Sitting here in Limbo
Waiting for the dice to roll.
Yeah, now, sitting here in Limbo,
Still got some time to search my soul.
Meanwhile, they’re putting up a resistance,
But I know that my faith will lead me on.
The verse above, from reggae singer Jimmy Cliff’s classic song, sounds like it could have been written for Wayne and Kay Craig, owners of Grassway Farm in Wisconsin.
For nine years, the Craigs have been selling raw milk via their farm store. Over those nine years, Wisconsin’s Department of Agriculture, Trade, and Consumer Protection (DATCP) has kept the Craigs in legal limbo.
To understand the chronology of what’s happened, you have to have a very keen legal mind. Indeed, the only consistencies are the hazy legal twists and turns. As chronicled in new court filings by the Farm-to-Consumer Legal Defense Fund on behalf of the Craigs, it makes for depressing reading–a stark warning to any dairy farmer hoping to come to an accommodation with local regulators in states lacking in clearcut regulations governing raw milk availability. The latest court suit challenges DATCP’s behavior over the nine years, most especially the last two years, as “arbitrary and capricious.”
Here is a chronology of what the Craigs have endured over the last nine years, as excerpted from the couple’s affidavit in their legal complaint. (It’s been grouped together with another suit filed by Mark and Petra Zinniker, which seeks to uphold the constitutionality of their herdshare approach; I wrote about the Craigs previously in 2009.)
First, a series of steps by DATCP to affirm the legality of the Craigs’ private membership arrangement for making raw milk available:
“On October 30, 2002, DATCP issued an order (“2002 Order”) providing in pertinent part, ‘Under the long-standing interpretation of s. 97.24, Wis. Stats., [my wife and I] are free to devise valid agreements sharing ownership in their milk producer license under applicable law that may include allowing actual owners to take a share of the ungraded raw milk produced under the license.’…
“The 2002 Order was again addressed in 2004, resulting in the issuance of another DATCP Order that specifically authorized the use of agreements sharing ownership in a milk producer license.
“The 2004 Order also specifically acknowledged that investments in such entities could also be for the purpose of purchasing non-pasteurized milk or milk products, though purchasing such products could not be the sole purpose of the investment…
“On March 22, 2005, the Store obtained a Conditional Use Permit from the Calumet County Planning Department’s Planning and Zoning Committee for operation of the farm store (‘County Permit’).
“The County Permit required that the business be a ‘members only’ type of store and that it not be open to the general public.
“DATCP worked in cooperation with the Wisconsin Department of Financial Institutions (DFI) to assist DFI in issuing an Order of Exemption to the Store to allow the offer and sale of membership interests in the Store.
“On December 15, 2005, DFI considered issuing an Order of Exemption under §551.23(18) of the Wisconsin Uniform Securities Law (‘2005 DFI Letter’) to the Store that would allow the Store to offer and sell membership interests in its milk producer’s license.
“On January 5, 2006, DFI issued to the Store an Order of Exemption (‘2006 Order of Exemption’) under §551.23(18) of the Wisconsin Uniform Securities Law that would allow it to offer and sell membership interests in the Store’s milk producer’s license to ‘persons in Wisconsin to enable them—as membership interest holders and, therefore, owners of the LLC—to purchase unpasteurized dairy products under the Wisconsin Milk Producer License #191666-D2 currently owned by the LLC.’ The 2006 Order of Exemption stated that it was valid for a two-year period.
“Upon information and belief, the 2006 Order of Exemption was issued with the participation and approval of DATCP…
“Thus, from 2005 to 2007 members of the Association who were also co-owners of the Store were also co-holders of the milk producer’s license issued by DATCP to the Store, an arrangement that was recognized and authorized by DFI with the assistance and concurrence of DATCP.”
Then, suddenly, a change in DATCP’s approach to the Craigs:
“On March 20, 2007, DATCP issued a warning letter (hereinafter ‘DATCP’s Warning Letter’) to the Store that illustrated DATCP’s back tracking that what the Store had been doing since 2005 was legal.
“On the one hand, DATCP’s letter of March 20, 2007 specifically provided that owners in a valid agreement who shared ownership in a milk producer license may receive distributions of raw milk. On the other hand, the 2007 letter stated that ‘raw milk distributions to owners cannot occur in a retail food store licensed by this Department.’…
“On March 23, 2007, the Store sent a written response to DATCP (hereinafter ‘Store’s 2007 Response’), explaining that milk distributions do not occur in the store. We never received a response to our March letter.
“On September 14, 2007, DATCP issued a Final Order (hereinafter the ‘2007 Order’) regarding its proposal to revise regulations relating to the sale and distribution of fresh milk so that the revised regulations would be consistent with the 2002 and 2004 Orders.
“Specifically, the revised regulation was presented as a final order in DATCP Docket No. 05-R-04, and included a statement that the purpose of the revised regulation ‘clarifies current statutory prohibitions against the sale of raw milk to consumers, consistent with administrative law judge decisions.’
“On April 16, 2009, Jacqueline Owens of DATCP sent a letter to the Store (hereinafter “DATCP’s April Letter”) alleging that unpasteurized milk was being sold at the store in violation of Wis. Stats. §97.24 and that the store’s Retail Food Establishment License Application would be rejected because of the alleged violation…
“The April letter stated that the Retail Food Establishment License would not be re-issued unless the Store signed a ‘Conditional License Agreement.’ The ‘Conditional License Agreement’ was basically another interpretation by DATCP of Wis. Stats. §97.24(2)(b) against the sale or distribution of unpasteurized milk and milk products, which interpretation provided in part, ‘Sale or distribution includes any distribution to any person through any agreement other than that person being a member of the partnership, cooperative or corporation organized pursuant to chs. 178, 180, 183 or 185, Wis. Stats., to hold the Respondent’s milk producer license and operate the facility.’…
“On May 4, 2009, the Store responded through counsel (‘Store’s May Response’), stating that its members were not ‘consumers’ or ‘members of the public’ and that the store was therefore not required to obtain a retail food establishment permit because it was not illegally selling unpasteurized milk.
“On May 8, 2009, DATCP responded with yet another new interpretation of Wis. Stats. §97.24 (hereinafter the ‘DATCP’s May Reply’)…
“DATCP’s new interpretation was that in order for an ownership interest to qualify as a ‘bona fide ownership interest in the milk producer,’ the ownership interest must have been acquired with an expectation of financial profit.
“Counsel for the Store responded on June 1, 2009 (“Store’s June Response”), protesting that the language of the new interpretation, i.e., ‘expectation of financial profit,’ appears nowhere in either Wis. Stat. §97.24, the newly revised regulation promulgated at Wis. Admin. Code ATCP 60.235, or in the 2002, 2004 or 2007 Orders.
“On June 16, 2009, Randall Schumann, counsel for the Wisconsin Department of Financial Institutions, sent a letter to Kay and Wayne Craig (‘DFI 2009 Letter’) attaching DATCP’s new interpretation, stating that the now-expired 2005 Order of Exemption would not be re-issued.
“The basis of Schumann’s June 2009 refusal to renew the Order of Exemption was that the Store was allegedly not in compliance with DATCP’s interpretation of what constituted a ‘bona fide ownership interest in the milk producer.’…
“On June 20, 2009, DATCP issued an Inspection Notice to the Store (“DATCP’s Inspection Notice”) and stated that the inspection frequency of the dairy farm would be reduced to once every twelve months. The stated reason for the reduction in the frequency of DATCP inspections was ‘Good Job—No violations.’…
“On June 22, 2009, counsel for DATCP issued yet another letter (hereinafter ‘DATCP’s June Letter’) to counsel for the Store that included yet another interpretation of ‘bona fide ownership.’…
“DATCP’s new interpretation of ‘bona fide ownership’ was that owners who took unpasteurized milk for their own personal use could do so only if the use was incidental to their business of producing milk, which would include an analysis of whether they have actual responsibilities and make decisions of an owner or, if they are passive owners, whether they receive any type of annual statements of profit/loss and official forms for filing with their tax returns.
“Counsel for the Store responded on July 17, 2009 (‘Store’s July Response’) by stating that the Store was considering a re-structuring whereby the profits of the Store would be shared by the passive owners of the Store…
“On July 20, 2009, counsel for DATCP issued a letter to counsel for the Store (‘DATCP’s July Reply’) and stated that profits are not the issue; the owners in the milk producing business may only incidentally take milk for their own use.
“DATCP’s July response to counsel for the Store demonstrates it has yet again changed its interpretation of the 2002, 2004 and 2007 Orders and Wis. Stat. §97.24…
“If the Store is found to be a retail food establishment, the Store will not be able to make fresh milk available to the Association members…
“The Store is not a ‘retail food establishment’ within the meaning of Wis. Stat. §97.30, because no retail sales to consumers or to members of the public take place at the private store.
“The members of the Association are not consumers within the meaning of Wis. Stat. §97.24, and therefore DATCP does not have jurisdiction to regulate the members’ use of milk produced by the Store.”
The remainder of the affidavit affirms the rights of the private association to access raw milk, apart from DATCP’s ever-changing interpretation of regulations.
What we learn here is that the more ambiguity there is in state laws governing access to raw milk, the more likely state regulators are to use the laws to restrict access to raw milk. We have seen that situation in Massachusetts, where regulators have sought to interfere with buying clubs that provide deliveries to raw milk drinkers. We have seen it in Vermont, where state regulators have sought to interfere with classes to teach about making raw milk cheese; indeed, a new legislative effort is now under way there to close the perceived loophole the state has been seeking to exploit. And there’s this situation in Wisconsin.
For those farmers who get entwined in state pushes for death by a thousand cuts, it really does become a matter of living in limbo. To their credit, Wayne and Kay Craig have conducted themselves with dignity, and been persistent in fighting for their right to supply members of their food club with nutrient-dense foods. ?
The rights of consumers to food choice will be a major theme of the upcoming Third Annual Raw Milk Symposium being held in Minneapolis May 7. The theme of choice is especially relevant in Minnesota, where agriculture authorities have shut down a food club, and conducted raids to confiscate raw milk being distributed to customers as an outgrowth of illnesses from E.coli 0157:H7 attributed to the Hartmann Farms. I’ll be among a number of raw milk supporters speaking that day.