FILE - Vineyard grapes

When Alexis Bailly, 61, left her vineyard for a phone interview, she said she had to return immediately after to tend to what's left of her crop. Bailly needs every last grape she can harvest to supplement a total 51 percent in-state grape requirement to make wine legally in Minnesota. 

Bailly told The Center Square that she’d lost over 80 percent of her crop in the past two years.

“I’ve been out in my vineyard every day this summer trying to resuscitate my vines from the most devastating winter in the last 45 years,” she said. “I've never seen this much damage.”

Northern grape varieties can grow in Minnesota’s climate but often produce too acidic of a wine, so Minnesota wineries blend it with out-of-state grapes.

Marquette, one of Bailly’s grapes, suffered a 95 percent loss.

“What am I going to use to make wine this year?” she said. “Pretty much everyone has a better climate for growing grapes than Minnesota.”

Harsh winters and few grape suppliers impede wineries from hitting that 51 percent threshold, Bailly said. The grapes she’s bought failed her standards in “sugar, acid, or pH – not to mention grape quality, flavor profile, and style of wine.”

The law allows wineries to apply for a one-year grape waiver from the 51 percent requirement if harsh weather conditions destroy supply, but it’s not guaranteed, she said.

“So what do I do if they deny me that waiver and I’ve lost my crop, and I can’t have the right to purchase grapes from elsewhere?” she said. “There are no grapes locally – if I bought every single grape on the market in Minnesota, it wouldn’t be enough to make my wine.”

Bailly Vineyard and Next Chapter Winery joined the Institute for Justice (IJ), a public-interest libertarian law firm, to challenge the law in 2017.

Anthony Sanders, a senior attorney in IJ’s Minnesota office, told The Center Square the decision should be left to businesses.

Sanders said the Minnesota case follows precedent from a 2005 IJ case, Granholm v. Heald, in which the U.S. Supreme Court ruled it unconstitutional for states to discriminate against out-of-state wineries in the direct-mail wine market.

“The point of our lawsuit and of the Commerce clause, which is what we’re relying upon in our lawsuit, is that it’s up to the individual business on whether or not it’s cost-effective,” Sanders said. “If it’s better for you to buy grapes from Wisconsin or California or even France, it should be up to you whether you should do that or not.”

Bailly said she may hire more workers and expand her vineyard five to 10 acres if laws were friendlier to wineries, as they are in Wisconsin, which is five miles from her house.

That may change: the 8th U.S. Circuit Court of Appeals ruled that two Minnesota wineries can proceed with their challenge that state law violates the Constitution’s Interstate Commerce Clause.

The court stated that while “Minnesota is free to offer or not offer the farm winery license or to establish other license options for the production and sale of alcohol,” the wineries could challenge discrimination against out-of-state grape growers.

The trial court previously ruled that the wineries did not have “standing” to challenge the law.

“They didn’t say the law is unconstitutional, but it’s going to be hard for the state to argue otherwise because the law does on its face discriminate against out-of-state grapes because it literally says ‘a majority of in-state grapes,’” Sanders said.

The Minnesota Department of Public Safety said it couldn’t comment on pending litigation.

Staff Writer

Scott McClallen is a staff writer covering Michigan and Minnesota for The Center Square. A graduate of Hillsdale College, his work has appeared on Forbes.com and FEE.org. Previously, he worked as a financial analyst at Pepsi.