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 (Realmilk.com).

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.