Brooksville may join local-food turf war between towns, state government

Dan Brown pets Sprocket, family's four-year-old, sole milking cow, before hosing her down at family's Gravel Wood Farm on the Blue Hill peninsula Thursday, Dec. 15, 2011. Dan Brown contends that he doesn't need a license to sell raw, unpasteurized milk. State and federal regulators say otherwise.
John Clarke Russ | BDN
Dan Brown pets Sprocket, family's four-year-old, sole milking cow, before hosing her down at family's Gravel Wood Farm on the Blue Hill peninsula Thursday, Dec. 15, 2011. Dan Brown contends that he doesn't need a license to sell raw, unpasteurized milk. State and federal regulators say otherwise. Buy Photo
Posted Feb. 15, 2013, at 5:06 p.m.

BROOKSVILLE, Maine — Brooksville farmers and food processors would be exempt from state permitting requirements in selling directly to consumers if the town approves a proposed local food ordinance at a March 4 referendum.

At least, that’s what proponents say.

The ordinance would exempt “producers and processors” of local foods in town from state and federal licensure and inspection, so long as they leave the middleman out and sell their produce, baked goods, dairy and meat directly to customers.

Hancock County has been fertile soil for the local-food sovereignty movement. If approved, Brooksville would join the nearby towns of Sedgwick, Penobscot, Blue Hill and Trenton in passing the “Local Food and Community Self-Governance Ordinance.” Hope, Plymouth, Livermore and Appleton also have passed similar rules.

But state officials say municipalities can’t simply assert local control by passing ordinances contradicting state law. They say regardless of a community’s push for food sovereignty rules, they’ll continue to enforce state laws on food safety and inspections.

The main goal of the ordinance is to assert local control over farm products. A similar proposal was rejected in Brooksville in 2011, but supporters are confident they’ll prevail this year.

“Brooksville is quite cautious about adopting new ordinances because normally new ordinances restrict rights,” said Deborah Evans, owner of Bagaduce Farm in Brooksville and one of the proposal’s main proponents. “This ordinance is unique in that it rolls back rules and regulations.”

The first time around, a recommendation against the proposal from the town’s Ordinance Review Committee was attached to the ballot. Committee Chairwoman Sarah Cox said that was an accident, but many in Brooksville believe the posting swayed voters against the measure.

On Thursday, after a public forum on the food rules, the committee voted not to issue a recommendation one way or the other, and to “let the people decide,” Cox said.

At the public forum, Evans gave a prepared speech in support of the ordinance, saying the rules would establish Brooksville residents rights “to choose the foods they raise, prepare, exchange and eat.”

In an interview, Evans said state rules for direct food sales are onerous for small-scale farmers, who would need to invest a lot of money to ensure compliance with state rules. She also said the ordinance recognizes what is already common in Brooksville and similar towns.

“Under current law, for me to butcher a duck and exchange it with a neighboring farmer for two laying hens is illegal. That’s something a lot of people don’t realize” she said. “Farmers have a thriving underground. They don’t go to the state to ask permission to butcher a duck, they just do it.”

Evans also said that state or federal inspections aren’t enough to ensure food safety. She recalled the 2010 outbreak of salmonella in DeCoster eggs, which caused a 500 million-egg recall and sickened 2,000 customers. Knowing your source is a much better means to keep yourself safe, she said.

“Food is safe and healthy when it is raised and handled by people who exercise quality and have integrity,” she said. “You know what your neighbor’s practices are, and if you don’t know, you should.”

John Gray, chairman of Brooksville’s selectmen, said he opposed the ordinance. The state is better suited to handle food safety, he said. Even if most small farms make safe food, he said, you can never be sure a product won’t make you sick.

“I think that state has the authority to inspect facilities and just make sure that they are clean and that our people are receiving food that is safe,” he said.

While several towns in Maine have passed similar food sovereignty rules, none has been directly challenged by the state, or overturned by a judge. In November 2011, the state sued a Blue Hill Farmer for selling raw milk without a license. The state also claimed the milk wasn’t labeled as “not pasteurized,” as required by law.

The farmer, Dan Brown, argued he was protected by Blue Hill’s food sovereignty ordinance — the same one up for a vote in Brooksville. That case is still pending in Hancock County Superior Court, and court documents filed in January indicate the parties are seeking a negotiated settlement.

It’s possible that in its ruling on Brown’s case, the court could weigh in on Blue Hill’s ordinance. So “food sovereignty” is just one court decision away from its death knell. On Friday, Kaylene Waindle, special assistant to the Attorney General, said the state sees these ordinances as invalid.

“These ordinances are pre-empted by state law,” she said. “They do not offer protection under the law. So people who engage in a conduct that runs contrary to state law its requirements could be found in violation of the law.”

Proponents are taking a wait-and-see approach to a confrontation with the state. It’s a game of legal chicken. In their ordinance, they use soaring language, referencing the U.S. Constitution, the Declaration of Independence and the “inherent right to self-government.”

In her statements Thursday, Evans also said pre-emption is a shaky idea, considering the state recently passed a medical marijuana law that “flies directly in the face of federal edict.”

A bill being drafted for consideration by the Maine Legislature could put the turf war over local-food authority to bed for good.

Rep. Ralph Chapman, D-Brooksville, said Thursday that a bill he sponsored is being drafted in the state reviser’s office. He said the bill would negate the conflict between state and local control by enshrining the principles of the local food ordinance in state law. He also said he’s not alone.

“There are several bills coming before the legislature that, in essence, try to do something very similar to this ordinance at the state level,” he said. “It’s a subject that will be taken up in this session.”

In the meantime, Brooksville residents will decide whether to pass their local-food ordinance in a secret-ballot referendum on March 4, the day before the annual Town Meeting.

Follow Mario Moretto on Twitter at @riocarmine.

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