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.