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!