FTCLDF 2013 Summary, cont’d
Page 2 – Significant Cases
SIGNIFICANT CASES IN 2013
Highlights at a glance:
Food sovereignty challenge appealed
Citizens petition by OPDC awaits answer.
FTCLDF handles more zoning disputes.
York County takes oyster farmers Bavuso and Garrett to high court.
National Park Service and California Coastal Commission lawsuits
Brenda Turunen’s case challenges Michigan.
Dan Brown Case Before the Maine Supreme Court
On May 13, 2014, the case of Blue Hill Dairy farmer Dan Brown was argued by FTCLDF General Counsel Gary Cox before the Maine Supreme Court. The farmer appealed an April 2013 lower court ruling that found him guilty on three counts for violations of Maine’s food and dairy code: selling raw milk without a license, selling raw milk without labeling it as such, and operating a retail food establishment without a license. Brown and his wife, Judy, sold raw dairy products and other foods at the couple’s farm stand.
In 2011 the Town of Blue Hill passed a food sovereignty ordinance allowing the direct sale of food from producer to consumer without licensing or inspection requirements. Later that year, the Maine Department of Agriculture, Conservation and Forestry (DACF) filed suit against Brown in a challenge to the food sovereignty ordinance.
The two main issues in the case were whether the local ordinance controlled over conflicting state law and whether the state was estopped (prohibited) from prosecuting Brown for selling milk on his farm without a permit when the state allowed unlicensed on-farm sales of raw milk until 2009–Brown had relied on this state policy in spending money to set up his dairy, thinking there was no subsequent change to Maine statutes or regulations. The Supreme Court hearing focused on the latter issue.
There are now eleven Maine towns that have passed food sovereignty ordinances and numerous localities elsewhere in the country that have also passed food sovereignty ordinances and resolutions. The Brown case represents the first court challenge to the ordinances. The Maine Supreme Court ruled against Brown but there could be a push for a statewide food sovereignty bill in the next legislative session.
[Read more about the Brown case]
Challenging FDA’s Interstate Ban on Raw Milk
The Fund is representing Organic Pastures Dairy Company (OPDC) in OPDC’s petition to FDA to modify the interstate ban on raw milk by amending the federal regulation establishing the ban; the citizens petition is asking FDA to allow the shipment of raw milk from one state where its sale is legal to another state where its sale is legal.
OPDC filed the petition currently before FDA in May 2013 and has yet to receive a response from the agency. Federal law requires FDA to answer the petition within six months of its filing.
The Fund is also supporting two federal bills introduced in March 2014 that would respectively overturn and modify the ban. See Federal Level Activity for more details.
Working to Uphold Michigan’s Right to Farm Act
Michigan has the strongest Right to Farm Act (RTFA) in the country and is the model other states should follow. Under it, farmers should be protected no matter what the local zoning laws are as long as they have a commercial operation and are in compliance with applicable Generally Accepted Agricultural Management Practices (GAAMPs) issued by the Michigan Department of Agriculture and Rural Development (MDARD).
In 2012 Fund members Randy and Libby Buchler won a widely publicized victory when a Marquette County judge held that their farming operation on non-agriculturally zoned land was protected under the RTFA. Since that time, however, townships around the state have not slowed down in going after farming operations that should be protected under the RTFA for alleged zoning violations.
Gary Cox is currently defending several Fund members: Jeremy and Jessica Hudson, Kilyndra Taylor, and Jackie Kerr who have either received citations for zoning violations or been threatened with them for small-scale farming in urban and suburban areas. We are at work in the courts and the legislature to ensure Michigan’s Right to Farm Act prevails over conflicting zoning ordinances in supporting the local food movement and defending the neighborhood farm.
[Read more about the Right to Farm]
FTCLDF Members’ Cases Before Virginia Supreme Court
Oyster farmers Anthony Bavuso and Greg Garrett had their cases over a zoning dispute with York County heard by the Virginia Supreme Court on October 28, 2013. FTCLDF provided funding for Bavuso’s legal representation before the high court.
The dispute was over whether Bavuso and Garrett needed a ‘special use’ permit to operate a commercial oyster farm on land that included their residences. York County claimed that there could only be one principal use and that, with the residence serving as the principal use, both Bavuso and Garrett need a ‘special use’ permit for their oyster businesses; but York County had previously denied Bavuso’s application for a special use permit.
The Supreme Court ruled against the oyster farmers, but the adverse ruling eventually led to the passage of state legislation in March 2014 that exempts aquaculture operations on agriculturally zoned land from the ‘special use’ permit requirement.
Bavuso’s fight against York County is ongoing. Since the Supreme Court decision, both the farmer and York County have filed lawsuits against the other; and the County Board of Supervisors—against the recommendation of its Planning Commission—voted on June 17, 2014, to rezone Bavuso’s neighborhood so his property would no longer be designated for agricultural use.
Battles like this between farmers and local zoning boards are becoming more common around the country.
[Read more about the Bavuso situation]
Drakes Bay Oyster Company Litigation Fund
FTCLDF is continuing to administer a litigation fund for Drakes Bay Oyster Company (DBOC) to accept contributions to support DBOC’s efforts to legally farm the waters off of Point Reyes, California.
In November 2012 the National Park Service (NPS) refused to renew the federal government’s agreement with DBOC allowing the firm to farm the waters off Point Reyes. In recent years, DBOC has been responsible for between 30 to almost 40 percent of California’s oyster production. Now, the effort of NPS to rewild the Point Reyes area is effectively forcing the state to rely on imports instead of a quality local source.
The litigation fund was originally set up to pay on DBOC’s lawsuit against NPS, seeking to obtain a court order requiring renewal of the agreement; the purpose has since expanded to include funding DBOC’s court battle with the California Coastal Commission (CCC).
DBOC filed suit against CCC in April 2013 to set aside two CCC orders issued against the company that would have put it out of business regardless of a favorable ruling in the lawsuit against NPS. The litigation with CCC is currently in the Marin County Superior Court.
In the federal lawsuit, district and appellate courts hearing the case have both held that NPS was not required to renew its agreement with DBOC. On June 30, 2014, the U.S. Supreme Court denied DBOC’s appeal, refusing to hear the case.
[Read more about Drakes Bay]
Federal Lawsuit Against Michigan Swine Invasive Species Order (ISO)
FTCLDF is also administering a litigation fund for a federal court challenge to the Michigan Swine Invasive Species Order (ISO). In March 2013 Fund member Brenda Turunen filed a lawsuit against officials of the Michigan Department of Natural Resources (DNR) and Michigan Department of Agriculture and Rural Development (MDARD) in the Federal District Court for the Western District of Michigan, claiming that an 1842 Treaty between the Lake Superior Chippewa Indian tribe and the United States of America controls over any Michigan laws.
Turunen is a member of the Keweenaw Bay Indian Community (KBIC) and claims in her complaint that KBIC is a modern day successor in interest to signatories to the 1842 Treaty. The suit argues that the Treaty, which ceded land to the Chippewa, included the right to commercially farm land within the ceded territory. Last year the judge hearing the case rejected the defendants’ motion to dismiss. A trial has been scheduled on the matter for 2015.
[Read more about the Michigan swine ISO]
Beyond pursuing remedies in the courts and at the administrative level, the Fund also seeks to improve the political and regulatory climate for local food producers and consumers. Next is a review of legislative and public policy efforts as well as fundraising and outreach activity.