Dave Berglund, Minnesota

By Pete Kennedy, Esq.

Update, Winter 2015

In a ruling paving the way for a possible precedent-setting court decision on food freedom in Minnesota, Cook County District Judge Michael J. Cuzzo has denied the request by the Minnesota Department of Agriculture (MDA) to hold dairy farmer Dave Berglund in contempt for refusing to let MDA officials possessing an administrative warrant inspect his farm. Judge Cuzzo also stayed the order he issued in October 2014 requiring inspection of Lakeview Natural Dairy, the farm Berglund owns and operates, until the judge makes a ruling on the constitutionality of regulations governing MDA’s authority to inspect Lakeview Natural Dairy, which the farmer and his attorney, Zenas Baer, are challenging. The Farm-to-Consumer Legal Defense Fund is providing funding for Berglund’s legal representation.

Judge Cuzzo granted the administrative inspection warrant on October 14, 2014, at MDA’s request because Berglund had already refused to let MDA conduct an inspection of his farm on two different occasions in 2013. Berglund contends that the state had no jurisdiction over his farm because of a provision in Article XIII Section 7 of the Minnesota Constitution stating, “Any person may sell or peddle the products of the farm or garden occupied by him without obtaining a license therefor.” After Berglund refused to let MDA inspectors with the warrant onto his farm on October 22, the department petitioned the court to hold the farmer in contempt. (See Wise Traditions Spring 2015 issue for background on the case.)

On March 2, 2015, a week before the contempt hearing, Baer filed a submission with the Court challenging the validity of the warrant and MDA’s underlying statutory authority to inspect Berglund’s farm on numerous constitutional grounds. At the March 9 hearing, Judge Cuzzo temporarily denied MDA’s request to hold Berglund in contempt and indefinitely stayed his own order that granted MDA the warrant to inspect.

In his June 3rd opinion, which actually denied MDA’s contempt request, the judge held that Berglund “has demon- strated a valid reason for his failure to comply” with the administrative warrant. Judge Cuzzo stated, “This Court will not hold Mr. Berglund in contempt, an ‘extraordinary remedy,’ for asserting a challenge to the constitutionality of a statute.”

The key section of the judge’s opinion was where he distinguished between Berglund’s situation and the 2005 Minnesota Supreme Court case of State vs. Hartmann. In the Hartmann case, the State Supreme Court reversed a criminal conviction for selling meat since it was a product of the farm, but it upheld the conviction for processing meat that was prohibited under Minnesota law. In issuing its decision, the Court held that Article XIII Section 7 of the state constitution “exempts farmers” licensure to sell products but not from substantive regulation of the production or sale of their farm products.” In the Berglund case, Judge Cuzzo noted, “As of March 2, 2015, Mr. Berglund raised numerous different constitutional arguments regarding the State’s ability to regulate his dairy. Mr. Berglund is now challenging the constitutionality of the regulations that allow the Department to inspect his farm in the first place. The Minnesota Supreme Court did not address this precise issue in Hartmann.”

If Baer can persuade Judge Cuzzo that the Minnesota laws governing inspection are unconstitutional as applied to farmers selling the products of the farm direct to consumers, then it will be a major step toward establishing a food system in which farmers can legally sell the products of the farm direct to consumers without regulation.

Update, Spring 2015

After having no success putting Gibbon dairy farmer Mike Hartmann out of business [See Wise Traditions Winter 2014], the Minnesota Department of Agriculture (MDA) has set its sights on another raw milk producer, Grand Marais farmer Dave Berglund of Lake View Natural Dairy. Berglund sells raw milk, cream, butter and other dairy products at his farm store; he does not sell any product off the farm. There has never been a complaint about any of Berglund’s products.

The trouble began for Berglund in 2013 when a dairy cooperative to whom the farmer wanted to sell milk informed MDA about Lake View Natural Dairy. Department officials attempted to conduct two warrantless inspections that year but Berglund refused to allow them to inspect even though on the second attempt the officials went into his farm store without permission and took photos of equipment and various products for sale. When Berglund made it clear in subsequent correspondence with MDA that he was not going to allow the department on his property to inspect, MDA obtained an administrative warrant from Cook County District Judge Michael Cuzzo on October 14, 2014.

On October 22, MDA officials along with the Cook County Sheriff drove to Berglund’s farm; while MDA officials waited at the farm gate, the sheriff spoke with Berglund, telling him that he didn’t have to allow the inspection of his farm. The farmer said that he did not want MDA to inspect and so the sheriff went back to the MDA officials telling them that he [the sheriff] would not participate in the execution of the search warrant. The MDA officials left without attempting to inspect the farm.

The department responded to Berglund’s refusal by petitioning the Cook County District Court to find Berglund in contempt of court for denying officials with a warrant access to his farm. MDA was seeking an order requiring Berglund to submit to an immediate inspection with civil fines of $500 for each day the farmer refused. At a March 9 hearing in Grand Marais, Judge Cuzzo temporarily denied, pending issuance of a final order in the matter MDA’s request for an order holding Berglund in contempt. The judge indefinitely stayed his order granting MDA the warrant to inspect. He said he would be taking into consideration arguments on the validity of the warrant; he did not set a date for the next proceeding in the case.

At stake in the case is the issue of whether a provision in the Minnesota Constitution exempts Berglund from MDA’s jurisdiction. Under Article XIII, Section 7 of the state constitution, “Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.” Berglund has contended all along that the state has no jurisdiction over his operation.

The case is a chance to right the Minnesota Supreme Court’s decision in State v. Hartmann. In that case the state brought criminal charges against longtime nemesis 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 held that, while Hartmann did not need a license to sell meat since it was a product of the farm under the state constitution, he could not sell custom-processed meat since that was prohibited by Minnesota statute. The court held that Article 13, Section 7 “exempts farmers from licensure to sell products but not from substantive regulation of the production or sale of their farm products.” In other words, farmers were exempt from licensing but not from inspection or other regulatory requirements.

In issuing its decision, the Court ignored the historical context in which Minnesota voters passed the constitutional provision in 1906. At that time, there was no inspection and regulation of farms in Minnesota; licenses were only a way to raise revenue, not a means to mandate inspection of food producers and sellers. The Court also failed to convincingly explain how a product that was legal to consume [custom-processed meat or, in Berglund’s case, raw cream and butter] could not be sold as a product of the farm under the constitutional provision.

The Berglund case is an opportunity to revisit the 2005 decision. The case presents a chance for small farmers selling direct to consumers in Minnesota to get out of the current regulatory system and revert to a time when the government left farmers and consumers engaging in direct commerce alone.

Pete Kennedy

Pete Kennedy is a Florida attorney who has worked on issues governing raw milk production and distribution since 2004. He compiled a summary of raw milk laws in each of the fifty states and is currently a consultant for WAPF on, among other things, policies and laws regarding raw milk. Pete was a founding board member of the Farm-to-Consumer Legal Defense Fund (FTCLDF) and served as vice president and then president for many years. He has consulted on and drafted raw milk, cottage foods, and food sovereignty legislation; drafted and reviewed herdshare agreements; worked on embargo, seizure, and recall cases involving raw dairy products; worked on foodborne illness outbreaks attributed to raw milk consumption; handled issues involving on-farm slaughter, custom meat, and poultry processing as well as problems with zoning and local ordinances.

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