The approximately 200 citizens who crowded into the Cook County Courthouse on March 9, 2015 have been anxiously awaiting the ruling of Sixth District Court Judge Michael Cuzzo in the case of the Minnesota Department of Agriculture (MDA) versus David Berglund and Lake View Natural Dairy (LVND). On June 3, Cuzzo ruled that David Berglund was not in contempt of court when he refused to allow the MDA to inspect his dairy operation. However, whether or not the Berglunds will ultimately have to submit to inspections by the MDA is still up in the air.
The path to contempt charges
Court documents state that the MDA took the matter to court after “repeated attempts” to inspect the family-owned dairy beginning in February 2013. In the complaint filed in Cook County court, MDA stated that “before Mr. Berglund refused an inspection, MDA inspectors observed a retail store on the premises that offered eggs, cookies, whole milk, chocolate milk, skim milk, colostrum, cream, yogurt and buttermilk for sale.”
In a June 24, 2015 memorandum, the MDA acknowledged that Minnesota law has an exemption for “certain persons that sell or peddle the products of their farm without requiring a license, but that this exemption does not exempt the farmers from complying with pertinent regulations.”
The MDA asserts that LVND is a dairy plant because it manufactures, packages and sells some dairy products. On July 11, 2013, MDA ordered Berglunds to halt the sale of yogurt, butter and buttermilk, stating that the dairy could continue to sell unpasteurized milk from the farm because it met the exemption in Minn. Statute 32.393.
However, on October 4, 2013, the MDA amended the report ordering the Berglunds to also “discontinue the manufacture and sale of unpasteurized dairy products” and “to obtain licensure for the manufacture and sale of products not produced by the farm or garden.”
After much correspondence between Berglund, the MDA and the Minnesota Attorney General’s office, in October 2014 the MDA sought court approval to inspect LVND via an “Administrative Inspection Order.” The MDA asked to inspect the LVND food operation in its entirety, including all land, buildings, vehicles, inventory, equipment, and documents that may be kept in the buildings on site.
In the request, MDA cited Minnesota Stat. 32.103, which allows the MDA to conduct inspections of facilities producing and selling dairy and other food products. The MDA stated that the inspection was necessary to determine if LVND is in compliance with Minnesota food laws and rules concerning production of food for human consumption.
Judge Cuzzo granted that inspection order, to take place on October 22, 2014. However, MDA Compliance Officer Todd Whalen reported to the court that David Berglund refused to allow access to his property.
After that refusal, MDA requested that Judge Cuzzo find Berglund in civil contempt for not allowing the agency access to his operations. The MDA sought to have the court fine Berglund $500 per day until he complied with the inspection order, and possibly pay all of the state’s legal costs if he lost in court.
Constitutional arguments coming
At the March 9 hearing, Berglund’s attorney Zenas Baer argued that Berglund was not in contempt because the administrative order was invalid and because the administrative inspection order violates Berglund’s constitutional rights.
Judge Cuzzo ruled in Berglund’s favor on the contempt charges, not because he found the inspection order to be invalid, but because Berglund has “demonstrated a valid reason for his failure to comply.”
A decision on whether or not MDA has the right to inspect the dairy was stayed, pending a final order on the “constitutionality of the regulations.”
Judge Cuzzo acknowledged that Berglund refused inspection of the dairy throughout the process because he felt it would be a violation of his constitutional rights. Cuzzo noted that Berglund was not represented by an attorney at that time. He said Berglund “may not have articulated his constitution arguments as well as he may have with the assistance of counsel…”
Cuzzo wrote that Berglund obtained counsel soon after he received notice of the contempt hearing and has now offered “numerous different constitutional arguments regarding the State’s ability to regulate his Dairy.”
Cuzzo said, “Had Mr. Berglund been provided with an opportunity to appear before the court prior to issuance of the administrative inspection order, he could have obtained counsel and presented the Court with his constitutional challenges at that time.”
Because of the process followed, Judge Cuzzo said Berglund’s constitutional challenges had been raised in a “peculiar way.”
Berglund and attorney Baer argue that MDA does not have authority to inspect or regulate the dairy operation because its sales of food are limited to the product of the farm or garden, and as such, the dairy operation is protected under Section 7, Article XIII of the Minnesota Constitution.
That constitutional provision written in the early 1900s states: Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.
Despite the circuitous route taken to get to this point, Cuzzo said the constitutional challenges must be addressed. A scheduling conference between Berglund, his attorney and the MDA has been set for 8:15 a.m. on June 23 to
In answer to the MDA’s request for Berglund to become licensed, Baer argues that the statutes that permit the MDA to “regulate, license, and control sales of food products raised by Berglund and Lake View Natural Dairy” impair Berglund’s right to “sell and peddle” his products of the farm.
Baer noted that the state has authority over establishments that manufacture, process, or pack for introduction into commerce. However, he wrote in a court brief, “Berglund does not introduce his food products into commerce. Private, informed customers make a personal choice to purchase natural food products.”
So for the time being, those customers will be able to visit Lake View Natural Dairy, which is open seven days a week, 24 hours a day under the honor system. Customers are able to serve themselves and leave their money in a bucket.
Those customers, led primarily by Greg Gentz of Grand Marais, continue to rally around the Berglund family and a legal defense fund has been established. For more information on those efforts, visit Gentz’s blog at www.supportlakeviewnaturaldairy.org.
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