The Shank family preparing food for pickup at a drop point in Pennsylvania.

In the meantime, he is serving as a refreshing model of openness and understanding, and how best to handle a crisis of foodborne illness. You have to feel for the Shank family and its customers. You know that his dairy will be the stronger for everything it has gone through these recent days.

A good number of the 125 or so sheriffs attending the first convention of the Constitutional Sheriffs and Peace Officers Association (CSPOA) in Las Vegas over the last couple of days (together with another approximately 100 other enforcement personnel), appear to have been elected in just the last year or two. One of the most heartwarming stories by a recently elected official came from Sheriff Brad Rogers of Elkhart County in Indiana. If you'll recall, he was featured on this blog in December standing up for one of his farmer constituents, raw dairy farmer David Hochstetler, who was being subpoenaed to appear before a federal grand jury exploring felony charges in connection with his distribution of raw milk.

Sheriff Brad Rogers of Elkhart County, Indiana, holds his award for "Meritorious Valor". Rogers was one of about a dozen speakers at the Sheriffs Convention, and he was interrupted several times by enthusiastic applause from the approximately 225 law enforcement personnel as he recounted the story of how he stood up against the feds on behalf of Hochstetler.  He explained that he was elected sheriff of Elkhart County in 2010 “by a wide margin…I ran on the basis of protecting the Constitution.”

He recalled, “On December 1, I received a call from an Amish farmer in my county. He said, ‘I’m having a problem with the federal government.’ He told me how the FDA (U.S. Food and Drug Administration) had been to his farm several times in 2011 alone. I went to see him. I could see it was a clean operation. The problem for the federal government was that he was selling raw milk to cooperatives in Illinois and Michigan. After the third or fourth time the FDA was there, he was subpoenaed before a federal grand jury in Detroit.”

As Rogers recalled it, “I told Mr. Hochstetler, ‘I will protect you in Elkhart County. I can’t protect you in Detroit.’ I asked him, ‘Are you ready for some sparks to fly?’ He said he was.”

Next, said Rogers, “I sent an email to the Justice Department trial attorney…I said, ‘If you come back to this farm without a search warrant signed by a trial judge, I will have you removed for trespassing.’”

The audience interrupted Roger with wild applause. “Well, he didn’t take to that too well. He said the federal government has precedence based on the Supremacy Clause. I told him the federal government is supreme if it has to do with the Constitution.”

All that happened on a Friday, Rogers told his audience. “On Tuesday, Mr. Hochstetler received a certified letter that the Department of Justice had withdrawn the subpoena.”

The crowd interrupted Rogers again, with even louder applause. “I want to protect citizens like Hochstetler,” said Rogers. “That stuff is not going to happen in my county.”

Another burst of applause as Rogers concluded his talk. Afterwards, he told me he had received about 1,000 emails after my blog post of early December. All except one of the emails congratulated him or otherwise encouraged him to continue helping Hochstetler. “We’ll never know if it was my letters that led to the withdrawal of the subpoena.” Surely they didn’t hurt.

The "Interposer" award presented to Sheriff Brad Rogers.Later Monday evening, Rogers was one of about 50 sheriffs who dropped in on “A Complimentary Tasting of Fresh Farm Foods” hosted by the Farm Food Freedom Coalition, the organization that has spawned the Raw Milk Freedom Riders, and was a sponsor of the sheriffs convention. The foods included fresh cheeses and sausages sent in by Wisconsin dairy farmer Vernon Hershberger, along with raw milk ice cream painstakingly made by Sea J Jones, a former Rawesome Food Club volunteer (using out-of-state cream).  

In walked Rogers, proudly holding an award he had received at the convention banquet that had just ended. The inscribed laminate under his name read: "CSPOA Interposer: For Meritorious Valor for Interposing Himself on Behalf of His Citizens".  He had received the award because of his efforts to protect Hochstetler.

The award was in keeping with the entire tone of the convention. According to Richard Mack, the former Arizona sheriff who organized the event, “This is about America. It is about whether we are going to preserve our Constitution.” In describing the inaugural sheriffs convention, he added, “It is not a call to arms, or violence, or insurrection. There is nothing subversive here. Quite the opposite.”

He noted that the sheriffs in attendance “swore an oath to uphold the Constitution, specifically the Bill of Rights…They are untouchables. You cannot violate the Bill of Rights.” Sheriffs, he said, “are sworn Constitutional guards. We are the executors of the law. The supreme law is the Constitution. We interpose on behalf of people.”

The subject of raw milk came up a number of times. Michael Badnarik, the 2004 Libertarian candidate for president, gave an hour-long overview of the Bill of Rights. In describing the Ninth and Tenth Amendments, which provide latitude in reserving powers to states over the federal government, he noted, “The government is trying to put Amish farmers out of business for producing raw milk…I own my body” and decide what to feed it.

Memories of Las VegasA preview clip of Kristin Canty’s, “Farmageddon”, was shown to the attendees, and each one took home a DVD of the full documentary.

A sheriff from California told me he has been asked for help from herdshare operators in his county, who have received cease-and-desist orders from the California Department of Food and Agriculture. “I am in the process of drafting a letter to the CDFA that they are not to come into my county and interfere with herdshares.”

Of course, interference in raw dairy wasn’t the only federal-local thorn the sheriffs complained about. They described federal efforts to close off roads in public lands. An Oregon sheriff said he has seen an increasing number of complaints from people using the public lands. “They say Forest Service people are pointing guns at them.” The U.S. Forest Service “has been told the road closures are illegal…there is a huge mistrust of our federal government.”

Other complaints concerned over-aggressiveness on the part of the U.S. Immigration Service and the Environmental Protection Agency. One sheriff told the audience that in addition to the legislative, executive, and judiciary branches of government, “We have a fourth branch of government, the bureaucratic branch.”

What impressed me about the conference was the positive energy and spirit. The sheriffs are obviously concerned about the erosions of our rights, but they also generally feel it is not too late to restore a semblance of balance.

After the full day of talks and discussions on Monday, nearly all the sheriffs I spoke with not only felt the gathering had been worthwhile, but want to see a repeat next year. My prediction: It will be much bigger next year. This year, it drew about 3% of the nation’s more than 3,300 sheriffs; I wouldn’t be surprised if, after the sheriffs who attended get home and talk it up, perhaps 6% or more of the nation's sheriffs will be at next year’s event.

***

Thanks to Michael Schmidt for helping put things in proper perspective in his comment following my previous post.

Vernon HershbergerI cannot in good conscience tell the 100+ families who own the food and depend on it to feed their families, that they can no longer get food to feed their families. The Almighty God has spoken and I cannot do otherwise. God’s word in the Bible states in 1 John 3:16-18, quote, "Hereby perceive we the Love of God, because he laid down his life for us, and we ought to lay down our lives for the Brethren. But whoso has this world’s good, and seeth his brother have need, and shutteth up his bowels of compassion from him, how dwelleth the Love of God in him? My little children, let us not love in Word, neither in tongue, but in deed and in truth.

Your honor, I have spent many sleepless hours since signing the bond due to my conscience being plagued by the thought of shutting up my bowels of compassion to my Brethren who are dependent on the food that is provided by and for them on our farm. To most of them it is not merely a matter of preference but much more a matter of life or death! If the owners of the food cannot eat their own food, aren't we living in a communist state? If our farm stopped feeding its owners' families, there will be literally hundreds of children who will suffer malnutrition and even starvation. Your honor, I would much rather spend the rest of my life behind bars or even die than to be found guilty of such a gross sin before the Almighty God. Col 3:6, quote, "For which things' sake the wrath of God cometh on the children of disobedience."

It seems to me Hershberger came to a realization that his decision to cut the tape placed on his cooler by the Wisconsin Department of Agriculture, Trade, and Consumer Protection in April 2010 was merely the first step of a long journey, and a step that allows for little hesitation, and no compromise. It's a realization not unlike Max Kane came to when he decided not to turn over the names of his food club's farmer suppliers to Wisconsin authorities in 2009, and Michael Schmidt came to when he decided to go on a hunger strike last fall. Once you cross the line to civil disobedience, you must follow the journey through to its logical conclusion.

I think we also understand why the two women were moved to protest in the courtroom. Hershberger has cut to the heart of what this struggle is about. Once you understand how fundamental it is, it is difficult not to be seriously moved.

The door is locked and a protest sign adorns Rawesome Food Club in Venice, CA.

Matt Bromund, an attorney representing Sharon Palmer, said afterwardsthat the simple fact that the authorities who raided Rawesome June 30, 2010, and again August 3, 2011, seized and destroyed practically all the food with "no discrimination," indicates to him that, "The goal was to shut down the business...This case is not your ordinary criminal case."

Maybe the clearest thing to come out of the latest legal twists and turns in this case is that the Rawesome Three are well entangled in the jungle that is America's criminal justice system--a system based heavily on delays, continuances, and long waits. Nearly six months have gone by since the Rawesome Three were arrested, charged with the first felonies in a raw dairy case in recent years, and briefly jailed...and there isn't even a pre-trial hearing scheduled. Perhaps tangling them up in that thicket was part of the intent here?
**

A federal judge shot down a long-shot attempt to gain a preliminary injunction against the U.S. Food and Drug Administration's enforcement of the prohibition on interstate raw milk shipments. The Farm-to-Consumer Legal Defense Fund had made the request based on the FDA's enforcement of the interstate prohibition against two Amish farmers.

Judge Mark Bennett said the FTCLDF's effort to connect the separate cases against the Amish farmers with the cases of the plaintiffs in the organization's existing case against the FDA wasn't convincing to him. "The FDA would be unduly hampered, and the public interest would be damaged, by enjoining enforcement of still-valid regulations intended to protect the public from food borne illnesses resulting from the consumption of raw milk...The plaintiffs have shown no threat to them that would outweigh the threat to the agency’s legitimate enforcement actions and the public interest. I find that the lack of any threat of irreparable harm to the plaintiffs here and the balance of the other factors against issuance of the requested preliminary injunction make it unnecessary for me to consider the plaintiffs’ likelihood of success on the merits of their claims."

He said the FTCLDF case against the FDA is "a matter of some complexity that will be addressed" at some point upcoming. Stay tuned.

Many tiny dairies dispensing raw goat’s or cow’s milk through such operations feel as a matter of principle that they shouldn’t have to negotiate a right that is already theirs—the right to contract with neighbors and friends for milk and other dairy and food products.

Even if they aren’t so principled, many shy away from making their presence known to the CDFA. They figure that no matter what comes out of these discussions—even the least onerous regulatory structure—they’d rather not be on any more government agency lists than are necessary. Assuming the CDFA never gives them trouble, who knows what other authorities the agency may send their way.

Those that are open to negotiation and regulation worry that it’s nearly impossible for the regulators to be fair. So against raw milk are most of the regulators, in this view, there is no way they will negotiate in good faith.

Dr. Annette Whiteford of the California Department of Food and AgricultureDespite all these obstacles, CDFA’s chief veterinarian and director of animal health and food safety services, Annette Whiteford, is optimistic a workable solution can be found to the issue—an issue that only became an issue when the CDFA began issuing cease-and-desist orders last year against small dairies operating herdshares. 

“There seems to actually be quite a bit of common ground and I think we will find some compromise solutions,” she explained in an email response to several questions I posed.    “Our goal is to have some sort of a tangible result in the near future.  We are staying focused on ‘doable’ objectives.”

The small dairies involved in the negotiations are less enthusiastic than the chief veterinarian. Michael Foley, a member of the herdshare negotiating group and a small farm owner worries about the “the onerous facilities requirements that have accumulated in California, while retaining testing and inspection requirements.”

Whiteford acknowledges that the legal status of herdshares in California is a murky issue. “First of all, there is nothing ‘illegal’ about a ‘herdshare.’  In fact, in California, unlike most states, raw milk is legal. We are trying to find out exactly what currently regulated food safety standards cannot be met by very small dairies, some of which are operated as herdshares or under boarding agreements.  We are in the process of listening to suggestions from small dairy herd owners, public health officials and other interested parties related to how best to increase access to products from these small farms while ensuring that public health is maintained. “

Prime among the suggestions being offered by small dairies that are part of the working group is that the state exempt from any regulation dairies with some small number of goats or cows—perhaps three or fewer.

Says Foley,: “Our proposals include an exemption from regulation for very small operations -- the ‘family cow’ exemption, paralleling exemptions in a number of states; an exemption for herdshare arrangements, recognizing their purely private character as does current Tennessee law; and reduced requirements for very small commercial dairies…”

Foley worries that without an exemption, tiny dairies will shy away.   “A testing requirement would be too expensive for people with just one or two lactating cows to deal with,” he says.

Foley estimates there may be more than 1,000 tiny dairy operations dispensing raw milk in some type of herdshare or private sale arrangements, and that many won’t come out into the open without an exemption.  “And that means they won't be able to share knowledge easily, find better ways to do what they're doing, and be responsible to the larger community. California can't police all these folks and shouldn't want to.  What they're doing is what rural people have done forever and should be respected, not pushed into the closet.”

In other words, whatever the working group agrees to, if anything, would need to be approved by the legislature via additions to the dairy laws, since herdshares currently aren’t covered. Coming to agreement won’t be a simple matter, though. Foley acknowledges that there are among herdshare operators a significant number that don’t approve even of the “exemption” idea. “I've been in conversation with some farmers who are also law scholars, and they warn that the term ‘exemption’ is dangerous, because it grants jurisdiction to the regulators, along with the (temporary) ‘exemption"’  He feels the Tennessee law “simply recognizes and codifies this lack of jurisdiction” by the state for raw milk availability for personal use.

Another model being explored is that of Idaho, which has new code that exempts small dairies from Grade A dairy requirements for facilities and equipment, but imposes Grade A requirements for the quality of the raw milk, which includes bacteria limits. Cow and goat owners must apply for a permit from the Idaho State Department of Agriculture to sell raw milk to the public.

In their position statement to CDFA, the herdshare operators contend that, “Health risks are nearly non-existent on very small family farms and the number of people with two or three cows/goats is high. To criminalize this group of law abiding citizens would put an incredible burden on the state and local sheriffs, who do not have the resources to enforce unnecessary laws.”

Pasteurization became necessary, the position statement suggests, because of the industrialization of agriculture, including milk production. “The laws for milk safety were developed in response to the dangers of the swill dairies of old, and those laws continue to be relevant today in protecting consumers from dairy produced in Concentrated Animal Feeding Operations (CAFOs). These CAFOs produce a product that can be rife with dangerous bacteria and therefore require strict facility and pasteurization requirements to kill the pathogens within their milk.”

I sense in Whiteford’s response, a desire by CDFA to not take on the huge task of closely regulating so many tiny dairies operating as herdshares, as well as an interest in getting this matter off the CDFA’s table, via new legislation that could address the issue. I hope I’m not being too much an optimist, but I do know that if this matter could be resolved via negotiation between dairy owners and regulators, it could serve as an important precedent. We certainly could use some positive precedents.

***

Mystery solved. The “brucellosis” scare in Massachusetts was a false alarm. The farmer, Robert Kilmer, doesn’t have brucellosis, nor do any of his cows. I had actually heard about preliminary results Tuesday evening that the testing was coming up negative, but wanted to wait for final results before posting anything. Now, Food Safety News is saying it has emails from the Massachusetts Department of Agriculture and the Massachusetts Department of Public Health giving the all clear. Kilmer’s farm is no longer under quarantine, and it can resume raw milk sales.

I suppose Kilmer will need to do more digging about his own physical symptoms.

And maybe he can ask the agencies for an apology. According to an email quoted by Food Safety News, an official of the Massachusetts Department of Agricultural Resources stated: "All in all this has been a trying experience, but the cooperation and willingness to take the steps needed by MDAR, DPH, USDA and most importantly the farmer has helped immensely." I would expect that is the closest Kilmer and other raw dairy farms in Massachusetts are going to get to an apology for blaming the dairy's raw milk for illness. And he'll have to accept the fact that all those incorrect reports will continue coming up every time someone googles under brucellosis in Massachusetts or his farm’s name.

(From the Veterinary Public Health Association

A new phase in Wisconsin's relentless war on raw dairy should be starting up shortly. According to news from the food safety chief at the Wisconsin Department of Agriculture, Trade, and Consumer Protection, Steve Ingham, he has new prosecutions or enforcement actions planned against additional farms besides that of Vernon Hershberger, the farmer accused of misdemeanors for making available raw milk to private food club members. Ingham is quoted in Agri-View as saying, "At present there are between five and ten cases where we know there may be a problem. The cases are in different stages of review and information has been shared with FDA and with county district attorneys. There are other cases where we are still in the data collection process."

In the meantime, Hershberger has filed a motion for dismissal of his case. It argues in part, "The State has no evidence that the private foods from the farm were sold to the public, because none was. There was no claim by the public that the food caused anyone harm. There was no injured party. This lawsuit lacks the elements of causes of action and is defective."

Moreover, he argues that Wisconsin's dairy laws allow for consumption of raw milk by "by the owner or operator of the farm, or members of the household or nonpaying guests or employees..." He contends: "Since March 2010, the products we grow are not sold, ever. The food we produce is consumed by the farm owners and their families only; the farming families and no one else. Any payment the family receives from owners is a contribution for my family's managing and executing farm chores and needs, that is labor, supplies and overhead costs only. In the spirit of cooperation and understanding, several times we notified DATCP of our new standing and separation from it and our eliminating all standard toxic health-department regulations. DATCP's Complaint is a retaliation for our separation from overextended State authority and control for which we are protected by the 10th Amendment of the U.S. Constitution."

Shoppers Saturday at Norwich Farmers Market crowd produce and other stands.

Before you know it, you have a growing army of disillusioned consumers ever more open to joining a food club, or buying into a herdshare arrangement, or venturing out to farmers markets. (The photo above is of some of the crowd that turned out yesterday in sub-freezing temperatures for an indoor farmers market in Norwich, VT.)

Equally significant, these individuals become receptive to the arguments of the budding food rights movement.

One of the facts that stuck out to me in Blair McMorran's incisive examination of the benefits of raw milk testing protocols was this little aside: in Colorado, "at least 20 (raw dairies)...have just started up."

Yes, conventional dairies continue to fold. But raw milk dairies have launched, or converted from conventional production, in significant measure because there is a lucrative growing market for raw dairy and other unprocessed natural foods. The same thing has occurred in California with herdshares, not to mention many other states.

This growing market demand may well turn out to be the saving grace in the growing controversy over RAWMI, and the standard-setting/oversight issues that many here worry about.

Toni Baer lamented in a comment following my previous post, "From my European and scientific perspective nothing is worse within a small movement, if people start attacking each other openly on websites. It only helps those who are against you, which are those who want to get rid of the raw milk."

I don't doubt the enemies of food choice and freedom take pleasure in the disagreements here. But they may be taking false comfort. The marketplace is smarter than many of us. As people become ever more worried about their health and the health of their families, they will seek out information about making changes.

Part of what we're talking about is the difference between a trend and a movement.

A market trend is simply that, a move by increasing numbers of people toward particular kinds of products and services. Sometimes it's a matter of popularity (music) and fashion (clothes, accessories) and sometimes a trend grows out of fear.

In the case of health, a seemingly healthy market trend (toward nutrient-dense foods) can be subverted by a combination of corporate marketing (providing its version of "safe" and "natural" food) and government propaganda (those people organizing the movement are a bunch of kooks and weirdos and disdain "science").

The key question for those of us worried about the trampling of food rights, is whether the trend--fear of tainted food that is driving ever larger numbers of people to seek out good food--can be transformed into a movement. I don't pretend to be an expert in the development of movements, but I do know they unfold in significantly different ways.

We tend to think of the Civil Rights movement as having burst onto the scene in the 1960s under the leadership of Martin Luther King Jr., but the National Association for the Advancement of Colored People (NAACP) was actually founded in 1909.

The Occupy Wall Street movement and all its spinoffs seemingly materialized over a few weeks last year...and then just as quickly dissipated...or did it?  

Look at the women's rights, gay rights, and home schooling movements, and you will see different dynamics in each.

We don't yet fully appreciate the dynamics of the food rights movement. My sense is that it will take a heavy focus on local organization, rather than some top-down approach. The local organizations need to take responsibility for publicizing particular local events, like last week's arraignment of Wisconsin raw dairy farmer Vernon Hershberger.

Gayle Loiselle was rightfully upset that Hershberger's private contract distribution approach didn't get a clearer presentation in the media. It "was a missed opportunity because the media was there and ripe for the picking but the most credible well-spoken media savvy heavy hitters in the raw milk movement were not. With at least 2 networks there the message of choice…individual rights … and the abuse of power by the government… could have all been spun into powerful sound bites by those who know how to use the media to the best advantage."

I agree, but those "media savvy heavy hitters" aren't necessarily the ones the media even want to hear from--very often, they prefer articulate local people, who are most familiar with the circumstances at hand. I know some local leaders were on hand for the demonstration outside the courthouse on behalf of Hershberger. Perhaps they need training, as Loiselle suggests, to make sure Hershberger's message comes through. Maybe that becomes part of the education focus of the Raw Milk Institute.

All by way of saying, we shouldn't necessarily fear a variety of organizations (like the Raw Milk Institute, the Raw Milk Freedom Riders, the Farm Food Freedom Coalition, Food Sovereignty, Alliance for Raw Milk, Weston A. Price Foundation, Farm-to-Consumer Legal Defense Fund, etc., etc. ) Nor should we fear serious debate as a means to inform and help people crystalize their views.

So the big unanswered question right now is whether the trend toward serious worry about the quality of our factory food will translate into a sustainable growing movement for the right to access the foods of our choosing. Since the trend isn't likely to abate any time soon, we have expanding opportunities to get the movement into shape.

***
Deborah Peterson expressed frustration, following my previous post, about developing mission statements. Since she mentioned it, here's one just completed by the Raw Milk Freedom Riders. I think it's pretty decent.

"The Raw Milk Freedom Riders are dedicated to overturning the FDA's criminalization of interstate raw milk shipments as a way to end the agency's ongoing assault on dairy farmers and the consumers they serve.  The assaults include raids on small dairies that distribute raw milk, undercover investigations of ordinary citizens who consume raw milk, and assorted efforts to destabilize private food clubs, among other actions.

"We are committed to intentionally defying the interstate ban as a way to publicize the reality that raw milk isn't a public health hazard and to publicly expose the FDA’s violent acts listed above.

"We demand that the FDA leave raw milk decisions entirely to individual states, and respect the rights of individuals to enter into private contracts with farmers to obtain the foods of their choice."

The Raw Milk Freedom Riders have already held two demonstrations involving civil disobedience. And the organization will have a booth at the upcoming Constitutional Sheriffs Convention Jan. 29-31.

***

Here's an in-depth look at one slice of the food rights struggle...and a pretty fair one, at that, from The New American magazine. Includes some worthwhile history, as well. Also, it provides the views of the U.S. Food and Drug Administration, without bowing to them.

And an interview with me on Agricultural Insights web site, about the government crackdown on raw milk, by Chris Stelzer.

Raw dairy supporters are beginning to back a campaign to support their local sheriffs attending the Constitutional Sheriffs Convention in Las Vegas Jan. 29-31. Some are contributing to the County Sheriff Project, which will pay for some local sheriffs to attend the conference.

Plus, a number of raw milk supporters are expecting to attend; more on this last item upcoming.