The Farm-to-Consumer Legal Defense Fund’s (referred to as “FTCLDF”, the “Fund” or as “we”) General Counsel Gary Cox provides the rundown on the cases he’s currently handling. Everyone represented in court by FTCLDF is a member of the organization.
GrassWay Organics Sues Wisconsin DATCP Over What Constitutes an “Incidental” Sale of Raw Milk
FTCLDF has filed suit against the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) on behalf of Fund members Kay and Wayne Craig. The Craigs are owners of GrassWay Organics Farm Store LLC (the Store), and GrassWay Organics Association (the Association) is an investor in the store.
The case involves DATCP’s convoluted and constantly changing interpretation of the law as to when it is legal for a dairy farm to engage in “incidental” sales of raw milk to a consumer. The suit claims that under Wisconsin law, the incidental sale of raw milk to the Store and Association members is legal when the Store holds the milk distributor’s license and the Store owns the cows.
At the trial stage, the court granted summary judgment for DATCP. We appealed those rulings to the Court of Appeals, where we lost, so we then filed a petition with the Supreme Court of Wisconsin who refused to even take our case.
We have pending before the trial court a motion to reconsider. We filed that motion because the trial court was under the erroneous impression that 100% of the milk produced by GrassWay went to the Store and Association members instead of to the public at large. Thus, the trial court found that the arrangement the Craigs had with the Store and the Association was not a legal “incidental” sale. In fact 90% of the milk went to the public with only 10% of the milk going to the GrassWay shareholders. We believe that if the trial court takes this fact into account that it will rule in favor of the Craigs. The court has set a May 8 date for oral ruling on the motion to reconsider.
Fund Asserts that Jeremiah and Jessica Hudson Are Protected by Michigan’s Right to Farm Act
Jeremiah and his wife Jessica own 1.3 acres of property located in Williamstown Township, Ingham County, Michigan. Jessica had brought livestock onto her property and was selling the animals, meat and eggs. The Township ordered her to stop doing this because keeping livestock at her property, which is zoned residential, allegedly violated the local zoning ordinance. Jessica continued to keep livestock on her property, arguing that Michigan’s Right to Farm Act protected her conduct, so the Township filed a civil complaint against her husband in Circuit Court.
The Township filed a motion for a preliminary injunction and temporary restraining order against the Hudsons, seeking a court ruling that the Hudsons must remove their livestock from their property. The parties then filed cross motions for summary judgment before we had to file our answer. The trial court took oral argument on all the motions, conducted an evidentiary hearing, and eventually ruled against the Hudsons, suggesting their farming operation was not in compliance with “generally accepted agricultural management practices” (GAAMPs). The trial court then issued an injunction, ordering the Hudsons to remove all the animals from their property, which they did, and they are in compliance with the injunction.
We have appealed the trial court’s ruling and injunction to the Michigan Court of Appeals. The parties have briefed the issue and await a decision on the merits of the case. As of this date, no oral argument date has been scheduled.
Fund Represents George Vergote, Michigan Flower Grower, in Overspray Case
George Vergote owns and operates a multi-greenhouse operation and grows a large amount of flowers in Riga, Michigan. A chemical applicator sprayed chemicals that drifted into Mr. Vergote’s greenhouses and destroyed all of his flowers for the year. The Fund contacted the chemical applicator and their insurance carrier and attempted to reach a settlement without resorting to litigation. Our efforts at settlement, however, were rebuffed.
Consequently, a civil complaint for damages was filed on Mr. Vergote’s behalf in February 2015 claiming: (1) trespass, (2) negligence, (3) statutory negligence, and (4) res ispa loquitor (the thing speaks for itself). The case is at the initial stages. The chemical applicator has to file an answer or a motion to dismiss in response to the complaint. The parties will then participate in discovery and eventually proceed to trial.
Fund Defends Colorado Sheep Farmer Steve Keno
Steve Keno is a senior citizen with a foot disability who grazes sheep in Pagosa Springs, Colorado. The Aspen Springs Metropolitan District (District) claims that Mr. Keno does not have permission to graze his sheep on their property. Mr. Keno claims that under Colorado’s “fence” law, the District must maintain a lawful fence if they want to keep out Mr. Keno’s sheep. In any event, Mr. Keno’s sheep do not even graze the District’s property; they simply walk over it on their way to graze on other property for which Mr. Keno has permission.
Before the Fund became involved in the case, the District filed suit against Mr. Keno, seeking an injunction ordering him to keep his sheep off District property. The court issued the injunction and ordered Mr. Keno to prevent his sheep from entering the District’s property. The District then claimed that Mr. Keno was continuing to allow his sheep to enter their property so the District brought charges in contempt against Mr. Keno. At this point Mr. Keno sought the assistance of the Fund.
As part of the contempt charges, the parties went to trial and presented testimony and introduced evidence. The court ruled in favor of the District, claiming that when the sheep pass over the District’s property, they are indeed grazing without permission and thus found Mr. Keno in contempt. The trial court then ordered Mr. Keno to pay the District’s attorneys’ fees and costs.
The Fund has appealed the matter to the Colorado Court of Appeals, arguing that as a creature of statute, the District does not have the authority to prohibit somebody from grazing sheep. Also, the Fund is arguing that unless the District erects a lawful fence to keep Mr. Keno’s sheep from entering its property, Colorado’s “fence” law does not impose liability upon Mr. Keno.
The parties have briefed the matter before the Colorado Court of Appeals, and the Court has set an April 28 date for oral argument on the case.
|FTCLDF General Counsel, Gary Cox|
Fund Argues Kilyndra Taylor Is Also Protected by Michigan’s Right to Farm Act
Michigan member Kilyndra Taylor raises tilapia fish, rabbits and chickens in her back yard in a suburb of Detroit. Ms. Taylor makes money from the sale of her fish, meat and eggs and has received certification from the Michigan Department of Agriculture and Rural Development (MDARD) that she is in compliance with the GAAMPs. The Township of Redford brought a civil infraction against her for not keeping her rabbits and chickens at least 30 feet from her property line.
The Fund defended Ms. Taylor during the hearing; the trial court ruled against Ms. Taylor, finding (without explaining why) that the Right to Farm Act does not apply to her farming activities. The Fund appealed the matter to the Circuit Court located in Detroit, which also found (also without explaining why) that the Right to Farm Act did not apply to her activities.
The Fund filed a motion to reconsider with the Circuit Court and that court has not yet ruled on the motion. Consequently, the matter remains pending.
Seibold Vineyard in Texas Victim of an Overspray Incident
Rebecca and Wesley Seibold are the owners and operators of six acres of grape vines in Texas. They produce three different varieties of grapes and sell the juice to winemakers who make wine from the juice.
The Seibolds were the victims of an overspray incident conducted by an aerial sprayer. The Fund has filed a civil action against the aerial spraying company and is again claiming: (1) trespass, (2) negligence, (3) statutory negligence, and (4) res ispa loquitor (the thing speaks for itself). The case is at the initial stages. The chemical applicator has filed an answer in response to the complaint, and the parties have exchanged some initial discovery. The Fund has made a settlement demand upon the aerial sprayer and is awaiting a response. If the matter does not settle, then the parties would engage in further discovery and eventually proceed to trial.
Fund Argues Jackie Kerr Is Also Protected by Michigan’s Right to Farm Act
Jackie Kerr owns horses, a woodlot, and over 9 acres of property in Michigan. She raises Cornish hens, sells the eggs and the hens, and also sells firewood, horses and manure from her property. The local township brought a civil infraction against her, arguing she needed at least 10 acres to keep horses, and thus because she only had 9 acres, she had to stop her activities.
The Fund defended her at the hearing and introduced evidence that Ms. Kerr is making money from her farming operations and that MDARD has certified her to be in compliance with the GAAMPs. Amazingly, the trial court, however, found that Ms. Kerr’s testimony that she was selling horses from her farm was not credible because she is a “lover of horses.” Thus, the court ruled that since her farm was not “commercial,” she did not enjoy the protection of the Right to Farm Act.
The Fund is waiting for the trial court to issue a final appealable order. Once that order is issued, the Fund will appeal to the Circuit Court.
Virginia Member Anthony Bavuso Singled Out for Zoning Reclassification
Anthony Bavuso is an oyster farmer in Virginia along the Chesapeake Bay. Mr. Bavuso has been allowed to farm and cultivate his oysters under the local zoning ordinances; however, the Township Board of Supervisors recently decided to change his zoning designation to prevent him from continuing to engage in oyster farming operations.
Before the Fund became involved, Mr. Bavuso filed suit against the Board of Supervisors, claiming that their zoning re-designation was illegal. Mr. Bavuso has now asked the Fund to become involved in the case, and we will assess the merits of his pending complaint and decide whether other causes of action should be brought. The case remains pending before Circuit Court.
Texas Farmer Eldon Hooley Defended by the Fund
Eldon Hooley is a farmer in Texas that supplies a food club. Mr. Hooley has received two sets of criminal charges for selling raw milk from an unapproved source, and for operating a retail food establishment. Both charges are unwarranted.
Mr. Hooley was scheduled to go to trial in Municipal Court but retained the services of the Fund before trial. The Fund was able to obtain a continuance on Mr. Hooley’s behalf and is in the process of obtaining local counsel to work with so that the Fund’s General Counsel can enter an appearance pro hac vice (for this occasion) on Mr. Hooley’s behalf.
In the meantime, the Fund has contacted the City of Fort Worth Prosecutor’s Office in an effort to discuss whether the charges should be dismissed for lack of evidence or not being in accordance with applicable law. The case remains pending without any further trial date being scheduled.
Slaughterhouse Wrongfully Withholds Meat from Ohio Member Neil Perin
Ohio member Neil Perin provides veal to a restaurant and private customers in Athens, Ohio. A local USDA slaughterhouse used by Neil failed to return organ meat, did not return all of the meat he was entitled to, and refused to compensate Neil for the deficiencies. Neil put a stop payment on his check for payment, and the slaughterhouse sued Neil in Small Claims Court. The slaughterhouse also claimed to Neil’s customers that his meat was adulterated. Neil counter-claimed for slander.
Neil has asked the Fund to represent him in the small claims matter. The Fund will be representing Neil in an effort to settle the case. The Fund will gather the evidence on Neil’s behalf and will contact the attorney representing the slaughterhouse to see if that attorney wishes to engage in settlement discussions.
USDA slaughterhouse facilities can, in effect, have a monopoly because they are often located hours away from the next closest USDA slaughterhouse and thus suffer no consequences for giving their customers poor service. The case is important in taking a step toward stopping this practice.
YOUR FUND AT WORK
Services provided by the Farm-to-Consumer Legal Defense Fund (FTCLDF) go beyond providing legal representation for members in court cases.
Educational and Political Action Services also provide an avenue for FTCLDF to build grassroots activism to create the most favorable regulatory climate possible. In addition to advising on bill language, FTCLDF supports favorable legislation via action alerts, social media outreach, and the online petition service.
You can help FTCLDF by becoming a member or donating today.
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