Updates: Hartmann Case, Minnesota
by Pete Kennedy, Esq., President, The Farm-to-Consumer Legal Defense Fund
Update, Spring 2011
On December 20, Judge Rex Stacey issued his long-delayed decision on the petition of the Minnesota Department of Agriculture (MDA) to condemn food embargoed at the Gibbon farm of Michael and Diana Hartmann, granting the petition and ordering the embargoed product to be destroyed within thirty days. [See Wise Traditions Summer and Fall 2010 issues for background.]
In a memorandum accompanying his decision, Judge Stacey found that “eight people became ill with the same, rare strain [of E. coli O157:H7]. The only commonality among these eight people was that they all consumed Hartmann products within days of becoming ill. This same, rare strain of E. coli was present in samples taken from the Hartmann farm.” The judge dismissed the Hartmanns’ argument that no food product on the farm tested positive for E. coli O157:H7 and found that the environmental samples taken from the farm testing positive for the rare strain of E. coli were sufficient proof of adulteration to grant the condemnation order.
Judge Stacey held that the Minnesota Constitution exempted those farmers selling or peddling the products of the farm from licensure but not from other regulatory requirements.
Two weeks after the judge’s decision, when MDA inspectors went to the Hartmann farm to destroy the embargoed product, they found that most of the embargoed food was gone. On January 12, MDA filed a petition with Judge Stacey to find Hartmann in contempt for, among other grounds, disposing of embargoed product without MDA being given advanced notice and without the products being disposed of in the department’s presence. What MDA did not mention in its contempt motion was that the department had given Hartmann written permission on June 16, 2010 to remove any of the embargoed food for family use. A hearing on the MDA motion was set for March 10.
In addition to the charge for contempt, MDA had also initiated an administrative procedure against Hartmann for numerous alleged violations of state law that could ultimately lead to criminal charges being brought against the farmer. Potential charges could include violations of the Minnesota Consolidated Food Licensing Law, the Minnesota Food Law, the Minnesota Meat and Poultry Inspection Act and the state dairy code.
The extent to which MDA is willing to go to put Hartmann out of business is shown by their actions against Rae Lynn Sandvig, a Bloomington raw milk consumer whose residence had been a longtime drop site for the Hartmann farm.
Last June MDA and Bloomington city officials executed a criminal search warrant at the residence of Rae Lynn and her husband Greg. In December MDA followed up by sending a letter to Sandvig informing her that the department had “scheduled an administrative meeting concerning your sales of food, your actions assisting in the sale of raw milk from your home in Bloomington, Minnesota, and the sale of food from the Traditional Foods Warehouse [TFW].” TFW is a private buyers club located in Minneapolis. [See Wise Traditions Fall 2010 issue for background.]
The letter goes on to state, “This administrative meeting is your opportunity to be heard before the department decides what, if any, enforcement action it will take against you for operating a food business without a license, selling raw milk, and selling food from unapproved sources…. The meeting is to allow you due process before the department proceeds with further enforcement action. This could consist of criminal prosecution or administrative penalties.”In January Sandvig met with MDA officials; the department has not yet indicated what course of action, if any, it plans to take against Sandvig.
The reason for MDA threatening Rae Lynn Sandvig is its desire to put Hartmann out of business. The Hartmann farm is located about ninety miles from the Twin Cities, where most of the farm’s customers reside. The Sandvigs are one of a number of drop sites the Hartmanns use to distribute their products in the Twin Cities area; MDA raided another drop site on December 6, embargoing over one hundred gallons of milk it found in Roger Hartmann’s truck at the site. If MDA is able to shut down the distributing points, it would be much more difficult for the Hartmann farm to remain in business even if the farm did survive any further action taken against it by the state. Many of the farm’s customers could or would not drive to the farm to pick up raw milk or other products. The threatened prosecution against Sandvig could create a chilling effect on the other drop sites so that they will no longer make their property available to the Hartmanns for food distribution.
Update, Fall 2010
The Minnesota Department of Agriculture (MDA) has continued its efforts to limit the sale of raw milk in the state, with the department’s focus centering on the farm of Michael and Diana Hartmann in Gibbon [see Wise Traditions Summer 2010 issue for background]. On June 16, inspectors from MDA along with law enforcement officials executed a second criminal search warrant against the Hartmann farm, embargoing all meat and dairy products that inspectors found on the farm that had not already been embargoed during a prior raid on May 26. The inspectors also issued the Hartmanns an order to cease selling all products of the farm except poultry and eggs.
While the inspectors were at the farm, they took numerous samples for pathogen testing. MDA tested the samples for all the major pathogens except E. coli O157:H7—an interesting decision since MDA had publicly declared that raw milk from the farm allegedly tainted with E. coli O157:H7 had been responsible for making at least eight people ill. MDA had publicized the results showing the strain of E. coli O157:H7 found in manure and environmental samples taken on the Hartmann Farm was indistinguishable from the strain found in stool samples taken from the sick individuals. Why didn’t the state test for a pathogen responsible for the illness claimed to have been caused by the farm? Was this because a negative test for E. coli would overturn their order to the Hartmanns prohibiting the sale of meat and dairy products?
MDA followed up on the embargo orders by petitioning the Sibley County Court for a condemnation order so that the embargoed food could be destroyed. The Hartmanns and their attorney, Zenas Baer, took advantage of the petition by filing a counterclaim that asked for the embargo and the order not to sell any products except poultry and eggs be lifted. From mid-August into the beginning of September, a marathon series of hearings on the condemnation petition took place at the Sibley County Courthouse. The state’s strategy was to persuade the court that the embargoed food should be destroyed due to unsanitary conditions at the farm—not because E. coli O157:H7 was found in samples taken there.
The Hartmanns and MDA were not the only parties to the case. An organization called The Foundation for Consumer Free Choice (FCFC) as well as individuals who were customers of the Hartmanns successfully moved to intervene as third parties. FCFC consisted of many of the Hartmanns’ customers; the individuals were customers whose names were on specific products embargoed by MDA and they wanted those products released by the judge to them. The enforcement actions taken by MDA were not only against the Hartmanns but also their customers. On June 10, MDA and local government officials as well as three plain-clothes policemen executed a criminal search warrant at the private residence of a family whose “crime” was to let the Hartmanns use their residence as a dropsite to distribute products to the farm’s customers. The family neither handled money for the Hartmanns nor distributed any products for the farm, but that didn’t stop the MDA and local government officials from searching their refrigerator. The family later found out that one of the MDA officials present during the search had interviewed four of their neighbors, attempting to get incriminating statements from them about the family.
On June 15, shortly after the raid on the private residence, officials from MDA and Minneapolis Health Department paid a visit to the Traditional Foods Warehouse (TFW); the store features foods made by local small-scale producers and is open only to members of a private buying club. The officials conducted an inspection and wound up embargoing every single food item in the store. The officials left an order with the store owner, prohibiting TFW from reopening until a food establishment permit had been obtained from the Minneapolis Health Department.
There was no need for MDA to treat the warehouse like a criminal enterprise. TFW had made no secret of its existence; the Minneapolis Star-Tribune had run two major stories on it since TFW’s opening in September 2008. There had never been a single complaint filed against the warehouse. MDA could have made its position known without having to embargo every food item in the warehouse.
Despite attempts by TFW’s principal owner to cooperate and get licensed, as of the second week in September, the warehouse had not been issued a permit and remained closed to its members. Some of the embargoed food had been released to its owners and some had been destroyed; yet thousands of dollars of food remained embargoed at TFW.
Update, Summer 2010
On May 26 officials from the Minnesota Department of Agriculture (MDA), the Minnesota Department of Health (MDH), along with the Sibley County Sheriff and eight armed deputies, set foot on the farm of Mike and Diana Hartmann to execute a criminal search warrant. The officials were at the farm for more than six hours and embargoed (i.e., ordered the Hartmanns not to sell existing inventory) thousands of dollars in meat and dairy products as well as ordering the Hartmanns to discontinue the sales of any product whose production, processing or sale was not in compliance with applicable law. The officials also collected samples of various dairy products as well as fecal samples of the farm animals for testing.
The reason MDA and MDH obtained the search warrant was that the agencies suspected raw milk produced at Hartmann’s farm was responsible for three cases of E. coli O157:H7 illness. According to an MDH press release issued the same day the warrant was executed, the department was investigating a cluster of four E. coli O157:H7 illnesses that all have the same DNA fingerprint, with three of the four cases reporting a link to raw milk from the Hartmann farm (including a toddler that had developed HUS and was hospitalized). What evidence in the opinion of MDH constituted a direct link was not clear.
In a public statement issued on behalf of the Hartmann family several days after the MDH press release, the statement disclosed that the Hartmanns had been able to contact two of the four people reportedly diagnosed with E. coli O157:H7; of these two, neither had consumed raw milk products produced at the Hartmann farm. The family had received no information from any of their customers about any illness. In fifteen years of providing healthy food to its customers, there has never been an instance where the farm has been blamed for causing any illness.
The MDH press release triggered a rush to judgment to convict the Hartmanns in the media without any evidence. Neither MDH nor MDA had specified what they had linking the illnesses to the dairy, nor were any test results available from the samples taken at the farm, but that didn’t stop the media from doing the bidding of the agencies. A May 27 Minnestota Star Tribune story blared that “a Minnesota toddler has been threatened with a life-threatening illness and three other people have been sickened by E-coli-tainted raw milk.” An Associated Press wire story from the same date began, “The Minnesota Department of Agriculture will likely crack down on illegal raw milk sales after four people got sick from unpasteurized milk tainted with e-coli.” As the Hartmann’s press release stated, “Regardless of the manner in which this matter is resolved, one has to be concerned about the motivations of state regulators who choose to conduct their prosecution of milk producers through the media.” MDH issued a subsequent press release on June 3 that stated the “strong epidemiological link [to Hartmann Dairy] is now reinforced by the laboratory confirmation that the specific strain of E. coli O157:H7 found in the ill patients has also been found in multiple animals and at multiple sites on the Hartmann Farm.” There was nothing in the press release indicating that the pathogen was found in any milk sample tested by the department. MDH did not pass up an opportunity to attack raw milk in the press release; Minnesota Health Commissioner Sannemagnan was quoted in it as saying, “Raw milk presents a serious health risk. This risk isn’t a matter of personal opinion; it’s an established scientific fact.”
There were other motivations besides protecting the public health, for MDA and MDH to publicize the Hartmann investigation the way they did. The demand for raw milk in Minnesota, like elsewhere in the country, has grown substantially in recent years, with a number of raw milk dairies starting up in the state to meet the demand. The E.coli outbreak presents an excuse for MDA to crack down on raw milk sales. The Hartmann farm is the best known raw milk dairy in the state; strong enforcement action against the Hartmanns could have the desired chilling effect for MDA on the state’s other raw milk dairies. Further, an enforcement action against the Hartmanns would be a measure of revenge against an adversary that has battled MDA numerous times over the past ten years. In 2005, the Hartmanns won a major victory against the department when the Minnesota Supreme Court ruled that the family could sell the products of the farm including meat products without having to obtain a permit from MDA. In attempting to limit the sale of raw milk in the state, MDA is relying on a statute in the state dairy code providing that raw milk and cream can only be “occasionally secured or purchased for personal use by any consumer at the place or farm where the milk is produced.” In contrast to the statute, the Minnesota Constitution has a section providing that “any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.” The constitutional provision has no limitation on how much can be sold or where the sales must take place. When MDA had finished inspecting the Hartmann farm on May 26, they issued the family an order requiring that the Hartmanns cease delivering raw milk and that they only make occasional on-farm sales to consumers. The order is in violation of the state constitution and should be struck down.
Pete Kennedy is an attorney from Sarasota, Florida and president of the Farm-to-Consumer Legal Defense Fund (www.farmtoconsumer.org). He compiled the state milk laws posted at realmilk.com. He advises many farmers and members about legal issues surrounding raw milk.
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