The Complete Patient

The Pennsylvania Department of Agriculture must feel on solid ground. The press person there was cordial and forthcoming to my requests for information. The only question he had some trouble dealing with was about why Bill Chirdon, the PDA food safety guy, confiscated a copy of the Joel Salatin book, “Everything I Want to Do Is Illegal” from raw milk farmer Mark Nolt during the PDA's raid on his farm Friday.

“We did seize one book,” the official told me, the Salatin book. “I don’t have any other information on that.”

When I pressed him that the seizure seemed weird, he said that Chirdon “will be glad to give it back to him on Monday” at the court hearing. But why was it taken in the first place? At that point, he resorted to euphemisms and legalisms: “It was taken as evidence. We can’t go into the details as to how it might be used.” Yeah, maybe they’re going to use it at PDA to supplement the new-employee orientation program.

Chirdon likely didn’t expect anyone to even notice his act of arrogance and condescension in swiping the book. It’s definitely not allowed for in the search warrant, which PDA sent me as well. That provides for search and seizure of product, equipment, containers, and records related to bottling and packaging, but not for books (or cream separators, either).

A few other items of interest in the search warrant:

--Chirdon claims dairy expertise because “I was a plant manager at Hershey Foods for twenty years and also the plant manager at Dean Foods for five years. In those jobs, I gained extensive experience in milk and dairy manufacturing, processing, and sales.” Yes, those sound like just the qualifications to help guide consumers in their dairy journeys. Those Hershey bars and Kisses are made from only the purest and freshest of dairy products, with a keen eye on nutrition.

--PDA on several occasions used its agents to go undercover and make purchases from Mark “of the raw milk on display, which was lab tested by PDA’s Food Safety Laboratory and confirmed to be raw milk.” I wonder if they had to call in the FBI for definitive confirmation.

--PDA seems to have chosen to look the other way for about eight months while Mark resumed selling raw dairy products after the agency’s last raid in August. “From 8/10/07 through 3/8/08, the Department did not possess evidence that Nolt was continuing to sell milk and manufactured dairy products made from raw milk…” Presumably PDA had bigger fish to fry, other raw dairies to shut down.

I know a number of readers think Mark Nolt is going at this correctly by not seeking legal representation, and claiming the state doesn’t have jurisdiction. I find it kind of frustrating, since an experienced lawyer could almost certainly find a number of flaws in not only the search warrant procedure, but the state’s approach to the entire matter. Which helps explain why the state is as confident as it is.

One of Mark Nolt’s lasting images from last Friday’s raid of his farm by the Pennsylvania Department of Agriculture, is of Bill Chirdon, the top PDA food safety official, walking off with a copy of Joel Salatin’s book, “Everything I Want to Do Is Illegal.”

Of course, that’s not the only lasting image. There are also the images of half a dozen police cars “coming in like a bunch of Vikings” last Friday morning, recalls Mark. And of Chirdon and his henchmen from the PDA, armed with a search warrant, confiscating up to $50,000 worth of dairy products and equipment. The worst was the equipment, says Mark, including a stainless steel cream separator, cheese-making tools, and valves for the vats, along with all the milk jugs. “A lot of it is older equipment—they don’t make the small dairy equipment any more.”

But the most curious was the seizure of Joel Salatin’s book, which recounts Joel's run-ins with state and federal regulators who have made life miserable on his Virginia farm over the years. Mark sells the book from the farm (“I’ve sold quite a few of them”). “I just wish we had a photo of him leaving with the book,” says Mark. “I think he must have a sense of humor.”

I think Mark is quite generous to Chirdon. To me, there’s something obscene about Chirdon, who’s spent the last year harassing Mark Nolt and many of Pennsylvania’s raw milk farmers through discovery of pathogens that never make anyone sick on more than half a dozen dairies, just walking off with the book. It’s almost as if he’s mocking Mark and the other farmers Chirdon is trying to drive out of business. In fact, I don't get the entire equipment-seizure part at all. If Mark is violating some law, then shouldn't he be charged with violating the law and tried for that? Isn't the seizure of equipment, and books, simply arbitrary and harassing?

As Mark says, “One thing we’re all clear on is that this is not about food safety.”

No, this is a struggle over freedom and rights. Mark doesn’t want to say what his legal approach will be when his trial comes up next Monday.

Mark is convinced Pennsylvania’s raw milk permitting doesn’t apply to people like him, who are engaged in private transactions with individual consumers. My guess is that while he could well be found guilty of violating PDA regulations by refusing to operate with a raw milk permit, officials will try to avoid putting this father of ten children into jail and turning him into even more of a cause celebre. Instead, they will likely try to drag the process out and bleed him financially via more product confiscations and other such harassment.

In such a situation, a PR and lobbying campaign could make a huge difference. When it comes to civil disobedience, the step that helps most is for others to join in—in this case, for other farmers to similarly refuse to obtain permits. There are any number of other Pennsylvania farmers who have refused to obtain permits, but haven’t been willing to stand up as Mark has done. That’s been the situation in other states as well, including New York and Michigan, for the simple reason that most farmers feel they can’t afford to jeopardize their businesses and properties in the interests of a cause. The state is okay with that, preferring to set an example of Mark to intimidate the others to come around. But the next worst thing from their viewpoint is for Mark to become a cause celebre, so the best option for opponents is to take Bob Hayles’ great suggestions (following my Friday post about Mark), and make sure Mark does in fact become a cause celebre, via press releases, calls to legislators and PDA's office (number on the page I link to in the first paragraph), and attendance at his trial Monday (per Don's advice following my previous post about California).

In the meantime, Mark says he will continue milking his cows and supplying his customers. Maybe Bill Chirdon will do some reading to prepare on his end.

Today was supposed to be the day a California superior court judge decided heard arguments on whether to turn a temporary restraining order barring implementation of AB1735's coliform standard into a more extended preliminary injunction.

After more than four hours of arguments and testimony, the proceedings weren't anywhere near completion, so the judge, Harry Tobias, extended the temporary restraining order he ordered last month for another three weeks, until May 16, when the parties will meet again at a courtroom in Hollister. "We're kind of like at half time," Gary Cox, the Farm-to-Consumer Legal Defense Fund attorney representing plaintiffs Organic Pastures Dairy Co. and Claravale Farm  told me after the session.

During today's session, Gary and the lawyer representing the California Department of Food and Agriculture argued over procedural matters--primarily whether witnesses should be allowed to testify. In the end, the judge allowed two plaintiff witnesses--Ted Beals, a pathologist, and Ron Hull, a microbiologist--to testify.

As they had at the California Senate hearing on raw milk last week, the two experts testified about the role of bacteria in both triggering and protecting against illness, and how different bacteria play different roles in the human body. They cited research about the importance of probiotics in strengthening immunity.

At the May 16 hearing, the state will be allowed to cross-examine Ted and Ron. It will also be allowed to present its own witnesses. As usual, these matters take longer than expected. The good news, in addition to the extension of the TRO, is that the judge is getting to hear lots of research about the science behind both raw milk and pasteurized milk. That can only help, right?

The State finally came for Mark Nolt, the Pennsylvania dairyman who refused to obtain a raw milk permit, and continued selling raw dairy products from his Nature's Sunlight Farm.

A constable dispatched by a Pennsylvania District Court served Mark with an arrest warrant this morning and brought him to the court, where he was ordered to appear May 5 for a summary trial before a judge. According to a clerk I spoke with at the court, Mark was arrested in connection with five citations dating from last July for selling milk without a license. He has incurred a total of $5,100 in fines and costs, she said. 

According to reports from neighbors and the Farm-to-Consumer Legal Defense Fund, several officials of the Pennsylvania Department of Agriculture participated in the raid, and while Mark was being transported by police car to the courthouse, PDA officials confiscated $20,000 to $25,000 worth of dairy products and production equipment. Neighbors reported the farm had been closed and that a large group of officials had gathered, with videos prohibited. The clerk reported, at the time I spoke with her at 2 p.m., that Mark had already left the courthouse to return home.

I reported on Mark last August, when a group of ten state police and agents from the Pennsylvania Department of Agriculture (PDA) and the U.S. Food and Drug Administration (FDA) descended on the 100-acre farm in Newville, and confiscated about $25,000 worth of Mark's raw milk products, along with packaging and equipment. Mark told me at the time that he had voluntarily given up his raw milk license because it prohibited him from selling the other raw dairy products his customers want, like butter, cream, and yogurt.

Mark's case is similar to that involving Meadowsweet Dairy LLC in New York, in that both Pennsylvania and New York allow raw milk sales, but adamantly oppose the sale of other raw dairy products. As I've reported, New York has gone after Meadowsweet owners Barb and Steve Smith with a vengeance. In the case of Mark Nolt, the state appeared to back off because he is a Mennonite who based his resistance in part on his religious beliefs. That has changed, as Pennsylvania now seems determined to close the case. But I would guess Mark will make the same argument to the judge that he made to me last August.

Does the fact that raw milk is a much different product from pasteurized milk mean that it must distributed and sold differently as well?

That question seems to underlie the debate about Organic Pastures Dairy Co. and its use of unpasteurized cream and colostrum from other dairies. Many people seem shocked that Mark McAfee has used products from other organic dairies, even though he has previously discussed it publically in print. He discussed his use of outsider cream on this blog, in connection with the state’s discovery of listeria monocytogenes in a sample, last September.

He also made reference to his use of subcontracted colostrum on his own site last month in a response to a San Jose Mercury News article.

Amanda Rose says in her comment on my previous post that the E.coli 0157:H7 that sickened children in September 2006 might have come from an outside dairy and somehow contaminated the dairy, such as via the bottling equipment. I asked Mark earlier today whether that was a possibility, and he says that, if it did, the California Department of Food and Agriculture would likely have found something in the two weeks of tests conducted at Organic Pastures after the recall that September. “The state did two back-to-back series of 350 tests, over 700 tests” on all the dairy’s equipment and supplies—bulk tanks, bottling equipment, packaging, pipes, tubing, and so forth—and came up empty.

“No one know where those pathogens came from,” he told me. “Some of us believe it was spinach” caused by “another strain” of E.coli 0157:H7 in addition to that confirmed to have sickened more than 200 consumers of packaged California spinach. And, of course, some people believe it was his milk, or possibly milk brought in from elsewhere.

Mark feels there’s no purpose to be served in continually dredging up the matter, since there’s no way of coming up with a conclusive answer at this point. “It’s tilting at windmills,” he added. In the meantime, he has sworn off using any outside products, and says he is within days of adding 150 milking cows to the 250 milkers he now has, to increase his dairy supply. (The photo above shows Organic Pastures' cows corraled and waiting for their milking turns on an evening last week, when I visited.)

There’s a bigger issue, he argues, and it’s one I’ve been thinking about in recent days based on the concerns expressed here that because Organic Pastures is so large, it is inviting the same kinds of problems that come up at conventional large farms that compromise quality to maximize profits. That issue is whether raw milk can be distributed and sold by dairies varying widely in size from very large, like Mark’s, to very small, like Bob Hayles’.

And, if so, should they all be subject to the same kind of regulations, like the HACCP (hazard analysis and critical control point) risk reduction program being discussed to partly replace AB1735?

These aren’t questions unique to the raw milk business. They come up in all kinds of industries. Small manufacturers, for example, are often exempted by state and federal legislation from certain environmental and safety regulations in the interests of sparing them huge costs, and trusting them to self regulate. As mothership suggests on my previous posting, small California raw milk producers could easily label their products to say they haven't been inspected.

But even when regulation isn’t an issue, businesses market themselves based on size. Local hardware stores try to convince consumers to avoid the impersonalization of Home Depot outlets.

Mark argues that the market can support a variety of raw milk producers. He feels the only way raw milk can be shown to be effective in building health “is to have it in all the stores…I want to change mainstream America. I’m a participant in mainstream America. This idea of staying under a rock is not what I want to do.”

People who want to buy their milk directly from the farm should do so as well. “You could have three-cow farms, ten-cow farms, 50, 500,” he says.

That vision is very appealing--the kind of freedom many here have been demanding. But it definitely won’t be easy to get to that point. Raw milk is a sensitive product, being sold within a not-very-tolerant food system. And the producers differ widely as well.

But we’re a nation of choices, and why should the situation be different with natural food products. There are many consumers who will only buy their milk from a farmer they know, and advocate that others do the same. And then there are people out there like the Central Valley Mom, who in her comment on my previous post indicated she's willing to give Mark wide latitude. “I just want my raw milk.”

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Almost lost in the uproar about Organic Pastures’ use of subcontracted products is the fact that it and Claravale Farm have a court date tomorrow. Mark McAfee had expressed hope the good will growing out of the California Senate raw milk hearing last week might even lead to a delay, to see whether the main issue in the suit, AB1735 and its coliform standard, might be rendered moot. No such luck, so the hearing tomorrow about whether to turn the temporary retraining order granted last month into a preliminary injunction is on.