Maine's Raw Milk Battle Moves From Farm House to Court House

May 14, 2014

More than 30 local food activists took their support of Maine farmer Dan Brown from the barnyard to the courtyard this morning. Brown is a Blue Hill farmer who was fined $1,000 by the state for selling raw milk at his farm stand without a license. Blue Hill is one of 11 towns in Maine that have declared independence from state and federal regulations on locally-produced food. And Brown issued a legal challenge of the state's action against him. Today the Maine Supreme Court took up his case.

For Dan Brown and his supporters, it's a case that involves more than a cow named Sprocket and a single farmer trying to sell raw milk from his farm stand. At a rally and news conference on the steps of the Cumberland County Courthouse, speakers blasted the government for taking away their choice to buy locally-produced milk, and for making it difficult for small farms to survive. 

Whitney Marshall is an activist from Portland. "We trust our community farmers," she asid. "We know that they will not sell us bad milk because we know that they are serving this milk to their families and to their friends." 

If contamination occurs, Marshall says farmers can quickly figure out which cow is responsible and take action, something that is not possible on a large scale operation. 

"My son and I would go into the barn and we would pet the cow, and we would sometimes watch when Dan was milking the cow," says Florence Reed of Surry, a former customer of Brown's who says she bought raw milk for her young son for six years until Dan Brown was forced to close. "After my milk, Dan and Judy's milk was the only other milk he had until the injunction"

Reed says she thought it was the best and safest milk she could possibly buy for her family. But inside the courthouse, Assistant Attorney General Mark Randlett told the Maine Supreme Court that Brown's failure to comply with state licensing regulations poses a potential health risk for the public.

"The question the court will be deciding in this case, among others, is whether the state should be prevented from enforcing laws that protect the public from the threat of illnesses that could be caused by contaminated and unsafe milk and food products," Randlett said.

Randlett acknowledged that the state erred when it originally told Brown that he and his wife could sell raw milk from their farm stand in 2006 without a license. And they did so for about five years. But since then, Randlett says inspectors in the Maine Agriculture Department have told Brown numerous times that he needed to meet sanitary requirements and to get a distributor's license. 

"The department attempted to work with him in order to bring him into compliance over a long period of time, to the point where they finally served him with a letter asking him, or directing him, to stop engaging in this conduct," Randlett said.

But Brown's attorney, Gary Cox of the Ohio-based Farm-To-Consumer Legal Defense Fund, says Brown spent $22,000 on his farm stand business on the basis of the state's original instructions. Cox says Brown was then advised he'd need to spend another $20,000 to $60,000 making improvements to meet the state requirements. 

Cox asked the court to consider what's known as estoppel, a legal doctrine that would preclude the state from enforcing a license that it previously told Brown was unnecessary. Justice Ellen Gorman pressed Brown's attorney on the criteria for estoppel.

"Our case law, I believe, says that it's not just a statement. It needs to be a misrepresentation," she said. "What misrepresentation are you asserting the state made here?"

"Initially, when they say you can sell raw milk without a license as long as you don't advertise or solicit, apparently that's a misrepresentation, according to the state," Cox said. "The state is now taking the position you can't do that. You do need to get the license."

Dan Brown, who was a truck driver before he became a farmer, says he never expected to become a poster child for the local food sovereignty movement in Maine. He's currently working on a lobster boat to pay the bills. He recently sold off his 300 chickens but he still has eight cows. And though the farm is currently closed, he's hoping a favorable ruling from the court could put him back in business.

"The best case scenario? I'd go back to doing exactly what I was doing before," he said. "I'd love to just have my farm, milk my cows, have my neighbors come over to my place, buy my stuff. I was perfectly happy doing what I was doing before - working 100 hours a week, you know, I'd be more than happy to go back to that.'

A decision in the case is expected in the next couple of months. Recently, Gov. Paul LePage vetoed a bill that would have allowed Maine farmers to sell up to 20 gallons of unlicensed raw milk. The governor took issue with a provision that would have allowed milk producers to sell at farmers' markets.