The Complete Patient

As strong as the stench coming from the Pennsylvania Department of Agriculture was yesterday in Mark Nolt’s trial, it actually intensified today, in a tiny Elizabethtown courtroom, about 50 miles down the road, where Glen Wise went on trial for selling raw dairy products without a permit.

So unpleasant was the odor that even the judge of the Magisterial District Court in Elizabethtown, Jayne Duncan--sitting in front of engraved copies of the Declaration of Independence and the first page of the U.S. Constitution, and hearing arguments from a farmer without a lawyer—got enough of a whiff that she dismissed two of the three citations against Glen, and reduced the fine on the third from a possible $300 to $50. She labeled the PDA’s approach in handling its investigation of Glen “unfair” by failing to notify him in a timely manner of its undercover purchases of dairy products.

But implicit in her action was a condemnation of the PDA’s entire entrapment approach in going after Glen.

Like yesterday, the PDA sent its chief attorney, Brook Deur, to prosecute the case against Glen, who, like Mark yesterday, is a Mennonite and chose not to have legal representation. (Mennonites also don’t like to have their faces photographed, so the photo above of Glen and supporters is taken from the back.) With Deur was the PDA’s main witness, Joe Goetz, a food sanitarian with the agency’s Bureau of Food Safety for the last two-and-a-half years, and its undercover officer of the day. Like Tony Russo yesterday, Goetz painted a picture of an employee forced into distasteful actions, except his assignment was even more questionable than that described yesterday in the Mark Nolt case.

At first, it sounded like standard practice. “I was directed by my supervisor to make a purchase of raw milk and kefir” from Glen Wise, Goetz stated. He described how he went to the Wises’ Shady Acres Dairy Farm on three occasions--Nov. 14, Jan. 8, and March 8—each time purchasing half a gallon of raw milk and a quart of kefir.

But when it came time for cross examination, Glen was ready. “Did you see the sign on the refrigerator, “Dairy products for sale to CARE members only?”

Goetz said, “Honestly, I did not pay attention to any signs.”

But it got worse. “Are you a CARE member?”

“Yes.”

“So you did sign a CARE contract?”

“Yes”

“Did you read that contract?”

“Yes”

When Deur objected that Goetz was being asked to interpret the law, the judge intervened. “What was the purpose of the contract?”

“I was asked to sign the contract by my supervisor,” Goetz answered.

The judge followed up: “What did you expect that the contract provided?”

Goetz said he couldn’t recall.

The point here is very important, though. The CARE membership agreement (CARE is the Communities’ Alliance for Responsible Eco-Farming and requires all members to pay a $20 annual membership fee) states at the start, in bold, all caps:

“All CARE MEMBERS MUST INITIAL AND CERTIFY, UNDER PENALTY OF PERJURY WITH THE INTENT TO BE LEGALLY BOUND TO THE FOLLOWING…”

There follow eleven clauses that must be initialed indicating, for example, that the member isn’t aware of any medical conditions that would prevent him or her from consuming raw dairy and supports CARE’s mission statement. However, the first clause in the list states: “Whereas, that HE/SHE is not acting under color of law to entrap, hurt, prosecute, or otherwise trespass/and/or and gather information for any agency, corporation, person or other entity to in any way negatively affect the CARE Alliance/Association, its board of directors, members or its purpose.”

Judge Duncan hadn’t seen the CARE contract in advance, but she made copies of it during a recess in the proceedings.

In her ruling, Judge Duncan said that Glen’s argument that the CARE contract is a private arrangement between the farmer and the consumer, and thus outside the state’s raw-milk permitting requirements, “is outside the scope of this court’s authority.” In effect, she was leaving the matter to the Common Pleas Court, where Glen intends to appeal the single citation he was found guilty on.

Afterwards, there was general satisfaction in Glen’s camp. Bill Reil, a local constitutional law expert who advised Glen and sat with him at the defendants’ table, said, “We walked out of there with one citation instead of three. That was the best we could have hoped for.”

Mark Nolt, who was among the 40 or so supporters, was also impressed. “We lost the battle, but we’re winning the war.”

The presence of a written contract may have provided Glen Wise with a case that will be easier for a judge to relate to than it has been in the Mark Nolt case.

Even the most despotic regimes hate to impose martial law and put soldiers into the streets to back up the police in putting down citizen uprisings. Despots worry that, when push comes to shove, and protesting citizens don’t do as they’re told, soldiers may hesitate before firing on their fellow citizens—possibly including friends and relatives--for something as terrible as carrying signs of protest or failing to obey orders to disperse. If that happens, the despots are really in the soup.

Listening to the lawyer-less Mennonite farmer, Mark Nolt, cross-examine Anthony Russo, a Pennsylvania Department of Agriculture microbiologist-turned-undercover-agent, got me thinking about such encounters between citizen soldiers and their subjects. Russo, a lanky bearded fellow who has been with the agency 21 years, had just testified about two occasions when top PDA food safety official Bill Chirdon asked…no, demanded, that Russo accompany him on an “undercover” assignment. The undercover assignment involved going to a farmer’s market near the state capital of Harrisburg and purchasing raw dairy products from Mark Nolt so he could be put on trial.

Russo's first assignment came July 6, 2007, at a farmer’s market in Carlisle, and went off without a hitch, as Russo purchased a half gallon of milk and a quart of kefir, as Chirdon waited outside the market in a car. Presumably Mark would recognize Chirdon, and possibly endanger the well planned and highly coordinated operation.

“I asked (Mark) about the kefir, and he said there were 13 positive bacteria in it,” recalled Russo. The employee took the items back to the lab and confirmed they were, indeed, raw dairy.

A week later, Chirdon made the same request of Russo. This time, Russo hesitated. “Once again, it was a busy day at work,” recalled Rousseau. “He (Chirdon) asked me to go. He’s my boss, so I said I would go.” Rousseau purchased half a gallon of milk and some buttermilk, and brought them to his boss waiting outside the market.

When the judge asked Mark if he had questions for Russo, Mark inquired about who drove the car and where they parked on each occasion.

Russo answered, obviously uncomfortable about having to confront the victim of his subterfuge, because he then volunteered: “I was nervous about going. I don’t like doing that kind of stuff. I was hoping you weren’t there because I didn’t want to get any samples.”

After the trial, and the guilty verdict by Judge Day, several of the Mennonite women in the audience—easily identifiable by their bonnets and traditional dresses—approached Russo and thanked him for his honesty. He seemed touched, as well he should have been. He’s just a regular guy trying to do his job, avoid trouble, and eventually get a nice pension.

Interestingly, the guy who put Russo up to all this, Bill Chirdon, wasn’t present at the trial. It’s apparently the first time he hasn’t shown up at a court proceeding or a raid that Mark can recall. Maybe Chirdon didn’t want to be called as a witness and have to be cross-examined by Mark. Or maybe he didn’t want to face questions about the questionable seizure of equipment during the most recent raid he led on Mark’s farm. Or maybe he didn’t want to face the battery of television and other reporters who waited outside when the trial ended (see photo above).

Later, back at the Nolt farm in Newville, where the inventory in the store’s cooler is a bit thin, Mary Ann Nolt, still in her black bonnet and purple dress, expressed wonder at what she had seen at the trial. “I was sitting in the court room and there were all these important people there. They have these degrees. They were taking time from their busy day for this. We’re just a tiny speck. Why are we so important? Why are we a threat to them?…I wonder when they go home tonight. Will they feel they did an honest day’s work? Will they feel good about what they did?”

Tony Russo may well have gone home with the same feeling lots of people in that courtroom had. None of us worked very hard, but we all sure needed a shower.

The big surprise today wasn't that Mark Nolt was found guilty on four citations of selling raw milk without a permit, and fined $1,051 on each citation. That was nearly a foregone conclusion, since Mark refused to engage a lawyer.

No, the big surprise was the seriousness with which the Pennsylvania Department of Agriculture took the case against Mark, and the resulting show of force it put together.

The PDA had an attorney, Brook Deur, who brought with him three PDA employees as witnesses to testify against Mark. Two testified in detail how they purchased raw milk and other dairy products undercover from Mark on three occasions at farmer's markets in the central Pennsylvania area about 30 miles west of Harrisburg. A third witness, the head of the lab, testified both that Mark had refused to renew his raw milk permit as of September 1, 2006, and that the milk the other two witnesses had purchased from Mark at the farmers markets was, indeed, raw. 

Mark told me afterwards that there were at least two U.S. Food and Drug Administration agents in the audience of about 30 who crammed into the tiny courtroom in a nondescript single-story building in Mt. Holly Springs that houses the district court, along with a couple of businesses.

In addition, there were at least half a dozen Pennsylvania state troopers present, and likely other plain-clothese agents. The troopers handcuffed and arrested one of the approximately 150 protesters who gathered outside the court, Phil Beachy, a local farmer, for refusing to stand far enough off the highway that runs in front of the courtroom to suit their tastes.

The event also attracted probably eight or ten news media representatives--both newspaper and television reporters--mostly from the Harrisburg area, but at least one from Philadelphia.

When Judge Susan Day pronounced Mark guilty after a 90-minute session, she told him he has thirty days to appeal. He said he plans to, and in that case, will likely have a lawyer. More to come. (Thanks to Dwayne Haus, a local naturopath, who let me use his computer and its cell hookup, to file this report.) 

 

It’s tempting for many producers of raw milk to think that if they stay far enough under the radar, or off the grid, that they can escape the clutches of super-zealous regulators like Bill Chirdon of the Pennsylvania Department of Agriculture.

That’s what Nancy and Glen Wise of Elizabethtown, PA, thought five years ago when they acquired a couple cows and began selling raw milk, yogurt, butter, and cream—to complement the existing chicken and vegetable sales from their 23-acre farm. Gradually, the raw dairy business expanded, and they now have twelve cows and thriving dairy sales.

They didn’t want to deal with the state, its raw milk permit…and its prohibition on selling other raw-dairy products like yogurt, butter, and cream.

“We were hoping to do this quietly, selling to customers, and not making a fuss,” Nancy told me last week. “Now we are in a spot we don’t want to be in.”

The spot they are in is that last month they were sent three citations for selling “manufactured” raw dairy products, and also for selling raw milk without a permit. They are due in court in Elizabethtown (920 S. Spruce St.) on Tuesday, the day after Mark Nolt’s trial on Monday in Mt. Holly Springs. (The two towns are apparently within an hour of each other.)

It seems someone—perhaps another farmer, or a consumer afraid of raw milk—tipped the Pennsylvania Department of Agriculture to the Wises’ activities last summer. In September, a PDA agent came to a farmer’s market and gave Glenn an application for a raw milk permit.

But Glen felt he didn’t need a permit, since he and Nancy sold their products as part of an organization known as CARE (the Citizen’s Alliance for Responsible Ecofarming), which has several thousand members and serves as a private milk club. Each of the Wises’ customers must pay a $20 membership fee to join CARE.

The campaign targeting Glen Wise and Mark Nolt is part of a larger campaign against Pennsylvania raw dairy farmers, and coincides with the arrival of Bill Chirdon from Dean Foods as the state’s top dairy safety official in 2006. Sally Fallon of the Weston A. Price Foundation provides details of that campaign in a posting on Rep. Ron Paul’s web site. 

The larger point here may be that farmers involved in raw milk production need to stand together. It’s tempting for many to think that the raids and searches and citations are merely targeting dairies that are too publicity hungry or too uppity in challenging the authorities. I’m afraid it’s not like that. The regulators in many states are deadly serious about stamping out raw milk sales, and they’re following up on any and all tips from any and all individuals. They’re sending undercover agents to make purchases and infiltrate buying clubs and herd shares. It’s repression at its worst, but the larger point is that so long as farmers keep quiet while their brethren are being harassed, they are making life easy for the regulators.

I’ve been harping on the likelyabuse of Mark Nolt’s rights via execution of a search warrant at his Pennsylvania dairy last Friday when he was hauled off to court—the theft of a book, and other equipment possibly unrelated to the search warrant. I’ll come back to that in a bit.

But lurking in the background is another issue I have refrained from writing about. It’s one that’s come up repeatedly for me in speaking with producers of raw milk around the country: the black market in raw milk. Now that the New York Daily News is writing about it, I feel more comfortable discussing it. Indeed, I expect the subject to attract even more widespread attention very shortly from at least one other major media publication.

It seems that a good chunk of Mark Nolt’s raw dairy products have been winding up in Brooklyn. Now those customers are in a tizzy--one won't be able to make her cream puffs--because Mark’s production has been interrupted.

I would venture that the market in unregulated raw milk is possibly as large as that in regulated distribution and sales. I’ve heard it spoken about or seen it at work in states around the country—Florida, Massachusetts, Michigan, California, Washington, and, of course, possibly the largest outlet for black market raw milk products: the New York metropolitan area. A number of individuals commenting on this blog have referred to it as well, usually in hushed or clipped tones.

I’ve refrained from writing about it because I haven’t wanted to get raw-milk dairies into more trouble than many of them already face. I know that state agriculture officials around the country read this blog—I’d like to think it’s because they want to educate themselves, but I know that it’s more often because they’re looking for intelligence in their monitoring of the hundreds of small dairies that brave the forces of repression to produce their milk.

I’ve always assumed that one day the story would come out, but I didn’t want to be the one that broke it, and thereby interfered with the marginal livelihoods of small dairies, as well as possibly launching a nation-wide crackdown on raw milk, and thereby interrupting the supplies that so many individuals depend on. But now that another publication, with a more distant view of the entire situation, has done it for me, well, it’s relieved at least some of the pressure I felt.

I also feel that once this black-market story begins to come out, it could act as a positive force. The larger mass of consumers than read this blog are more likely to be outraged by some upset in their personal lives than in the abridgment of the rights of one or another dairy farmer. Rightly or wrongly, that’s the reality of life in America today.

But if this ripple effect from Mark’s arrest Friday does lead to outrage, there is a near-term way to express it: come to his trial at 9:30 Monday morning. The courthouse is at 229 Mill St. in Mt. Holly Springs, which is about 18 miles southwest of Harrisburg.

Bob Hayles, the owner of a Georgia goat dairy, stated in his comment on my previous posting that he intends to drive up. He told me further yesterday that he’s going to be selling raw goat’s milk outside the courthouse, and would like to have lots of company from other raw milk producers doing the same thing. He also said he’s going to try to obtain an arrest warrant for Bill Chirdon, the PDA milk safety official who executed the search warrant on Mark Nolt’s dairy, for theft. It could be an interesting time.