FTCLDF 2012 Summary, cont’d
SIGNIFICANT CASES IN 2012
below: Cartoon by Mike Adams, Natural News
Cases at a glance:
Vernon Hershberger in Wisconsin
DATCP takes Amish farmer to court over criminal misdemeanor charges.
Mark Baker in Michigan
Heritage breed producer sues DNR over swine invasive species order.
Federal Interstate Ban
Case dismissed but not before FDA reveals its draconian views.
Dan Brown in Maine
State draws national attention as it goes after farmer over town’s food sovereignty ordinance.
Cheesemakers Shut Down
Morningland cheese destroyed in Missouri; Estrellas fight to keep business in WA State.
Drakes Bay Oysters Company
National Park Service sued over oyster farm.
Vernon Hershberger’s Pre-Trial Hearings
In July, Wisconsin dairy farmer, Vernon Hershberger of Loganville, retained the Fund to represent him in his upcoming criminal trial for alleged violations of the Wisconsin food and dairy code. Fund vice president and attorney, Elizabeth Rich, is representing Vernon along with veteran trial lawyer Glenn Reynolds of Madison, Wisconsin. The trial has been postponed twice and is now scheduled to begin May 20, 2013 and run for five days. The pretrial hearings in the case have been contentious; the state of Wisconsin has spent a considerable amount of time and resources on the case given that only misdemeanor charges have been filed. The court’s ruling in the case could have a huge impact on the availability of raw milk for consumers in Wisconsin.
In addition to the Hershberger case, the Fund is litigating two civil cases in Wisconsin for Grassway Organic Farm and Zinniker Farm that could also affect the future of raw milk sales and distribution in the state; these cases are currently in the court of appeals.
Mark Baker’s Lawsuit over Michigan Swine ISO
The Fund provided financial support for the lawsuit filed by heritage breed hog farmer Mark Baker against the Michigan Department of Natural Resources (DNR) to overturn an Invasive Species Order (ISO) issued by the department. Under DNR’s interpretation of the ISO, the agency could require almost any farmers of heritage breeds to destroy their own pigs. The ISO is a threat to small farms and genetic diversity. The case’s resolution will have a nationwide impact with other states either considering or being in position to issue similar orders.
Challenging FDA’s Interstate Ban
The Fund’s suit challenging the legality of the interstate ban on raw milk for human consumption was dismissed in 2012, but the fight to overturn the ban continues. Even though Judge Mark W. Bennett ruled in favor of the FDA (Food and Drug Administration), the lawsuit accomplished several things:
- it established, as a matter of public record, that FDA will not take action against individual consumers crossing state lines to obtain raw milk;
- it alerted the public to the draconian views of the agency on food (e.g., “there is no absolute right to consume or feed children any particular food” and there is no fundamental right to one’s “own bodily or physical health”); and
- it exposed the lack of enforcement of the regulation (i.e., Judge Bennett noted that the regulation had never been enforced against agents for consumers crossing state lines to obtain raw milk nor against a farmer knowingly selling to out-of-state consumers and their agents).
In December, the Fund filed suit against FDA to obtain a court order requiring the agency respond to a citizen’s petition filed by Organic Pastures Dairy Company (OPDC) seeking to partially lift the interstate raw milk ban. OPDC filed the petition over four years ago. Federal law requires FDA to answer the petition within six months. The Fund will also continue working to reverse the ban through federal legislation.
Dan Brown and Food Sovereignty in Maine
The Fund continues to represent Maine dairy farmer Dan Brown, along with local attorney Sandy Collier. In a challenge to the town of Blue Hill’s food sovereignty ordinance, the Maine Department of Agriculture, Food and Rural Resources filed suit against Brown in 2011 to enjoin him from selling raw milk and other farm products at his farm stand without state-issued permits. The Blue Hill ordinance allows the sale directly to consumers of food produced without licensing or inspection. The case continues to draw national interest as a number of food sovereignty bills and ordinances have been introduced at the state and local levels around the country in following Maine’s example (thus far, eight Maine towns have passed food sovereignty ordinances).
Farmstead Cheesemakers Shut Down
The Fund’s representation of farmstead cheesemakers Morningland Dairy and Estrella Family Creamery also continued in 2012. Both farms have had their cheese businesses shut down for over two years with each having had hundreds of thousands of dollars in cheese embargoed and lost due to enforcement actions by the Missouri State Milk Board (working with FDA) in the Morningland case and by FDA in the Estrella case. In December, the Missouri Supreme Court declined to hear the appeal of Morningland’s destruction order issued by a lower court; over 36,000 pounds of cheese never proven to be harmful were destroyed on January 25, 2013. In the Estrella case, negotiations with the U.S. Attorney’s office and FDA over terms to resume operations as an intrastate business continued until February 2013 when the Estrellas put their farm up for sale. Financially strapped and unable to get definite answers about the limits of FDA’s jurisdiction over their business, the couple decided it was time to move on.
Drakes Bay Oyster Company Litigation Fund
In December, the Fund agreed to set up and administer a litigation fund for Drakes Bay Oyster Company (DBOC) to accept contributions to support DBOC’s lawsuit against the National Park Service (NPS). NPS refused to renew the agreement that let DBOC farm the waters off of Point Reyes, California–an agreement that DBOC had been operating under safely and responsibly. The agency’s action threatens to put DBOC, which is responsible for 30% or more of California’s oyster production, out of business. Claiming a mandate to rewild the area in which DBOC operates, NPS is effectively forcing the state to rely on imports instead of a local source.
Beyond pursuing remedies in the courts and at the administrative level, the Fund also seeks to improve the political and regulatory climate for local food producers and consumers. Next is a review of legislative and public policy efforts as well as fundraising and outreach activity.