Lake View Natural Dairy Appeals to the MN Supreme Court

Lake View Natural Dairy (LVND), a privately owned raw/unpastuerized dairy that sells directly to consumers only, is in the beginning of their fourth year of misery with the MN Department of Agriculture (MDA).  The only point that is being litigated by the MDA is whether they have the right to step foot upon LVND’s property.

Currently, LVND is appealing their case to the MN Supreme Court.  This filing to the MN Supreme Court can be viewed here, Petition for Review, and is an easy and precise seven page read.  An additional Addendum of supporting documents can also be viewed here.  When a case is appealed to the MN Supreme Court, the court makes the decision to hear the case or not.  If they choose not to hear the case, the lower courts decision would stand. We will learn in the next several weeks and months whether the MN Supreme Court will take the Lake View Natural Dairy case.  Zenas Baer, LVND’s attorney, states the argument well within the Petition for Review,

“The ‘Nanny State’ has no place at the bargaining table between informed consumers buying from a farmer to nourish their family.  This Court [MN Supreme Court] should reaffirm the sacred nature of a private contract.  It must be remembered that the amendment at issue [Article 13, Section 7] was adopted in 1906, when the right to freely enter into contracts was at its apex in this country.  The right to contract as one sees fit was then deemed a ‘liberty interest’ entitled to constitutional protection.  Lochner v. People of State of New York, 198 U.S. 45, 53 (1905) (‘The general right to make contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution.’)  The courts below failed to give sufficient weight to the original intent of the drafters and the public who overwhelmingly approved this amendment to the constitution.  The Court should reaffirm that original intent matters and that neither courts, legislatures nor unelected bureaucrats have the right to amend the state Constitution-i.e. the Constitution is subject to amendment only through the procedures expressly set forth in that document for its amendment.”

It is clear however, from an MDA inspection report in  2013 that any inspection that is allowed by the MDA will lead to LVND being required to pastuerize and bottle their milk within a bottling plant. This type of inspection would lead to the regulatory mandates contained in the 2013 inspection report and would financially slam the doors of LVND closed.  This is the reason that LVND, who has never had a health complaint concerning their product, refuses to allow the MDA to step foot upon their property, as it would lead to the farms immediate destruction.

The mandated regulatory changes directed at a “Dairy Plant” that the MDA listed in their 2013 inspection report do not apply because, at the District Court level, the MDA was found to be wrong in their attempt to define LVND as a dairy plant, rather than just a regular old private farm.  That ruling was devastating to the MDA and illustrated their attempt at regulatory overreach.  However, District Court found that two statutes, out of the hundreds the MDA was attempting to wrongly apply to LVND, allow the MDA to come onto the farm’s property, a point that is still being litigated.

LVND is operating as normal during this continued litigation!  Please continue to support the farm, and our own ability to exercise our fundamental right to enter into private contract with our neighbors (like buying some extra potatoes from your neighbor’s garden).  This long-term litigation strategy by the MDA is a typical and accepted strategy to bankrupt a legal opponent.  Thankfully, Farm-to-Consumer Defense Fund has been funding this defense that would currently cost over $55,000 at full rate legal cost.  If LVND had no support from this defense fund and its loyal customers (who are defending their own rights through this case), we would sadly have lost LVND in the early months of this case as they have no financial ability to mount this defense themselves.  Let’s continue to show them that they have our support by continuing our patronage.

Lake View Natural Dairy Appeals Court Decision in 90 Days

On 11-16-16 three MN Appeals Court judges heard arguments (audio of the hearing here) from the Lake View Natural Dairy (LVND) and the MN Department of Agriculture (MDA) about whether the MDA could force inspection upon LVND which would likely lead to the doors closing on another small farm in MN.  LVND’s attorney, Zenas Baer, argued that there are no statutes or rules in MN that regulate the production of raw/unpasteurized milk for human consumption, other than 32.393 Limitation of Sale Subdivision 1. Pasteurization.  No milk, fluid milk products, goat milk, or sheep milk shall be sold, advertised, offered or exposed for sale or held in possession for sale for the purpose of human consumption in fluid form in this state unless the same has been pasteurized and cooled, as defined in section 32.391; provided, that this section shall not apply to milk, cream, skim milk, goat milk, or sheep milk occasionally secured or purchased for personal use by any consumer at the place or farm where the milk is produced. (Bold added), that gives LVND to statutory right to sell raw/unpasteurized milk.  The judges did focus on the word “occasionally” which the MDA has interpreted as limiting the producer to occasional sales defined by frequency of sales.  As can clearly be seen in the statute, “occasionally” is concerning the consumer, not the producer.  The judges asked the MDA how they know (or do not know) whether the consumers are buying milk “occasionally.”  The MDA had no answer.

I share the above matter because this is one line of questioning by the judges that could cause the case to be remanded (sent back) to the district court (Cook County Court) for further development of the record, which just means more evidence is needed to properly decide the case.  I would argue that “occasionally” never meant a frequency of number of transactions on the consumers’ part, but meant that third party distributors (remember that old milk delivery trucks that were routinely delivering milk still in 1949 when this statute was passed) could no longer routinely (in contrast to the word occasionally in the statute) deliver raw/unpasteurized milk.  Statute 32.393 made it law that consumers could only secure or purchase raw/unpasteurized milk at the place it was produced, which created a single tier relationship, farm to consumer, that needed no further regulation.  In fact, from 1945 to 1949, a raw milk for human consumption bacteria count per milliliter statute (like there is on the books today for other forms of milk) was removed from MN law.  Also, a law that required raw milk to be labeled as such, was also removed from statute 32.393 in 1949.  These actions by the state legislature almost makes a person think that the legislature was respecting an acknowledged threshold of the private man/woman who owned a private farm (insert sarcasm here).

The MDA continued to argue that statutes that are clearly regulating pasteurized milk should be applied to the production of raw/unpasteurized milk (even though that process was deregulated from 1945 to 1949 as stated above).  The MN Appeals Court judges have 90 days to issue a written decision.

A second case was heard an hour later in the same room by the same judges concerning the farmer, Michael Hartmann, who has been fighting the MDA for 20 years to sell his raw milk.  In 2012, Hartmann was stopped and dairy products were seized.  This stop and seizure by the MDA was later found to be unconstitutional and the MDA was required to pay Hartmann for his products that were destroyed (story here).  An issue arising out of that case was heard by the MN Appeals court (audio here).

The Appeals Court has limited function, which is determining whether the district court followed proper procedure and precedent of other previous decisions.  The Appeals Court does not allow further evidence nor make findings on the facts of the case.  The decision will be one of two options, to confirm the district court’s decision, at which time LVND can then appeal the district court’s decision to the MN Supreme Court.  Alternately, the Appeals Court can remand the case back to the district court to further develop the case in certain areas the Appeals Court specifies because they believe something was not properly done or developed with evidence (like whether the consumers are securing or purchasing on the occasional bases).

To be clear, this case is only deciding whether the MDA has the statutory authority to inspect LVND.  If the MDA were to inspect and then act against LVND which infringed upon fundamental rights of LVND and the private men/women who privately contract with LVND, the MDA could be taken to court for those actions causing those infringements.

Soooooo, take away is, that we are all only close to halfway through this whole court battle….sigh.  BUT, the best news is that LVND is open and conducting themselves as regular throughout this process.  Please go to the farm and purchase what you need from them to ensure they can survive on just a day to day sense.  Also, consider donating to their fight here.  So far the full rate cost of legal fees is over $52,000, which does not even include this recent appearance in the MN Appeals Court.  This isn’t a fight that is just being waged for the benefit of LVND.  This fight is for every small farmer/gardener and men/women who wish to have the choice to privately contract with them.  LVND and their owners have agreed to be the torch bearers for us all.

Lake View Natural Dairy Appeal and Your Right to Choose

It will soon be four years since the Minnesota Department of Agriculture (MDA) started its quest to force inspection and regulation upon a private farm, Lake View Natural Dairy (LVND), that produces unpasteurized/raw milk and other farm products in Grand Marais, MN.  Private men and women that seek these products out, purchase these farm products directly from LVND.  LVND does not contract with distributors engaged in commerce who could then sell their products.  The inspection and regulation the MDA is attempting to misapply to LVND would be so financially crushing that it would effectually slam the doors shut on one more small farm trying to make it in rural Minnesota.  Luckily, LVND is open and conducting regular operations through out this court process.

On November 16th, 2016 at 9:30AM, verbal arguments will be heard in St. Paul at the MN Judicial Center, room 100 (directions) in the Minnesota Court of Appeals.  It is important that anyone able to attend the hearing do so to show their support for personal liberties, private farmers/gardeners and the men/women who choose to seek out private farmers/gardeners for their products.  It is also important for the court to see that normal, everyday people care deeply about this overreach by a needed, yet overzealous state agencies (the MDA).  People unable to attend, but who wish to be part of the fight, can contribute at Lake View Natural Dairy – Fund, hosted by our neighbor in Finland, MN, the Organic Consumers Association.

This case will have serious implications upon our rights to make choices for ourselves (personal liberties).  It will decide whether we all have a Constitutional right to engage with our neighbors directly and make a choice to form a private contract over such an intimate basic personal decision, such as food.  An example of a private contract is two private men/women, known to one another, agreeing to exchange items, rather than obtaining those items through commerce.  Within the private contract that results in receiving products direct from the farm, food choice is intimate and the origin of that food is well known.  In contrast, food secured through commerce involves the exchange or buying and selling of commodities on large scale, involving multiple supply chains and the transportation of products from place to place for final sale.  The decision of the MN Court of Appeals will determine whether the State of Minnesota may impose its will upon us, in the afore mentioned situations, and expand the role of the nanny state to an ever more intrusive level of powers, while interfering in one of the most intimate aspects of our private lives.

It is worth revisiting the reasons that LVND has been declining inspection by the MDA all these long years.  There are no MN state statutory regulations that govern the production and sale of raw milk for human consumption, other than 32.393 “Limitation of Sale,” which states that unpasteurized/raw milk may only be obtained when it is, “…. occasionally secured or purchased for personal use by any consumer at the place or farm where the milk is produced“.  This statute specifically restricts third party distributors from routinely, as opposed to “occasionally” (used within the statute), distributing/selling (which would not be personal use, per the statute) unpasteurized/raw milk.  The statute places no regulation upon LVND who sells unpasteurized/raw milk directly from their private farm to private men/women.  If there is no enforceable regulation within our state statute that restricts a private farm from producing and directly selling unpasteurized/raw milk to private men/women (which is LVND’s argument), then there is no ability for the MDA to force themselves, in this scenario, into anyone’s home or private property due to their desire to regulate.  The MDA’s desire to regulate must yield to the fundamental right of private contract.  Our system of government is presumptive liberty, not presumptive regulation.  If the MDA has not gone through the regulatory process (legislation passed by our elected officials) that addresses the conduct by LVND and their customers, then there is no amount of coercion or threat by the MDA that should be tolerated that infringes upon fundamental rights of LVND’s owners or the men/women who privately contract with them.

LVND also declined the inspections because after the MDA conducted a warrantless inspection on 9-27-13 (prior to an inspection order being issued), the MDA stated in an Inspection Report (9-27-13),  that LVND must stop all production of dairy products.  This stop order (within the inspection report) was made in spite of the above cited 32.393 statute that allows unpasteurized/raw dairy products to be sold from the place or farm where the milk is produced.  LVND is committed to producing farm fresh products, which includes unpasteurized/raw milk, for private men and women who knowingly seek out those products and agree to purchase them from a private farm; rather than in typical commerce that engages in the exchange or buying and selling of commodities on a large scale, involving multiple supply chains and the transportation of products from place to place for final sale.

Within the 9-27-13 inspection report the MDA stated, “Orders: 1) Discontinue the manufacture of dairy products without the appropriate permits and approvals.  Minn. Stat. 32.392. Comply Immediately.”  Statute 32. 392, Approval of Dairy Plants, concerns the operation of Dairy Plants, and the District Court ruling (3-11-16) stated “The Court finds that the Dairy [LVND] 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.”  In the “Notice of Amended Report” (10-4-13) contained at the end of the inspection report, the MDA added order #5, which orders LVND to discontinue the manufacture and sale of unpasteurized dairy products per 32.392 (again).  Remarkably, at the time of the warrantless search, LVND understood they were not a “Dairy Plant”, but somehow the regulatory agency that is in charge of enforcing these statutes did not, possibly due to their desire to regulate LVND.  But, after great legal costs the MDA has been educated to at least the fact that LVND is not a Dairy Plant, which was clearly spelled out in statute at the time (32.01s6 Definition of a “Dairy Plant“).

The intimate relationship when purchasing directly from the farm/gardener is based on the fundamental right of private contract that is for ALL people of the US.  The right of private contract is protected from governmental interference through limitations upon our government contained within the US Constitution.  The MDA has already stated that the regulation they wish to impose on LVND, through their 9-27-13 inspection report (linked above), is regulation that controls pasteurized milk products and would require the farm to retool.  This retooling and its expense (well over $100,000) would certainly result in the immediate end for LVND.   But more importantly, LVND has no desire to sell the pasteurized products the MDA wishes to impose on LVND and the MDA has no regulatory power to force this change upon them!

Currently LVND has gone through the District Court process which resulted in a ruling (3-11-16).  LVND won a large victory when the District Court ruled they were not considered a “Dairy Plant.”  That ruling stopped the MDA from applying the entirety of MN State Statute Chapter 32 – Dairy Products upon LVND.  Dairy Plants are ONLY allowed to manufacture pasteurized products and the definition of “Dairy Products” within chapter 32 (defined by Federal Code of Regulation as, “milk”) only refers to those products, at the point of human consumption, that are pasteurized.  So, the question that needs to be asked then is, “How would statutes in Chapter 32 even apply to a private farm that produces unpasteurized/raw dairy products?”  Or, logically it is reasonable to conclude that the statutes do not apply to LVND.

However, the District Court found that two specific statutes, concerning inspection, did apply to LVND and that is currently being appealed through the MN Court of Appeals.  LVND’s attorney, Zenas Baer, filed LVND’s Appellant’s Brief and Addendum on 8-3-16, explaining how the MDA is violating the fundamental right to private contract of LVND and the private men/women that seek out LVND’s products; and why the MDA does not have the statutory power to inspect LVND.  The MDA filed their Respondent’s Brief and Addendum on 9-2-16, in which the MDA relies upon coloring LVND’s activities as engaged in commerce (the exchange or buying and selling of commodities on a large scale, involving multiple supply chains and the transportation of products from place to place for final sale).  The MDA also relies upon defining LVND’s activities as part of a “closely regulated industry.”  The pasteurized milk industry is certainly closely regulated, but unpasteurized/ raw milk is not, nor is it part of the pasteurized milk industry.  LVND’s attorney then filed the last brief in the appeal process, Appellant’s Reply Brief on 9-9-16, which details why the MDA’s arguments are without merit.

While the briefs linked above are not short, they are greatly informative.  Attorney Baer explains a well thought out argument in protection of these fundamental rights, specifically being able to engage one another over food without the government’s third party uninvited interference.

I hope that many of you reading will consider attending the appeal hearing.

If you do plan on attending please email with the number of persons you plan on attending with, so that we may give the MN Court of Appeal time to prepare for us.  The scheduled court room will hold roughly 25 people, but they do have an overflow auditorium that the case can be broadcast to with a video and audio link.   An early arrival is suggested due to parking being outside the block of the Judicial Center and the scheduled time coinciding with St. Paul rush hour.  Doors to room 100 will open between 9:00AM and 9:15AM with the preceding starting sharply at 9:30AM.  It would be helpful for people to pass this article along to others and share it within social media to inform others of such a pivotal decision currently being made in our courts.

It is likely that the decision from the MN Court of Appeals will be either remanded to the district court or appealed by one side or the other to the MN Supreme Court.  The continued costs are considerable and I would encourage people to donate at Lake View Natural Dairy – Fund, hosted by the Organic Consumer’s Association located in Finland, MN.  The Farm-to-Consumer Legal Defense Fund has been integral to funding the defense thus far and they deserve great thanks!

Lake View Natural Dairy – “The Appeal” Media Coverage

Here are several media stories from print, radio and tv news concerning raw milk and the court case, Lake View Natural Dairy v. Minnesota Department of Agriculture and the upcoming appeal.  This case is much larger than whether LVND can produce raw milk and contract with neighbors who want to purchase that farm product.  The larger issue is about where must the gov’t hold themselves to limitations from uninvited third party intrusions upon our fundamental rights and liberties of personal choice:

“Raw Milk and Cheese Are Undergoing a Renaissance as Artisanal Foods Rise in Popularity”April 16, 2016 –

“Judge Rules MDA Has Power to Inspect Berglund Farm” – March 16, 2016 – Farm-to-Consumer Legal Defense Fund

“Judge favors inspection for North Shore dairy farm” – April 6, 2016 – Duluth Tribune

“Grand Marais farm to appeal court ruling favoring MDA inspection” - April 7, 2016 – Channel 6, Northlands News Center

“Appeal expected regarding North Shore dairy farm inspection”April 7, 2016 – WTIP Radio

“Lake View Natural Dairy to appeal latest decision”April 9, 2016 – Cook County News Herald

“Lake View Natural Dairy Is Open, But On Its Way to Appellate” – April 7, 2016 –



Lake View Natural Dairy Is Open, But On Its Way to Appellate Court

Since January of 2013, Lake View Natural Dairy (LVND), who produces unpasteurized/raw milk, and the Minnesota Department of Agriculture (MDA) have been waging a battle that goes far beyond LVND’s plea to the court that as a dairy farm selling directly to men and women they are not subject to forced inspection by the MDA via an Administrative Inspection Order (AIO).  The broader scope of the argument is what rights of association and rights of contract (fundamental rights guaranteed under the first amendment of the U.S. Constitution) do men and women have to decide their own ability to secure food from one another, while free from third party uninvited government interference?  LVND is engaged only in associating/contracting directly with informed men and women.

Judge Michael Cuzzo has recently issued a decision from the Cook County MN District Court of whether an AIO issued to the MDA is valid and constitutional when used to search a small privately owned farm.  AIOs are an exception to the government’s 4th amendment requirement that warrants be supported by probable cause when searching men and women or their private property.  While it is not a simple discussion to navigate, I will try and not stray too far into the weeds. I reiterate from previous articles that I have testified in Judge Cuzzo’s court room during my former 15 years as a law enforcement officer (currently I am honorably retired to raise my two young daughters). I found him to have great integrity and I have respect for him as a good man and judge. I will also humbly acknowledge that my background was in law enforcement and Judge Cuzzo’s is in law. Luckily, in our country, we can have differences in our interpretations of law, history and context surrounding that law, regardless our background.

The decision issued by the Cook County District Court was a mixed bag, but basically found that the AIO issued to the MDA is valid and does not violate the State or Federal Constitution.  Additional arguments that fundamental rights, protected by constitutional protections, are being infringed upon were dismissed.  On a significant and positive note, the decision found that the MDA may not define LVND as a “Dairy Plant“, which confirms that in one respect, the MDA has been attempting to act outside of their limits of authority when it comes to LVND. The MDA’s inability to define LVND, a small private farm, as a Dairy Plant takes away much of the statutory regulation of Chapter 32, titled “Dairy Products”, that the MDA was attempting to impose on LVND under that definition.

However, this decision means that LVND’s attorney, Zenas Baer, will be filing an appeal with the MN Appellate Court. That appeal will likely argue that fundamental rights of the farm’s owners and men and women associating/contracting with the farm to obtain their farm products, are in fact being infringed upon.  While, the Court’s decision dismissed the constitutional arguments at the district level, Judge Cuzzo respectfully wrote, “In recognition of some of the constitutional issues raised, the Court will stay the Administrative Inspection Order for a period of 60 days, for the parties to consider appeal.”  Basically, LVND’s attorney has 60 days to appeal the decision, during which time they will be able to remain in operation without threat of inspection. That inspection would logically lead to costly inapplicable regulation in producing pasteurized products,  which would be the farm’s end.  LVND will also remain open and operating as usual during the appeal.

The Court’s decision stated that warrantless searches are only valid (as an exception to a probable cause search warrant rule of the 4th Amendment) when they are imposed upon a business that is engaged in a “closely regulated industry” (US Supreme Court Burger Decision, Page 482 U. S. 703).  A warrantless search was conducted on LVND (9/27/13) and occurred a year prior to this Court’s initial AIO (10/14/14).  The Court’s decision found that two MN Statutes give the MDA the power to inspect LVND.  Arguably, the context of the statutes, 32.103a and 31.04s1, the MDA is trying to impose upon LVND relates only to a closely regulated industry that produces pasteurized milk products in final form for beverage use (which is the definition of “dairy products” in Chapter 32) or that is used for the manufacture of other pasteurized products.  Is unpasteurized/raw milk production a part of that “closely regulated industry” that produces pasteurized products?  In fact, in 1987 federal law prohibited the sale of unpasteurized/raw milk across state lines throughout our country.  An argument upon appeal could be that the closely regulated industry of pasteurized dairy products does NOT include producers of unpasteurized/raw milk in final form for beverage use (who arguably are only addressed in MN Statute under 32.393).  Especially when you consider that throughout the 50 states, unpasteurized/raw milk is legal in only 39 states under 5 different defined ways for sale (

If the warrantless inspection on 9/27/13 was not valid under the US Supreme Court Berger Rules (because LVND is not involved in a closely regulated industry), then any evidence collected during that warrantless inspection should not be admissible as proof of a violation of statute.  This possible exclusion of evidence from the prior warrantless search is important because the later AIO issued by this Court on 10/14/14 relies upon evidence of an existing violation (Marshall v. Barlow, 1978), particularly that LVND produces buttermilk and chocolate milk (32.391s1e – Fluid Milk Products).  A pending question should also be, are additives to LVND’s unpasteurized/raw milk legally allowed as “micro ingredients” as defined under the MN Supreme Court Hartmann decision (2005) That decision allows farm products to have micro ingredients added while continuing to be products of the farm, such as salt, enzymes and cultures to cheese.  Would LVND’s legally sold unpasteurized/raw milk that has chocolate additive in it fit under this micro ingredient umbrella?  Also, the Hartmann (2005) decision found that because a farm processes a product, like buttermilk from unpasteurized/raw milk, that end product still remains defined as a product of the farm (no additives are added to LVND’s buttermilk).  So, does the 2005 MN Supreme Court Hartmann decision extend any protections to selling the above two unpasteurized/raw milk products?

According to the Court’s decision, the issuance of the AIO, under the Barlow rules, also relies on a violation of statute 32.393, “Limitation of Sale”.  The Court’s decision specifically states that due to LVND having 146 customers who signed a petition of support, that number of customers creates a violation where, “Mr. Berglund makes more than merely occasional sales” and therefore a violation of 32.393 has occurred; however, 32.393 states, “…occasionally secured or purchased for personal use by any consumer at the place or farm where the milk is produced.”  The statute places no restriction on the producer….. “occasionally secured or purchased by any consumer.”  The statute  does not limit the volume of “sale” by those legally allowed under the statute to sell unpasteurized/raw milk directly to the consumer, e.g. the farmer.  Therefore, an argument could be made that there is no violation of 32.393 that supports an AIO either.  I would argue that the historical context of statute 32.393 is to prohibit routine second party distribution/delivery off the farm and this historical context has been lost throughout the decades by misapplication and interpretation by the agency (MDA) who is charged in applying it.  No wonder the MDA’s own inspectors have given wildly different numerical definitions of “occasional” during court testimony when they are likely misapplying what the context of statute 32.393 means.  This is a significant contextual understanding of 32.393, that instead of interpreting “occasional” as the opposite of “routine” distribution, the MDA has been inappropriately attempting to assign an arbitrary numbered frequency to the term “occasional.”

I believe there is historical context in our MN Constitution (Article 13, Section 7, passed in 1906) and MN Statute that has made a protection, or a “cut out”, for private farms and men and women to associate/contract with them.  Historical context is important when applying constitutional and statutory provisions,  “Since we must use the ordinary meaning of constitutional words or phrases in light of the social, economic, and political situation of the people at the time the provision was adopted” (MN v. Hartmann, 2005, section I, paragraph 10).  In the mid-1800s and into the 1900s, swill milk, from cramped disease ridden alcohol distilleries located in large cities was getting people sick (Historical Timeline – Milk: see 1840-1920sMilk Production and Distillery Dairies in the United States and Facts About Real Milk).  In 1945, there were milk producers (farms) and milk distributors who secured and delivered milk.  Statute 32.393 (passed in 1945) specifically limits the sale of unpasteurized/raw milk from the farms only, directly to consumers in MN and routine purchase of unpasteurized/raw dairy products from a second party distributor/delivery service was made illegal in MN.

There is also an assertion by the MDA that the sale of unpasteurized/raw milk constitutes a safety risk to the public.  The Court stated that, “The regulatory scheme allowing the MDA to inspect the Dairy is supported by the substantial government interest of verifying the integrity and safety of the Minnesota food supply. Inspection is necessary to further the regulatory scheme, as it is the only way that the MDA can ensure that the food being sold meets proper integrity and safety standards.”  However, the MDA has not provided within this court record any current analysis that unpasteurized/raw milk has created a health risk in MN, especially from LVND.

It is important to note that the decision only determined whether the inspection itself was valid, not whether costly imposed regulatory action would be valid.  The decision specifically noted, “…enforcement of the Administrative Inspection Order would not by itself prevent Mr. Berglund from selling raw milk products.  The argument relies on speculation as to future actions that the MDA might take following an inspection.  Accordingly, the additional constitutional arguments are unripe and not justiciable, and are dismissed,” meaning that LVND has not yet been prevented by the MDA from selling raw milk and therefore there is no action infringing upon a fundamental right for the court to rule upon.

However, after the MDA made a warrantless inspection of LVND’s dairy house (9/27/13) the MDA ordered LVND (10/4/13) to “Discontinue the manufacture and sale of unpasteurized dairy products”.  These facts were described in the Decision’s “Undisputed Facts” section. Wasn’t the MDA’s order to discontinue “manufacture and sale” an action by the MDA after inspection? Doesn’t the MDA’s order to discontinue “manufacture and sale” of unpasteurized products prevent LVND from selling raw milk products and prevent men and women from purchasing/securing those farm products, therefore making the Constitutional arguments ripe and valid for a court to rule upon?

Respectfully, the current decision by the Court has raised several questions that could possibly be explored in an appeal.  The road that LVND is now on, that of an appeal, will likely be lengthy.  Please consider visiting  Lake View Natural Dairy- Fund to donate and support not only LVND, but LVND’s consumers and to support all of our personal liberties and fundamental rights guaranteed under the US Constitution.

“Food Fight” Around the Country

Hey Folks,

Lots of things going on through the Christmas Holiday and the celebration of the New Year!  I’m sure you all have been busy like our family and now it’s time to get back to life as normal.  Unfortunately, life as normal is not available to us all.  The Berglund family and well informed men and women who choose to associate with Lake View Natural Dairy, patiently await the court decision that will greatly influence our personal liberties.  Liberties that include freely associating with our well known neighbors concerning who and where we decide to source our food from.  What a basic intimate decision for us all to make.

With all honesty and sincerity, I wish that the Cook County District Court take whatever time is needed to come to a constitutionally supported decision in this Lake View Natural Dairy v. Minnesota Department of Agriculture case.

This “Food Fight”, that is so greatly intrusive on our personal liberties, is occurring around the country.  Here are just a few stories that I have become aware of or people have emailed me about:

When any decision is published by the Cook County District Court, I will post the entire document as quickly as possible.  Thanks again for everyone’s support of all of our personal liberties and don’t forget to make a trip to Lake View Natural Dairy to support them!

Lake View Natural Dairy v. MDA – Awaiting the Decision

It has been 43 days since arguments were presented at the Cook County Courthouse concerning whether Lake View Natural Dairy (LVND), a privately owned dairy farm, along with well informed private men and women, have the right to privately contract with one another to buy food/dairy directly from the private farmer/gardener.  The Minnesota Department of Agriculture (MDA) argued that LVND and the private men and women associating with them, have no such right.  They believe that as long as LVND is processing and selling farm products in any way, the MDA has the right, as an uninvolved third party, to inspect everywhere that production takes place (including anywhere that records and documents concerning that production may be kept).  Apparently, they believe we need to be stopped from using our own ability to make informed decisions on sourcing food for our families.  Thank you for trying to save us from ourselves, but no thank you.

There must be a line somewhere, that the MDA cannot tread into these intimate private associations, but they appear not to believe that is the case.  It is hoped that the court will follow this interpretation of our basic rights, that government may not search our personal property and interfere with intimate private associations without limit.  I will wait with cautious optimism.  I am happy that Judge Cuzzo is taking whatever time is needed to come to such a pivotal decision that will have such a great effect on our personal liberties.  However the decision comes down, I wish him positive guidance and clarity.

During this holiday season, I give thanks to live in a country where I have so many freedoms and liberties.  I will continue to pursue those freedoms and liberties so that they will remain for my children.

To all, have a safe and wonderful Thanksgiving.

MDA Claims They Can Inspect Your Private Kitchens, But Not Your Bedroom

On Tuesday, October 13th, Lake View Natural Dairy (LVND) was in Cook County District Court defending private contract rights (among other rights) against intrusion by the Minnesota Department of Agriculture (MDA).  LVND is a privately owned, family farm that milks 16 cows and offers that raw/unpasteurized milk directly to individual men and women who wish to purchase it from their milk house.  There are also products from the farm/garden that are offered along with cookies baked in their private home kitchen.  All the products are offered in a small milk house that is open 24/7 and payment is made by the honor system which consists of a coffee can.

LVND’s attorney, Zenas Baer, gave a powerpoint presentation to layout the arguments (see the presentation given in court here), which spoke directly to when can private men and women agree to associate with one another privately to give, exchange or sell food (private contract rights).  Private association/contract rights speaks directly to the argument of when may I bake in my private home kitchen or milk cows on my private farm and give or sell that product to my private neighbor (not a store or commercial entity).  Sell is defined in MN Statute 34a.01sub.12 as:  Sell; sale.  “Sell” and “sale” mean keeping, offering, or exposing for sale, use, transporting, transferring, negotiating, soliciting, or exchanging food; having in possession with intent to sell, use, transport, negotiate, solicit, or exchange food; storing, manufacturing, producing, processing, packing, and holding of food for sale; dispensing or giving food; or supplying or applying food in the conduct of any food operation or carrying food in aid of traffic in food whether done or permitted in person or through others. (Highlight added).

The court asked the State, in the context of someone producing food in their private kitchen or property (like LVND), where is the line at which the MDA believes they can not pass in terms of inspection with an Administrative Inspection Order (which is not a probable cause warrant, but exercising their police powers of “inspection in the absence of violation/complaints” to check if violations might be occurring, according to the MDA’s perceived standards).  State Assistant Attorney General Kieley, representing the MDA, stated that the MDA may inspect ANYWHERE, regardless of private ownership, where food is processed and held for sale.  When the definition of sale is understood, which was pointed out in court by Baer, the State is saying they may interject themselves, as an uninvited third party, into anyone’s private home that is preparing food to give to another private man or woman, which the State did not disagree with.  This includes pot lucks at your church, bake sales, extra yogurt you make and give to your neighbor, maple syrup you process to give to others for holiday gifts and the examples could go on and on.

Whether the MDA would go into everyone’s private homes and kitchens where they are processing foods for gift or sale to another is not the point, they likely would not.  The point is, the MDA believes they have the legislated power, given to them by elected officials who are representing the interests of the people whom elected those officials to enter our homes under the above circumstance.  I don’t know many who would claim our interests embrace this idea of unabridged entry into our homes and kitchens, where food is processed to give to another, by a state agency.  The Court pressed the State and asked for an example of where the MDA could not go.  Kieley replied that the State would assume there would be no processing of food in the bedroom of the owners of LVND, so that is an area that they believe they would not tread.  But, for clarity, inspection includes searching for records and documents (like the Inspection Order left at LVND), so don’t leave your notebook computer in your bedroom.  It would seem unreasonable to allow the MDA to hold the above interpretation of their police powers of intrusion into individual privacy rights.  The MDA’s desire to regulate must yield to constitutional privileges (statement by Baer).

The Court also asked LVND’s attorney where “the line” that the MDA could not pass, using an Administrative Inspection Order to inspect for compliance or violation concerning the processing of food for sale, would lie (again, which includes giving of food by private men/women to other private men/women).  Baer replied (I am paraphrasing from memory) that the point at which private men and women were producing foods, of which the origin was  largely known (like products of the private producers farm/garden/home kitchen) to the private man or woman consuming those foods (meaning the consumer is informed) would be a point, or line, at which the MDA would not be allowed to invite themselves into and intrude upon the personal association/contract as an uninvited third party.  Again (stated by Baer), the MDA’s desire to regulate must yield to an individual’s constitutional privileges (right of personal contract and right of association).

Processing which involves many producer’s products (which would largely be unknown to the private man/woman) being co-mingled into another product in large quantity and offered into commerce, would rightly be a place in which the MDA should inspect and regulate.  Those multi-tier food processing actions is where the MDA is needed to assure food safety due to the complicated, multi-tier food to consumer relations.  A private, single tier relation of farm/gardener/home baker direct to consumer, is not a place the MDA is needed.  I do not want my privacy intruded upon because I chose to grow/bake food and give, exchange or sell food directly to my neighbor, friend, church or community.

In another line of questioning, LVND’s attorney stated that the State must go through the rule making process (legislation) to control the sale of raw milk because the current law only gives the State the authority to control the sale of milk from Grade A and Grade B dairies (which LVND is neither).  The Court asked the State to address the single issue of selling of raw milk by giving the court the MN statutes that control the sale of raw milk.  The State’s answer was that they could not just answer a single question about raw milk, because there were many other products being sold at LVND.  The court again asked for the statues controlling the sale of raw milk.  The State again would not directly answer Judge Cuzzo’s question.  The State’s refusal to directly answer that question shows their indirect admission that there are no rules in statutes that give the MDA police powers to control the sale of raw milk.  If there are no statutes controlling the sale of raw milk (which by statute would be contained in MN Statutes 32.391 to 32.398) the MDA is not allowed to make law, but must go through the legislative process if they desire to regulate raw milk.  You can see more of this argument contained in Baer’s powerpoint to the court.

There were several other arguments that were presented and Judge Cuzzo asked probing questions of each side.  It was indicated that the decision upon whether another evidentiary hearing was needed would be made in the next couple of days by the State, but Kieley indicated he thought it was unlikely.  Judge Cuzzo, barring another evidentiary hearing, would issue his ruling on these complicated and weighty decisions in the upcoming weeks.

As for LVND, the next step will likely be an appeal by either side.  In an after court interview, Attorney Baer, stated he could see this case again reaching the MN Supreme Court as did the Hartmann case (similar circumstances) in 2005.  The unfortunate circumstance we find ourselves in is that the MDA is attempting to regulate from a position of “assumed governmental control,” rather than the position that our federal and state constitution dictate of “assumed individual liberty.”




What to Expect on Tuesday’s 10AM LVND v. MDA Court Date – 10/13/15

On the morning of Tuesday, October 13th, at 10am at the Cook County Courthouse, the Berglund family, many organizations, myself (Greg Gentz), and most importantly many community members I have spoken to are hoping for a large turnout of quiet support.  I would like to encourage anyone who has the time or can arrange for the time off from work, to at a minimum come between the hours of 9:30am to a bit past 10:00am, and if you can, stay throughout the hearing.

Please arrive early for security screening (metal detector) and seating in the courtroom (first row seating is reserved, as is a section of seating for the media, and the rest is first-come-first-serve). No one will be allowed to stand in the courtroom.  Please leave metal items (i.e. pocket knives, restricted weapons, etc.) in your vehicles to help our deputies with the potential large volume of persons attending the hearing.  No hand bags, purses, briefcases, hats or recording devices will be allowed in the courtroom. It would be best to leave cell phones in your vehicles as anyone that creates distraction in the courtroom will be immediately removed.  If you forget you have restricted items on your person, you will be asked to return them to your vehicle.

The goal is to assemble for a quiet, respectable show of support with our presence, for the farm, all small farmers/gardeners and private men/women who wish to associate with them; so the MDA can feel that support.  I cannot tell people how to show their support, but our request is that people will refrain from pickets, chants or attention getting clothing.  Our intent is to have the MDA, media and public observe an everyday cross section of our community and those who support our local Lake View Natural Dairy and all small farmers/gardeners.  Even more importantly we want them to observe people who hold dear our constitutionally protected right as men and women to make choices for our own families and enter into private associations that we rightfully choose.

I, and likely others, will be on hand to speak with people, that wish to, about the issue being heard in court.  After the hearing, Zenas Baer, the farm’s attorney, has agreed to speak at the courthouse if supporters wish.

I want to be very clear in my personally held great respect for our Cook County Sheriff’s Office.  As I have said before, the Sheriff’s Office is knowledgeable about this issue, and has acted in an exemplary manner in carrying out their mission to protect an individual’s rights and to uphold the federal and state constitution.  I wish that any impact that I can have on the day’s events be peaceful, respectful and “low stress” inducing to the sheriff and deputies working to ensure our safety at the courthouse.  I would truly ask that we all give them our verbal thanks for their service and as an acknowledgment of the personal risk they place themselves in daily.

In addition, during the time I was a Cook County Deputy Sheriff, I testified in front of Judge Michael Cuzzo and I have great respect for him as our elected judicial officer in our region.  I believe he is a man with firm regard for the law and who fairly applies justice in our court.  Our quiet respect in his court room has been and will be noticed.

There are several outcomes possible at the end of the court hearing that is estimated to be one hour.  The judge has the ability to rule at the hearing, but this is unlikely.  It would be more likely that the arguments from the MDA and the farms attorney will require a written ruling from the Court on a future date.  What is important here, in my view, is that we all continue to realize that this is very well one step is this process and an appeal to the MN Appellate Court is likely.

I would like to impart to the MDA that we will be here for the long haul.  With those intentions in mind, I have reserved the ITV room across from the Commissioners Room (regular Commissioner’s meeting will be in session, so please be respectful concerning noise outside this room) from 8am to 12pm for overflow seating if the courtroom is full.  I have been told that the ITV room can hold around 30 seated persons.  This room is downstairs from the courtroom and there is additional seating in the hallways also.

It’s a lot to ask, but think of the message that will be received by the MDA if the building was at its maximum, even after an hour long court hearing. The message to the MDA would be deafening in symbolism.  Audio and/or video from the courtroom are not currently available.

Coffee and snacks in the ITV room will be provided by Java Moose, Holiday Gas Station, FIKA Coffee, Gene’s Food, Cook County Coop and Organic Consumer’s Association, please thank them!

Will District Court Check the MDA’s Power Over Us?

A phone conference was held on Tuesday, September 29th between Cook County Court Judge Michael Cuzzo, Lake View Natural Dairy (LVND) attorney Zenas Baer and the Assistant Attorney General Max Kieley who represents the Minnesota Department of Agriculture (MDA).  Judge Cuzzo was to determine the nature of the upcoming hearing in this court case in which the MDA is attempting to force statutory rule (that does not apply) upon LVND who has a plethora of constitutional (and other) arguments against the MDA’s actions.

This hearing will likely be the last local district court hearing to be held in this matter.  The Court has already denied the MDA the power to have the owner of LVND, David Berglund, found in contempt for refusing to submit to an Administrative Order for Inspection (which is currently stayed).  The MDA was also denied the request that LVND be assessed a fine of $500 a day until inspections were held and be assessed fees for the previous failed inspection attempts.  The MDA’s attempt to use the court to force LVND to submit to the MDA’s will through economic threats was denied.  If the Administrative Order of Inspection is held valid, similar requests (including incarceration) could be requested again by the MDA.

During the current phone conference, Judge Cuzzo indicated that the State has the burden to establish several factual issues to resolve the outstanding arguments facing the court (whether the MDA’s police powers cover a “private dairy farm” that is not a Grade A/B dairy nor participates in commerce, but direct private associations with men and women):

  • The State has the burden to establish that they have a “health and safety” reason for the regulation of raw food products (MDA employees have testified previously that private citizens may bottle raw milk in their own containers, including dirty containers, but a private farmer may not bottle the milk in sterile containers).
  • The State has the burden to establish whether the regulation of raw milk sales is narrowly tailored to protect the private contract rights of the owner of LVND (and the private men and women who associate with them).
  • Lastly, the State has the burden to establish that they have a compelling interest to regulate these food products (which current science and facts does not support concerning raw dairy – see previous posts).

The Court suggested that it was uncontested that the owner of LVND and its customers hold a deep belief concerning their decision to purchase raw natural food products and the State did not claim otherwise.

Judge Cuzzo indicated that the hearing on Tuesday, October 13, 2015 would be a  hearing during which arguments would be made between the attorneys concerning the evidence already submitted through previously filed written affidavits (click here for an article containing those documents).  As I understand the issues, the MDA’s arguments are weak and overreaching concerning the original intent of many of the statutes they have based their arguments upon.  During previous cases (MN v. Hartmann case testimonies provided in previous post links) MDA inspectors have had different interpretations of what statutes they are relying upon for their police powers and even what the same statutes mean.  This is because they are relying on statutes that were passed for purposes other than controlling an “ordinary dairy farm,” and the MDA is now attempting to incorrectly apply these statutes to LVND.

After the hearing, it is likely Judge Cuzzo will later file a written ruling that will be the end of this case locally.  Either the MDA will be held in check and their police powers rightly contained within their limits of statutory authority or the MDA’s Administrative Order for Inspection will be held valid.  Either result is likely to lead to an appeal, which could result in further hearings being held over 100 or more miles away.  This will likely be the last chance for supporters to gather locally in support of their individual rights of association or to show support of LVND (and all small farmers/gardeners) to continue offering its products.

The hearing is scheduled to start at 10:00am during which the State/MDA will present their argument for 10-15 minutes.  LVND will then be given 30 minutes to respond and the State/MDA will have 20 minutes in rebuttal.  Judge Cuzzo stated he believed the hearing will be finished before noon on Tuesday.

Please consider attending this hearing in a show of quiet support for all of our individual rights.  There will be an informational briefing after the hearing from LVND’s attorney about what occurred during the hearing.  See – Court Date: Tuesday, October 13th, 2015 at 10:00 AM for Lake View Natural Dairy v. MDA - for more information.