Sarah King is passionate about farming, sharing social media posts and pictures of her family’s life at Godspeed Hollow Farm in Newberg, Oregon. There, she cares for and milks her cows, named after Disney princesses. Her business is small but thriving. Customers come from all over to purchase her cows’ milk, which she sells in glass jars out of a fridge in her barn.
Sarah provides a vital service to members of her community: sustainably sourced milk. This belief in sustainability is evident in every aspect of her business from the way she cares for her cows, to the way she handles her product, and the way she cares for her land. Her animals freely graze on the land, their waste goes into the earth, helping to grow more healthy grass, and the cycle continues. The long wait list for her products shows their quality and desirability.
Now, however, a newly reinterpreted regulation from the Oregon Department of Agriculture threatens to shut down Sarah’s business—and hundreds of similar-sized dairies across the state. Oregon, like many states, has a special permitting process for operating a confined animal feeding operation (CAFO). CAFOs typically house hundreds and even thousands of animals, as mismanaging water can have a serious impact on the local environment. For years, the state did not interpret these regulations as applying to small farms like Sarah’s.
But now Oregon wants to regulate small farms like large commercial dairies. Why? Not because of real environmental concerns, but because large commercial dairies insist that small dairies somehow have a “competitive advantage” over big ones—that is, that they don’t have to install expensive infrastructure to manage waste.
But small dairies don’t need that infrastructure because the amount of waste generated can safely decompose in fields or be composted for other productive use. The state was wrapping small dairies in meaningless red tape just to please big dairies. That is protectionist, irrational and, moreover, unconstitutional. Sarah, and three other small farmers, teamed up with the Institute for Justice (IJ) to file a lawsuit against the Oregon Department of Agriculture and save small dairy farms in the Beaver State. The department re-wrote the rules in response to the suit making it clear that small operations were not subject to the burdensome requirements. With small dairies saved from financial ruin, the lawsuit was voluntarily dismissed.
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Oregon’s Small Dairy Farms Safely Provide Products That Can’t Be Found in Retail Stores
Oregon statutes exempt small dairies from licensing requirements. This means that anyone who milks two cows or fewer, or nine goats or sheep or fewer, can sell their product to customers directly from their farm without a state license.[1] This exemption recognizes that small farming has been part of the history and tradition of this country since its founding, and recognizes the right of Oregonians like Sarah to operate their small farms—operations that are dwindling in number nationwide.
Sarah’s operation is small, but impressive. She milks two cows every morning, then filters the milk into glass jars which are immediately chilled, refrigerated, and labeled for customer pickup. Her cows come into the barn for milking, but otherwise are outside at pasture. Sarah rotates her cows between pastures and their manure helps the grass regrow. Waste generated in the barn is composted and used for the farm’s vegetable garden. The cows are tested frequently to ensure they are free of disease. That is why families come from all over—some as far as Portland—to seek out Sarah’s farm. They believe in her techniques, the way she cares for her animals, and the high quality milk that results from those practices. Although she has a waiting list, Sarah keeps her operation small. For Sarah, product quality and connecting with her community through those products are the priority—not profits alone.
Like Sarah, Christine Anderson is a small farmer passionate about her animals and her work. Christine owns Cast Iron Farm in McMinnville, Oregon, where she has sold her milk to members of her community for decades. Christine also milks two cows every morning. Like Sarah, she filters the milk into glass jars, and stores the jars in a refrigerator on her farm for customer pickup. Christine tests her animals, she tests her milk, and she tests her soil to ensure that her operation is clean and safe. When not inside for milking or sheltering from especially bad weather, her cows are also free to roam outside, where they have access to rotational pasture.
Waneva Lavelle and Melissa Derfler are two farmers who milk a small number of goats. Waneva owns Pure Grace Farms, located south of Portland. While her goats’ milk is mainly used to make soap, some of it is sold for consumption, and some is even sold to veterinarians to help their animal patients. Melissa owns Rainbow Valley Dairy Goats in Grants Pass, Oregon, and sells her delicious goat milk to others in her community. Melissa’s product has been a necessity for some mothers who rely on her goats’ milk due to lack of access to formula.
Sarah, Christine, Waneva, and Melissa are not operating massive dairy farms; they are small-scale producers. Like countless Americans before them, they live and work on their land, where they own a small number of livestock and grow their own food. In this way, they make a living as humans have done since the dawn of modern human civilization. All of their operations are clean and environmentally sustainable. And their products are nutritious and safe. Their milk is sold on site to customers or herdshare members who line up to purchase it. They have all operated for years, some for decades, without any citations.
The Oregon Department of Agriculture “Reinterprets” its Regulations at the Request of Big Dairy
That is all about to change, however. Last year, Sarah and Christine got word that the Oregon Department of Agriculture is reinterpreting its regulations and looking to put small farmers in the same category as large mass-production dairies. How? By requiring them to obtain a CAFO permit—something that they have never needed before and should not need now.
A CAFO is a confined (or concentrated) animal feeding operation.[2] CAFOs at big dairies often house hundreds or thousands of animals and these animals often spend much of their lives indoors. The surrounding land typically cannot handle the amount of manure and wastewater generated by these operations, and states have permitting requirements to prevent contamination.
For years, the Department of Agriculture did not include small dairies in its interpretation of its CAFO regulations. But then Big Dairy mobilized to get the Department to crack down on smaller producers. According to the Department’s own communications, the CAFO program “received concerns” from the Oregon dairy industry about small dairies operating in Oregon without permits. Small dairies somehow were being given an “unfair competitive advantage” over the large dairies.
To address Big Dairy’s concerns, the Department agreed in early 2023 to expand its enforcement program to small dairies.[3] This happened even though, by its own admission, the Department’s overbroad definition could apply to any place where animals are confined, not just dairies.[4] So while a farm milking only two cows needs a drainage system and a large holding tank, a farm with many more animals, if they’re not being milked, does not.
According to the state’s redefined regulation, because Sarah, Christine, Waneva, and Melissa bring their animals inside to milk, and because they process wastewater from cleaning milking equipment, they are CAFOs requiring a license.[5] To comply with the CAFO requirements, farmers must install large wastewater and holding infrastructure—like drains, pumps, and tanks.
All of this equipment is completely unnecessary for small farmers. Their animals produce such a small amount of waste that there is no concern for ground or waterway contamination. Most of the waste is composted or used to fertilize the pasture. Concerns about wastewater from cleaning the milking equipment are also unfounded for small farms like these. Their process produces only a bucket or two of water daily. A drainage system and large holding tank are simply not needed for such a small amount of unharmful water.
For small producers like Sarah, the cost of compliance is crippling. Sarah estimates that to comply with the CAFO permit requirements, it would cost her anywhere from tens to hundreds of thousands of dollars in renovations and installation costs. Christine, who has applied for and received her CAFO permit, now hand-hauls her wastewater to her field to pour it out, and if she ever wants to end this Stone Age practice, will have to spend tens of thousands of dollars on additional renovations. In addition, she must now keep daily records of waste and wastewater volume to keep her permit.
Even if Christine and Sarah do pay the potentially hundreds of thousands of dollars to comply, they would then be subject to annual inspections and annual fees. Waneva and Melissa have said that the costs are so high it would likely put them out of business. This means that the customers who rely on them will be without a vital product, and farmers who have been in business for decades will now be shut down.
The Constitution Does Not Allow Protectionism to Justify Regulation
The Constitution protects the right to earn a living free of irrational government interference. And applying the CAFO regulation equally to large-scale dairies and small-scale farming operations is just that—irrational. Small farms like the ones owned by Sarah, Christine, Waneva, and Melissa produce a safe, quality product, and manage their manure and wastewater safely. Their operations are so small that installing tens of thousands of dollars in drainage systems and holding tanks is nonsensical. That’s especially true when there are other farms that produce just as much waste, and yet evade regulation as CAFOs.
The Department’s avowed protectionist motives confirm one thing: the Department is not concerned with the environment. It is concerned with protecting the economic interests of the state’s largest dairies. And courts have said that protectionism is not a valid reason to single out a class of businesses for increased regulation.[6]
So, Sarah, Christine, Waneva, and Melissa teamed up with IJ to file a federal lawsuit against the Oregon Department of Agriculture. Together they are asking the court to stop enforcement of this regulation against their farms and declare the CAFO permitting regulation unconstitutional as applied to other small dairy farms like theirs. These farmers have a right to continue to use their land and their animals peacefully and responsibly.
The Litigation Team
Sarah, Christine, Waneva, and Melissa are represented by Institute for Justice Senior Attorney Ari Bargil and Litigation Fellow Bobbi Taylor. Ed Piper, of Angeli Law Group LLC in Portland, is local counsel.
The Institute for Justice
Founded in 1991, the Institute for Justice is a nonprofit, public interest law firm and the nation’s leading advocate for private property rights, economic liberties, and free speech, as well as for educational choice. For over 30 years and at no cost to clients, IJ has litigated in courts of law and in the court of public opinion to defend the right to earn a living free of burdensome, irrational, and arbitrary government interference. IJ has defended many other businesses from protectionist regulations, from hair braiders, to casket makers, to food truck vendors.
[1] Or. Rev. Stat. § 621.012.
[2] Or. Admin. R. 603-074-0010.
[3] White Paper: Raw Milk Dairies and CAFO Permit Requirements, Or. Dep’t of Agric. (2023) https://www.oregon.gov/oda/programs/NaturalResources/Documents/RawMilkOutreach/WhitePaper020123.pdf.
[4] Outreach and Education Program to Unpermitted Raw Milk CAFOs, Or. Dep’t. of Agric. (2023) https://www.oregon.gov/oda/programs/NaturalResources/Documents/RawMilkOutreach/ProgramElements020123.pdf.
[5] White Paper: Raw Milk Dairies and CAFO Permit Requirements, Or. Dep’t of Agric. (2023) https://www.oregon.gov/oda/programs/NaturalResources/Documents/RawMilkOutreach/WhitePaper020123.pdf.
[6] Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002).
