The fate of beer sales in Whiteclay is now in the hands of the Nebraska Supreme Court.
During a 40-minute hearing last Tuesday at the Capitol, justices quizzed opposing lawyers in an appeal by state regulators to prevent four beer-only liquor stores from reopening in the tiny village, a short walk from South Dakota’s dry Pine Ridge Indian Reservation.
Before the Nebraska Liquor Control Commission shuttered the stores in April, citing inadequate law enforcement in Whiteclay, the stores sold millions of cans of beer and malt liquor each year to the reservation’s Oglala Lakota residents.
The stores argue the commission overstepped its authority by refusing to renew their licenses.
A decision from the state’s high court should come in the next two months.
As is common in high-level appeals, Tuesday’s arguments focused on technical matters of law.
An attorney for the beer stores, Andrew Snyder of Scottsbluff, argued the Liquor Commission had no right to deny renewal of their licenses based on law enforcement.
“The commission had no authority to do what they did,” Snyder told the justices.
Alternatively, lawyers for the state and four Sheridan County residents who oppose the stores raised problems with the owners’ appeal and with a decision in the stores’ favor by a Lancaster County judge in April.
Any of those arguments could form the basis for the Supreme Court’s decision, which could end the case outright or send it back to the lower court.
Snyder pointed to a 1996 case involving Grand Island Latin Club, in which the high court determined that the holder of a liquor license has a “constitutionally protected interest” in having that license renewed so long as the licensee is still qualified and the premises haven’t changed.
Allowing the Liquor Commission’s Whiteclay decision to stand would require the Supreme Court to overrule itself, Snyder argued.
At least two justices seemed to show discomfort with limiting the Liquor Commission’s authority to that extent.
“That doesn’t get to the subject of how the business is being conducted or the consequences,” said Justice Lindsey Miller-Lerman, who was appointed in 1998.
Justice John Wright, who wrote the 1996 decision, noted Snyder’s interpretation would mean a liquor license could never be denied unless the premises changed or licensee became unqualified.
On the other side, lawyers opposing Whiteclay beer sales focused their efforts on squelching the beer stores’ appeal.
James Smith, the state’s solicitor general, and Dave Domina, an Omaha attorney representing Sheridan County residents, said Snyder improperly excluded Domina’s clients from his initial appeal of the Liquor Commission’s decision, and didn’t properly notify them or the state about the case.
In that regard, Domina said, “the beer stores are 0-for-5.”
Snyder maintained the Sheridan County residents aren’t parties to the case under state law and that the state didn’t raise its own notification concerns until it was too late for them to matter.
After the hearing, Snyder said he couldn’t make a prediction about the outcome.
Moments later, Whiteclay opponents celebrated outside. Bryan Brewer, former president of the Oglala Sioux Tribe, pointed to a fellow activists’ sign that read “Shut Down Whiteclay.”
“This has happened today,” Brewer said. “I am very confident that Whiteclay will never open up again.”