Although the Berglund family, which operates Lake View Natural Dairy in Grand Marais, has better things to do than sit in the Cook County courthouse, that is exactly what they were doing for more than two hours on Tuesday, October 13, 2015, as their right to operate their small dairy without government inspection was argued before Sixth District Judge Michael Cuzzo.
State Assistant Attorney General Max Kieley was on hand to state the case for inspection for the Minnesota Department of Agriculture (MDA), which he said repeatedly in his argument, is “the primary regulatory agency in the State of Minnesota and needs to ensure the integrity of the food supply.”
Kieley cited several Minnesota statutes that he said support the state’s right to inspect the dairy operated by David Berglund and his family. When he mentioned Minn. Stat. 32.01 subd. 6, which described a dairy plant, Judge Cuzzo interrupted and pointed out a possible omission in the law. He noted that the statute says a dairy plant is “… any place where a dairy product is manufactured, processed, or handled.. but does not include a dairy farm.”
Because there is no statutory language describing a dairy farm, Cuzzo asked how he could rule on how the MDA deals with a dairy farm. Kieley replied that the judge would have to look at the intent of the laws governing food safety.
Judge Cuzzo then asked if the principal difference was in the processing. “Or the sale?” asked Cuzzo.
Kieley cited Minn. Stat. 31.04, which he said is the most broad and which permits the MDA to enter “any factory, warehouse or establishment at which food is manufactured, processed, packed or held for introduction into commerce” as long as the entry is “at reasonable times and within reasonable limits.”
Kieley said Berglund argues that he is not introducing food into commerce. However, Kieley said, “He has a store at his farm. If that is not entering into commerce, I don’t know what is.”
Without being permitted to inspect, Kieley said, the MDA has no way of knowing if there are adulterated or unsanitary food conditions. For that reason Kieley said, under Minn. Stat. 31.04 the MDA has the authority to conduct a “warrantless search.”
Does inspection impair Berglund’s fundamental liberties?
Judge Cuzzo also had pointed questions for David Berglund’s attorney Zenas Baers. At the start of Baers’ argument, Cuzzo asked why his client falls on the “other side of that line,” meaning outside of the government’s right to regulate. And, he asked, “Why is that inspection a violation of our client’s rights?”
“Are they just to take your clients’ word that he is in compliance?” asked Cuzzo.
Baers contended that such intrusion—the forced inspection—impairs the fundamental liberties of Berglund and his customers. Baers said the MDA action violates the fundamental right of contract between Berglund and his customers, also stating that it violates their right of association, of privacy, equal protection and for Berglund, the right to “sell and peddle” products of his farm.
Cuzzo asked for clarification, noting, “That’s a pretty broad brush.”
Baers continued his argument by stating that buying raw, unprocessed milk for sustenance is a “personal affiliation” worthy of protection. “This is a right of each of these customers,” said Baers.
Cuzzo asked how the MDA’s inspection would violate those rights. “I understand regulation could violate, but inspection?”
Berglund’s attorney replied that the MDA had not been invited to be part of his business. For example, he said such an inspection would include an inspection of Heidi Berglund’s kitchen where she makes yogurt and cookies. “It is an intrusion,” he said, “Mr. Berglund has the right to select the party with whom he chooses to do business with…the private contract is sacred.”
Baers elicited a quiet chuckle from the standing room only crowd in the courtroom when he declared, “If we want to buy sauerkraut from our neighbor, we should be able to do so without intrusion of the MDA.”
“I’m struggling with where the line is,” asked Judge Cuzzo, again asking Baers when he believed inspection was permitted.
Berglund’s attorney replied that inspection is necessary when food is being processed by a third party, in the case when foods are being transported from somewhere off premise and being aggregated. In other words, he said, when you don’t know your food sources. “Then I say the MDA is standing on firm ground,” said Baers.
He repeated that all of the customers of Lake View Natural Dairy know where their food comes from. He said Berglund and his customers have a “symbiotic relationship” and each customer has a free choice.
Baers summed up his argument by again citing his constitutional argument that David Berglund has the right to “sell and peddle” the products of his farm under Article XIII, Section 7 of the Minnesota Constitution.
“Regulatory desires must yield to constitutional principles,” he said.
More consideration by the court
Cuzzo asked a few more questions of each attorney and noted that both parties— the state and David Berglund had been represented well. To the crowded courtroom, he said, “As you all know, the issue is complex.”
He said he would issue a written decision as soon as possible and that decision would include information on the scheduling of any other hearings at that time.
The owners of Lake View Natural Dairy ended up in court after David Berglund refused the MDA access to his property several times, beginning in February 2013, leading to an MDA request to find him in civil contempt. In June 2015, Judge Cuzzo ruled that Berglund was not in contempt of court, but the question of whether or not he must submit to inspections by MDA is still undecided.
Lake View Natural Dairy is privately owned by the Berglund family, which has 16 milk cows and sells raw/unpasteurized milk to community members. They also sell skim milk, cream, yogurt, buttermilk, eggs and cookies.
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