Blue Hill raw milk ruling deals blow to local food sovereignty movement

Deborah Evans, owner of Bagaduce Farm in Brooksville, Maine, supports a local ordinance that exempts certain local food exchanges from state and federal oversight, including inspection and licensing.
Mario Moretto
Deborah Evans, owner of Bagaduce Farm in Brooksville, Maine, supports a local ordinance that exempts certain local food exchanges from state and federal oversight, including inspection and licensing. Buy Photo
Posted May 04, 2013, at 1:58 p.m.
Last modified May 04, 2013, at 2:35 p.m.

BLUE HILL, Maine — A Superior Court ruling against a Blue Hill farmer who has been selling unlabeled, unlicensed raw milk will have farmers in several Maine towns wondering about the future of local “food sovereignty” ordinances that seek to exempt them from state oversight.

Dan Brown, of Gravelwood Farm, lost a civil case on April 27, in which he was accused of violating three Maine laws: selling milk without a license, selling unpasteurized, or “raw,” milk without marking it as such and operating a food establishment without a license.

Since 2006, Brown has been selling raw milk from a farm stand located on his property. An 8- by 11-inch sign states that the milk is raw. Brown also sold his products at farmers markets after Blue Hill adopted its Local Food and Community Self Governance Ordinance in 2011.

Brown said his sales were legal under the ordinance, which exempts local food vendors from state licensure and inspection, provided they sell their products directly to consumers.

Eight other Maine towns — Appleton, Brooksville, Hope, Livermore, Penobscot, Plymouth, Sedgwick and Trenton — have also passed local food ordinances with the same or similar language.

In her order, Hancock Superior Court Justice Ann Murray ruled that Brown was not protected under the Blue Hill ordinance. It was a major boost for the argument from the Maine Department of Agriculture, who filed the lawsuit against Brown in 2011, that towns cannot simply opt out of state law.

The ruling could have an effect on the other towns with similar rules. If the state were to pursue civil action against other farmers operating without a license, their attempt to seek protection under local food rules would likely fail.

“This kind of [ruling] does set a precedent because there are so many of these same kind of ordinances kicking around,” said David Lourie, a Portland attorney and expert on municipal law.

Brown sought shelter under the so-called Home Rule of the Maine Constitution, which permits a municipality to enact its own regulation when permitted to do so by the Legislature, so long as the regulation “is not denied expressly or by clear implication.”

While the Legislature has carved out an exception for small farmers who sell produce at farm stands and farmers markets, the state excluded milk products, making clear “the legislative intent that milk products be subject to stricter regulations than other products,” Murray wrote.

“It is axiomatic that a municipality may only add to the requirements of the statute, it may not take away from those requirements unless permitted to do so otherwise,” she wrote.

While the decision sets a clear precedent in Hancock County, home to five of the nine towns with local food rules, Lourie said the decision’s effect on other county courts would depend on how persuasive the presiding judge found Murray’s legal analysis.

Lourie said Murray could have ordered the town to strike the ordinance from the books, but since she didn’t, Blue Hill is under no obligation to backpedal on its assertion of a right to Home Rule. In the meantime, Brown hopes ultimately to win the case on appeal.

“Obviously this will have some effect, but to put it into perspective, this is not a final ruling,” Brown said. “Until the Superior Court makes a final ruling, I think there’s still some wiggle room.”

Jim Schatz, a selectman in Blue Hill who has supported the local food rules in town and at the State House, where several proposed laws would bolster local food sovereignty efforts, said he doesn’t anticipate conversations among selectmen about repealing the ordinance.

The ruling “shows the kind of work that needs to be done at the legislative level,” he said Friday.

Schatz stressed that selectmen are merely administrators. The ordinance was put forward by residents and approved at a Blue Hill town meeting. In towns such as Blue Hill, voters are the legislative body.

“It may be that the people interested in this ordinance come and ask for some refinement of it, but that’s not a process the selectmen would initiate,” he said. “We’re mere tools of the legislative body, which is a good place to be.”

Meanwhile, the Department of Agriculture would not comment on whether it would vigorously pursue farmers operating without licensure in other towns.

“We’re still trying to process the decision and see what it means,” John Bott, a department spokesman, said on Friday. “Obviously there are some implications for all these other ordinances.”

Bott said that for now, the department is keeping an eye on bills that would strengthen local food rules at the legislative level, where questions about local food sovereignty may ultimately be decided.

There are bills being discussed at the committee level that would exempt local food ordinances from being pre-empted by state law, as well as a proposal to allow for direct-to-consumer sales without state oversight throughout Maine.

“We’re carefully monitoring the progress of those bills, because at this point it’s a policy question,” he said Friday.

Regardless, Lourie urged caution for farmers selling their products without licenses under the assumption their towns protect them from state law.

“The law can remain on the books, but it won’t be regarded as a defense [against civil lawsuits from the state],” he said. “Anyone who relies on it does so at their own risk. The town probably ought to repeal the ordinance because it leads people down the primrose path thinking they’re protected when they’re not.”

Brown is scheduled for a civil penalty hearing on May 16 in Hancock County Superior Court, where Murray will rule on what penalties will be levied for each of his three violations.

Follow Mario Moretto on Twitter at @riocarmine.

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