The more I think about it, especially in light of the comments on my previous post, the more I think New York’s latest move, to have Barb and Steve Smith held in contempt of court, reflects nervousness by the bureaucrats. It’s when bureaucrats (like people everywhere) get nervous that they seek out “insurance” (an additional way to nab the Smiths). Why should the bureaucrats be nervous?

Because the Smiths, via their attorney, Gary Cox, of the Farm-to-Consumer Legal Defense Fund, have been raising some of the same kinds of questions as Miguel and Steve Bemis—questions that potentially undermine the bureaucrats’ authority over private production and consumption of raw milk.

After reading the comments here, I went back and re-read the argument Gary made Jan. 22 in his reply to a state memo against a preliminary injunction to end the harassment of the Smiths. He challenges the state in meticulous, sometimes painfully meticulous, fashion, and I think it’s worth excerpting here. He draws on his cross-examination of key officials of New York’s Department of Agriculture and Markets at the hearing Jan. 17-18 about whether to shut the Smiths’ operation down, to challenge the agency’s basic authority:

“…Defendants [the state] assert they ‘clearly’ have jurisdiction over Plaintiffs because Plaintiffs ‘operate a dairy farm and milk plant.’ That is not true. As demonstrated at the administrative hearing conducted on January 17 and 18, Plaintiffs do not meet the definitions of ‘dairy farm’ or ‘milk plant’ and this was admitted by Defendant Francis [head of the dairy division].

“For instance, 1 NYCRR 2.2(bb) refers to ‘milk plant’ as ‘any place, premises or establishment engaged solely or predominantly in the receipt of prepasteurized milk.’ There was no evidence presented at the administrative hearing that Plaintiffs receive ‘prepasteurized milk’ and Defendant Francis admitted that if a facility does not receive prepasteurized milk it cannot be a milk plant. As stated by Barbara Smith in her affidavit, Plaintiffs do not receive ‘prepasteurized milk.’ Therefore, they are not a milk plant. Consequently, the affidavit of Defendant Francis is wrong.

“Moreover, 1NYCRR 2.2 (mm) defines ‘prepasteurized milk’ as ‘the lacteal secretion, practically free from colostrums, obtained by the complete milking of one or more healthy cows, goats or sheep which is to be pasteurized prior to being processed into milk.’ Again, there was no evidence that Plaintiffs pasteurize their milk prior to processing it into dairy products. Again, Defendant Francis admitted that Plaintiffs do not pasteurize their milk and admitted than an entity that does not pasteurize its milk prior to processing it into dairy products does not fall within the definition of ‘prepasteurized milk.’ Moreover, Barbara Smith affirmatively states that they do not pasteurize their milk. Consequently, the affidavit of Defendant Francis that Plaintiffs are a ‘milk plant’ is simply wrong and is contradicted by his own hearing testimony.

“With respect to ‘dairy farm,’ 1 NY CRR 2.2(h) defines ‘dairy farm’ as ‘a place or premises where prepasteurized milk or raw milk is produced from cows, goats or sheep.’ It has already been established that Plaintiffs do not produce prepasteurized milk because none of their milk is pasteurized. However, in order to properly determine whether Plaintiffs are operating a ‘dairy farm,’ this requires an interpretation of the words ‘raw milk.’…”

“1 NYCCRR 2.2(pp) defines ‘raw milk’ as the lacteal secretion, practically free from colostrums, obtained by the complete milking of one or more healthy cows, goats or sheep which will not be pasteurized prior to being sold or offered for sale to consumers.’ Consequently, this whole case turns on the phrase ‘sold or offered for sale to consumers.’ If raw milk is not ‘sold or offered for sale’ to consumers then it is not regulated. If it is ‘sold or offered for sale’, then it is regulated.

“ ‘Consumer’ is not defined anywhere in the 1 NYCRR Part 2 regulations. However, there is a definition in A&ML section 253(9), which defines ‘consumer’ as ‘any person other than a milk dealer who purchases milk for fluid consumption.’ Therefore, in order for the raw milk provisions to apply there must be a ‘sale’ of raw milk because consumers must purchase.

“The whole issue at the administrative hearing turned on whether Plaintiffs ‘sold or offered for sale’ any raw milk. The evidence demonstrated that no, there was not any sale…”

I wonder if the bureaucrats are afraid that a judge might read this argument carefully and think to him/her self, “There’s no ‘there’, there.”

Maybe the officials assumed, after so many years of interpreting the rules their way, no one would read the rules…or maybe the officials stopped reading the rules themselves, so accustomed have they become to simply grabbing ever more authority, without anyone bothering to question their grabbing.

In this chess match, the state may have painted itself into a corner. The big question is whether the referees will bother to read and think about the arguments.

***

It’s difficult not to be amused by this latest recall of ground beef. For all the posturing about it being the largest meat recall in American history, and about not taking any chances of illness, the reality is that it wouldn’t have even become an issue were it not for the secret videos produced by the Humane Society. Where were the inspectors all this time, searching out raw milk violations?

And we learn as well that the issue around the meat isn’t whether animals were abused, but whether vets were called in to make sure the animals weren’t diseased. So, abuse is okay, but abused animals with disease is a problem. Further reason to stay away from the factory stuff.