For generations the Berglund family has farmed on their land in the Maple Hill area of Grand Marais. They now operate Lake View Natural Dairy and are embroiled in a legal battle with the Minnesota Department of Agriculture over permitting of their dairy farm. Owners David and Heidi Berglund and their daughter Lyndsay Anderson (far right) operate the dairy. Also helping are David and Heidi’s younger children, the next generation of farmers, Spencer and Kendra. The heifer in the background? That’s Dora.
Cook County residents and North Shore visitors have been making the drive to the Berglund farm in the Maple Hill area of Grand Marais for decades to purchase locally produced eggs and dairy products. Many were unaware that for the last two years, Lake View Natural Dairy has been quietly waging a bureaucratic battle that has led to potential contempt of court charges for David Berglund because he has refused to submit to a state order for inspection of his dairy operations.
The case will be heard at the Cook County courthouse by Judge Michael Cuzzo at 9 a.m., Monday, March 9, 2015.
The state’s case against the dairy
Court documents show that the Minnesota Department of Agriculture took the matter to the Sixth Judicial District Court after “repeated attempts” to inspect the dairy, the first 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.”
Of special concern to the MDA is the fact that the Lake View Natural Dairy manufactures and sells unpasteurized dairy products, which according to court documents, are prohibited by Minnesota and federal law or are subject to various restrictions.
On September 27, 2013, MDA inspectors issued orders to Lake View Natural Dairy to discontinue the manufacturing of dairy products without a dairy permit.
In October 2014, the Minnesota Department of Agriculture (MDA) sought court approval to inspect Lake View Dairy via an “Administrative Inspection Order.” The order explained that MDA intended to conduct a complete inspection of the Lake View Dairy 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 is necessary to determine if Lake View Natural Dairy is in compliance with Minnesota food laws and rules concerning production of food for human consumption.
Judge Cuzzo granted the 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 returned to court and requested that it find Berglund in civil contempt for not allowing the agency access to his operations.
In a memorandum, Minnesota’s Assistant Attorney General Kimberly Middendorf wrote why a finding of civil contempt was appropriate in this case, stating, “Respondent cannot be permitted to continue violating Minnesota food law and placing people at risk of serious illness or even death.”
The Cook County News-Herald contacted Dr. Nicole Neeser, program manager for feed, dairy, meat and poultry inspections for MDA, who oversees just under 3,500 dairy farms in the state, to ask about those risks. Neeser said she does not have that information because it is the Minnesota Department of Health that keeps records of foodborne illness related to raw milk, but stressed that permitting and inspection is important to ensure that such outbreaks do not occur.
Neeser stressed that MDA does not license dairy farms, but requires them to be permitted. There is no fee for the permit, she said, or for the dairy farmer for subsequent inspections. Neeser said the MDA’s reason for requiring dairy farms to go through the permitting process is to ensure that sanitary conditions are being maintained.
Because David Berglund is refusing to comply with the MDA regulations, the agency asked the court to assess a $500 penalty against Berglund for each day he refuses to allow an inspection. MDA also asked that the court order Berglund to pay MDA’s costs and fees incurred as a result of the action.
MDA said it was not seeking an order of confinement for David Berglund, in part because “it is likely that the operation would continue to be conducted by Respondent’s wife and daughter” even if he were confined.
Assistant Attorney General Middendorf wrote, “It is clear that nothing short of a finding of contempt will induce Respondent to comply with the law.”
The dairy’s defense
At the March 9 civil contempt hearing, the MDA said David Berglund and his attorney will be “given the opportunity to show compliance or reasons for failure to comply.”
Members of the Berglund family—David and Heidi Berglund and their daughter Lyndsay Anderson—are not talking to the media under advice from their attorney Zenas Baer.
However, as word has spread about the case of the small dairy farm standing up to the Minnesota Department of Agriculture, Attorney Baer has answered questions for his clients.
Baers argues that the 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.”
In answer to the MDA’s request for Berglund to obtain a permit, Baer wrote 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 wrote, “The police power of the State is not unlimited, even when enacting statutes for the welfare and health of its citizens.”
Further, Baer said the state has authority over establishments that manufacture, process, or pack for introduction into commerce. “Berglund does not introduce his food products into commerce. Private, informed customers make a personal choice to purchase natural food products,” he wrote.
In 22 pages, Baer answered the MDA’s complaints, returning time and again to Berglund’s constitutional right to privacy and to sell the products of his farm.
Dairy supporters want the right to choose
In his response to MDA, Baer stressed, “All customers voluntarily make the journey to Berglund to purchase raw, natural, nutritious, homegrown and homemade products.”
Demonstrating support for Lake View Natural Dairy in its quest to continue to provide products straight from the farm, are 146 individuals who signed a petition to the court, stating that they understand the risks of purchasing food from an unlicensed dairy producer such as David Berglund and Lake View Natural Dairy. The signers said they are aware of the MDA and Minnesota Department of Health warnings about the potential harm that can be caused by food and/or raw milk products, which can be a medium for the growth of pathogens, some of which can cause serious harm and death to people.
The petition states that the undersigned “make a conscious choice to purchase the products from David Berglund rather than from a retail grocery store where the source of the food is unknown. We know David Berglund and the quality of the food products he sells and believe that we have a protected right by the Constitution to make a decision to purchase products from him.”
Constitutional rights aside, many customers just want to support the local dairy. Even Greg Gentz of Grand Marais, one of the dairy’s staunchest supporters, explains that although he is an advocate of limits on the authority of government, the bottom line is that he just likes the taste of raw milk.
Gentz is concerned that if the state forces Berglund to be permitted, it will lead to the family having to purchase “hundreds of thousands of dollars in pasteurizing and bottling equipment.” Gentz said his concern is that the added expense would drive the small family farm out of business. Gentz has established a website for others like him who support the Berglund family and Lake View Natural Dairy to stay abreast of what is happening in the case. More information from Gentz and regional and national farm rights advocates can be found at www.supportlakeviewdairy.org.
Sherry Watson of Grand Marais is another Lake View Natural Dairy supporter. She said, “I believe it’s our right as consumers to choose the kinds of foods we feel are healthier for our lifestyles and our bodies. I personally don’t want foods with all kind of additives.”
Watson added, “I also feel it’s wise to support local family businesses— that’s what our county was founded on.”
Laurie Spry of Grand Marais echoed Watson’s thoughts, adding, “Supporting our local businesses—supporting one another—is the way our community was founded.”
Spry added that she was on the way to Lake View Natural Dairy that afternoon to purchase some cream for her mother, Charlene Anderson of Grand Marais. Spry explained, “She uses their cream because it is closest to what she grew up on.”
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