Fourteen months after being served with a summons for selling milk and food without licenses required by the state, Blue Hill farmer Dan Brown of Gravelwood Farm is still mired in negotiations with the Department of Agriculture.
The original three counts Brown was cited for—selling milk or milk products without a license, selling raw milk that is not labeled as unpasteurized, and operating a food establishment without a license—have been under negotiation since July when both parties filed motions for summary judgment in the case. Brown’s attorneys had first filed his response to the lawsuit on February 1, 2012.
“Since that time, we’ve been talking to the state about potentially settling the case,” said Brown’s lawyer Gary Cox in a January 21 phone call. “We’re trying to whittle down the issues.”
The attorney general’s office issued a stay of the case while both sides pursued a settlement, and Judge Ann Murray of Ellsworth District Court extended it for another 60 days after a conference call with Brown and his attorneys on January 24.
Attorney Sandra Hylander Collier of Ellsworth is Brown’s local legal representation.
“It wasn’t as cut and dried as I thought,” said Brown, who stated before the conference call that the case was headed for trial.
“We’re going back to mediation,” said Brown. “If it’s not resolved, there will be hearings on the summary judgments.”
What lies at the heart of the issue for Brown and some local farmers is a 2010 Local Food and Community Self-Governance Ordinance passed by five local towns, including Blue Hill, that allows farm-to-consumer sales of farm products, such as raw milk, outside of state regulations.
“The question is whether or not state law has preempted local municipal ordinances. Obviously, it’s our position the state does not,” said Cox.
Cox bases this stance on previous cases that used the home rule provision of the Maine Constitution.
“It’s just a difference of interpretation of the cases,” said Cox. “That’s why we have a judicial system. We leave it up to the judge to decide.”
As lead attorney for the Farm to Consumer Legal Defense Fund, Cox represents farmers nationwide who are charged with selling raw milk in conflict with state laws.
“This is one of the first cases where we have a local ordinance,” he said.
State inspector visits Gravelwood Farm
One concrete action during settlement negotiations was that the court ordered an inspection of Gravelwood Farm by state inspectors.
“[Dairy Inspector Jim Bartlett] came out in September,” said Brown. “He said, ‘This place is fine. The kitchen’s perfect, the barn’s perfect. When can I expect your $25 for the license?’”
Brown asked for the inspector’s verbal report in writing.
“I need to see it in writing that everything here meets the requirements to be a milk distributor,” he said. “I want to protect the other guys down the road.”
But, according to Brown, letters received from the state inspector changed what he was told in person.
Instead of painting the walls and installing a rubber mat on his wooden milking platform, as Brown said he was told in person, the letter required a cement platform, on cement blocks, cemented to the floor.
The letter also stated Brown must assign lot numbers to milk and milk product containers to track which cow the milk came from. “We only had one cow at that time,” Brown said.
“It’s no one thing that’s insurmountable,” Brown said. “It’s all these things [they] are asking me to do.”
The ongoing negotiations have “narrowed the issues substantially,” said attorney Gary Cox. “We either settle the case or we don’t. I don’t know where this is going to come out at this point.”