Herd share agreements are private contractual arrangements in which someone purchases an ownership interest in a dairy animal (or herd of dairy animals) and pays a fee to a farmer for boarding, caring for and milking the animal(s). The owner has the property right to obtain raw milk from the animal(s). It’s legal to purchase ownership in a dairy animal and it’s legal to obtain milk from a dairy animal you co-own; currently, there is nothing in the Virginia Code on herd shares. Herd share programs have been thriving in Virginia for many years.

In 2017 an amendment to a food freedom bill was introduced that would have banned herd shares; the inducement for the ban was the legalization of the regulated on-farm sale of raw milk. The Virginia Independent Consumers and Farmers Association (VICFA) and others–including the bill’s original sponsor, Nick Freitas–was successful in killing the legislation.

In 2018 opponents of herd shares–such as Virginia Farm Bureau, Virginia Agribusiness Council, and the Virginia State Dairymen’s Association–took a different tact; supporting the introduction of legislation in the Senate (SB 962) and the House of Delegates (HB 825) that would have officially legalized herd shares while attempting to intimidate both consumers and farmers from either entering into or continuing on with herd share agreements. Both bills required that shareholders assume joint liability if the herd or any milk produced by the herd was responsible for injury or illness; the way both bills read, giving raw milk to family or guests would be a crime. Both bills provided that violating any of the requirements in them would be first degree misdemeanors with criminal penalties of up to one year in jail and $2,500 in fines; everyday the violation continued would be a separate offense. Strong grassroots mobilization led by VICFA with help from the Weston A. Price Foundation (WAPF), FTCLDF and other organizations, carried the day; both bills died in committee.²

VDACS has long had a hands-off policy towards regulating herd share agreements but there have been reports of agency inspectors telling farmers that herd share agreements are illegal. Having a statement in writing from VDACS should help increase the sizable number of herd share programs in the state that already exist. The position of VICFA and its members has always been that the state has no jurisdiction over property rights in dairy livestock acquired through private contract, but there are others who were more hesitant to enter into herd share agreements without something in writing from VDACS on herd shares; they now have it.

In the past VDACS has been reluctant to acknowledge the legality of value-added products distributed through a herd share agreement, but recent precedent in other states shows the wisdom of VDACS current hands-off policy towards the distribution of raw dairy products other than milk.

In 2016 a Michigan court found a herd share operation not guilty of contempt for distributing butter and cream, among other product, to its shareholders; there was an injunction against the operation prohibiting it from violating Michigan’s dairy laws. The Michigan Department of Agriculture and Rural Development (MDARD) had adopted a written policy allowing only the distribution of fluid raw milk through herd share agreements; in spite of the policy and plenty of evidence showing that other raw dairy was distributed through the herd share, the judge ruled that MDARD had not made its case that there were any violations of the state dairy laws. The case turned in favor of the herd share operation when one of its shareholders, Mike Lobsinger, successfully intervened as a party to the contempt proceeding. One of the arguments made by Lobsinger’s attorney was that, with the raw milk being his property, it was none of MDARD’s business if he had that milk processed into cream.^3,4

In 2012 the Office of the Tennessee Attorney General issued an opinion finding that an “independent or partial owner of any hoofed mammal” may use a dairy product made from the milk produced by such animal for the owner’s personal consumption or other personal use.”⁵ Tennessee has a herd share statute recognizing that anyone who has an ownership interest in a dairy animal can use “the milk from such animal for the owner’s personal consumption or other personal use.”⁶ When the Tennessee Department of Agriculture claimed that the statute only allowed the distribution of raw milk and no other dairy product, State Senator Frank Niceley, the sponsor of the herd share bill that passed into law in Tennessee, sought the attorney general opinion.

Herd share programs are at the heart of Virginia’s local food system; the written statement of policy from VDACS should only strengthen that. Hopefully, it will help convince herd share opponents not to introduce legislation again in the next legislative session; if they do, the grassroots will be there once more to contest them.

[1] Email dated August 7, 2018
[2] Pete Kennedy, “Victory in Virginia – Bills Threatening Herd Shares Now Dead”, RealMilk.com, 6 February 2018. Last viewed 9/12/18 at https://www.realmilk.com/victory-virginia-bills-threatening-herd-shares-now-dead/
[3] Pete Kennedy, “Wild Day in Michigan: A Court Victory and A Raid”, Farm-to-Consumer Legal Defense Fund website, 13 December 2016. Last viewed 9/12/18 at https://www.farmtoconsumer.org/blog/2016/12/13/wild-day-michigan-court-victory-raid/
[4] James S. Jamo, “Opinion and Order”, MDARD v Hill High Dairy, LLC et al, File No. 15-574-CZ, 8 December 2016. [view PDF]
[5] Robert E. Cooper, Jr., “Owner’s Use of Milk and Licensing of the Sale of Eggs”, State of Tennessee Attorney General Office, Opinion No. 12-04, 13 January 2012
[6] Tennessee Statute 53-3-119

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Wisconsin organic dairy farmer Chaz Self is a face of the crisis confronting milk producers across the country. Self’s cooperative recently dropped him as a member, leaving him scrambling to find another buyer for the milk his farm, Grassway Organics, produces. Self could be making up for some of the lost sales by selling raw milk; Wisconsin law allows the sale of raw milk on an “incidental basis.” The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) could be helping farmers like Self by using its enforcement discretion to let him sell raw milk. DATCP, however, recently served the farmer with a summary special order threatening the loss of his Grade A Milk Permit if he sold any raw milk for human consumption.

The farmer is currently dumping hundreds of gallons of high quality raw milk. Self’s case provides a great look at the unprecedented emergency dairy farmers are facing and how selling raw milk is a potential way to help keep thousands of them in business.

Self maintains a herd of around 100 cows on a 400-acre farm where he lives with his wife Megan and their three young children. His Jersey herd is 100% A2. The Selfs sell poultry, eggs, pork and beef to their customers on the farm and at farmers markets.

Last year Self appeared in the Netflix documentary, Rotten, a series of episodes uncovering fraud and corruption in the industrial food system. Self appeared in the episode “Milk Money” which discussed the production and sale of raw milk. Self never stated that he sold raw milk but the narrator of the episode implied that he did. Shortly after the episode aired, DATCP started investigating Self; the investigation wound up with the department issuing an order allowing him to keep his Grade A permit on the condition that he stop selling raw milk. This was an unjustified move, given that DATCP based its decision solely on what the narrator said he was doing; there was no other evidence mentioned in the order about Self selling raw milk.

To compound matters, on April 1 Self’s cooperative, Westby Creamery, terminated his membership; on April 18 DATCP sent Self a “notice of deadline to change assigned dairy plant”, stating the farmer has until April 30 to find a processor to pick up his milk. If he fails to do so, DATCP will revoke his Grade A permit; with the current state of the dairy industry, that is not an easy task.

The American dairy sector has been in a decades-long decline that is currently accelerating. In 1992 there were 131,535 licensed dairies in the U.S., at the end of 2017 there were 40,219.¹ The number of dairies closing shop has increased substantially since the beginning of the year. In 1992 the average herd size for farms was 74 cows; by 2017 it had risen to 234², showing the consolidation in the dairy industry and the exit of small farms from the commodity milk system.

Wisconsin went from about 29,000 dairy farms in 1995 to a little over 9,000 at the end of last year.¹ Two particular recent developments have accelerated the decline of conventional and organic dairies in Wisconsin. First, more conventional milk is being shipped into Wisconsin from other states. In 2017 more than 100 trailer loads of milk per day³ was coming into Wisconsin from states such as Michigan, Indiana and Ohio; frequently this milk was being sold more cheaply than the price sellers of conventional fluid milk would normally get.

Secondly, this year certified organic CAFO dairies in Texas have increased shipments of milk to Wisconsin. According to a USA Today March 24 story by a Milwaukee Journal Sentinel writer, six certified organic dairy farms in Texas produced about 23% more milk than all of Wisconsin’s 453 organic dairy farms combined in 2016.⁴ The greater supply of organic milk has led to more quotas for producers and co-ops cutting back on members; in addition to Self, Westby Creamery recently terminated the contracts of seven other members.

The commodity milk system is becoming more untenable than ever for small farms. Recent prices around the country for conventional milk have been as low as $1.11 per gallon; while there are some organic producers that are still doing well, prices overall have declined substantially for organic milk. Farmers wanting to sell cows are finding little or no market. Oversupply and lower pay prices mean a race to the bottom for commodity milk.

One way for producers to escape or survive the commodity milk system is to sell raw milk for direct consumption; prices farmers can get for raw milk sales to the consumer are much higher than what they can receive for either conventional or organic milk intended for pasteurization. In Wisconsin the law is there for dairies to sell raw milk and improve their bottom line; the problem has been DATCP and its interpretation of what an “incidental sale” is.

The legislature passed the incidental sale law in 1957. The original intent of the law was that any sale of raw milk for human consumption was an incidental sale. At the time the law went into effect, there were over 100,000 dairies selling raw milk intended for pasteurization in the state ⁵; for all of them, sales of raw milk for direct human consumption were likely a very small percentage of total sales.

At one time DATCP interpreted the incidental sales law as meaning only one sale of raw milk per customer ever. In 2008 the department changed that, issuing a regulation that stated, “a sale is not incidental if it is made in the regular course of business, or is preceded by any advertising, or solicitation made to the general public through any communications media.” There is nothing in the statute legalizing incidental sales that prohibits advertising or solicitation.

DATCP’s interpretation of “not in the regular course of business” has been unfavorable to raw milk producers and consumers. It’s time for that to change; America’s Dairy Land is in an emergency situation. Dairies are going out of business every day in the state. DATCP can help Wisconsin dairy farms by either adopting a more liberal interpretation of what constitutes “not in the regular course of business” or by waiving enforcement against dairies selling raw milk direct to consumers in the regular course of business. For precedent on the latter step, DATCP only needs to look at the bordering state of Michigan.

Michigan law prohibits the sale or distribution of raw milk for human consumption; nevertheless in 2013 the Michigan Department of Agriculture and Rural Development (MDARD) adopted a written policy in which it would not take action against dairy farms distributing raw milk through herdshare agreements. MDARD set parameters that had to be in place, such as a written contract between the farmer and consumer for it to waive enforcement; DATCP could take a similar tact in Wisconsin.

DATCP is charged with promoting Wisconsin agriculture; one way it can do that with the current dairy crisis is to change its enforcement or interpretation of the law to one that benefits raw milk producers and consumers. Producers like Chaz Self have the quality raw milk and the potential demand to succeed. DATCP shouldn’t be preventing Self from selling raw milk. DATCP has an opportunity to help dairy farms stay in business. Ultimately, it would be great to pass a bill taking the word “incidental” out of the Wisconsin raw milk statute; but with the accelerated decline dairy is going through, there is no time to waste. The department should either adopt a new interpretation of the raw milk law or exercise its enforcement discretion now.

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[1] Dennis Halladay, “Here it comes: less than 40,000 dairies”, Hoard’s Dairyman, March 19, 2018. Last viewed 4/25/2018 at https://hoards.com/article-22818-here-it-comes-less-than-40000-dairies.html

[2] Corey Geiger, “Dairy farm numbers hover near 40,000”, Hoard’s Dairyman, February 26, 2018. Last viewed 4/25/18 at
https://hoards.com/article-22687-dairy-farm-numbers-hover-near-40000.html

[3] Pete Hardin, “March Dairy Meetings Somber in Wisconsin…”, Milkweed, Issue No. 465, April 2018; p. 5. [Wisconsin Farmers Union, “How Does It Work, and Would it Work Here?”, Dairy Supply Mgmt. in Canada, meeting 15 March 2018 at Dodger Bowl Banquet Center, Dodgerville, WI, recorded by www.wiseye.org; last viewed 4/25/2018 at http://www.wiseye.org/Video-Archive/Event-Detail/evhdid/12277]

[4] Rick Barrett, “Wisconsin’s small organic dairies squeezed by Texas mega-farms”, USA Today, March 24, 2018. Last viewed 4/25/2018 at https://www.usatoday.com/story/money/business/2018/03/24/wisconsins-small-organic-dairies-squeezed-texas-mega-farms/455330002/

[5] U.S. Department of Commerce, “County Table 10 – Dairy products and poultry and poultry products sold from farms: Censuses of 1959 and 1954”, U.S. Census of Agriculture: 1959, Volume 1, Part 14: Wisconsin (Chapter B – Statistics for Counties), p. 163. Last viewed 4/25/2018 at http://usda.mannlib.cornell.edu/usda/AgCensusImages/1959/01/14/866/Table-10.pdf

Photo courtesy of Grassway Organics LLC facebook page

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Michigan raw dairy consumers and producers owe Mike Lobsinger a debt of gratitude. Lobsinger, a retired businessman and leaseholder in a herd lease arrangement, along with farmers Joe and Brenda Golimbieski, are the ones most responsible for a favorable court ruling establishing the principle that consumers can obtain raw dairy products other than milk under a herdshare or herd lease agreement. (A herdshare agreement involves someone purchasing an ownership interest in a dairy animal or animals and hiring the farmer to board, care for and milk the animal(s); the difference in a herd lease agreement is that someone leases the dairy animal(s) and has ownership rights in the animal(s) for the term of the lease.) Thanks mainly to Lobsinger and his attorneys, John Stiers and Elise Arsenault, legal action taken by the Michigan Department of Agriculture and Rural Development (MDARD) to stop the distribution of cream, butter and other raw dairy products to leaseholders at the Golimbieski farm was not successful, thus establishing a case law precedent. The case shows the power that consumers have to make an impact. (See Michigan: Leaseholder Lobsinger Sues over Seized Cream for background.)

Lobsinger believes it is the consumers’ right to select the farmer from whom they get their food but also that it should be the consumers’ responsibility to do what they can to back up their farmer when the farmer is facing an enforcement action from a government agency. In supporting the Golimbieskis, Lobsinger, who is a member of both the Weston A. Price Foundation and the Farm-to-Consumer Legal Defense Fund, went far beyond what consumers would typically do to protect their farmer.

In March 2013, MDARD issued a written policy, Policy 1.40, which legalized the distribution of raw milk through a written herdshare or herd lease agreement. Policy 1.40 stated that herdshare programs were to include distribution of raw whole milk only, and that products such as butter, yogurt and cheese could only be sold or distributed by licensed producers. The “Catch 22” is that Michigan law prohibits even licensed producers from selling products such as raw butter, cream and yogurt.

The Golimbieskis, who have a Grade A dairy operation, Hill High Dairy, were distributing raw butter and cream under their herd lease program to consumers who had signed a herd lease contract. Lobsinger, who obtains raw cream to put in his coffee, was one of them.

Whenever the MDARD inspector was conducting her semi-annual inspections of Hill High Dairy, she would seize raw dairy products she found in a refrigerator located in a utility room on the farm. In 2015 MDARD filed a court action against each of the Golimbieskis, Hill High Dairy and B.J.’s Boarding, an entity that was formed to lease cows to those wanting to get raw milk. The department petitioned the court to issue an injunction prohibiting the four parties from, among other things, distributing raw dairy products other than milk to leaseholders.

Lobsinger entered the fray by successfully intervening as a third-party defendant in the case, claiming that MDARD was interfering with his property right to have milk produced by his cow separated into cream. Despite the successful intervention into the case, Judge James Jamo issued an order enjoining the Golimbieskis, Hill High Dairy and B.J.’s Boarding from violating any applicable Michigan food and dairy laws. The judge did state in the opinion granting the injunction that there was no proof the defendants had violated any laws.

During a June 2016 inspection of Hill High Dairy, inspectors again seized and confiscated raw dairy products, including Lobsinger’s cream; subsequently, MDARD petitioned Judge Jamo to find the four defendants in contempt of court for violating the injunction. Lobsinger successfully intervened in the case again as a third-party defendant in the contempt petition and also filed a separate action against MDARD in the Michigan Court of Claims, suing the agency on the grounds that seizure of his cream violated his due process rights. The relief Lobsinger sought included a ruling that “another individual or agent may separate Lobsinger’s cream and skim milk on Lobsinger’s behalf without MDARD licensure or oversight and may deliver Lobsinger’s cream and skim milk to Lobsinger as long as the milk and cream are used exclusively for the personal consumption of Lobsinger and his family.”

In December 2016 Judge Jamo ruled that the defendants were not in contempt, establishing a legal precedent that raw dairy products other than milk can be distributed under a herd lease or herdshare arrangement without violating Michigan law. Ironically, at the time the Golimbieskis received word about the ruling on MDARD’s inspection, MDARD inspectors were once again seizing raw dairy products at the farm as they conducted an inspection.

When the inspectors finished their next scheduled inspection in June 2017 without seizing Lobsinger’s cream (or any other raw dairy products), Lobsinger withdrew his lawsuit figuring that he already had a favorable ruling in the contempt case that he didn’t want to jeopardize since MDARD was no longer confiscating products it once saw as contraband during its inspections of the Golimbieski farm. Lobsinger made it clear that if MDARD tampered with his cream in the future, he wouldn’t hesitate to sue the department again for its violation of his rights.

Lobsinger hired attorneys to fight MDARD because he wanted the public to know that the department was going after individual property rights in seizing dairy products from the Golimbieski farm. A look at the transcripts in the Golimbieski court case shows the contempt MDARD had for the leaseholders’ property rights. MDARD’s attorneys characterized Lobsinger retaining another leaseholder to separate Lobsinger’s own milk into cream as an illegal activity. The attorneys claimed the case was about a Grade A dairy violation and had nothing to do with property and contract rights. MDARD’s position was that there was no difference between sales of cream to the general public and distribution of cream to the owner of the milk from which the cream was processed. The department was in effect claiming that if someone went to Lobsinger’s house to separate milk into cream that it would have jurisdiction and could stop this “illegal transaction.”

Fortunately, Judge Jamo wasn’t buying into what Lobsinger called MDARD’s “gibberish.” He asked MDARD attorney Danielle Allison-Yokum if there was any case law to back up this assertion; the attorney admitted there was not.

Lobsinger’s intervention changed the dynamic in the Golimbieski case. Instead of the case concerning a Grade A dairy violation, the focus switched to the issue of property rights. Lobsinger’s willingness to hire attorneys to protect those rights made that happen. It shows the impact one individual can make.

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Out of the three cases, the only illness involved was traced to the administration of a brucellosis vaccine to a cow that resulted in active brucella showing up in the raw milk. In the FDA and New Jersey Department of Health investigations there were no allegations of adulterated raw dairy or other foods being distributed. Still, distributors in all three cases could be subject to criminal and/or civil penalties for distributing food their customers believed best for their health and well-being. As the new year gets underway what laws could be passed to better protect producers and distributors of nutrient-dense foods and improve the chances of those individuals getting justice if the government brings a formal administrative or judicial action against them. Here are some suggestions towards making this happen.

Jury Nullification

1. Jury nullification is the legal concept where the jury has the right to acquit the defendant even if the law points toward guilt if the jury believes that it would be unjust to apply the law given the facts of the case. Jury nullification can take place in either criminal or civil trials. The Alvin Schlangen and Vernon Hershberger trials, respectively in Wisconsin and Minnesota, were jury nullification cases where the juries refused to convict the two for violations of the food and dairy laws even though under the letter of the law either could have been found guilty.

The U.S Supreme Court has recognized the right of a jury to acquit a defendant when it believes that the application of the law to the facts of the case would be unjust.¹ The trouble with jury nullification at the federal level and in nearly all states is that even though the jury has the right to judge the law as well as the facts in a case, judges and defense attorneys are prohibited from informing juries that this right exists. States need to pass laws lifting this prohibition.

In 2012 the New Hampshire legislature passed a law stating, “In all criminal proceedings the court shall permit the defendant to inform the jury of its right to judge the facts and the application of the law in relation to those facts.” In a 2014 case, State v. Paul² the New Hampshire Supreme Court held that this law did not impose any obligation on the court to “instruct the jury as to jury nullification.”^2,3

1. 1. In response to the supreme court’s ruling a bill (HB 133) was introduced in the 2017 New Hampshire legislative session that read: In all criminal proceedings the court shall inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy. At the request of the defendant or the defendant’s attorney, the court shall instruct the jury as follows: “If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty. Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.”

The 2017 New Hampshire bill is the type of legislation that needs to pass to strengthen the juror’s right of nullification. At a minimum it makes no sense that a defense attorney cannot even inform the jury of this right. Jurors should not have to work in the blind as to their nullifying rights as they did in the Hershberger and Schlangen cases where the law prohibited the judge and the defense attorneys from telling the jury directly about jury nullification. Jury nullification is a bedrock of our justice system; jurors should be educated about it.

Jury Trials in Food Condemnation Cases
Government agencies generally have to petition courts to destroy food the agencies have seized. The government usually does this on the grounds of protecting the public health but in nearly all cases there is no evidence that the food from the same production batch under seizure has made anyone sick. For some producers or distributors a single court order to destroy food can put them out of business. In cases like the Kansas raw camel milk seizure the government hasn’t even alleged that the milk is adulterated or a threat to human health.

In one Missouri case, a court ordered the destruction of over 30,000 pounds of raw cheese even though the cheese manufacturer, Morningland Dairy, had never been accused of making anyone sick in 30 years of doing business and neither FDA nor the Missouri Milk Board had tested any of the cheese subject to the destruction order. FDA had taken 100 environmental swabs at the facility all of which were negative for the pathogen. Judges who rule against destroying food are in a no-win situation even if the facts of the case favor the food producer or distributor; they are under tremendous pressure to err on the side of protecting the public health even if there is no real health threat at all. A jury would better take into consideration the evidence on the side of producers and distributors in these cases.

Jury Trial for Cases Where the Government Seeks a Permanent Injunction Against Food Producers and Distributors
An injunction is a court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury. A permanent injunction is a final court order that is permanently in effect unless the court lifts the order. Those who violate the injunction can face contempt charges with the possibility of fines and/or jail time.

In Michigan the past couple of years the Michigan Department of Agriculture and Rural Development (MDARD) has brought court actions for injunction against two different raw milk producers, Hill High Dairy and Dairy Delight Cow Boarding, for matters that should not have been any of MDARD’s business. In the Hill High Dairy case the department tried to stop individuals leasing cows from having the leaseholders hire someone to process their own raw milk into other dairy products; in the Dairy Delight case the department tried to stop those in a herdshare program from selling, among other foods, oatmeal cookies and apple muffins to other shareholders without proper labeling. Both cases involved private, closed-loop transactions far outside the stream of public commerce; in the Hill High Dairy case, MDARD not only obtained an injunction against the dairy prohibiting it from violating state food and dairy laws but brought contempt charges against the dairy when its leaseholders continued to have their raw milk processed into other dairy products. Thankfully, the judge hearing the case brought some common sense to the matter when he ruled the dairy was not in contempt.

Agencies like MDARD would be less likely to bring actions for an injunction and contempt suits for violation of an injunction in these type of cases if they knew that food producers and distributors would be entitled to a trial by a jury of their peers.

Right to Jury Trial for Appeals of Administrative Rulings
Government agencies seeking to punish food producers with penalties such as license revocation or fines can resort to administrative hearings where the odds of success are not as great for producers as they would be in a judicial court. Several raw milk producers have found out firsthand that administrative hearings are often one-sided proceedings in which those the agency is trying to punish are afforded little due process.

One Ohio farmer had his dairy license revoked at an administrative hearing for taking a $2.00 donation for a gallon of raw milk he gave to an undercover officer from the Ohio Department of Agriculture. Raw dairy producers have been through administrative hearings where, even if the person presiding over the hearing ruled against the government agency, the agency had the power legally to ignore the ruling and issue the order it wanted to anyway.

Parties can appeal the ruling to a judicial trial court; the courts sits as an appellate court for the appeal but is limited to reviewing just the record from the administrative proceeding. The system needs to change so that the trial court would sit as a trial court trying the matter from the beginning as if it had never been heard in the administrative proceeding (the legal term is de novo trial) to give the individual the agency seeks to punish a fresh start in a less biased proceeding. To further discourage government harassment there should be a right to a jury trial in the appeal of an administrative proceeding to a judicial court.

Even if a state currently has a favorable regulatory climate for the production and distribution of nutrient-dense food, it is still the right move to pass the laws suggested above in case the enforcement policy of the agencies ever change.

Producers and distributors of raw milk and other nutritious foods who take the risks they do to make those foods available deserve to get justice and not just law if a court action is brought against them. Greater protection is needed for those who provide for our sustenance.

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[1] Spanf v. United States 156 U.S. 51 (1895)
[2] State v. Paul 167 N.H. 39,42
[3] The jury instruction the trial court judge gave in the Paul case was: “You should follow the law as I explain it regardless of any opinion you may have as to what the law ought to be. If you have a reasonable doubt as to whether the State has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However, if you find that the state has proved all elements beyond a reasonable doubt, you should find the defendant guilty.” Paul, p. 41.

The post A Wishlist of Just Laws for Those Who Feed Our Families appeared first on Real Milk.

Baker operates a custom slaughterhouse on his farm in Missaukee County, mainly slaughtering and processing chickens for some 200 families in his community. He also has a permit from MDARD enabling him to sell chicken and pork raised on his farm and each year pays a renewal fee for the permit. His plan was to keep the permit and continue sales of pork and chicken until he sold the farm.

In July Baker received a letter from MDARD stating that he was being denied a permit to conduct his custom slaughter business because he hadn’t paid his renewal fee. When Baker’s wife Jill produced the canceled check showing he had paid, the department changed its story, now claiming it was denying the permit because Baker refused to let MDARD officials conduct an inspection of his farm during a December 2015 raid of his farm, Baker’s Green Acres (BGA). MDARD had obtained a warrant to search the farm; someone contacted the department to notify it that there was a picture in a magazine story of a chef holding a ham that the story said was produced by BGA. MDARD wanted to search Baker’s premises to make sure the meat he was selling was slaughtered and processed at a USDA facility.

Baker responded to this latest accusation by explaining that he hadn’t refused an inspection but had only asked the inspectors to wait until some friends of his arrived at the farm to observe the proceedings. The inspectors decided to leave rather than wait.

On August 5 MDARD relented and renewed Baker’s permit; before the renewal, an official from the department called a farmer who relied heavily on Baker’s establishment for her meat sales and told her that she couldn’t use the facility at BGA because it wasn’t permitted.

The harassment from MDARD over the permit convinced Baker to move his timetable up on his sales of chicken and pork; on August 27 Baker decided to surrender his permit saying that MDARD’s jurisdiction over his business was like a forced partnership that he no longer wanted to have. It’s the kind of partnership where the farmer supplies the labor and innovation and MDARD supplies the red tape.

Baker said that regulation by MDARD is not about food safety but control; a belief many others hold. He pointed out that bureaucrats should not be able to use their influence to pick winners and losers. He said that he was no longer going to put his family through MDARD’s harassment.

The MDARD permit denial of BGA was retribution for Baker’s successful challenge to the ISO on feral swine issued by the Michigan Department of Natural Resources (DNR) in December 2010. The ISO, which had the strong backing of the Michigan Pork Producers Association prohibited the possession of a number of breeds of swine. When asked to clarify what the ISO meant, DNR issued a declaratory ruling establishing that whether a pig violated the ISO was not going to be determined by whether the pig was living in the wild or outside containment but rather on its physical characteristics. According to the declaratory ruling, a pig could be prohibited if it has either “curly or straight tail structure” or “either erect or folded/floppy ear structure.”

Baker, who was raising heritage breed mangalitsa pigs, filed a lawsuit challenging the constitutionality of the ISO in April 2012. DNR, through the state attorney general, responded to the lawsuit by filing a countersuit of its own, seeking to have Baker’s pigs condemned and destroyed for violating the ISO. Later, after Baker became publicly critical of Michigan Attorney General Bill Schuette for his handling of the case, DNR amended its complaint and sought a court order fining Baker $700,000–$10,000 for each pig Baker owned that it claimed was illegal.

Just weeks before the case was to go to trail, DNR changed its position on Baker’s pigs, now saying they were legal; this shift by the agency resulted in the dismissal of both Baker’s lawsuit and DNR’s countersuit in February 2014. DNR officials did not want the case to go to trial because they knew Baker would expose the declaratory ruling for the sham that it was. DNR subsequently withdrew the declaratory ruling but the ISO is still on the books to this day. As Baker has said many times, there is no evidence that there is a feral swine problem in Michigan.

Even though the focus has been more on DNR and the Michigan Pork Producers Association, MDARD was right in the middle of the creation of the ISO. Nancy Frank, state veterinarian in MDARD’s Division of Animal Industry, had a major role in the creation of the order. MDARD was also responsible for significant losses in Baker’s business because he stood up to the state. Shortly after Baker filed his lawsuit, MDARD employees started contacting restaurants purchasing pork and other products from Baker intimidating them into dropping their business with the farmer; Baker lost almost all of his restaurant accounts. MDARD also worked with the U.S. Department of Agriculture to inform slaughterhouses not to process feral swine, effectively limiting Baker’s access to those facilities.

Food produced at Baker’s Green Acres has never been accused of making anyone sick.

Baker and his family have paid the price for his successful challenge to government and industry’s attempt to create the conditions for cutting out the market share for heritage breed hog farmers. MDARD’s latest harassment was one final message to the farmer that it’s time to move on.

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Lobsinger believes it is the consumer’s right to select the farmer from whom they get their food but also that it should be the consumers’ responsibility to do what they can to back up their farmer when the farmer is facing an enforcement action from a government agency. Lobsinger, who is a member of both the Weston A. Price Foundation (WAPF) and the Farm-to-Consumer Legal Defense Fund (FTCLDF), went far beyond what consumers would typically do to protect their farmer in supporting the Golimbieskis.

In March 2013, MDARD issued a written policy, Policy 1.40 which legalized the distribution of raw milk through a written herdshare or herd lease agreement. Policy 1.40 stated that herdshare programs were to include distribution of only raw whole milk and that products such as butter, yogurt and cheese, etc., could only be sold or distributed by licensed producers. The “catch 22” is that Michigan law prohibits even licensed producers from selling products such as raw butter, cream and yogurt.

The Golimbieskis, who have a Grade A dairy operation, Hill High Dairy, were distributing raw butter and cream under their herd lease program to consumers who had signed a herd lease contract. Lobsinger, who obtains raw cream to put in his coffee was one of them.

Whenever the MDARD inspector was conducting her semi-annual inspections of Hill High Dairy, she would seize raw dairy products she found in a refrigerator located in a utility room, on the farm. In 2015 MDARD filed a court action against each of the Golimbieskis, Hill High Dairy and B.J.’s Boarding, an entity that was formed to lease cows to those wanting to get raw milk. The department petitioned the court to issue an injunction prohibiting the four parties from among other things, distributing raw dairy products other than milk to leaseholders.

Lobsinger entered the fray by successfully intervening as a third-party defendant in the case, claiming that MDARD was interfering with his property right to have milk produced by his cow separated into cream. Despite the successful intervention into the case, Judge James Jamo issued an order enjoining the Golimbieskis, Hill High Dairy and B.J.’s Boarding from violating any applicable Michigan food and dairy laws. The Judge did state in the opinion granting the injunction that there was no proof the defendants had violated any laws.

During a June 2016 inspection of Hill High Dairy, inspectors again seized and confiscated raw dairy products, including Lobsinger’s cream; subsequently, MDARD petitioned Judge Jamo to find the four defendants in contempt of court for violating the injunction. Lobsinger successfully intervened in the case again as a third-party defendant in the contempt petition and also filed a separate action against MDARD in the Michigan Court of Claims, suing the agency on the grounds that seizure of his cream violated his due process rights. The relief Lobsinger sought included a ruling that “another individual or agent may separate Lobsinger’s cream and skim milk on Lobsinger’s behalf without MDARD licensure or oversight and may deliver Lobsinger’s cream and skim milk to Lobsinger as long as the milk and cream are used exclusively for the personal consumption of Lobsinger and his family.”

In December 2016 Judge Jamo ruled that the defendants were not in contempt, establishing a legal precedent that raw dairy products other than milk can be distributed under a herd lease or herdshare arrangement without violating Michigan law. Ironically, at the time the Golimbieskis received word about the ruling on MDARD’s inspection, MDARD inspectors were once again seizing raw dairy products at the farm as they conducted an inspection.

When the inspectors finished their next scheduled inspection in June 2017 without seizing Lobsinger’s cream (or any other raw dairy products), Lobsinger withdrew his lawsuit figuring that he already had a favorable ruling in the contempt case that he didn’t want to jeopardize and seeing that MDARD was no longer confiscating products it once saw as contraband during its inspections of the Golimbieski farm. Lobsinger made it clear that if MDARD tampered with his cream in the future, he wouldn’t hesitate to sue the department again for its violation of his rights.

Lobsinger hired attorneys to fight MDARD because he wanted the public to know that the department was going after individual property rights in seizing dairy products from the Golimbieski farm. A look at the transcripts in the Golimbieski court case shows the contempt MDARD had for the leaseholders’ property rights. MDARD’s attorneys characterized Lobsinger retaining another leaseholder to separate Lobsinger’s own milk into cream as an illegal activity. The attorneys claimed the case was about a Grade A dairy violation and had nothing to do with property and contract rights. MDARD’s position was that there was no difference between sales of cream to the general public and distribution of cream to the owner of the milk from which the cream was processed. The department was in effect claiming that if someone went to Lobsinger’s house to separate milk into cream that it would have jurisdiction and could stop this “illegal transaction.”

Fortunately, Judge Jamo wasn’t buying into what Lobsinger called MDARD’s “jibberish”. He asked MDARD attorney Danielle Allison-Yokum if there was any case law to back up this assertion; the attorney admitted there was not.

Lobsinger’s intervention changed the dynamic in the Golimbieski case. Instead of the focus of the case being on a Grade A dairy violation, it was on property rights. Lobsinger’s willingness to hire attorneys to protect those rights made that happen. It shows the impact one individual can make.

¹ A herdshare agreement involves someone purchasing an ownership interest in a dairy animal or animals and hiring the farmer to board, care for, and milk the animal(s); the difference in a herd lease agreement is that someone leases the dairy animal(s) and has ownership rights in the animal(s) for the term of the lease.

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A troubling aspect of food regulation is how government agencies believe they can intrude into activity that is far removed from the stream of public commerce. A glaring example of this is now a matter of public record in Michigan. On October 14, there was a hearing in Ingham County Circuit Court over a petition from the Michigan Department of Agriculture and Rural Development (MDARD) to hold dairy farmer Joe Golimbieski, his wife Brenda, Hill High Dairy LLC, and BJ’s Cow Boarding in contempt for violating a court order enjoining them from violating Michigan’s Food Law, Grade A Milk Law, and Manufacturing Milk Law; a transcript of the hearing has been released.

Joe Golimbieski is the sole operator of Hill High Dairy LLC, which sells milk produced by the LLC’s 70 cows to Horizon. Brenda Golimbieski is the manager of BJ’s Cow Boarding, which leases its own herd of 15 cows to those wanting to obtain raw milk. Judge James Jamo issued an injunction against the four defendants in January 2016 after MDARD claimed that, among other things, the four were illegally distributing raw butter and cream (see Wise Traditions Fall 2016 issue, “Michigan—Leaseholder Lobsinger Sues over Seized Cream” for background).

In 2013 MDARD adopted a written policy, Policy 1.40, that legalized the unregulated distribution of raw milk through a written herdshare or herd lease agreement (a herdshare agreement involves a person purchasing an ownership interest in a dairy animal or animals and hiring the farmer to board, care for, and milk the animal(s); the difference in a herd lease agreement is that someone leases the dairy animal(s) and holds ownership rights in the animal(s) for the term of the lease). Policy 1.40 stated that herdshare programs were only considered to include raw milk and not other dairy products such as butter and cream; the production of other dairy products was subject to applicable MDARD laws such as licensing requirements. The policy did acknowledge that the distribution of raw milk to shareholders was not a sale but rather just the shareholder obtaining milk from his or her own animal(s).

What MDARD didn’t count on when it filed for an injunction against the Golimbieskis, Hill High Dairy, and BJ’s was that a leaseholder would intervene in the action, but that is what happened when Mike Lobsinger successfully petitioned the court to be added to the case as a third-party defendant. Lobsinger has his milk separated into cream by another leaseholder at the Golimbieski farm; he has filed a separate lawsuit against MDARD for denial of his due process rights stemming from the seizure of his cream by an MDARD inspector during a raid of the farm in June 2016. Lobsinger was also a third-party defendant in the contempt hearing in October; it was his presence that changed the dynamic in the case from focusing only on whether there were violations of Michigan dairy and food laws to also covering what private property rights shareholders and leaseholders have.

The contempt hearing began with MDARD’s attorney Danielle Allison-Yokom pursuing the alleged violations by the defendants but ended with the department on the defensive. In her attempt to show that the defendants had violated the law, Allison-Yokom stated, “There is no exception anywhere in the law that permits processing by any person, herd share member, entity or anyone else of dairy products. You must have a license to do that activity” (Michigan Department of Agriculture v. Golimbieski et al, “Motion to Show Cause” transcript, File no. 15-574-CZ (October 14, 2016) , p. 31).

Lobsinger’s attorney, John Siers, exposed how far-reaching this assertion of state jurisdiction went in his response to the state’s claim: “Well, at what point does the individual herdshare member have any property rights? …the herdshare members are doing it [processing] for their own consumption. This is not entering into the stream of commerce. This is not being turned around and sold to other people…This is a private property question. This is milk belonging to the herdshare members. This state wants to tell the herdshare members that they cannot change that milk in any way. They can’t allow it to separate. They can’t … churn it into butter. But if we were to go to Trader Joe’s, Kroger, and buy high butterfat milk and decide to turn that into another product in our own home or even bring in somebody to help us with that, now, is that processing (transcript, p.39-40)?”

Allison-Yokom’s response to Siers was this: “…the department does not say you can’t take milk home, or Mr. Lopsinger [sic] can’t take milk home and process it in his own kitchen. The statute and the enforcement scheme limits their authority there. But he can’t have someone else do it for them. To do that, that person must be licensed” (transcript, p. 45).

When Judge Jamo asked, “…has this particular issue been addressed in any case law in this state?”, Allison-Yokom admitted that it had not (transcript, p. 47).

The word “private” would have no meaning if the judge sided with MDARD on this matter. The state is claiming that if Lobsinger had someone come to his house to separate the cream in his kitchen, the state would have jurisdiction. The Michigan dairy processing laws were meant to cover sales and distribution to the general public, not to prevent the owner of raw milk from having someone else process that property into another dairy product for the owner’s own consumption. If the court sides with MDARD on this one, private property rights and common sense are out the window.

This article appeared in the Winter 2016 issue of Wise Traditions, the quarterly journal of the Weston A. Price Foundation.

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By Pete Kennedy, Esq.

The Michigan Department of Agriculture and Rural Development (MDARD) wishes Mike Lobsinger would go away, but that’s not going to happen. Lobsinger, who has a herd lease agreement through which he obtains raw milk and raw cream, has sued MDARD in the Michigan Court of Claims over the department’s seizure of Lobsinger’s cream during a June 13 raid of BJ’s Cow Boarding in Standish, Michigan. Lobsinger is seeking a court ruling that the cream is his private property and that the seizure violates the due process clause of both the Michigan and United States constitutions. Lobsinger wants a declaration by the court that the raw milk, raw cream, and raw skim milk he received through the herd lease arrangement is not subject to inspection or licensing by MDARD.

BJ’s Cow Boarding is one of two dairy businesses operating on the Standish Farm owned by Joe and Brenda Golimbieski, with the other business being Hill High Dairy LLC. BJ’s leases its herd of fifteen cows out to those wanting to obtain raw milk while the milk produced by Hill High Dairy’s seventy cows is sold to Horizon. Brenda runs BJ’s Cow Boarding while Joe is the sole operator of Hill High Dairy. BJ’s owns the fifteen cows and some dairy equipment. Hill High Dairy owns the seventy cows and some equipment; Joe and Brenda Golimbieski own all of the land and buildings.

MDARD has filed a court action of its own against BJ’s Cow Boarding, Hill High Dairy LLC, Joe Golimbieski, and Brenda Golimbieski seeking that each party be found guilty of contempt of court for violating an injunction prohibiting any violation of the Michigan Food Law, Grade A Milk Law, and the Milk Manufacturing Law. A hearing is scheduled on the matter for October 14. FTCLDF Acting President Elizabeth Rich is representing Hill High Dairy.

In March 2013, MDARD issued a written policy, Policy 1.40, which legalized the unregulated distribution of raw milk through a written herdshare or herd lease agreement (a herdshare agreement is when someone purchases an ownership interest in a dairy animal or animals and hires the farmer to board, care for, and milk the animal(s); the difference in a herd lease agreement is that someone leases a dairy animal(s) and has ownership rights in the animal(s) for the term of the lease).

Policy 1.40 contains the following statements:

• The Michigan Department of Agriculture and Rural Development (MDARD) does not license or inspect the herdshare portions of a dairy farm.
• The herdshare programs are considered to include only FUW (Fresh, Unprocessed, Whole) milk intended to be consumed by people.
• Products such as butter, yogurt, cheeses, etc. made from FUW milk were not included in the word groups discussions and are not considered by MDARD to be part of a herdshare operation and therefore are subject to applicable MDARD laws and regulations.

MDARD’s policy was based on recommendations of a work group consisting of, among others, MDARD officials, an official from the Michigan dairy industry, and raw milk producers and consumers. The workgroup only discussed the distribution of raw milk through herdshare agreements, not any other dairy product. The policy did not mention cream, but MDARD claims that it is subject to regulation by the Department. The catch 22 is that the sale of raw butter, cream and yogurt is illegal by even someone with a license to produce dairy products.

Starting in August 2013, MDARD became embroiled in a dispute with the Golimbieskis over the distribution of raw dairy products (as well as the distribution of food such as meat, eggs, and honey, which MDARD claimed the Golimbieskis needed a food establishment license to sell) to those also obtaining raw milk through the new policy. MDARD employees conducting inspections of Hill High Dairy reported on numerous occasions seeing dairy processing equipment and products such as cream, yogurt, and butter for distribution to shareholders.

In July 2014, MDARD raided a truck owned by Jenny Samuelson, an agent for those getting products through the herdshare program on the Golimbieski farm; thousands of dollars of dairy, including cream owned by Lobsinger, and other foods wound up being destroyed. When inspectors continued to report sightings of dairy products other than raw milk at the farm, MDARD, through the state attorney general, filed a court action seeking an injunction against BJ’s Cow Boarding, Hill High Dairy LLC, Joe Golimbieski, and Brenda Golimbieski in July 2015.

On January 22, 2016, Ingham County Judge James Jamo issued an order enjoining the four defendants from violating Michigan’s Food Law, Grade A Milk Law, and the Manufacturing Food Law and from interfering with MDARD’s dairy inspections. In his order, Judge Jamo stated there had been no finding that any of the defendants had violated “applicable statutes.” Lobsinger has successfully intervened in the case as a third party defendant, but the judge did not give him a chance to provide any evidence that MDARD’s attempts to limit him to whole milk through the herd lease violated his private property rights. He was soon to get another opportunity.

On June 13, MDARD inspector Amber Matulis and MDARD Food and Dairy Deputy Division Director Terrance Philibeck arrived at the Golimbieski farm to conduct the Departmentís semi-annual inspection of Hill High Dairy as required by the Grade A Milk Law. During the inspection, Matulis and Philibeck insisted on inspecting a utility room in the dairy facility that was not part of the Hill High Dairy operation but was rather leased by Joe Golimbieski to BJ’s Cow Boarding. Joe initially refused to let them in, but when reminded that the injunction prevented him from interfering with MDARD dairy inspections, the farmers stated that he was letting MDARD inspect the room under duress. When the inspectors found (in the words of the inspectors) “dairy product” and butter in a refrigerator and meat products in a freezer, they executed a seizure order on all foods in the utility room.

The “dairy product” seized included Lobsinger’s cream. MDARD eventually released the meat products to the Golimbieskis for the family’s own consumption, but on July 18, sent Hill High Dairy a Seizure Disposition Notice ordering that all the dairy product under seizure be destroyed.

Lobsinger filed his lawsuit on August 5. In addition to suing MDARD, Lobsinger’s lawsuit also names Matulis, Philibeck, and MDARD’s Food and Dairy Division Director Kevin Besey as defendants.

MDARD’s policy of prohibiting the distribution of products other than whole raw milk has little to do with protecting the public health and everything to do with protecting the profits of the dairy industry. In a letter to others leasing cows from BJ’s, Lobsinger pointed out that “…the Dairy Council and MDARD will accept a small group of people getting raw milk from their animals but they will not tolerate what they view as a potential competing raw milk industry, complete with all the dairy products common to the industry…They know that the cream is the gateway to that industry…”

Lobsinger’s complaint includes the following quote from Besey, further showing the policy is not about food safety: “MDARD will not take enforcement action against a person who processes these products in their home for their own personal use. As a result if you obtain raw milk from a herdshare…you may separate or process it after your receipt for your own personal use.”

Who is more capable of producing a safe dairy product—an experienced dairy farmer or a novice consumer? Further, in Lobsinger’s case as the complaint states, “because it is most efficient to separate milk quickly after it is drawn from the cow, other individuals separate the raw milk into cream and skim milk…milk is very difficult to adequately separate after the milk has been cooled and could take several days.”

The relief Lobsinger is seeking from the court of claims includes a ruling that, “another individual or agent may separate Lobsinger’s cream and skim milk on Lobsinger’s behalf without MDARD licensure or oversight and may deliver Lobsinger’s cream and skim milk to Lobsinger as long as the milk and cream are used exclusively for the personal consumption of Lobsinger and his family.”

Lobsinger has an argument that the cream he obtains through the herd lease does not violate MDARD’s policy since it doesn’t involve processing or manufacturing with any other ingredient but rather is produced just by separating the cream from the skim milk, but his case is more about property rights than anything else. With everyone agreeing that his milk is his private property, why can’t he hire or otherwise arrange for someone to process his milk into any other product?

There have been other cases where shareholders as well as herdshare farmers have been parties to such a case, but in each instance the regulators have been able to keep the court’s focus on the farmer. Not this time. MDARD is dealing only with Lobsinger and will have to explain to the court why it refuses to recognize his private property rights, a refusal that only has to do with protecting the market share of the dairy industry.

This article first appeared in the Fall 2016 issue of Wise Traditions, the quarterly journal of the Weston A. Price Foundation.

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On July 15, inspectors from the Michigan Department of Agriculture and Rural Development (MDARD) raided a truck owned by Jenny Samuelson, manager of the private buyers’ club, My Family Co-op, seizing around five thousand dollars worth of food, including raw milk, raw cream, raw butter, eggs and meat. MDARD stated it raided the truck because Samuelson was selling meat, eggs, and other foods without a food establishment license and because Michigan law prohibited the sale or distribution of raw cream and raw butter. The department indicated that Samuelson could legally distribute raw milk to co-op members through a contract she had made on behalf of the members with Hill High Dairy, but refused to release the raw milk from the seizure.

In order to get the use of her truck back (all the seized food had remained on the truck), Samuelson agreed to get rid of the milk, cream, butter and eggs. On July 21, over thirty-five hundred dollars worth of good food was dumped on the grounds of the Hill High Dairy Farm in Standish. Samuelson did not have to destroy the meat, and the seizure order on that product was lifted by MDARD. Samuelson applied for a food establishment permit; but on August 8, Byron Beerbower, the compliance manager of the MDARD’s Food and Dairy Division, informed her in a letter that while the department would not fine her for selling food without a license once she obtained a food establishment license, she would not be able to distribute raw milk out of the same truck that carries eggs, meat, and other foods. The restriction made it unaffordable for Samuelson, who was delivering food to six hundred families, to be able to operate under the terms of the license.

In 2012, after meeting for six years and discussing among other topics risks, benefits and consumer choice regarding fluid raw milk, the Michigan Fresh Unprocessed Whole Milk Group presented a report to MDARD Director Jamie Clover Adams recommending that raw milk be allowed to be distributed through herd share agreements without regulation. Several months after receiving the report, the MDARD Food and Dairy Division adopted the recommendation but also included a statement in the policy that read, “Products such as butter, yogurt, cheeses, etc. made from FUW (Fresh Unprocessed Whole) milk were not included in the workgroup’s discussions and are not considered by MDARD to be part of a herd share operation and therefore are subject to applicable MDARD laws and regulation.” Under applicable law and regulation, the sale or distribution of products like raw butter, cream and yogurt are all illegal.

The demand for raw milk and other nutrient-dense foods continues to grow in Michigan. MDARD would do well to revise its policy on the distribution of raw dairy products through herd share contracts; there is considerable anger in the wake of the raid about the department’s prohibition on raw milk products that goes well beyond the members of My Family Co-Op. The MDARD policy of prohibiting the delivery of raw milk with other food products to private food club members also needs to change. Keeping the same policy will only make criminals out of increasing numbers of otherwise law abiding citizens—a sure sign of bad law.

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