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Judge favors inspection for North Shore dairy farm

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The attorney for a Cook County farmer said Wednesday his client will appeal a State District Court decision that paves the way for state inspection of the farmer's raw-milk operation.

An appeal has not yet been filed with the Minnesota Court of Appeals, but attorney Zenas Baer said the farmer, David Berglund, owner of Lake View Natural Dairy near Grand Marais, expects to fight Judge Michael Cuzzo's decision from March 11.

"They are convinced an appeal is necessary in order to get a resolution of the issue they have framed in district court," said Baer, referring to Berglund and his wife, Heidi.

The development is the latest in a legal saga that began in January 2013, when the Minnesota Department of Agriculture learned that the dairy was advertising unpasteurized milk products on the Internet.

A month later, David Berglund refused to allow inspectors access to his dairy farm — resulting in ongoing legal wrangling in which Berglund has leaned on a more than 100-year-old passage in the state's constitution that allows a person to peddle products of their farm without a license.

The Berglunds have said they will not speak publicly while in litigation and could not be reached for comment.

"It's disappointing but it's not unexpected," said Greg Gentz, a customer of the farm and one of many people who have appeared in court in support of the farm. "We were hoping that Judge Cuzzo would pick up on the constitutional arguments, but he dismissed them."

In his decision March 11, Cuzzo dismissed Berglund's claims that his rights to privacy, association and more were being violated. Instead, Cuzzo ruled that while the state constitution allows a family farm to sell products produced on the farm free from licensing, it does not exempt the farm from regulation.

"The Legislature has singled out the area of milk production for inspection, apparently due to peculiar risks involved in milk production," Cuzzo wrote in his conclusion, before later continuing with, "This authority does not violate the Minnesota Constitution or the United States Constitution."

Cuzzo did stay inspection for 60 days, "for parties to consider appeal," he wrote.

"The decision gave us something but certainly failed to analyze the right of private contract, the right of association, the right of privacy and equal protection," Baer said. "Apparently there was no fundamental liberty at issue in this case, and we certainly take issue with that finding."

According to documents previously 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 as well as 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.

In another small victory for the farm, Cuzzo ruled the farm does not meet the definition of a "dairy plant," which would subject it to even greater state regulation, including the state's manufacturer grading system of Grade A and Grade B milk. Ninety-one percent of the state's 4,200-plus dairy farms were Grade A, according to state Agriculture Department statistics from 2012.

But in selling its raw-milk products on the farm, Lake View Natural Dairy presents itself as an alternative to more modern food delivery.

"The people who come out to patronize the Berglunds are of like thinking — like-minded folks who have a moral desire to support local farmers," Baer said. "There's no mystery about where this product is coming from."

In his order, Cuzzo cited precedent in a Supreme Court of Minnesota case — State of Minnesota v. Hartmann — that previously ruled unlicensed selling of products did not exempt a farm from regulation.

But Baer contends that decision was upheld from District Court, where he said it was never framed as a constitutional rights case — instead examining state statutes.

"We've remedied that omission," Baer said, adding that the Lake View Natural Dairy case had a chance to set precedent itself. "This case gives us the opportunity, and will give the Supreme Court the opportunity, to determine the actual constitutional reach of the protection we contend actually exists."