The Volokh Conspiracy
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Claim That Minnesota Agency Retaliated Against Rancher for Petitioning Legislature to Change Law …
can go forward, the Eighth Circuit rules.
From Wagner v. Scheirer, decided last week by Eighth Circuit Judge Bobby Shepherd, joined by Judges Jane Kelly and David Stras:
Wagner owns two separate cattle farming operations in Minnesota. The first is a cow/calf operation aimed at breeding, and the second is an animal feedlot operation aimed at raising cows until they can be sold for processing. Wagner's cow/calf operation takes place in several pastures around Minnesota, while his feedlot operation takes place in feedlots in Minnesota.
Notably, animal feedlots and pastures are not the same under Minnesota law. Feedlots generally use lots and buildings to house animals, while pastures are open grazing areas. The key distinction between the two is the amount of vegetative cover; feedlots are not required to maintain any vegetative cover, while pastures must generally maintain vegetative cover during the growing season.
This distinction is significant because Minnesota feedlots are subject to stricter regulations than pastures. Under Minnesota law, the MPCA [Minnesota Pollution Control Agency] has the authority to adopt permitting requirements for feedlots, but not for pastures. Permitting requirements for feedlots are intended to minimize manure runoff into water sources; pastures are exempt from the rules that feedlots are subject to because the vegetative cover of pastures slows the discharge of manure into water.
The distinction between feedlots and pastures under Minnesota law has been at the center of multiple feuds between Wagner and the Appellees (collectively Scheirer). In two instances in 2014 and 2015, Scheirer accused Wagner of violating certain laws and regulations applicable to animal feedlots and imposed penalties on him. Both times, Wagner denied the violations and disputed Scheirer's authority to regulate the properties—maintaining that they were pastures, not feedlots—but ultimately entered into agreements with Scheirer and paid a portion of the penalties to avoid costly legal fees….
Around 2019, after years of quarreling with Scheirer over whether parts of his cattle farming operation were pastures or animal feedlots, Wagner petitioned the Minnesota Legislature for clarification of the applicable statutes. The Minnesota Legislature responded by modifying the statutory definition of "pastures" in alignment with Wagner's broader interpretation.
Two years later, in March 2021, the MPCA filed an action in county court seeking to impose a $152,724 civil penalty against Wagner for new alleged violations within his feedlot operation. Internal MPCA documents show that in discussions about this potential penalty against Wagner, Wagner was identified as "the individual behind the legislation last year that added to the definition of pasture." If imposed, the penalty will be the largest the MPCA has ever imposed against an animal feedlot and one of only four penalties greater than $50,000 imposed against feedlots in MPCA history.
Wagner sued for (among other things) First Amendment retaliation based on the fine, and the court held the case could go forward, based on the documents in which MPCA identified Wagner as "the individual behind the legislation last year that added to the definition of pasture":
[Wagner] quote[d] the document directly and describe its context—that it was used by the MPCA in a document pertaining to the penalty against Wagner. Wagner's allegations here are more than mere "formulaic recitation[s] of the elements of a cause of action." They show that Scheirer made note of Wagner's protected activity while taking an adverse action against him. Given the "deferential" nature of the motion-to-dismiss standard, Wagner's Amended Complaint sufficiently alleged causation.
This conclusion is reinforced by the remainder of the facts Wagner pled. The 42-page Amended Complaint alleges that Scheirer had been imposing—and Wagner has been contesting—penalties on Wagner for years without resolving the underlying disputes. It also alleges that Wagner sought clarification from the Minnesota Legislature, received clarification that supported his interpretation of the rules, and was later subjected to the largest animal feedlot penalty in MPCA history. While this on its own may be insufficient to allege a causal link, we recognize that the Amended Complaint's "chronology" of events supports Wagner's "circumstantial claim of retaliatory action."
Wagner was only required to allege that Scheirer's improper motive was a but-for cause of Wagner's injury, not that it was the sole cause. "Often, events have multiple but-for causes," so it is possible that Scheirer had legitimate and retaliatory motives for taking the adverse action, and that both motives were but-for causes of the action. Recognizing the difficulty of pleading direct evidence of retaliatory intent, we hold that Wagner alleged just enough to allow an inference of retaliatory intent….
