beer

it sells. As for Brewer and Distributor Defendants, the hearings of the Legislature and actions of

then Governor Johanns in 2001 and other attendant publicity make it impossible that these

Defendants did not know of the illegal trade of their product. (See Exhs. 4, 5 and 6)

The injury to the public in its right to safely use public streets, sidewalks, and parks of the

Pine Ridge Indian Reservation is far more serious and more widespread than that suffered by the

citizens of New York. As pled, up to 90 percent of all arrests on the Pine Ridge Indian Reservation

are caused in whole or part by alcohol. The Court should compare those allegations with the

statistics for handgun violence as pled by the City of New York.

The damage done to the Oglala Tribe, which is responsible for the health and welfare of its

members by the illegal trade in alcohol, is astronomical. It is in fact far more devastating on a per

capita basis than anything the City of New York could plead in Beretta.

The nexus of the actions of Defendants to the illegal importation is far closer in this case than

that of the defendants in Beretta. The Defendants’ ability to continue to conduct their lawful

business while halting the illegal trade of alcohol out of Whiteclay is infinitely greater than the

35


defendant gun manufacturers in Beretta. Whiteclay is one small, very isolated geographical location.

Beer is a bulky non-durable good that must be regularly delivered in great volume to Whiteclay by

Defendants. Only four “retailers” operate out of Whiteclay. The gun manufacturers by contrast were

charged with controlling hundreds of dealers, in numerous states selling small portable products with

a “useful” life of decades. Being held responsible for the use of a hand gun by a criminal years after

a sale to a different, apparently law abiding person could not be more factually different than beer

sales in Whiteclay. The culpability of Defendants in creating this nuisance is therefore far greater

than those in Beretta.

One of the red herrings raised by Defendants is the notion that these legal theories are

unprecedented. Nothing could be further from the truth. The venerable Prosser observed:

It became fixed in the law as early as the thirteenth century with thedevelopment of the assize of nuisance, which was a criminal writ affording incidentalcivil relief, designed to cover invasions of the plaintiff’s land due to conduct whollyon the land of the defendant. This was superseded in time by the more convenientaction on the case for nuisance, which became the sole common law action. Theremedy was limited strictly to interference with the use or enjoyment of land, andthus was the parent of the law of private nuisance as it stands today.

Parallel with this civil remedy protecting rights in land, there developed anentirely separate principle, that an infringement of the rights of the crown, or of thegeneral public, was a crime. The earliest cases appear to have involved purprestures,which were encroachments upon the royal domain or the public highway, and mightbe redressed by a suit by the crown.Prosser on Torts at p. 617-618 (5th Ed.)

The concept of the irresponsible supply of intoxicants giving rise to an action for public

nuisance in this country is over a century old. See e.g. Cranford v. Tyrrell, 128 N.Y. 341, 28 N.E.

514 (1891), and the host of previously cited Nebraska cases. As we have seen, Ashley County v.

Pfizer also strongly supports Plaintiff’s case. And of course Nebraska statutes adopt and re-enforce

the common law.

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The Defendants’ misconception of the law of nuisance is particularly apparent after even a

brief review of Nebraska statutes. The Defendants’ actions take place both in Nebraska and in the

Pine Ridge Indian Reservation. The damage from the misuse of the Whiteclay land is suffered in

the Pine Ridge Indian Reservation.

Nebraska could not be more clear that the Defendants’ use of the Whiteclay land is a

nuisance because it is specifically described as such in Neb.Rev.Stat.§ 53-198. How then can it be

seriously argued that the activities of Defendants in Whiteclay do not constitute a nuisance?

A. The Defendants Actions create a Nuisance Per Se

Nebraska statutes expressly state that consumption of alcohol in an unlicensed public place

is unlawful. Neb.Rev.Stat.§ 53-186.01. And any places selling alcohol in violation of § 53-186.01

are declared a common nuisance. Neb.Rev.Stat. § 53-190. Unfortunately a nuisance that in this case

the State of Nebraska is content to let continue as long as the deaths, crime and misery are left in

Pine Ridge Indian Reservation but the tax revenue comes back to Lincoln. What is unprecedented

is the vast scale of the problem at Whiteclay. It is the volume of beer, the decades of abuse, and the

resulting abject human misery, along with vast publicity that indicts the Defendants in this case.

B. Nebraska Law Expressly Permits a Private Cause of Action for Damages arising fromIllegal Sales of Alcohol

It is difficult to read the Defendants’ blatant misstatement of the law of Nebraska. In addition

to the nuisance cases already discussed, Nebraska in fact does allow a private cause of action against

those who provide alcohol to a class of persons who cannot legally possess or consume it. In

Neb.Rev.Stat. § 53-404 the Legislature specifically allowed claims, filed by those injured by minors

who purchased and consumed alcohol. This would include suits filed by adults and others injured

by such sales against the providers of that alcohol. As pled, many of the injuries caused to the Oglala

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Tribe were caused by alcohol provided by Defendants and their co-conspirators to minors. Nebraska

law specifically permits such suits.

Moreover, all of the persons physically present on the Pine Ridge Indian Reservation are a

protected class both prohibited from possessing or consuming alcohol and legally entitled to be free

from its effects, yet the Defendants deceptively argue that the public policy under Nebraska law

prohibits this lawsuit. When in fact Nebraska public policy strongly supports it. (See Neb.Rev.Stat.

§ § 53-198 and 53-404)

C. Official Admission that Whiteclay is a Public Nuisance

What is perhaps the most convincing evidence of the nuisance created by the Defendants’

activities in Whiteclay is the response of the State of Nebraska. The Attorney General and the

Unicameral have candidly stated that they do not want to correct the problem at Whiteclay because

the nuisance and devastation might move to Rushville and Chadron. Even a lobbyist for the grocers’

association, which would include Retailer Defendants, agreed on this point. (See Exhs. 2, 4 and 5).

It is callous to allow the crime and devastation caused by this illegal trade in and around the Pine

Ridge Indian Reservation while Nebraska receives approximately $500,000.00 per year in tax

revenue from Whiteclay.

D. The Law of the Oglala Sioux Tribe must be Applied

Another legal sleight of hand by Defendants must be exposed. The object of the conspiracy

as alleged is to deliver alcohol on to the Pine Ridge Indian Reservation in violation of the Oglala

Sioux Tribal and Federal law where it causes enormous damage. Why Nebraska’s alleged law on

dram shop liability should control on the Pine Ridge Indian Reservation is a question that is never

addressed by the Defendants. The action is clearly permitted by Neb.Rev.Stat. § 53-198. The Oglala

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Sioux Tribe certainly affords no protection for purveyors of alcohol. It is its law that must be

considered because, as alleged, the sales and damages actually occur in large part on the Pine Ridge

Indian Reservation.

Another canard by Defendants, argued as an issue of causation, is that the Oglala Tribe is

improperly trying to lay blame and responsibility for the actions of tribal members on others. First,

it must be noted that no individual Tribe member is a Plaintiff in this action. Instead the Oglala

Tribe is seeking to enforce its laws, on its lands, to protect all residents on the Pine Ridge Indian

Reservation, (whether or not tribal members) from the devastation caused by alcohol. Second,

Nebraska statutes expressly reject this desperate effort to dodge responsibility in Neb.Rev.Stat. § 53-

198 and State ex rel. Towle v. Eyen, 130 Neb 416, 264 N.W. 901 (1936).

President Calderon of Mexico and other leaders recently called on the United States to

legalize drugs such as heroin, cocaine and methamphetamines. He stated that the problem is one of

consumption by the United States citizens, not production. Americans of all persuasion properly

resent the idea that because some of our citizens violate the drug laws, the entire country should be

estopped from enforcing its laws. This includes civil forfeiture and other actions for damages

brought against those who profit from breaking our laws. The idea that we must accept the abuse

of addictive substances and the resulting social havoc is an affront to our sovereignty. So too the

Oglala Tribe. (See Exh. 6)

It is also argued by Defendants, some times out loud and often by implication, that the Oglala

Tribe is at fault for creating Whiteclay by outlawing alcohol on the Pine Ridge Indian Reservation.

History will attest that no people have suffered more from consumption of any potentially addictive

substance than Native Americans have from alcohol. It is extremely rational, then, that the Oglala

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Sioux Tribe should choose to outlaw alcohol from the Pine Ridge Indian Reservation.

XI.

PRIVATE NUISANCE

The Oglala Sioux Tribe owns land near Whiteclay and its value is reduced due to the illegal

beer sales out of Whiteclay. The Nebraska Court of Appeals has defined private nuisance:

A private nuisance is a nontrespassory invasion of another’s interest in the private useand enjoyment of his or her land.

One is subject to liability for a private nuisance if, but only if, his or her conduct isa legal cause of an invasion of another’s interest in the private use and enjoyment ofland and the invasion is intentional and unreasonable.

An intentional invasion of another’s interest in the private use and enjoyment of landexists when an actor purposefully causes the invasion, knows that the invasion isresulting from the actor’s conduct, or knows that the invasion is substantially certainto result from the actor’s conduct.

Stephens v. Pillen, 12 Neb.App. 600, 606-06, 681 N.W.2d 59 (2004) (citationsomitted).

In this case the Defendants have unleashed a flood of alcohol across the border in to the Pine

Ridge Indian Reservation rather than hog stench as in the Stephens. The standards are, however, apt

in this matter. Given the allegations, a plausible cause of action under this theory has been pled.

The Court should note that economic development in Pine Ridge and other Tribal lands near

Whiteclay is extraordinarily difficult due to the multiple ills that attend the illegal sales of alcohol.

The proximity of Whiteclay to the Village of Pine Ridge where the intoxicated walk back and

unleash havoc on the community is well pled and beyond reasonable dispute This is a classic

nuisance case recognized for centuries in the law. Thus the value, use and enjoyment of the Tribe’s

land is greatly diminished by Defendants’ actions.

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XII.

ELIMINATING UNLAWFUL BEER SALES IN WHITECLAY WILL DRAMATICALLYREDUCE THE DEVASTATING PROBLEMS CAUSED BY ALCOHOL ON THE PINERIDGE INDIAN RESERVATION.

Whiteclay supplies 4.3 to 4.95 million cans of beer a year or approximately 13,000 cans of

beer a day, to the Pine Ridge Indian Reservation. Stopping that vast amount of alcohol will have an

immediate, dramatic and positive impact on the Oglala people. Alcohol from Whiteclay enters the

Pine Ridge Indian Reservation in two ways.

First, many of the Pine Ridge Indian Reservation residents who buy beer at Whiteclay walk

into the Village from Pine Ridge which is located nearby. They do not own a car. These residents

then buy beer and drink it in public thereby violating Nebraska law. Those who sell them the alcohol

create a per se public nuisance. (See Neb.Rev.Stat. § 53-198).

These individuals then often return to the Pine Ridge Indian Reservation intoxicated, thereby

possessing the alcohol in their blood stream, in violation of Federal and Tribal law. These

intoxicated residents cause havoc in the town of Pine Ridge. The next closest source of alcohol to

the town of Pine Ridge is Rushville about 20 miles away. Thus, shutting off beer sales in Whiteclay

will eliminate the walk in, stagger out, portion of the illegal trade. It will also end the common

nuisance of public consumption of alcohol under Nebraska law.

The second way beer enters the Pine Ridge Indian Reservations is through individuals who

load up a car or truck and drive across the border. If Whiteclay beer sales are ended, the increased

distance is a deterrence in itself. It is a major logistical challenge to move and cool over 4 million

cans of beer. The weight and bulk of the product demand semi-trucks, commercial sized coolers and

a regular schedule of delivery. This will be a nearly insurmountable challenge for criminals to

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recreate. The additional geographical distance also allows more time for law enforcement to

interdict the illegal trade in alcohol.

There are studies showing that removing the easy availability of alcohol does help reduce its

abuse by alcoholics. The Plaintiff can and will prove to the Court that stopping the beer from

Whiteclay has in the past and will in the future make a big and positive difference in the quality of

life on the Pine Ridge Indian Reservation. A court order would in effect allow for an approximately

20 mile buffer zone between the town of Pine Ridge and the nearest point of alcohol sales. The

buffer zone was for years a feature of Federal law that was designed to protect the resident of the

Pine Ridge Indian Reservation.

Finally, the Court should reflect on the nature of this claimed defense. If persons who intend

to smuggle alcohol in to the Pine Ridge Indian Reservation purchase that alcohol in Rushville or

Chadron, presumably the seller will only sell if he or she has a reasonable belief it will be possessed

and consumed legally.

This solves the social evil of an enterprise openly and solely devoted to making a profit from

knowingly aiding and abetting criminal activity. If as the Defendants suggest that does not

meaningfully address the problem, then in effect it is argued, that enforcement of all laws are futile

because someone else will break the law in place of Defendants. Asking the Courts to refuse to act

on this basis is a true threat to the rule of law.

XIII.

NO FLOOD OF LITIGATION

This unique set of facts insures that no flood of litigation will result if this suit goes

forward. No city or county in the long line of gun cases such as City of Chicago v. Beretta

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could make the factual allegations that are beyond dispute in this case. Whiteclay is unique

in that all of the massive amounts of Defendants’ products are used illegally. This situation

exists no where else.

XIV.

NEBRASKA, FEDERAL AND OGLALA SIOUX TRIBAL LAWS DO NOT CONTEMPLATE, MUCH LESS DEMAND, RACIAL DISCRIMINATION

Another falsehood by Defendants that must be addressed before it can gain traction, is that

this suit would require the sellers of alcohol in Whiteclay to discriminate against Native Americans

by refusing to sell them beer in violation of the Constitution, Federal Civil Rights laws, and the laws

of the State of Nebraska. Nothing could be further from the truth.

First, all persons, without regard to race, who are on the Pine Ridge Indian Reservation are

prohibited from possessing or consuming alcohol. Similarly all persons of any race are prohibited

from drinking alcohol in public in Nebraska. The laws are directed toward protecting the

jurisdictions governed by the Oglala Tribe and State of Nebraska, not any specific race. If any

person of any racial group purchases alcohol at Whiteclay and it necessarily appears (and it cannot

be otherwise) that he or she will illegally consume it in public and then walk back onto, or smuggle

it into, the Pine Ridge Indian Reservation, then a criminal violation has occurred. The merchant is

also at fault. (Neb.Rev.Stat. § 53-198). It is the complete absence of a place to lawfully consume

the vast volume of beer sold at Whiteclay, not the race of the buyer, that indicts the Defendants.

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XV.

REMEDIES

A. INJUNCTION

Liquor licenses are regularly revoked or suspended in Nebraska. Therefore, injunctive relief

is well justified. Defendants feign hysteria at Plaintiff’s request that a remedy be found by this Court

for multiple violations of the law of Nebraska, Oglala Tribe and the United States controlling alcohol

sales. Liquor licenses are suspended or revoked all the time in Nebraska for violations far less

serious than those alleged in this case. A revocation is no more extraordinary than the prayed for

injunction. What is extraordinary is the refusal of Nebraska to act to stop the abuses of Whiteclay,

not the remedies prayed for by Plaintiff.

Whether raised in the sections on prudential jurisdiction, standing, appropriate remedies or

through the Ashley County v. Pfizer and Chicago v. Beretta cases, the Defendants’ suggestion that

closing down the trade in alcohol out of Whiteclay is beyond the proper jurisdiction of this Court are

specious. Orders of license revocations are routine for alcohol regulation. This alone greatly

distinguishes this case from the gun and psuedophedrine nuisance cases.

B. DAMAGES

The Plaintiff points the Court to the broad reach of the remedies available under these causes

of action. Damages for medical care occasioned by a nuisance for example are specifically permitted

under Stephens:

“We note that although this is mainly an equitable action, the trial court has theauthority to award damages. See Thomsen v. Greve, 4 Neb.App. 742, 550 N.W.2d49 (1996). When an equity court has properly presented and involved in the case,including awarding monetary damages. See, Goeke v. National Farms, Inc., 245Neb. 262, 512 N.W.2d 626 (1994); Thomsen v. Greve, supra. As such, there is nodispute in this case that the district court had the authority to award monetary

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damages.Our review of the district court’s order leads us to conclude that the district

court mistakenly applied rules applicable to special damages to the plaintiffs’ requestfor general damages. A [12 Neb.App. 608] review of the defendants’ brief on cross-appeal indicates a similar misunderstanding of the law governing damages. Although damages such as depreciation inmarket or rental value of property, medicalexpenses, and psychological expenses may be recoverable in a nuisance action, suchdamages would be special damages and would require specific proof to be awarded. See Thomsen v. Greve, supra.” Stephens v. Pillen, 12 Neb.App at 607-08.

The scope of responsibility for damages caused by persons acting in concert is extraordinary broad

and all claimed injuries are within the scope of recoverable damages.

Certain Defendants argue that the Plaintiff is attempting to impose “market share” liability.

This is not true. Why would Plaintiff urge a measure of damage on this Court that could

substantially reduce its recovery? As has been seen, all Defendants are jointly and severally liable

for all damages whether or not “foreseeable”. Once again Defendants attempt legal legerdemain.

Because the Defendants all conspired, acted in concert with, helped maintain and otherwise acted

intentionally and unlawfully in creating “Whiteclay” they are jointly and severally liable for all

damages whether or not foreseeable. See eg. Restatement (Second) Torts § 825; Bergman by Harre

v. Anderson, 226 Neb. 333, 336-37; 411 N.W. 2d 336 (1987).

XVI.

IN THE ALTERNATIVE, IF THE COURT FINDS THAT PLAINTIFF HASNOT SUFFICIENTLY PLED SOME FACT OR ALLEGATION TOSUPPORT ITS CAUSES OF ACTION, PLAINTIFF REQUESTS LEAVE TOAMEND ITS COMPLAINT TO ADDRESS SUCH ISSUE.

Federal Rule of Civil Procedure 15(a) provides that leave to amend shall be freely given

when justice so requires. Unless there is a good reason for denial, “such as undue delay, bad faith

or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue

prejudice to the non-moving party, or futility of the amendment-leave to amend should be granted.”

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Brown v. Wallace, 957 F.2d 564, 566 (8th Cir.1992) (quotes and cites omitted). There is no absolute

right to amend. Williams v. Little Rock Municipal Water Works, 21 F.3d 218, 224 (8th Cir.1994).

However, a motion to amend should be denied on the merits “only if it asserts clearly frivolous

claims or defenses.” Gamma-10 Plastics, Inc. v. American President Lines, 32 F.3d 1244, 1255 (8th

Cir.1994) (quotes and citations omitted). Further, likelihood of success on the new claim or defense

is not a consideration for denying leave to amend unless the claim is clearly frivolous. Id. at 1256.

Whether to grant a motion for leave to amend is within the sound discretion of the district court. Id.

at 1255; Williams, 21 F.3d at 224; Brown, 957 F.2d at 565.

In the instant case, it is the Plaintiff’s position that it has alleged sufficient facts and causes

of action that are plausible on its face. However, if the Court finds that Plaintiff has not sufficiently

pled some fact or allegation to support its causes of action, Plaintiff requests leave to amend its

complaint to address such issue.

CONCLUSION

In a case infested with ugly facts, one bitter truth stands out. The same predatory trade in

alcohol still plague the Oglala even after 150 years of “enlightenment and progress”. How will

history judge all caught up in this case? For all the foregoing reasons Plaintiff respectfully request

the Defendants’ Motions to Dismiss be denied in their entirety.

If the Court finds some fact or allegation to support the causes of action articulated in this

Brief is missing, Plaintiff respectfully requests the opportunity to amend the Complaint to address

the issue.

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OGLALA SIOUX TRIBE, Plaintiff,

BY: s /Thomas M. White C. Thomas White, #14488Thomas M. White, #17452Amy S. Jorgensen, #23215WHITE & JORGENSEN209 So. 19th Street, Suite #310Omaha, NE 68102(402) 346-5700

ATTORNEY FOR PLAINTIFF

CERTIFICATE OF SERVICE

I hereby certify that on June 20, 2012, I electronically filed the foregoing document with theClerk of the Court using the CM/ECF system which sent notification of such filing to the followingattorneys:

Robert S. KeithTimothy R. HookEngles, Ketcham, Olson & Keith, P.C.1700 Farnam Street1350 Woodmen TowerOmaha, NE 68102Attorneys for Jason Schwarting, Licensee and d/b/a Arrowhead Inn, Inc.

James P. FitzgeraldMcGrath North Mullin & Kratz, P.C.First National Tower, Suite 37001601 Dodge StreetOmaha, NE 68102

James Russell JacksonSkadden, Arps, Slate, Meagher & Flom LLPFour Times Square, 24th FloorNew York, NY 10036andEdward CraneSkadden, Arps, Slate, Meagher & Flom LLP155 N. Wacker DriveChicago, IL 60606Attorneys for Anheuser-Busch, LLC.

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Donald JB MillerMiller Law Office1113 Tenth AvenuePO Box 15Sidney, NE 69162Attorney for Arrowhead Distribution Co., Inc.

Jerald L. RauterkusPatrick R. GuinanErickson Sederstrom, P.C.10330 Regency Parkway DriveOmaha, NE 68114Attorneys for Clay M. Brehmer & Daniel J. Brehmer Partners, Licensee and d/b/a State LineLiquorAttorneys for Dietrich Distributing Co., Inc.

David D. ErnstDonald J. KleinePansing Hogan Ernst & Bachman LLP10250 Regency Circle, Suite 300Omaha, NE 68114Attorneys for Pivo, Inc. d/b/a/ High Plains BudweiserAttorneys for Coors Distributing of West Nebraska, Inc. d/b/a Coors of West Nebraska

William M. Lamson, Jr.Lamson Dugan and Murray, LLP10306 Regency Parkway DriveOmaha, NE 68114Attorney for MillerCoors, LLC Richard P. JeffriesCline, Williams, Wright, Johnson & Oldfather, L.L.P.One Pacific Place1125 South 103rd Street, Ste 600Omaha, NE 68124andPaul E. BensonMichael Best & Friedrich LLP100 E. Wisconsin Ave., Ste. 3300Milwaukee, WI 53202Attorneys for Pabst Brewing Company

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Stephen L. AhlJoseph M. AldridgeWolfe, Snowden, Hurd, Luers & Ahl, LLPWells Fargo Center1248 “O” Street, Ste. 800Lincoln, NE 68508Attorney for Sanford Holdings, LLC, Licensee and d/b/a/ D&S Pioneer Service

Randall L. GoyetteColin A. MuesBaylor, Evnen, Curtiss, Grimit & Witt, LLPWells Fargo Center1248 “O” Street, Suite 600Lincoln, NE 68508Attorney for Stuart J. Kozal Licensee and d/b/a Jumping Eagle Inn

s/Thomas M. White

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ... · CASE NO: 4:12-cv-03027 PLAINTIFF’S...

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