How will the Maine Supreme Court rule on the Dan Brown food sovereignty case?
If the intense 30-minute hearing today is any indication, it could be quite a sharp debate among the seven justices (six of whom were in attendance at todays hearing). Even though the subject of food sovereignty and the passage by eleven Maine towns of ordinances exempting their towns from state and federal food regulations never came up, the issue of what comprises reasonable food regulation was front and center.
One justice who seemed to be favorably inclined toward Browns argument that he didnt need dairy and food handler licenses to sell his milk directly to friends and neighbors in his Blue Hill area was Ellen Gorman. In questioning the Maine assistant attorney general arguing the case, that the state’s case against Brown was about protecting the public, Gorman asked, Supposing we had Mr. Brown operate under a giant banner that read, Eat at Your Own Risk? (Not surprisingly, the assistant AG didnt think it was a great idea; You can be producing milk next to a shelf that contains poison, he said. )
At the other extreme, Justice Donald Alexander said that Browns decision to operate without Maine licenses (originally in response to advisories from Maine agriculture officials that they werent needed and then on the basis of his towns Food Sovereignty ordinance passed in 2011), rankles. Alexander suggested that Brown was like the farmer in Nevada (Cliven Bundy) who doesnt think he has to pay for grazing rights.
In between were other justices who focused in on whether the 30-year policy of Maine agriculture officials to exempt from permitting small dairies like Browns that didnt advertise and sold directly to local customers amounted to government endorsement, and that Brown might be entitled to compensation for the sudden chance in policy in 2009. Justice Warren Silver wondered, Couldnt the fine (the $1,000 fine imposed on Brown last year by a state judge) be reduced given what (Brown) was told? Mr. Brown was clearly misled.
Another justice wondered about the disturbing scenario of the state arbitrarily changing its policy in 2009 to Browns disadvantage.
An awkward moment for the Brown case came when his lawyer, Gary Cox of the Farm-to-Consumer Legal Defense Fund, admitted in response to a justices question that he didnt know Maine legal provisions regarding how Brown might seek state reimbursement for being misled about the states policy on selling raw milk without a permit. Isnt the real issue that Mr. Brown suffered economic damage? the justice asked.
Im from Ohio and I know how it is done in Ohio, Cox said to the justices.
Prior to the hearing, Brown spoke to about 60 demonstrators and a cadre of about twenty media representatives gathered in front of the state courthouse in downtown Portland. When he began selling milk and other food from his farm stand in 2006, There were three families selling on my road. They are all gone now. If this keeps up, there wont be any small farms or farm stands
.When they are done with me, they are not going to stop.
Brown told me prior to the demonstration that he has had difficulty finding work since shuttering his farm stand. He has tried lobstering, and even contemplated a return to truck driving. Would he resume dairy farming if he wins his case? That would be the best case, he said. Even though I worked 100 hours a week, I loved it. He still has three milk-producing cows, whose milk is just used by his family. But he has difficulty imagining re-establishing the business he had selling from his farm stand and going to farmers markets. I dont know that it can ever go back to the way it was, he said.
A decision from the Maine Supreme Court is expected within the next two to three months.
For those who want to listen to the arguments when they are put up, here is the link:
http://www.courts.state.me.us/maine_courts/supreme/stream.shtml
As for what the court might rule (which Brown supporters were understandably speculating about afterwards) I have found from having attended a number of trials and hearings that it is nearly impossible to predict, based on the questions and comments from judges. I have heard judges ask insightful questions, make intelligent comments, and then rule the exact opposite of what the questions and comments indicated.
There is a somewhat different dynamic here, in that there are seven judges collaborating on a decision, rather than a single judge. Moreover, I heard some questions and comments I have not heard before from a judge, notably from Justice Ellen Gorman. She not only wondered about using warning signs as a way to allow farmers like Brown to sell milk direct, but also observed that, in her experience, there was more of a safety threat from pre-packaged greens. “Food problems have to do with mass production of greens. Should we also take into account the threat of harm from raw milk?”
The justices also seemed not to be silenced by the assistant attorney general’s repeated (and pretty much only) argument about the government’s concern with “protecting” the public. (As I indicated, that doesn’t mean their decision won’t be based entirely on “public safety.)
1. The regulatory system with all of its statutes standards and regulations inspections and laws.
2. The legal system that sues you as a producer if you make someone sick.
3. The court of public opinion that either likes you or does not like you and dollar votes their opinion.
4. The Insurance system that simply will not insure you if you are a high risk.
I have a question for which I haven’t yet found the answer regarding Dan Brown. Why doesnt’ he have a dairy license? It is cost or scale prohibitive? Is he refusing to get licensed on principle? I realize that farmers opt out of licensing for a number of reasons, and its rarely simple. So I’m curious what is motivating him to hold out on licensing.
Shawna, several of the justices yesterday raised this question in one way or another. There were at least three reasons that have been articulated in the briefs and the various court arguments:
1. The Maine Dept of Ag had a long-standing policy, dating from at least the 1970s, of not requiring small farms to obtain a permit, so long as they sold off the farm and didn’t advertise. Brown was told of the policy when he started up in 2006 by a dairy inspector, as were other farmers. The Dept of Ag changed its mind about this policy in 2009, and from one day to the next advised small dairies like Brown that they needed licenses. However, there is apparently legal precedent in Maine that regulators can’t arbitrarily change their policies this way, or at least, can’t do it to those who launched businesses based on the understood regulations. That was what a lot of the justices’ questions were about yesterday.
2. To suddenly comply with the regulations for obtaining a permit would have cost Brown anywhere from $20,000 to $60,000; apparently he was given different information at different times about exactly what kinds of new facilities and upgrades he would need to qualify for a license–hence the wide range of cost estimates.
3. The town he lives in, Blue Hill, passed a “Food Sovereignty” ordinance in 2011 that allows all food producers in the town to sell directly to consumers, independent of existing state and federal requirements. Ten other Maine towns have passed similar ordinances.
I think we see some of that same thing in CA. We see some of the smaller operations opting out of ( at least wanting to opt out any way ) the system because the system is designed to only fit commercial retail sales and not fit local sales with scale appropriate systems. When a capper filler costs $20-50,000 ( ours at OPDC cost $190,000 ) and the room it fits into cost another $75,000-150,000 there is a true barrier to legal market access. It is no wonder that in CA there are only a couple of raw milk producers that are registered with CDFA and 500 micro dairies that are not.
I think that Washington state has it right. You can hand-cap and hand-fill and the state embraces Grade A systems with a much more scale appropriate and welcoming approach.
Put on the regulator hat and you can see why all this is the way it is. In the largest dairy state in the union with 1500 dairies and consolidation of creameries and huge export to hungry Chinese, the regulators are in a quandry about the local yocals that want raw milk fresh from their neighbor. It is a burden on their stretched resources and a whole different world. A world they are not trained to deal with and a world that takes to much of their time to even deal with.
Change is tough on everyone.
I wish Dan all the good fortune in the world. I hope that the judges see fairness as a real issue and that the map was changed by the regulators after he started off on his raw milk road trip.
And Mark is right about it also being more complicated from the regulators perspective than we would like to admit. In my state, regulatory resources are spread thin on an enormous dairy industry. Just as it is financially unrealist to ask a 3 cow dairy to invest hundreds of thousands into facilities, it is unrealistic that our dairy regulators can oversee 500+ small herds within the current limitations of budgets and staff.
So within the context of the ever-growing demand for local-yocal, micro-scale food production, we need new solutions. Standard-based self-regulation at the farmer level and/or local level will likely be a big part of that. It seems that this is what Blue Hill is trying to do. I hope those involved in the process…both those local and state…with stick with it to see real solutions that bring both the freedom and safety that is desired.
The word “licence” to the public invokes the image of a driver’s licence. They think it is thus exactly like a driver’s licence – go in and pay a few bucks. No, it’s like if a driver’s licence only let you drive on one street and you were forced to pay $100,000 for a gas-guzzling clunker in which to do it and that was the only car you were allowed to drive.
http://en.wikipedia.org/wiki/Alive_from_Off_Center
They living it up and Eagly enough
https://www.youtube.com/watch?v=h0G1Ucw5HDg&feature=kp
Us little guys who just want local food and raw milk are considered twerps who make not the slightest difference in what will happen with the food future. I’m dreading the food future, truth be known.
I hope the judges keep focused on the subject at hand, for now at least.