Farms, freedom, regulations clash in Grand Marais case

A fight is percolating in Cook County over the rights of farmers to sell products without interference from the government.

The Duluth News Tribune reports that the Minnesota Department of Agriculture is asking a court to levy a $500-per-day fine on farmer David Berglund, who is refusing to allow state inspectors onto his property.

Lake View Natural Dairy, Berglund’s farm, sells raw milk.

The case is drawing a growing measure of regional and national attention for its converging issues including individual rights and organic farming. Berglund is not commenting to the media, but his attorney Zenas Baer explained the fertile legal territory into which the case has treaded.

“It’s the fundamental right of us as citizens to engage in a private transaction without having the nanny state peering over our shoulder saying, ‘Thou shalt not do this,’ ” Baer said.

According to documents filed by Baer with the court, the Berglund farm is more than 100 years old, having been started by Berglund’s forebearers, who immigrated from Sweden. Located on Cook County Road 56, off the Gunflint Trail northeast of Grand Marais, it features 75-80 head of cattle and some pigs and chickens on more than 700 acres, some owned by Berglund and some leased. The farm sells raw milk, cream, skim milk, butter, yogurt, beef and eggs to customers who visit the farm.

If there’s a fight over farming and freedom, it probably involves milk.

So news of Berglund’s case is spreading quickly.

Nourishing Liberty, for example:

What the Berglunds are doing in providing food to their community is historically what built this country and continues to build communities. They are cultivating land for the purpose of feeding their neighbors. They are adding to the aesthetics of their region by keeping land in production. The Berglund family is lovingly growing community and nurturing bonds between community members.

Now, people who work for the MDA are assuming authority, deciding that they have the right to lord over this peaceful family and demand that the family conduct business in a new way that would, quite literally, put them out of business and steal a wonderful resource from the region.

The fight comes down to this single sentence in the Minnesota Constitution:

Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.

It’s a 1906 addition to the constitution, first approved by the Legislature after a farmer was arrested for selling melons without a license on the streets of Minneapolis.

In a 2005 ruling, however, the Minnesota Supreme Court ruled that the amendment does not allow a farmer to sell products that are prohibited by law, ruling in the case of Diane and Michael Hartmann of Gibbon, who sold meat and raw milk at their farm.

Being relieved of the need to obtain a license therefore allows farmers to sell the products of their farm without obtaining the government’s permission. That is not to say that article XIII, section 7, protects farmers from any government regulation of the production of farm products for sale.

To regulate is to control or direct by a rule.   In other words, we read article XIII, section 7, to exempt farmers from licensure to sell products but not from substantive regulation of the production or sale of their farm products.

At The Complete Patient, David Gumpert argues there’s a big difference in the cases.

One big difference between Hartmann’s case and Berglund’s is that Hartmann was accused in 2010 of having sold milk that sickened eight people with E.coli O157:H7. Berglund hasn’t been accused of any safety transgressions.

Despite the accusations, Hartmann battled against the MDA’s seemingly relentless pursuit and eventually in 2013 won a court decision in which the agency was ruled to have illegally searched the farmer’s truck. In 2014, a judge dismissed a charge of Hartmann having violated probation; he had been put on probation when he pleaded guilty to a charge of violating regulations, intended for his wife.

A court hearing will be held next week in Grand Marais.