Maine Supreme Court justices listen to arguments in the Dan Brown case. How will the Maine Supreme Court rule on the Dan Brown food sovereignty case? 


If the intense 30-minute hearing today is any indication, it could be quite a sharp debate among the seven justices (six of whom were in attendance at today’s hearing). Even though the subject of food sovereignty and the passage by eleven Maine towns of ordinances exempting their towns from state and federal food regulations never came up, the issue of what comprises reasonable food regulation was front and center. 


One justice who seemed to be favorably inclined toward Brown’s argument that he didn’t need dairy and food handler licenses to sell his milk directly to friends and neighbors in his Blue Hill area was Ellen Gorman. In questioning the Maine assistant attorney general arguing the case, that the state’s case against Brown was about “protecting the public,” Gorman asked, “Supposing we had Mr. Brown operate under a giant banner that read, ‘Eat at Your Own Risk’“? (Not surprisingly, the assistant AG didn’t think it was a great idea; “You can be producing milk next to a shelf that contains poison,” he said. )


At the other extreme, Justice Donald Alexander said that Brown’s decision to operate without Maine licenses (originally in response to advisories from Maine agriculture officials that they weren’t needed and then on the basis of his town’s Food Sovereignty ordinance passed in 2011), “rankles.” Alexander suggested that Brown was “like the farmer in Nevada (Cliven Bundy) who doesn’t think he has to pay for grazing rights.” 


In between were other justices who focused in on whether the 30-year policy of Maine agriculture officials to exempt from permitting small dairies like Brown’s that didn’t advertise and sold directly to local customers amounted to government endorsement, and that Brown might be entitled to compensation for the sudden chance in policy in 2009. Justice Warren Silver wondered, “ Couldn’t the fine (the $1,000 fine imposed on Brown last year by a state judge) be reduced given what (Brown) was told?…Mr. Brown was clearly misled.”


Another justice wondered about the “disturbing scenario” of the state arbitrarily changing its policy in 2009 to Brown’s disadvantage.


An awkward moment for the Brown case came when his lawyer, Gary Cox of the Farm-to-Consumer Legal Defense Fund, admitted in response to a justice’s question that he didn’t know Maine legal provisions regarding how Brown might seek state reimbursement for being misled about the state’s policy on selling raw milk without a permit.  “Isn’t the real issue that Mr. Brown suffered economic damage?” the justice asked. 


“I’m from Ohio and I know how it is done in Ohio,” Cox said to the justices.


Dan Brown addresses demonstrators and media outside the state courthouse in Portland.Prior to the hearing, Brown spoke to about 60 demonstrators and a cadre of about twenty media representatives gathered in front of the state courthouse in downtown Portland. When he began selling milk and other food from his farm stand in 2006, “There were three families selling on my road. They are all gone now. If this keeps up, there won’t be any small farms or farm stands….When they are done with me, they are not going to stop.” 


Brown told me prior to the demonstration that he has had difficulty finding work since shuttering his farm stand. He has tried lobstering, and even contemplated a return to truck driving. Would he resume dairy farming if he wins his case? “That would be the best case,” he said. “Even though I worked 100 hours a week, I loved it.” He still has three milk-producing cows, whose milk is just used by his family.  But he has difficulty imagining re-establishing the business he had selling from his farm stand and going to farmers markets. “I don’t know that it can ever go back to the way it was,” he said. 

A decision from the Maine Supreme Court is expected within the next two to three months.