Agriculture — unpasteurized milk

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Wisconsin Court of Appeals

Civil

Agriculture — unpasteurized milk

This is a consolidated appeal taken by Farm-to-Consumer Legal Defense Fund, Mark and Petra Zinniker (the Zinnikers), Nourished by Nature, LLC (Nourished by Nature), Philip Burns, Gayle Loiselle, and Robert Karp in one case; and Farm-to-Consumer Legal Defense Fund, GrassWay Organics Farm Store, LLC (the Store), GrassWay Organics Association (the Association), and Kay and Wayne Craig d/b/a GrassWay Farm in a second case. For ease of reference, we refer to the appellants in the first case as “the Zinniker plaintiffs,” and refer to the appellants in the second case as the “GrassWay plaintiffs.”

The Zinniker plaintiffs and the GrassWay plaintiffs appeal a circuit court order denying their respective motions for summary judgment. The Zinniker plaintiffs contend that the court erred in denying their motion for summary judgment, in which they requested the court to declare that they have a right to own cows, board those cows at a dairy farm, and consume the unpasteurized milk produced by those cows. However, we agree with DATCP that the dispositive issue is whether the Zinnikers are operating a dairy farm as milk producers without a license, which is an issue that precedes any question about the regulation of unpasteurized milk. We conclude that the Zinnikers are operating a dairy farm as milk producers without a license in violation of Wis. Stat. § 97.22(2)(a) (2011-12), and therefore, any contractual agreement among the Zinnikers, Nourished by Nature, and its members, under which the Zinnikers board dairy cows owned by Nourished by Nature and distribute milk produced by the herd to members of Nourished by Nature, is void as a matter of law.

The GrassWay plaintiffs contend that they are entitled to a declaration that they are in compliance with Wis. Stat. § 97.24 and that the Store is not required to obtain a retail food establishment license to sell or distribute milk to members of the Association. We conclude that the circuit court correctly concluded, based on the facts of record presented by the GrassWay plaintiffs on summary judgment, that the GrassWay plaintiffs were not entitled to the declarations that they had requested. Accordingly, we conclude that the circuit court properly denied summary judgment to the Zinniker plaintiffs and the GrassWay plaintiffs. We affirm. Not recommended for publication in the official reports.

2011AP2264 Farm-to-Consumer Legal Defense Fund et al. v. Wisconsin Department of Agriculture Trade and Consumer Protection et al.

Dist IV, Dane County, Fiedler, J., Higginbotham, J.

Attorneys: For Appellant: Rich, Elizabeth G., Plymouth; Cox, David G., Columbus, Ohio; For Respondent: Hunter, Robert M., Madison