Minerva Dairy, Inc. et al v. Brancel, Ben et al

Filing 21

ORDER setting briefing on 9 Motion for Preliminary Injunction by Plaintiffs Minerva Dairy, Inc. and Adam Mueller. Brief in Reply due 7/24/2017. Signed by District Judge James D. Peterson on 7/10/2017. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

MINERVA DAIRY, INC., and ADAM MUELLER,
Plaintiffs,
v.

OPINION & ORDER

BEN BRANCEL, BRAD SCHIMEL, and
PETER J. HAASE,

17-cv-299-jdp

Defendants.
Plaintiff Minerva Dairy, Inc., under its president, plaintiff Adam Mueller, produces
Amish butter and cheese in small, artisanal batches at its Ohio dairy. It filed this lawsuit against
several Wisconsin officials challenging Wis. Stat. 97.176, which requires all butter offered for
sale within Wisconsin to be graded by the U.S. Department of Agriculture or a Wisconsinlicensed butter grader. Minerva Dairy alleges that this statute effectively bars it from selling its
butter in Wisconsin because USDA graders are prohibitively expensive and dairies outside
Wisconsin are ineligible to have their butter graded onsite by Wisconsin-licensed butter
graders. It claims that the statute violates its rights under the Commerce Clause, Equal
Protection Clause, and Due Process Clause of the U.S. Constitution.
Minerva Dairy seeks preliminary injunctive relief under Federal Rule of Civil Procedure
65. Dkt. 9. Specifically, it asks the court to enjoin defendants from enforcing § 97.176. In
response, defendants submit the declaration of Michael Pederson, the Food Sanitarian-Grader
for the Department of Agriculture, Trade, and Consumer Protection who licenses butter graders
for the state. Pederson states that any employee of any dairy, even out-of-state dairies, can
become a Wisconsin-licensed butter grader simply by completing an application, taking a test,

and submitting a $75 fee. Thus, dairies outside Wisconsin are not ineligible to have their butter
graded onsite by a Wisconsin-licensed butter grader. Because defendants’ proposed fact may
be dispositive of the motion for injunction, the court will allow Minerva Dairy the opportunity
to submit a reply in support of its preliminary injunction motion.

ORDER
IT IS ORDERED that plaintiffs Minerva Dairy, Inc., and Adam Mueller may submit a
reply in support of their motion for preliminary injunction, Dkt. 9, by July 24, 2017.
Entered July 10, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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