Federal judge denies Bangstad bid for temporary restraining order

A federal judge in the Western District Court of Wisconsin rejected this week a request by Minocqua Brewing Company (MBC) owner Kirk Bangstad to have his revoked county conditional use permit (CUP) immediately reinstated so the company could open an outdoor beer garden on May 1.

Along with filing a federal civil rights lawsuit against Oneida County zoning committee members, Bangstad sought a temporary restraining order (TRO) and preliminary injunction directing members of the committee to reinstate a CUP that would allow him to operate an outdoor beer garden at the company’s Minocqua location while the case proceeded. Named as defendants are Oneida County supervisors Dan Hess, Mitch Ives, Scott Holewinski, Billy Fried, and Bob Almekinder.

But federal district judge James Peterson, in a text only order on April 29, denied the request. A text only order is an order entered by a judge that appears only on the docket and is not accompanied by a longer formal written order. 

In the order, Peterson alluded to the fact that such a TRO 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.”

The rejection of the TRO and immediate relief aside, a preliminary injunction that would allow Bangstad to open while the case proceeds is still on the table. Peterson gave the zoning committee members 14 days to respond to the motion for a preliminary injunction, and gave Bangstad another seven days to reply. After reviewing those submissions, Peterson wrote, the court will determine whether a hearing is needed.

In its brief for a temporary restraining order and preliminary injunction, Bangstad attorney Alexander Hess of West & Dunn in Waunakee contended that Bangstad and MBC would face continued burdens without the TRO.

“Should the revocation of the CUP be allowed to stand, MBC and Mr. Bangstad will face continued adverse consequences of exercising their First Amendment rights, and MBC will lose significant revenue because it will not be able to serve customers at is [sic] outdoor beer garden during the 2025 summer tourist season, which starts on May 1,” the motion states. “As a final effort to avoid that outcome, MBC and Mr. Bangstad respectfully request the this [sic] court issue a temporary restraining order and a preliminary injunction mandating that defendants, in their capacity as supervisors on the planning and development committee, reinstate the CUP, and prohibiting defendants from further interfering with or retaliating against plaintiffs’ constitutionally protected activity.”

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,” the complaint states. “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.”

At the county level

Late last year, Bangstad filed a notice of claim with the county, formally notifying the county of an alleged injury or incident by the county as a legal precursor of filing a lawsuit.

The claim was sent to the county on Nov. 20. The events giving rise to the claim were given as between July 24 and the filing of the notice. Bangstad asked then for relief in the amount of $10.75 million.

In the notice, Bangstad’s attorney at the time, Nathaniel Cade of Cade Law Group in Milwaukee, said the MBC owner had been the recipient of targeted abuse by county government officials because of his political beliefs.

“Over the past several years, Kirk Bangstad and the Minocqua Brewing Company (MBC) have been subjected to a pattern of actions by various Oneida County officials and employees that target them due to their progressive political advocacy and public criticism of local elected officials,” the notice stated. “These actions raise serious concerns about the misuse of governmental authority and potential violations of their constitutional rights.”

Those officials have selectively enforced zoning ordinances against MBC and treated MBC differently than other similarly situated businesses, the claim alleged.

“The revocation of MBC’s administrative review permit on August 2, 2023, and its conditional use permit on July 24, 2024, were unjustified and appear retaliatory, linked to Mr. Bangstad’s public criticism of county officials,” the notice stated. “Such actions have unreasonably restricted his rights to free speech and peaceful assembly.”

Cade said the issues escalated with Bangstad’s arrest on Aug. 17 after he posted what Cade called “a satirical critique” on Facebook related to employees of The Lakeland Times.

“Despite the post being clearly labeled as parody and directed at a matter of public concern, the Oneida County Sheriff’s Department, at the direction of sheriff Grady Hartman, arrested Mr. Bangstad on charges of criminal defamation,” the notice states. “This arrest was unjustified and retaliatory response to his political advocacy, raising further constitutional concerns under the First, Fourth, and Fourteenth Amendments.”

All those actions have caused significant harm to Bangstad and MBC, including financial loss, reputational damage, and emotional distress, Cade asserted.

“They reflect a troubling misuse of governmental authority that warrants further attention and corrective action,” the claim stated.

In February, the county’s board of adjustment (BOA) upheld the county’s revocation of the CUP at a contentious hearing at which the county sheriff’s department escorted Bangstad out of the hearing room because of repeated outbursts by the MBC owner.

As the Times’s Brian Jopek reported then, the zoning committee revoked the CUP after finding that Bangstad failed to meet certain conditions, or requirements, of the permit. During the BOA hearing, Bangstad repeatedly said his First Amendment rights were being violated, and was repeatedly warned that his dialogue was outside the scope of the hearing.

After Bangstad was ousted, his then attorney Fred Melms (no association with Melms, Hogan & Francois law firm) argued that Bangstad was substantially in compliance, but was countered by zoning director Karl Jennrich, who said Bangstad had continued to fail to comply with some of the conditions of the permit, such as proper stormwater management and state Department of Transportation rules.

The board ultimately found that Bangstad’s efforts at compliance were not sufficient to reinstate the permit.

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