Andrew Wimer
Andrew Wimer · January 25, 2024

PORTLAND, Ore.—Sarah King milks two cows, named after Disney princesses, every morning. She bottles the milk, refrigerates it, and sells it to neighbors. Her cows spend virtually all their time on the pastures of her farm in Newberg, Oregon. She has been a small dairy farmer for years, but that may come to an end if the Oregon Department of Agriculture forces her to comply with rules written for large dairies—dairies that keep thousands of cows confined indoors.

Oregon, like many states, has requirements for dairies that operate CAFOs, confined animal feeding operations. Small dairies, like Sarah’s, did not have to comply with these rules because they don’t confine their cows. But in 2023, at the prompting of large dairies, the Oregon Department of Agriculture changed its mind and demanded that small dairies install expensive and complicated drainage and holding systems—supposedly to manage wastewater that they don’t really produce. But the government cannot wrap small dairies in red tape just to please large dairies. That’s why Sarah and other farmers are teaming up with the Institute for Justice to file a federal lawsuit against the agency.

“The state cannot saddle small dairies with needless regulations simply to please the big dairy industry,” said IJ Senior Attorney Ari Bargil. “Small dairies are practicing agriculture in the way humans have done for thousands of years. Rather than encourage sustainable and safe farming, the Oregon Department of Agriculture could put small dairies across the state out of business.”

The small, sustainable dairies that are suing the state bear almost no resemblance to mass market suppliers. The state allows dairies that milk two or fewer cows or nine or fewer goats or sheep to sell milk without a state license. Sarah’s cows come into the barn to be milked and then rotate between pastures. Manure is either composted for use in her vegetable garden or integrated back into the soil to keep the pasture healthy. Keeping her milking equipment clean requires minimal use of water. Her cows are frequently tested to ensure they are free of disease. She has never been cited for food safety or environmental hazards.

But last year the OR Department of Agriculture told Sarah that milking her cows in the barn meets the definition of a CAFO—simply because the cows are “confined” for a few minutes during milking. Why the change? According to the agency’s own communications it “received concerns from the Oregon dairy industry” that small dairies were operating without CAFO permits. The agency further stated that the small dairies enjoyed an “unfair competitive advantage” by not being subject to the requirements.

To continue selling milk, Sarah would need to install a wastewater infrastructure and a holding tank, keep daily records, and pay annual permit fees. This could add up to tens or hundreds of thousands of dollars.

“I take great pride in carefully managing our cows and the environment to ensure healthy and safe milk,” said Sarah. “But the rules that the state wants to put on us are meant for large-scale dairies, and don’t recognize the sustainable practices that are possible when you have just a few cows. It makes no sense to treat giant dairies and tiny dairies the same way.”

Joining Sarah in the lawsuit are other small dairies milking cows and goats. Christine Anderson also milks two cows at her farm in McMinnville. Waneva Lavelle and Melissa Derfler each milk goats at their farms respectively in Marion County and Grants Pass.

The lawsuit filed today in the U.S. District Court for the District of Oregon seeks to stop the Oregon Department of Agriculture from enforcing the regulation against the small dairies and have it declared unconstitutional. Applying the CAFO regulations to small dairies at the prompting of their competitors violates the 14th Amendment to the U.S. Constitution.

“Americans have a right to pursue their occupation without unnecessary government interference,” said IJ Attorney Bobbi Taylor. “Raising three cows on a pasture and raising hundreds in a confined space are not the same thing. The state cannot create red tape when the hazards are simply imaginary. Massive operations should not get to dictate how small businesses are regulated.”

The Institute for Justice and Christine Anderson successfully sued the Oregon Department of Agriculture in 2013 over its ban on any advertising for legal raw milk sales, which violated the First Amendment. The agency agreed to stop enforcing that ban in 2014 and the ban was repealed by law in 2015.