Judge tosses Bangstad First Amendment lawsuit

Minocqua Brewing Company owner Kirk Bangstad suffered yet another major courtroom defeat last week, as a federal judge dismissed his First Amendment lawsuit against the Oneida County planning and development committee, ruling that the evidence overwhelmingly showed officials revoked his zoning permit because of repeated violations, not political speech.

In the May 20 decision, U.S. District judge James Peterson granted summary judgment to the county defendants. Peterson concluded that Bangstad and his company failed to present evidence that county zoning officials retaliated against him for his outspoken political activity or for criticizing local officials. 

Specifically, the lawsuit stemmed from the county’s revocation of the company’s conditional use permit for an outdoor beer garden and the county committee’s later denial of a renewed permit application, which Bangstad characterized as politically motivated.

Peterson did not agree.

“It is clear from their history of litigation against local officials that plaintiffs are convinced that defendants have targeted them unfairly,” Peterson wrote. “But plaintiffs have not submitted admissible evidence to support that belief. Rather, it is undisputed that plaintiffs repeatedly violated the conditions of their permit and continued operating without a permit even after the permit was revoked. In fact, plaintiffs stated publicly that they would continue operating the beer garden regardless of whether it was allowed by their permit.” 

So the observation of the court of appeals during the preliminary injunction stage still applies, Peterson wrote: “Given the concession of past and present willful violations of the permitting requirements, and a promise for future violations . . . [a]ny reasonable permit-issuing body would revoke or deny permits under those circumstances. There can be no First Amendment retaliation if the adverse action would have occurred even in the absence of the protected speech.” 

The ruling represents another setback for Bangstad in a years-long legal and political battle with county and town officials over zoning enforcement, permitting disputes, and his company’s outdoor operations.

Background of the dispute

According to the decision, Bangstad and Minocqua Brewing Company (MBC) applied for a conditional use permit in February 2023 to operate an outdoor beer garden at the company’s Minocqua taproom. 

The town of Minocqua recommended denying the permit because the proposed beer garden would sit on town-owned land and Bangstad had not yet secured permission to use the property, the decision stated. The county committee adopted that recommendation and denied the application. 

Bangstad then submitted a revised application, and in October 2023 the committee approved the permit with multiple conditions, including completion of various site improvements before outdoor operations could begin. 

But Peterson said the brewery began operating the beer garden in spring 2024 despite failing to comply with numerous conditions, including obtaining a zoning permit for the beer garden and the surrounding fence; completing the construction of the driveway access from Highway 51 consistent with Wisconsin Department of Transportation requirements; providing for proper signage and pavement markings to ensure one-way traffic flow on the property; providing five paved and marked parking spaces; paving the driveway area; constructing the seating area for the beer garden from pervious pavers; and properly locating and screening the garbage dumpster.

“In June 2024, the committee held a hearing on plaintiffs’ noncompliance with the permit conditions,” the decision states. “After committee members explained their basis for finding that plaintiffs were violating several conditions of the permit, the committee voted to suspend the beer-garden permit for 90 days subject to being lifted sooner if plaintiffs came into compliance. Plaintiffs did not file an administrative appeal of that decision.”

However, the brewery continued operating, Peterson wrote, and the committee held another hearing in July 2024.

“Plaintiffs’ lawyer admitted during the hearing that plaintiffs continued operating the beer garden despite the suspension of the permit,” the decision stated. “When asked whether plaintiffs would continue operating the beer garden without a permit, counsel refused to answer that question on the basis of attorney-client privilege. Counsel stated that ‘the goal’ was to satisfy the conditions of the permit by October 2024. At the conclusion of the hearing, the committee voted to revoke plaintiffs’ permit on the ground that plaintiffs had continued violating the permit conditions and had not complied with the committee’s decision to suspend the permit.”

The brewery again continued operating after the revocation, the judge noted.

In March 2025, Bangstad filed a new permit application and again began operating the beer garden before receiving county approval. The morning before a county hearing on the new application, Bangstad posted on social media that the brewery “would continue operating regardless of whether the Committee granted” the permit, the decision observed. 

The committee denied the application, citing the brewery’s history of permit violations and continued operation without permits. And, though the Oneida County Board of Adjustment later reversed that denial, Peterson said its decision did not establish retaliation or any unlawful motive by the zoning committee. 

“The board did not address plaintiffs’ history of permit violations,” he wrote. “The board reversed the committee’s decision and granted a permit subject to 11 conditions.

Court rejects retaliation claim

The central issue before Peterson was whether Bangstad could prove county officials acted against him because of his political speech and criticism of local officials. The court acknowledged that Bangstad frequently criticized county officials in emails, at public hearings, and on social media, and that such speech is protected by the First Amendment. But Peterson said the case failed on the issue of causation.

“Defendants focus on the third element, causation,” Peterson wrote. “Plaintiffs have the initial burden to show that their speech was a motivating or substantial factor in defendants’ conduct; if plaintiffs make that showing, the burden shifts to defendants to show that they would have made the same decisions even without plaintiffs’ protected speech.” Instead, the judge concluded the county had nondiscriminatory reasons for its actions.

“Defendants say that they revoked plaintiffs’ permit because of plaintiffs’ repeated violations of the permit and because plaintiffs continued operating his beer garden even while his permit was suspended,” the decision stated. “They say they denied his application for a new permit for those reasons, and because he continued operating his beer garden even after his permit was revoked.”

As the court of appeals acknowledged, those are nondiscriminatory grounds for the defendants’ decisions.

Peterson repeatedly emphasized that Bangstad acknowledged operating the beer garden before satisfying permit conditions.

“In any event, plaintiffs admit that ‘[w]hen [they] opened the beer garden, they had not complied with all of the conditions approved by the Committee and incorporated into the’ permit,” Peterson wrote. 

Peterson also faulted the plaintiffs for failing to produce admissible evidence supporting many of their allegations. The judge said Bangstad attempted to show retaliation by arguing other businesses were treated more favorably, but Peterson concluded the evidence was insufficient.

“The bottom line is that plaintiffs have not adduced evidence that defendants treated similarly situated businesses more favorably,” Peterson wrote. 

The decision also rejected other arguments made by Bangstad, including allegations involving parking waivers, dumpster screening requirements, outdoor displays, and treatment of other businesses. In several instances, Peterson said Bangstad relied on hearsay, unsupported allegations, or failed to establish that the businesses cited were actually similarly situated.

Judge dismisses evidence of alleged bias

Peterson also rejected a declaration from former county supervisor Anthony Rio, who claimed defendant Scott Holewinski once made comments suggesting county officials should “hit” Bangstad closer to the tourism season.

The judge said the statement was too distant in time, lacked context, and was insufficiently precise to establish a retaliatory motive: “Rio’s testimony is too vague to be helpful,” Peterson wrote.

The court further noted the statement allegedly occurred in 2022, well before the permit decisions at issue in the lawsuit.

“A long passage of time between a statement and an adverse action undermines any inference that the adverse action was motivated by any bias expressed in the statement,” he wrote. 

Peterson also observed that Holewinski was only one of the five members of the committee and that Bangstad offered no evidence that the other members shared any retaliatory motive. 

In addition, the decision cited procedural problems with Bangstad’s case during summary judgment. Peterson said the court disregarded Bangstad’s summary judgment brief because it was filed late despite multiple extensions and warnings from the court. 

“The court granted plaintiffs four extensions of time to file their brief, but the brief was still untimely, despite the court’s warning that any failure to meet the final deadline would mean that the court would take the summary judgment motion under advisement without the benefit of plaintiffs’ response,” he wrote. “So the court has disregarded the brief.”

In closing, Peterson bluntly rejected the core theory of Bangstad’s lawsuit.

“Defendants had nondiscriminatory reasons that ‘[a]ny reasonable permit issuing body’ would have relied on when deciding whether to revoke plaintiffs permit and deny a new one,” Peterson wrote. “Plaintiffs offer no legitimate excuse for failing to comply with their permit or for disregarding the committee’s decisions. Plaintiffs’ accusations that defendants unfairly targeted them because of plaintiffs’ speech are simply unsupported by the evidence. Plaintiffs have not adduced evidence from which a reasonable jury could find that defendants violated plaintiffs’ First Amendment rights, so the court will grant defendants’ motion for summary judgment.”

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