The Minnesota Supreme Court decided on April 26 against hearing the Lake View Natural Dairy’s (LVND) constitutional rights arguments versus the Minnesota Department of Agriculture (MDA), thus leaving a significant question mark for the dairy.
But rather than an end, this might be a new beginning for the Berglunds, said their attorney Zenas Baer.
Baer has been the Berglunds’ legal representative the last four years in a case that has involved extensive litigation between the state and the Berglund family that owns LVND.
The MDA began pursuing this matter in January 2013 when they learned that LVND owners David and Heidi Berglund were operating Lake View Natural Dairy on Maple Hill, and suspected the couple of selling unpasteurized/raw milk products to consumers.
On February 26, 2013, the MDA attempted to conduct an onsite visit to the dairy, but Mr. Berglund refused to allow inspectors access to his property, arguing that the state was violating his constitutional rights.
An inspection would almost certainly lead the state to mandate that the Berglunds install pasteurizing equipment, a move which would be prohibitively too expensive and result in closing the farm to its neighbors and friends who buy raw milk products there.
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, 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 an October 13, 2015, court hearing Baer argued the MDA lacked statutory authority to inspect the dairy and also 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, right of privacy, the right of association, due process, and equal protection. Baer also said the state’s definition of a “dairy plant” was not defined by statute.
To the last point, Cook County, Minnesota Sixth Judicial District Court Judge Michael Cuzzo agreed with Baer. “The Court recognizes that the statute is somewhat vague. Especially given the lack of a statutory definition of ‘dairy farm,’ it is difficult to determine whether the dairy is appropriately classified as a dairy plant. However, the Court believes the dairy is properly considered a ‘dairy farm’ under the commonly understood meaning of the term, as it is a place where cows are kept for the production of milk products. … The Court finds that the dairy does not meet the definition of a ‘dairy plant,’ under Minn. Stat. 32.01, subd. 6, and that it is therefore not subject to inspection under Minn. Stat. 32.392.”
At that time Cuzzo said, “Article XIII, Section 7 of the Minnesota Constitution allows for a family farm to sell products produced by that farm, free from licensing requirements. However, a farmer who is exempt from licensing requirements is still subject to the MDA’s regulation of the production or sale of the farm products. These regulations include the statutory authority given to the MDA to inspect milk producers. The legislature has singled out the area of milk production for inspection, apparently due to peculiar risks involved in milk production.”
With that ruling, the MDA pressed its right to inspect the Berglund farm contending that LVND undergoes inspection to ensure its products are fit for human consumption. But David Berglund argued, among other things, that his constitutional rights are being violated, citing a law enacted by the Minnesota Legislature in 1906 that allows a farmer to sell his farm products without a license.
LVND is open seven days a week 24 hours of the day. Customers come to the small milk house and purchase raw/unpasteurized milk, skim milk, cream, yogurt, butter, or vegetables (when in season) or homemade cookies, putting their payment for the products into a tin can.
When contacted, Zenas Baer said a similar case between Gibbon, Minnesota farmer Mike Hartmann and the MDA would be tried in district court in Gaylord, Minnesota on July 14, 2017, and a ruling from that litigation might end the MDA’s case against the Berglunds.
“Hartmann versus the state has constitutional arguments that are essentially the same as the Berglunds,” said Baer, who also represents Mr. Hartmann. “There are some differences. Products were seized from his vehicle, his home, his farm and the court has already ruled that those seizures were illegal.”
Hartmann, like the Berglunds, sells raw milk and other unpasteurized dairy products from his farm. Minnesota law allows only on-farm sales of raw milk, but the sales must be classified as “occasional.” Baer has asked the courts to define “occasional” as it relates to the sales of farm products but has had no luck so far getting an answer or a ruling.
Should Hartmann’s case fail, Baer said the Berglunds could start over in district court should the MDA press its right to inspect the farm.
“That would give the Berglunds the right to have their constitutional rights case heard and ruled upon. The courts wouldn’t rule on it before, but if the case is brought back those are the arguments that will be presented and must be heard.
“I am very committed to the individual’s rights to enter into contracts with their neighbor. The state has no right to interfere with those contracts,” said Baer.
For now, the Berglunds’ little store is open for business. Baer said the lead attorney for the MDA seemed amenable to working out some arrangement with the Berglunds, and that might forestall any more litigation, but for now, the Berglunds will take a “wait and see approach,” to the state’s actions.
When contacted, the Minnesota Department of Agriculture spokeswoman Margaret Hart emailed that it was the state’s regulatory responsibility to conduct inspections on the dairy, and plans are being made to see that the farm undergoes inspection. If that happens and penalties are meted out to the Berglunds, Baer said the case will go back into District Court so the Berglunds can finally get a ruling on their constitutional rights arguments.
To date the Berglunds’ legal battles have been costly, far outweighing any money they make from selling their products at the farm. To pay for their legal help, the Organic Consumer’s Association (which is located in Finland, Minnesota) has set up The Farm-to- Consumer Legal Defense Fund for Lake View Natural Dairy.
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