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Blue Hill
Originally published in The Weekly Packet, November 23, 2011
Understanding the legal layers of the “Farmer Brown” case

Click here to see the full Local Food: Ordinances & Issues Archive.

by Jessica Brophy

Mainers have pushed for local control since the early 1800s. Originally, that meant battling for statehood. Today, the battle—with Blue Hill farmer Dan Brown in the center—is over local food and local farmers, but over the years, debates have dealt with school consolidation, cell phone towers and wind towers. Many of these debates asked the question: “Who makes the rules?”

Home rule and state law

In 1969, Maine voters amended the state constitution to give municipalities “home rule.” Home rule means that local municipalities have broad powers of authority to govern local matters.

This is in contrast to municipalities in states that operate under Dillon’s rule, which specifically regulates what decisions can be made at the local level.

The amendment to the state constitution granting broad authority to municipalities and cities does have limits. While home rule allows municipalities to create ordinances under the state constitution and in state law, there is a “standard of preemption.”

Title 30-A, chapter 141, subsection 3001 of the Maine Revised Statutes says the legislature will not deny any power granted to municipalities “unless the municipal ordinance in question would frustrate the purpose of any state law.”

In other words, towns are allowed to govern themselves as they see fit, so long as any local laws and ordinances comply with state law. Similarly, state laws must comply with federal laws.

The local foods ordinance

The Local Food and Community Self-Governance Ordinance that passed in Blue Hill, Sedgwick and Penobscot at town meetings this year is in direct conflict with several state and federal laws. This conflict was addressed from the state’s perspective in a letter from Agricultural Commissioner Walter Whitcomb, which was sent to towns—including Blue Hill—that had passed or were considering such an ordinance. Dated April 6, 2011, the letter states that because the ordinance “conflicts with and would frustrate the purposes of state food licensing and inspection laws, the ordinance is preempted by state law.”

The ordinance states that its authority is based, in part, on the first article of the Maine Constitution. The second section of that article says “all power is inherent in the people; all free governments are founded in their authority and instituted for their benefit; they have therefore an unalienable and indefeasible right to institute government, and to alter, reform, or totally change the same, when their safety and happiness require it.”

While the Maine Constitution does contain those words, without a revision of state law or laws, the ordinance would still be preempted. That is, local governments can alter, reform or totally change laws as its citizens see fit, but unless state laws that contradict those local laws are amended or repealed—or an exemption to those laws is made at the state level—no local law can trump state law.

To strengthen the legal standing of small-scale farmers and to change the way in which state law is written regarding direct sales from producer to consumer, District 36 Representative Walter Kumiega, D-Deer Isle, sponsored two pieces of legislation to change state law in March. Neither of them was successful. An Act Regarding the Sale of Raw Milk (L.D. 366) would have exempted the sale of raw milk from licensing, providing it was sold on the premise of the seller. This bill narrowly lost in a House of Representatives vote.

An Act to Exempt Farm Food Products and Homemade Food Offered for Sale or for Consumption from Certain Licensing Requirements (L.D. 330) would have provided a legal framework at the state level for much of the local ordinance. This bill died in committee.

In a phone interview on Tuesday, November 22, Kumiega said he plans to reintroduce variations on both bills for the 2013 legislative session, pending his re-election next fall. Legislation to grant “food sovereignty” to local communities is difficult to write, since state law must comply with federal laws about meat inspection and other food safety minimums, he said. Kumiega said passable legislation would likely “compel the Department of Agriculture to let towns with ordinances deal with farmers at that level.”

The legislation on raw milk is easier to craft and pass, he said, despite the U.S. Food and Drug Administration’s strong stance against the sale and consumption of raw milk.

“It’s part of their mission,” Kumiega said of the FDA’s push against raw milk. When asked if loosened regulation on raw milk at the state level might encourage a ban on raw milk by the FDA, Kumiega said he didn’t know “how much harder they can push. If there was a big case of milk-borne illness, it could help their case, but you won’t get that from one cow.”

Kumiega also said he is not opposed to state testing of raw milk, or labeling it, and nothing in his proposed legislation discouraged those practices.

Brown’s legal position

The lawsuit brought against farmer Dan Brown, of Blue Hill’s Gravelwood Farm, cited Brown for violations of state law. The suit does not mention the local foods ordinance in either a direct or an indirect way.

Title 7 of Maine Law, which deals with food and animals, specifically bans the sale of “raw” or unpasteurized milk without a “not pasteurized” label. Maine law also requires anyone selling, transporting or transferring milk or milk products to have a license. Brown was cited on both counts in the suit, which orders him to refrain from selling milk or milk products and selling unpasteurized milk in containers not properly labeled. Brown was also cited for selling processed foods without a license, and may be subject to fines.

Though Brown’s actions are within the letter of Blue Hill’s local food ordinance, his alleged actions violate state law, which, again, trumps local ordinances.

Community response to the suit against Brown addresses issues beyond the particular alleged violations, however.

“It isn’t about food safety. It’s about who decides what happens in our community,” said Heather Retberg, of Quill’s End Farm in Penobscot, at the rally.