Ohio’s Department of Agriculture has prided itself on being the toughest agriculture agency in the country on raw milk farmers. Over the last year-and-a-half, it has mercilessly harassed at least a half dozen farmers, most of them involved in cow-share arrangements to distribute milk. (For details, see my BusinessWeek.com column about Ohio’s enforcement practices.)
Well, today the ODA got a bit of its own medicine. In a biting opinion, Judge Jonathan Hein of the Common Pleas Court of Darke County took the ODA to task over “the failure of the Department to articulate specific problems with the cow share agreement” involving dairy owner Carol Schmitmeyer and her herd’s 150 shareholders. His decision restores her Grade A dairy license, which ODA suspended last September, and allows her cow share arrangement, unless the ODA appeals within 30 days. Carol had worried she might lose her farm if the court upheld the ODA’s license suspension.
Should the ODA appeal, it will face judges who will have Judge Hein’s harsh opinion of the agency’s operations in front of them. "This is a very well written and reasoned decision that should withstand any appeal," says Gary Cox, a lawyer with the Columbus firm Lane, Alton & Horst, who represented Carol.
Judge Hein’s opinion states: “In spite of the Department’s claims that it possesses no statutory authority to permit the sale of raw milk under any circumstances to the ultimate consumer…the Court opines that the Department possesses administrative authority to adopt rules and definitions, within the scope of the law." In other words, the ODA could have established guidelines for cow share arrangements, if it so chose.
In his analysis of the ODA’s unwillingness to tolerate cow share agreements, and only allow raw milk to be consumed on farms, the judge raises a number of pointed questions designed to portray the agency as arbitrary in cracking down on cow shares: “Does the Department allow herd owners and their children/family members to consume raw milk? Or must the children/family members reside in the farm household? Or must the children/family members also be active participants in the milking operation in order to ‘legally’ consume raw milk?” Further, “if the cows are owned by a partnership, can all partners consume raw milk? Or must the partners be family members? Or must the partners consuming the raw milk reside on the farm? And if the cows are owned by a corporation, the same troubling questions apply with even more shareholders being involved in the equation.”
The judge provides an answer of sorts to his questions when he states, “The Department…argues that the ‘herd share agreement’ is a transparent attempt to circumvent the law. If the herd share agreement is a circumvention of the law, so is the Department’s inexact practice of allowing owners and their families, etc. to consume raw milk.” Pow!
Actually, the judge really gets into the absurdity of the situation. At another point, he says, “Under another hypothetical, the Court could define a ‘sale’ in a way which would allow delivery of raw milk to all persons who have a small or remote interest in a dairy cow, provided the owner consumes the raw milk on the farm. This definition might allow delivery to herd share owners, but only if the raw milk is consumed on the farm. Numerous other examples could be propounded depending on the practices allowed by the Department.”
Finally, the judge encourages the Ohio legislature to adopt pending legislation that would clearly define cow shares and permit them as a means of distributing raw milk.
This is a big victory for Carol, and an even bigger victory for proponents of nutritional freedom.