PORTLAND, Maine — The 3-year-old question of whether a Blue Hill farmer should be allowed to sell raw milk without a license now lies with the state’s highest court, which heard oral arguments in the case on Tuesday.
Maine Supreme Judicial Court justices asked tough questions of both sides, making it hard to predict which way they’d rule. There’s no limit on how much time they can take before issuing a ruling.
“I thought we were getting our heads handed to us at first,” said farmer Dan Brown after hearing the justices grill his attorney, David Cox. But they were just as hard on the lawyer representing the state, and Brown said he wasn’t sure whether he’d successfully made his case.
After three years, he said, he’s ready to take whatever ruling the court hands him. He already has shut down his farm and filed for bankruptcy, and he now works as a sternman for a local lobsterman.
“Win or lose, I want to be done,” he said
Brown sold raw milk from his Gravelwood Farm from 2006 to 2013.
In 2011, state officials ordered him to cease selling his product without proper licensing. Citing a local ordinance that permitted the sale — contradicting state law — Brown continued his operation. The state sued, and last summer, the Hancock County Superior Court ruled against Brown, ordering him to stop selling raw milk without a license and pay more than $1,000 in fines and court fees. The Law Court on Tuesday heard Brown’s appeal of that decision.
Brown and his supporters have focused their arguments on the right of “home rule,” which allows municipalities to enact ordinances as long as they don’t contradict state law.
The local food sovereignty ordinance adopted by Blue Hill allows for the sale of dairy products directly from the producer to the consumer. But Superior Court Judge Ann Murray ruled last summer that the ordinance was trumped by state law requiring inspection and licensure.
The justices, however, didn’t seem interested in the question of home rule. They cast their focus on the issue of “estoppel,” a legal doctrine that Brown’s attorneys argue should protect him from having to abide by rules different from those he was told about when he first started his farm.
In 2006, a Maine Department of Agriculture employee told Brown that he didn’t need state permission to sell raw milk as long as he only sold it from his farm stand and did not advertise. So Brown and his wife quit their day jobs and invested their time, energy and money into their new dairy farm.
The department later changed its interpretation of the law, reversing course in the case of farms such as Brown’s, telling raw milk sellers they need a license after all. That reversal is what led to the state suing Brown in 2011.
Cox told justices Tuesday that the state is prevented from using the new interpretation of the law against Brown because he operated with good faith under the guidance he was given. He said requiring that Brown obtain a license would force the farmer to spend between $22,000 and $62,000 on facility upgrades to comply — a huge detriment to Brown’s small business.
“[The state] changed its position, after 30 years,” Cox said. “If I’m a dairy farmer and a government employee comes to me and says, ‘We don’t even need to know about your existence,’ should I expect that he’s lying?”
Justice Donald Alexander questioned the premise: “You’re saying that if the state doesn’t regulate something, it then can’t ever regulate it?”
Assistant Attorney General Mark Randlett argued that while the new interpretation of the law may have a detriment to Brown, that’s outweighed by the public health interest of ensuring raw milk is produced and packaged in a safe manner.
“The original interpretation of the policy by the department was wrong,” Randlett conceded. “It left the public unprotected. When the department reviewed the laws years later … it recognized the error.”
Randlett said that ruling in Brown’s favor essentially would allow him to sell potentially dangerous raw milk without any oversight. The court shouldn’t let that happen, he said.
Justice Joseph Jabar said that Randlett’s argument could set a dangerous precedent.
“So the government never has to stand good by its stated policy, so long as it has a legitimate interest?” he asked Randlett.
Despite the dizzying legal complexities at hand, Brown’s supporters — who rallied outside the courthouse before arguments began — said the issue at hand is a simple one. They say it’s up to local communities to decide the circumstances under which local products such as raw milk can be sold.
No one has claimed that anyone got sick from drinking Brown’s milk. His supporters say they’re more likely to trust a local farmer than big corporate farms, which have been the source of all the headline-grabbing food-borne disease outbreaks in recent years.
“As food increasingly returns to decentralized production, so too should the rules,” said Heather Retberg, owner of Quill’s End Farm in Penobscot. “We’ve been feeding people this way for a long time.”
BDN court reporter Judy Harrison contributed to this report. Follow Mario Moretto on Twitter at @riocarmine.