Around the country, signs are mounting of a growing refusal by law enforcement officials to mount legal actions against small producers of raw milk. Consider:
- In Illinois, where tough new regulations on raw milk were being prepared over the previous two years, regulators have backed off in the absence of a prosecutorial imperative (as one public health official put it) to go after small dairies selling directly from their farms.
- In California, its been nearly five years since regulators and prosecutors issued several cease-and-desist orders against raw milk herd share operators. Many herd share operators say they owe the subsequent peace to a lack of willingness of local district attorneys to prosecute, and the absence of illnesses associated with California herd shares.
- In Minnesota, the local sheriffs office in the northeastern part of the state has twice in the previous year refused to enforce requests from the Minnesota Department of Agriculture to carry out inspections on raw-dairy Lake View Natural Dairy, in the tiny town of Grand Marais. In the second attempt, last October, sheriffs deputies wouldnt assist MDA inspectors attempting to serve a court order to enforce inspections on farmer David Berglund after he informed the sheriff he thought he was protected from inspections by the Minnesota Constitution. These sheriff actions are likely the first time in the U.S. that law enforcement officers have refused requests from agriculture regulators to accompany them to crack down on a producer of raw milk.
While regulators in Illinois and California have taken the hint, and remained on the sidelines, those in Minnesotawell known for their aggressiveness in pursuing raw-dairy farmers like Alvin Schlangen and Michael Hartmannhave taken the sheriff-farmer pushback like dogs having their food bowls removed in the midst of dinner. Theyre flashing their teeth and growling, and have sought contempt-of-court charges against Berglund.
A court hearing is scheduled March 9 on the contempt charges. The one tactic MDA has changed over its pursuit of Schlangen and Hartmann is to drop its threat to jail the farmers and instead threaten to bankrupt Berglund via a $500-per-day fine for failure to comply with the inspection order. A big crowd of supporters is expected on behalf of Berglund in the tightly-knit rural community of Cook County. (For more about the Berglund case, see the web site by supporter Greg Gentz, a former law enforcement member and a post by Liz Reitzig at the Nourishing Liberty blog.)
Berglund doesnt see why he needs to have the MDA inspect his farm when the Minnesota Constitution expressly allows farmers to peddle the products of the farm or garden without obtaining a license.
The MDA argues that while Berglund doesnt need to be licensed, he is subject to all state food and safety regulationsin particular, the agency seems to be gunning after the raw-milk yogurt and butter he sells, arguing that those products need to be pasteurized. The agency doesnt appear to be claiming authority over its sale of raw milk from the farm; the MDA web site states, Minnesota law allows the sale of unpasteurized milk so long as it occurs on the farm at which the milk was produced. There is no mention of inspections in connection with raw milk sales.
Berglund isnt speaking publicly about his legal situation right now, at the suggestion of his lawyer. But in a 2013 hand-written letter he wrote to the MDA when the agency first demanded to inspect his farm, he said If the Minnesota Constitution states that you can sell the products of the farm and the Supreme Court recognized that processing is incidental to the making of the product such as cheese and butter, is not the licensing or inspection of the building insignificant?
The Minnesota Supreme Court interpretation of the state constitution Berglund was referring to was from a convoluted 2005 decision involving raw-dairy farmer Michael Hartmann in which the court at once endorsed the farmer freedom articulated in the state constitution, but also recognized MDAs authority over food safety regulations. Burglund appears to be following in Hartmanns footsteps in refusing to bend to the MDA; he has even hired Hartmanns lawyer, Zenas Baer, to defend him (supported by the Farm-to-Consumer Legal Defense Fund).
One big difference between Hartmanns case and Berglunds is that Hartmann was accused in 2010 of having sold milk that sickened eight people with E.coli O157:H7. Berglund hasnt been accused of any safety transgressions.
Despite the accusations, Hartmann battled against the MDAs seemingly relentless pursuit and eventually in 2013 won a court decision in which the agency was ruled to have illegally searched the farmers truck. In 2014, a judge dismissed a charge of Hartmann having violated probation; he had been put on probation when he pleaded guilty to a charge of violating regulations, intended for his wife.
Another farmer, Alvin Schlangen, defeated an attempt by the MDA to have him possibly jailed back in 2012, when a Minneapolis jury acquitted him of all charges related to violation of food regulations.
The reluctance of law enforcement to help agriculture regulators pursue raw dairy farmers dates back to 2007, when a Michigan prosecutor refused to file charges against farmer Richard Hebron, who had had a truck load of raw milk confiscated by Michigan regulators. It continued in 2012, when an Indiana sheriff successfully fought federal lawyers working on behalf of the U.S. Food and Drug Administration to haul farmer David Hochstetler in front of a grand jury; that sheriff, Brad Rogers, was eventually honored by his colleagues at a national sheriff conference.
Similarly, Wisconsin regulators were forced in 2011 to bring in a state prosecutor when a local prosecutor refused to go after dairy farmer Vernon Hershberger.
Here are two predictions: First, the MDA will fall as flat on its face in its new pursuit of David Berglund as it did in its pursuits of Alvin Schlangen and Michael Hartmann. Second, it wont learn a thing when it fails in this case. Thats the definition of insanity, after alldoing the same thing over and over, and hoping for a different result.
In the process, though, the MDA will, in its perverted way, be doing the country a favor. Because it will just raise consciousness that much more about the idiocy of trying to stamp out demand for raw milk, and trying to direct scarce public resources to dumping on the few local family farms we have left.