Federal judge rejects Bangstad motion to reinstate MBC CUP

A federal district judge in Madison denied Tuesday Kirk Bangstad’s motion for a preliminary injunction that would have allowed the Minocqua Brewing Company to legally open an outdoors beer garden in Minocqua while his First Amendment case against members of the Oneida County planning and development committee proceeds.

Specifically, Bangstad’s motion was to compel Oneida County to reinstate the Minocqua Brewing Company’s (MBC) conditional used permit for the downtown beer garden, which the county has revoked. After revocation, Bangstad sued, claiming the revocation was retaliation for his progressive political speech.

But judge James Peterson of the U.S. District Court for the Western District of Wisconsin declared this week that Bangstad had not demonstrated a likelihood of success on the merits of the case, a criteria for a preliminary injunction. Peterson deemed the long-running dispute “the latest chapter” between Bangstad and municipal officials over requirements and restrictions placed on Bangstad’s business.

“Over the course of three lawsuits filed in this court, plaintiffs have accused the local government of retaliating against them in various ways because Bangstad publicly espouses liberal viewpoints,” the judge recounted. “In the first lawsuit, plaintiffs sued the town of Minocqua and members of the town board for, among other things, delaying and denying permit requests related to a beer garden that Bangstad wanted to open outside his taproom.”

In the second lawsuit, Peterson recalled, plaintiffs alleged that the town and its board were withholding a permit related to the beer garden because plaintiffs refused to dismiss the first lawsuit. 

“The parties settled both cases shortly after the court denied a motion to dismiss the first case and a motion for a preliminary injunction in the second case,” Peterson stated.

And now, in the third and latest lawsuit, the issue is still about a permit for operating a beer garden, but this time the case is against the members of the Oneida County planning and development committee, not the Minocqua town board, Peterson explained.

More specifically, the judge wrote in his June 3 opinion and order, the lawsuit is about the committee’s July 2024 decision to revoke the conditional use permit it approved in October 2023 for operating the beer garden. 

“As in the other lawsuits, plaintiffs allege that defendants are retaliating against plaintiffs for exercising their right to free speech under the First Amendment,” the judge wrote. “Plaintiffs move for a preliminary injunction to require defendants to reinstate plaintiffs’ conditional use permit.”

Specifically, Bangstad filed his lawsuit on April 26, alleging violations of the First and Fourteenth Amendments. His lawsuit alleges that the zoning committee revoked his conditional use permit for the outdoor beer garden as retaliation against Bangstad’s “constitutionally protected activities,” namely, his advocacy of “liberal and progressive” causes.

In revoking the CUP, Bangstad alleged that the defendants held “plaintiffs to a higher standard than any other similarly situated applicant, without explanation as to any zoning or use-related factors warranting their heightened scrutiny.”

“Defendants’ revocation of CUP #2300385 was not justified by any legitimate government interest,” Bangstad’s complaint stated. “Defendants’ revocation of CUP #2300385 has negatively affected the plaintiffs’ business by eliminating its ability to serve customers outdoors during the summer 2025 tourist season and in subsequent summer tourist seasons. Defendants’ revocation of CUP #2300385 has caused the plaintiffs to sustain damages, including, but not limited to, loss of business income, reputational harm, and damage to MBC’s brand.”

Point, counterpoint

In his June 3 order, Peterson countered that Bangstad’s contentions that he was held to a higher standard and that the committee acted in retaliation lacked persuasive substantiation, at least thus far.

“The court will deny this motion because plaintiffs have not shown a likelihood of success, which is one of the requirements for obtaining a preliminary injunction,” he wrote. “To prevail on their First Amendment retaliation claim, plaintiffs must prove that defendants revoked the permit because of their speech. At this stage of the case, plaintiffs have submitted little evidence to support a causal connection between their speech and the revocation decision.”

Indeed, Peterson wrote, the defendants — planning and development committee members Dan Hess, Mitchell Ives, Scott Holewinski, William Fried, and Robert Almekinder — say they revoked the permit for a straightforward reason, namely, that Bangstad and MBC plaintiffs were not complying with several conditions of the permit.

“These include conditions about parking, signage and pavement markings, stormwater management, and compliance with requirements of the Americans with Disabilities Act and the Wisconsin Department of Transportation,” he wrote. “In addition, the committee accused plaintiffs of operating the outdoor beer garden before they satisfied the conditions of the permit, which was itself a violation of the permit.”

What’s more, Peterson observed, Bangstad and MBC admitted they failed to comply with several conditions of the permit before they began operating the beer garden. 

“During the July 2024 hearing before the committee, plaintiffs’ lawyer did not dispute that plaintiffs continued operating the beer garden even after the committee suspended the permit for operating the beer garden before complying with all conditions,” he wrote. “Counsel represented that it was plaintiffs’ ‘goal’ to satisfy the permit conditions by October 2024. Plaintiffs also admit that, as of February 2025, they had not yet satisfied all conditions of the permit.”

All that said, Peterson continued, Bangstad and MBC complained that the conditions of the permit were onerous and expensive, which is why plaintiffs operated the beer garden before complying with all the conditions. 

That complaint was not sufficient, either, Peterson asserted.

“But plaintiffs do not challenge the reasonableness of any of the permit conditions, and they do not identify similarly situated businesses that were allowed to keep their permits despite multiple violations, so the difficulty of complying with the conditions does not suggest any retaliatory intent,” he wrote.

Indeed, Peterson wrote, to support causation, Bangstad and MBC relied primarily on what they said was a history of unfair treatment and derogatory statements by local officials after Bangstad became a vocal supporter of Democratic candidates and liberal causes. 

“But nearly all of that evidence relates to speech and conduct by government officials other than defendants, mostly members of the town board,” Peterson wrote. “Plaintiffs do not explain how any of that evidence shows why these defendants revoked the conditional use permit.”

Instead of directly challenging defendants’ reasons for revoking the conditional use permit, Peterson said Bangstad and MBC asserted that retaliatory intent could be inferred from unreasonable conditions imposed on plaintiffs’ ‘administrative review permit,’which was a different permit that plaintiffs previously sought when Bangstad first purchased what is now the taproom.

“Specifically, plaintiffs say that defendants: (1) required plaintiffs to obtain an agreement from the town to construct a driveway over land owned by the town; and (2) refused to waive an ordinance requirement to construct a certain number of parking spaces,” the judge wrote.

But Peterson said the conditions placed on the administrative review permit were weak evidence that the defendants revoked the conditional use permit because of Bangstad’s political speech.

“Plaintiffs admit that the conditions on the administrative review permit were recommended by the town board, not the county committee,” he wrote. “The committee did approve the recommendations, but there is nothing inherently unreasonable about upholding a decision to enforce an ordinance or to require plaintiffs to obtain permission from the town to use the town’s land.”

What’s more, Peterson wrote, plaintiffs say that other business owners were not subjected to the same requirements, but they relied solely on Bangstad’s conclusory declaration for that proposition. 

“Bangstad neither provides foundation for his statements nor demonstrates that any other business was similarly situated to plaintiffs,” he wrote. “Even if it would be reasonable to infer that the committee placed unreasonable conditions on plaintiffs’ administrative review permit because of Bangstad’s political speech, it would not follow that defendants revoked plaintiffs’ conditional use permit because of Bangstad’s speech.”

Again, Peterson reiterated, Bangstad admitted they violated multiple conditions of the conditional use permit, and they identified no basis for inferring that the conditions themselves were discriminatory. 

“Under those circumstances, it would not be reasonable to infer that defendants revoked plaintiffs’ conditional use permit because of Bangstad’s speech rather than because plaintiff violated the conditions of the permit,” he wrote. “The bottom line is that defendants had valid reasons for revoking plaintiffs’ conditional use permit, and plaintiffs have not cited persuasive evidence that defendants’ reasons are pretexts for retaliation. So plaintiffs have not demonstrated a likelihood of success on the merits of their First Amendment claim, and they are not entitled to preliminary injunctive relief.”

In a text-only order on April 29, Peterson had denied Bangstad’’s bid for a temporary restraining order that would have immediately reinstated his CUP.

In the order, Peterson alluded to the fact that such an order would be issued without notice to the defendants, and he seemed unswayed by the late motion filed only days before Bangstad wanted to open.

“Plaintiffs don’t explain why relief should be granted without giving defendants notice and an opportunity to be heard,” Peterson wrote. “Plaintiffs say that they wish to operate a beer garden beginning on May 1, but plaintiffs also say that defendants revoked their permit in July 2024, so they could have sought relief earlier.”

As part of that order, Peterson gave the zoning committee members 14 days to respond to the motion for the preliminary injunction, and gave Bangstad another seven days to reply, in actions leading to this week’s order and opinion.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.