A Minnesota farmer has appealed to his state’s Supreme Court, arguing the state constitution protects him from a demand by the Minnesota Department of Agriculture to inspect his farm.
The issue is an old one: Dairy farmer Dave Berglund of Lakeview Natural Dairy in Grand Marais sells raw milk to customers who come to his farm.
That’s allowed by state law, but his sale of raw butter and raw yogurt is prohibited.
However, his lawyer, Zenas Baer, cites a state law providing, “Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.”
The report comes from the Farm-to-Consumer Legal Defense Fund, which is defending Berglund.
There have been dozens of disputes in recent years between farmers and state or federal regulators over the issue of unpasteurized milk and other products that come directly from the farm.
Government agencies almost unanimously claim the authority to inspect such products or even ban such. Producers say they have a right to sell their products directly to consumers without the heavy hand of government on them.
In one famous case in Wisconsin, Circuit Court Judge Patrick J. Fiedler ruled that families boarding cows on a farm had no right to the milk from their own cows.
Fiedler’s decision said: “Plaintiffs argue that they have a fundamental right to possess, use and enjoy their property and therefore have a fundamental right to own a cow, or a heard (sic) of cows, and to use their cow(s) in a manner that does not cause harm to third parties. They argue that they have a fundamental right to privacy to consume the food of their choice for themselves and their families and therefore have a fundamental right to consume unpasteurized milk from their cows,” the judge wrote.
Nonsense, he said.
“They do not simply own a cow that they board at a farm. Instead, plaintiffs operate a dairy farm. If plaintiffs want to continue to operate their dairy farm then they must do so in a way that complies with the laws of Wisconsin.”
He continued, “The court denied plaintiffs’ motion for summary judgment, which means the following:
“(1) no, plaintiffs do not have a fundamental right to own and use a dairy cow or a diary (sic) herd;
“(2) no, plaintiffs do not have a fundamental right to consume the milk from their own cow;
“(3) no, plaintiffs do not have a fundamental right to board their cow at the farm of a farmer;
“(4) no, the Zinniker plaintiffs’ private contract does not fall outside the scope of the state’s police power;
“(5) no, plaintiffs do not have a fundamental right to produce and consume the foods of their choice; and
“(6) no, the DATCP did not act in an ultra vires manner because it had jurisdiction to regulate the Zinniker plaintiffs’ conduct.”
In the Minnesota case, Bergland had refused in 2014 to let state officials search his farm. It went to court and the first ruling said Berglund was not in contempt for that action. Then a subsequent ruling said the state can inspect his farm.
“At the heart of the case is a provision in Article 13 Section 7 of the Minnesota Constitution stating, ‘Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor,'” the Farm-to-Consumer organization said.
“The Berglund case is a chance to revisit the Minnesota Supreme Court’s 2005 decision in State v. Hartmann. In that case, the state brought criminal charges against farmer Mike Hartmann for selling meat products without a license and for the unauthorized sale of custom-processed meat. In a close 4-3 decision, the court ruled that Hartmann could not sell custom-processed meat, holding that Article 13 Section 7 ‘exempts farmers from licensure but not from substantive regulations (such as inspection) of the production or sale of their farm products.'”
The dissent in that ruling pointed out “the distinction the majority draws between licensure and substantive regulation is real, but it cannot be employed without more to circumvent constitutional provisions.”
“The lower courts ruled, without analysis, that Berglund’s right to sell and peddle raw milk from his farm is not a ‘fundamental right’ … Constitutional rights are, by definition, ‘fundamental rights,'” Baer explained. “The right to ‘sell and peddle’ products of the farm is expressly stated, no inference necessary. The people add rights to the constitution to deprive politicians the power to legislate them away and to prevent bureaucrats from taking them away by administrative fiat.”
The legal defense fund said: “In the petition, Baer also claims that the rights of association and private contract are also impaired by the lower courts’ rulings. Regarding the ‘illegal’ foods Berglund sells, he states, ‘The right of a consumer to choose the food she will put into her body is unavailable due to government prohibition on its sale. … The ‘Nanny State’ has no place at the bargaining table between informed consumers buying food from a farmer to nourish their family.'”
The farmer is waiting for the court to announce when it will rule.
One year ago the Centers for Disease Control issued a statement blaming the 2014 death of a Florida woman on raw milk, specifically Listeriosis.
The government agency said regarding Miller’s Organic Farm: “It was reported that both ill people drank raw milk before they got sick. The family of the deceased person in Florida reported purchasing raw milk from Miller’s Organic Farm.”
However, the Weston A. Price Foundation, which defends producers of raw milk, contends that, according to a family member of the deceased woman, the CDC’s statement is “false and misleading.”
The foundation quoted Peggy Stevenson, who provided care to the woman.
“My family member was diagnosed with and died of cancer after a week of chemo,” she said. “I am outraged that the CDC is using our tragic situation to damage and try to destroy a farm we love and support.”
The federal government has a long history of portraying unpasteurized milk as a killer.
