Dan BrownLawyers for Maine farmer Dan Brown say a judge who issued an injunction last April barring him from selling raw milk “completely overlooked” that he would have had to spend $62,500 to comply with regulations to obtain a state permit for his one-cow dairy. 

As a result, “The injunction has put Mr. Brown’s farm out of business,” according to a brief filed on behalf of Brown by the Farm-to-Consumer Legal Defense Fund to appeal the decision by Superior Court Judge Ann Murray.  In addition, Brown was assessed $1,132 in fines and court costs.

That judicial error was one of a series of mistakes alleged by Brown’s lawyers in two briefs filed with an appeals court. Among the errors alleged: 

 * That Judge Murray refused to recognize the fact that Brown was selling his milk without a license based on advice he received from state dairy regulators. It was consistent with the fact that for 30 years prior to the judge’s decision, Maine’s Department of Agriculture had told small producers like Brown that they didn’t need to obtain a milk producer’s license so long as they didn’t advertise their raw milk and sold it only from the farm. 

 * As a result of the 30-year policy allowing small farms to sell milk without a license, the “health consequences” the state argued to justify Brown needing to obtain a license are without any basis. “It …defies credulity to think that the Department would have for over 30 years knowingly exposed the consuming public to what are now being described as ‘serious public health consequences’ by not requiring farmers like Mr. Brown to obtain a milk distributor’s license.”

 * The judge’s reference to “public health implications” as a major reason for ruling against Brown were in error because the issue was never argued by the two sides. According to Brown’s appeal, “the ‘public health implications’ of the case were not even developed, as they were considered ‘irrelevant’ by the State to begin with. Defendant did not engage in discovery on this issue, neither did the State, and thus there was an incomplete record before the trial court on the ‘public health implications’ of selling raw dairy products.”

“In essence, the trial court’s judgment in favor of the State was factually insufficient because it failed to present any factual findings that the consumption of raw milk and raw dairy products presents any risk of harm to the consuming public, let alone the unlicensed sale of milk presents a risk.”

 * The state’s argument that there are “public interests of the State” in requiring Brown to obtain a license hasn’t been “defined.” The appeal argues that “there was no evidence that any of the milk sold by Mr. Brown was improperly handled, collected, bottled or held in an unsafe or unsanitary manner. There was no evidence that any of the milk sold by Mr. Brown was contaminated by any bacteria, parasite or virus. There was no evidence that any of the milk sold by Mr. Brown made anybody sick or ill. If there were such evidence, the Department would have presented it, and its failure to do so is fatal to its argument. 

“To the contrary, the unrebutted evidence was that Mr. Brown and his family had consumed his milk for over 5 years and had never once become sick. The unrebutted evidence was also that for over 5 years, nobody who was a customer of Mr. Brown’s ever made any complaints that they became sick or ill from consuming Mr. Brown’s milk.

“Consequently, the Department’s whole….argument is akin to the parable of Chicken Little, a hypothetical fear of a hypothetical event that has yet to occur. That hypothetical fear is not enough to overcome the detriment to Mr. Brown, i.e., being put out business after relying on what the Department told him.”

 * The judge erred in suggesting that Brown could easily obtain a license by simply paying a nominal licensing fee. “Moreover, the trial court’s conclusion that ‘the injury to Brown is minimal because he [could] obtain a license ‘for a mere $25’ was not supported by the facts. To the contrary, Mr. Brown originally estimated it would cost him $62,500 to comply with all of the requirements…” 

The $62,500 was detailed this way: “Mr. Brown would have to spend approximately $10,000 to comply with the milking barn requirements; approximately $3,500 to comply with the cowyard requirements; approximately $25,000 to comply with the milk house requirements; approximately $5,000 to install an additional toilet room; and an additional $19,000 to install and construct separate rooms for processing, packaging and cooling the milk.”

 * The accusation that Brown failed to comply with the state’s raw milk labeling requirements shouldn’t have been allowed. “In this case, Mr. Brown sold raw milk from his farm stand and always had a sign that stated the following: ‘this milk is not pasteurized.’ The sign measured 8 1/2 by 11 and was hung at his farm stand. It was visible to all of his customers and clearly informed them that the milk they were purchasing was not pasteurized. As a result, each time anyone purchased raw milk from Mr. Brown they were put on notice of its contents, just as if their bottle or jug had a label on it. As a result, there was no need for Mr. Brown to place a label on each container of raw milk that he sold because he had substantially complied with the label requirement.”

 * Finally, there is the matter of the Food Sovereignty ordinance that Blue Hill had adopted, and which Brown was operating under at the time the state filed suit against him.  Passed in 2011, it expressly allows local farms and food producers to sell food directly to consumers, outside of any state and federal regulations. According to the appeal, “there is nothing in Maine’s regulatory system over dairy products or food establishments that expressly preempts local municipalities from regulating raw milk or other food. If there were such an express preemption, which there is not, the trial court and the State would have cited to it. The trial court’s and State’s inability to cite to an express provision that preempts local regulation of dairy products or food establishments means that the Blue Hill ordinance is not preempted by State law. Thus, it was an error for the trial court to conclude that Blue Hill’s ordinance was preempted. 

“Blue Hill’s local ordinance also does not frustrate the purposes of agriculture or food. To the contrary, the Blue Hill ordinance fosters the Legislature’s intent in regulating agriculture and supports its purposes. Specifically, the Blue Hill ordinance contributes to ‘the state’s overall economy,’ it strengthens ‘rural life and values,’ helps ensure the ‘survival of the family farm,’ and enables local producers ‘of the family farm to prosper, while producing an abundance of high quality food and fiber,’ all of which the Maine legislature has found to be specific purposes of agriculture in the State….Thus, the Blue Hill ordinance should have been upheld and not preempted. A court is prohibited from reading words into a statute when those words are not there.”

The state’s response to the appeal focuses heavily on “public health risks” allegedly posed by Brown operating without a dairy license. “Even if he relied on a government worker that may have erroneously advised him…nothing in the law or the record supports the notion that (Brown) should be allowed to continue to create public health risks.” 

The frequent references to “public health risks” clearly scared a judge the first time around, to the extent she interpreted the Blue Hill Food Sovereignty law to not apply to dairy products, even though it makes no mention of them. The state figures the appeals court judges will react similarly.