bigstockphoto_Down_For_The_Count_11579.jpgLike a fighter down for the count who gets back on his feet at the last moment, and then stuns spectators by knocking the opponent back on his heels, the team of Organic Pastures Dairy Co. and Claravale Farm scored a big win in a California courtroom today.

Superior Court Judge Harry J. Tobias rejected the state’s heavy hitters from office of the Attorney General and the California Department of Food and Agriculture, and granted OPDC and Claravale a temporary restraining order prohibiting enforcement of AB 1735 and its ten-coliform-per-milliliter standard that had threatened to shut the dairies down.

The TRO will remain in effect until at least April 25, when a hearing will be held on whether to grant a preliminary injunction, which would continue the stay until a trial can be held some months later.

“We won today,” Gary Cox, the lawyer for the Farm-to-Consumer Legal Defense Fund who argued the case, told me after the hearing.

He said the TRO prohibits CDFA from enforcing AB 1735, but allows the state to continue collecting samples and testing milk from the two dairies to measure coliforms. At the April 25 hearing, the judge indicated, he will further assess the potential impact of the test results on the dairies.

For that hearing, Gary said he hopes to show the potentially damaging impact of AB 1735 not only on the dairies, but on their customers. “I’m going to have Ron (Garthwaite) and Mark (McAfee) get as much testimony as possible from their customers as to how they would be harmed” by losing access to raw milk.

OPDC and Claravale had argued that AB 1735 threatened to put them out of business, for the sake of enforcing a bacteria standard that had no relationship to raw milk’s safety or the possible presence of pathogens. California’s Attorney General had argued on behalf of the CDFA that the coliform standard has been widely adopted around the country as an important way to determine dairy cleanliness and as an indicator of potential pathogens.

Today’s decision was significant not only because AB 1735 can’t be enforced, but also because of what it says about the court’s inclination in the entire matter. According to Gary, the plaintiffs had to meet two difficult criteria: demonstrate harm to the two dairies and show a substantial likelihood of success on the merits of the claim.

“The game is in our favor,” Gary said. Count this doubter as very impressed.