If this were a boxing match, it would be in the late rounds with two tired fighters pressing on, the decision hanging in the balance and heading to the judges to decide.
For David and Heidi Berglund, owners of Lake View Natural Dairy, the fight to keep selling raw milk from their farm has been wearying.
The Berglunds have been arguing their case against the state of Minnesota since January 2013, with no clear verdict in sight.
On Wednesday, November 16 three judges from the Minnesota Judicial Center Court of Appeals listened to arguments from the Minnesota Department of Agriculture (MDA) attorney Max Kiely and from Berglunds’ attorney Zenas Baer about the merits of the state’s case against Lake View Natural Dairy, which is owned by the Berglunds.
Kiely argued that the Berglunds, who operate a small dairy farm on Maple Hill where they sell unpasteurized milk, should have their farm inspected because they make more than an “occasional” sale. An “occasional sale” of a farmer’s products is allowed under Minnesota State Statutes. Therefore the farm should be inspected.
Baer, who like Kiley received 15 minutes to argue his client’s case in front of the judges, said the Berglunds’ right to privacy and association was being violated.
The MDA has been pursuing legal action against the Berglunds since January 2013 when they learned the couple was operating Lake View Natural Dairy on Maple Hill in Grand Marais and suspected that the couple was selling unpasteurized/ raw milk products to consumers.
The state contended then, as it did on Wednesday, that Lake View Natural Dairy must undergo inspection to ensure its products are fit for human consumption.
That argument, said David Berglund, violates his constitutional rights, and he cited a law enacted by the Minnesota Legislature in 1906 that allows a farmer to sell farm products to consumers without a state inspection. It was on those grounds that Berglund refused to allow inspectors access to his property, arguing the state was violating his constitutional rights.
Baer explained state statutes say that “Generally it is permissible to purchase or sell raw milk occasionally.” He also told the judges that the word “occasionally” appeared in the statute long after the law was first put in the books. No one knows who or when the word “occasionally” was inserted into the bill, said Baer.
In the early days, following several attempts to contact the Berglunds, MDA inspectors traveled to the farm on September 27, 2013, and took pictures of the exterior and interior buildings on the property. They also photographed a product order sheet and the products that were marked for sale in the store. Those products included unpasteurized whole milk, skim milk, chocolate milk, colostrum, cream, yogurt, and buttermilk. After taking the pictures, the inspectors found David Berglund and requested a full inspection of the farm, which he again refused to allow.
What followed was a long back and forth between the state and the Berglunds. At October 13, 2015, court hearing Zenas Baer argued the MDA lacked statutory authority to inspect the dairy and argued that inspection of the dairy was prohibited under article XIII, section 7 of the Minnesota Constitution. Baer also brought up numerous other constitutional challenges. Those included the right to contract, the right to privacy, the right of association, due process, and equal protection. Baer also added that the state’s definition of a “dairy plant” was not defined by statute.
Since that time MDA and its attorneys have met David and Heidi Berglund and their attorney Zenas Baer in court several times.
The judges who heard the case on November 16 have 90 days to give an opinion. The Court of Appeals makes no decisions about guilt or innocence. Instead, based on arguments, the judges will either send the case back down to the lower court so the two sides can more fully explain their positions, or the Cout of Appeals will affirm the lower court ruling. If the lower court ruling—which calls for the MDA to inspect the farm—is granted, the Berglunds will likely appeal the decision. Either way, this was just one more rung on the long legal ladder, and the fight will go on.
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