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.

  • MrE85

    I thought that this was the same guy who sold raw milk that got people sick, but I see that not the case. Still, I’m with the state on this one.

    • Jon

      I think you may be confusing the two farmers. Berglund has not been accused of any safety issues whereas Hartmann, the farmer referenced in contrast sold raw milk that sickened 8 people.

      • MrE85

        Yes, I see that. But I’m still with the state.

      • Eamon

        The question is whether the state should regulate based on potential risk to health or only when an incident occurs. In my mind, prevention is far better than reaction, especially for a policy that would apply to all farmers (imagine trying to track cases of e.coli back to a single source if all farmers could sell raw milk).

  • Mark in Ohio

    Interesting argument. I’m surprised that no one has used this same line in the constitution to try to justify the cultivation of marijuana.

    • I think the Supreme Court ruling in the previous case precludes that argument.

  • Jasper

    I understand the state’s desire to make sure a salable food is safe, but is seems to me that this should be the consumer’s choice. Why is raw seafood (sushi) ok, but not raw milk (which does appear to have health benefits over processed milk)? I know you can also buy kibby and carpaccio as well – both raw beef. And what of the sunny side up eggs? I know those have been banned in some (maybe all) nursing homes, but I know you can still order it in restaurants. They all can have potential risks, but only the raw milk is illegal. Why?
    Can it be sold with a stated disclaimer at point of sale warning of potential risks? That would clear any liability for illnesses.

    • BJ

      Federal law doesn’t allow for Raw Milk to be sold across state lines. Some states allow for the sale of raw milk at the farm, I don’t know of any that allow it at a store.
      Milk has proven to be very susceptible to transmission of various things like e.coli.

    • John

      Raw milk is fundamentally different from raw seafood or meat.

      At the point of sale, the selling person can reasonably assume (or make a disclaimer) that the meat/seafood/eggs need to be cooked for safety. With milk, since consumption without any further cooking is common, I think there’s a liability that doesn’t exist with the others.

      At any rate, raw milk is tougher to make the argument for sale for exactly the reasons BJ alludes to – it’s highly susceptible to bacterial growth (moreso than eggs, which come in a convenient container or apparently beef . . . though that might be a tougher argument to make). The systems are not in place to tell the end consumer that this product has been transferred safely (i.e. in sterile containers at safe temperatures) for raw milk. Seafood is easy. If it smells, it’s bad.

      • EdforFood

        Regarding the sale of eggs and raw meat, if the public safety agencies argue that the consumer has the duty to cook the product, the same agencies must also outlaw ant restaurant to serve uncooked raw egg or meat. Otherwise, they are being capricious.

      • Ron Roy

        You don’t know what your talking about. Pasteurized milk is far more dangerous to consume that raw milk. Only the beneficial bacteria are destroyed through pasteurization not the harmful ones, you would have to boil the milk to do that. The beneficial bacteria in raw milk ( probiotic ) are far more numerous and they multiply more quickly crowding out any potential harmful bacteria. One of my best friends was a practicing microbiologist for 32 years and he preferred raw milk whenever he could get it. I’ve been making cheese, yogurt, and kefir with raw milk for over 40 years and I’ve shared those with many friends without a problem!! I remember a so called epidemic of salmonella poisoning, a few years back, it covered 4 states and affected 1200 people all from pasteurized milk. 12 people died because they were on antibiotics at the time.

  • EdforFood

    You can get sick from all food such as lettuce, cantaloupes, raw milk,
    and oysters. Oysters are eaten raw and carry a TRULY FATAL disease
    during the summer time of the harvest. The sale of
    unpasteurized oysters has not been banned. Berglunds and other raw dairies recognize the right of people to
    eat the foods that are good for them as they understand the needs of
    their bodies. It supports local food systems instead of the global,
    highly processed/preserved food systems, which the FDA recently admitted that they need more inspectors to ensure the global system is safe.

    The public sector has a duty to protect the public health and welfare of
    its citizens. The agencies feel better if they do something to prevent
    harm especially after a harmful event occurs. However, they are slow to
    recognize when their actions actually cause more harm such as trans fats
    in partially hydrogenated vegetable oils. Pasteurization is also
    not without harm.

    Pasteurized milk is linked to asthma, allergies, and chronic digestive
    discomfort. Although raw milk required pasteurization and commercially
    produced milk continues to require this action, raw milk can be produced
    safely. The healthcare of animals can be monitored for diseases such as
    tuberculosis. Many other actions can be done to mostly ensure the
    Campylobacter, E. Coli, and Salmonella do not get into the milk. The FDA and CDC will not entertain any research into the husbandry and extraction techniques that could make raw milk at an acceptable risk.

    The Food Freedom Movement is about knowing your body and how it reacts
    to food or needs food. Our current global food system is primarily about making as much food at the least cost to feed our starving world. All of which promotes less healthy behaviors and products than health ones. It also has helped create a world with 6+ billion people. The Food Freedom Movement is about local food economies and agriculture policies. It is about knowing your
    farmer/producer. No farmer wants or can afford to kill their customers.

  • Diane Smith

    People, with all due respect, and I sincerely mean that, PLEASE, WAKE
    UP! This is not about food safety, this is not about ‘protecting’ the
    public, this is not about concern for people, THIS IS ABOUT KEEPING
    FARMERS SUCH AS THE BERGLUNDS OUT OF THE BUSINESS OF SELLING RAW DAIRY
    TO FOLKS BECAUSE NOT TO DO SO, INFRINGES ON THE SALES OF THE DIRTY MILK
    IN THE STORES. Yep, I said it. The milk on every store shelf, that
    comes in a plastic container, with the pic of a cow supposedly out on
    pasture, is a filthy dirty lie, and the milk is exactly that. Filthy
    and dirty. This is why it NEEDS to be pasteurized. Notice I did not
    say the milk in the glass bottles? This milk is typically from farms
    that graze their animals, and the ONLY reason they pasteurize this milk
    is because it is against the law to NOT do so. Anyway, the Berglunds
    run a family farm in the respective way farms should be run. Feeding
    animals what they are supposed to eat, allowing their animals to graze
    on pasture, and providing the products of those animals to people who
    wish to eat and drink of it. MDA, get off their farm! Big Dairy and the
    industrial machines want no part of small farmers such as the Berglunds
    infringing on their profits, and they will make sure, with the help of
    our valiant FDA and MDA that the market share is not shared! Harassment
    is the name of the game folks, and unless we ALL wake up, this will
    continue, and it won’t stop with dairy, mark my words! The freedom to
    choose what we eat, and what farmers are allowed to sell to those
    wishing to eat of it is the most basic right we have. We must be able
    to choose, folks! Govt. should not be allowed to decide what we put in
    our mouths.

    • john burton

      lenin and stalin attacked the kulaks and farmers all over russian territory in the 1920’s and 30’s. millions died and were incarcerated. see the holodomor. and the book “the harvest of sorrow”. anyway, it’s about control and the benefits which accrue to those with the power to do so.

  • john burton

    the state regulates commerce between strangers. for example you go into a store and buy a gallon of milk. as the consumer you do not know the producer and the government is warranting the safety of the product. the authority to perform this function comes from their dubious duty to protect the health of the public. what is clear is that the state has zero authority to interfere with a private contract. i believe it was the late aajonus vonderplanitz who sculpted the modern day food/farm contract. this contract was the basis of vernon herschberger’s successful court challenge of wisconsin’s raw milk laws. in this farmer’s case, in the absence of any writing, i believe a verbal contract would suffice. i’m with the farmer on this.

  • Gustof

    The State claims to be the “expert”, but we have seen time again that this is simply not true.

    In the end, if we follow the money trail, it is the State that always represents big corporate interests. The whole notion of pasteurization has more to do about long distance shipping of milk than with safety. The whole purpose, of course, is to support corporate farms. It is a fact that pasteurized milk bought from the store shelves have more bacteria in it that can make you sick than from fresh raw milk.

    Don’t you see what this is all about? Raw milk is strictly local sales. It inherently represents small farmers. Pasteurized milk is simply a corporate farm precept. Without it, there can be no corporate farms.

  • Ron Roy

    My kids and their families have been drinking raw milk for over 30 years with no problems. I wait until my milk has clabbered ( soured ) befor drinking it again I NEVER had a problem. As far as David Bergland he should hire mercenaries to protect himself from government goons! I told the farmer I get my milk from if he ever faced a situation where the government tried to shut him down I’d give my life to protect him. I know it would be an act of futility but I’d go down like a fucking man not a sheep!!!!!!!!

    • john burton

      amen RR. amen

  • suz

    Stolen taxpayers’ money used for subsidies (farmer welfare) should be discontinued and THEN leave farmers alone to sell their products as they will.

  • I have now deleted alll anonymous comments. NewsCut rules require real names and real email addresses .

  • Tamera

    The Goverment has time and time again proven one thing when interfearing with the farmer; that they basically distroyed farming as we know it , they do not know what they are talking about. They are pushing THIER agend.We must continue to fight back and stop this intrusio!Soon, and not to slight the big farm/business, because they are not all the same,we are going to be dependant on the big farm/business and that will not be a good thing–something about putting all your eggs in one basket…

  • Tamera

    What are the statistics on raw milk vs processed milk and sick people?

    • Diane Smith

      Well, here is information from 1982 – 1997 regarding how plenty of people were sickened (or died!) from consuming pasteurized cheese or milk as well as other foodstuffs, and yet, raw milk gets all the warning labels as the dangerous one…when there were no reports of any illness or deaths related to raw milk in California at that time.

      http://www.westonaprice.org/health-topics/is-raw-milk-safe-for-babies/