Dan Allgyer, Pennsylvania
December 24, 2012New Wyoming Herdshare Regulation
December 24, 2012By Pete Kennedy, Esq.
On August 15, Freeport farmer Alvin Schlangen was convicted by a Stearns County jury on five counts for violations of the Minnesota food and dairy code. The five charges against him were (1) operating without a food handlers permit, (2) distributing misbranded food, (3) not storing eggs at the correct temperature, (4) selling custom processed meat, and (5) violating an embargo order (i.e., removing food that had been taped by the Minnesota Department of Agriculture during a 2010 raid on Schlangen’s farm). After the jury announced its verdict, Judge Vicky Landwehn sentenced Schlangen only on the food handlers permit charge and gave him a $1,000 fine (with $700 suspended), a suspended 90-day jail term, and one year’s probation.
Last September, Schlangen had been acquitted in Hennepin County for three violations of the state food and dairy code, with two of the charges being the same as the ones he faced in Stearns County (i.e., not having a food handlers permit and distributing misbranded food).
Schlangen is a volunteer manager for the Freedom Food Coop (FFC) delivering raw milk and other nutrient-dense foods to members of the private food buyers club. Unlike the Hennepin County case, the Stearns County trial concerned events before Schlangen started FFC. The Stearns County verdict did nothing to contradict the Hennepin County jury’s finding that the farmer’s deliveries to the FFC buyers club members did not violate the law.
Stearns County Prosecutor William MacPhail built a successful case against the farmer by falsely insinuating that the raw milk Schlangen provided a family was responsible for making their child sick with campylobacter poisoning even though MacPhail knew there wasn’t a shred of evidence that the raw milk was the cause of the illness. The prosecutor had a Minnesota Department of Health veterinarian testify at length about foodborne illness while never connecting any illness to the food Schlangen delivered. MacPhail was looking to put doubt in the jurors’ minds about whether an unregulated farmer should be delivering food even if the farmer had a perfect track record for safety.
The one conviction the Minnesota Department of Agriculture (MDA) wanted the most was on the food handlers charge; it was the grounds for the department exercising control over Schlangen’s private distribution of food. Forcing the farmer to obtain the food handlers permit would mean that Schlangen would not be able to deliver raw milk to the club members—a point both he and FFC witness, Kathy Johnson, made in their testimony at the trial. Even though MacPhail withdrew a charge of selling raw milk before the trial began, the case was—as Schlangen’s attorney, Nathan Hansen, said—ultimately about raw milk. Schlangen has not decided whether he will be appealing his conviction.
In addition to the Stearns County conviction, an administrative case involving the farmer concluded in July with the judge recommending that MDA order Schlangen to stop delivering food unless he obtained a food handlers permit; MDA Commissioner Dave Frederickson adopted the recommendation. Violation of the order could be grounds for a future criminal or civil action against Schlangen.
The state of Minnesota’s persecution of Freeport farmer Alvin Schlangen continues. Despite being acquitted on all charges against him by a Hennepin County jury in September 2012, Schlangen is still facing a criminal trial sometime this spring in Stearns County on six misdemeanor counts for alleged violations of the state food and dairy code; three of the charges are the same ones of which he was acquitted in Hennepin County (see Wise Traditions Winter 2012 issue for background). On February 6, Stearns County Circuit Court Judge Thomas P. Knapp rejected a motion filed by Schlangen’s attorney, Nathan Hansen, to have the three charges dropped; Hansen argued that the charges should be thrown out because they amount to “serial prosecution.” In a brief opposing Hansen’s motion, Stearns County prosecutor William MacPhail characterized the unregulated food the farmer delivers to the members of Freedom Farm Co-op (FFC) as a “controlled substance.” Schlangen serves as the volunteer manager for the co-op.
The Stearns County charges against Schlangen are for illegally (1) selling raw milk, (2) selling food without a food handler’s license, (3) distributing adulterated and/or misbranded products, (4) selling custom processed meat by the cut, (5) not storing eggs at the proper temperature, and (6) violating a hold order placed on food stored at his farm during a June 2010 raid conducted by the Minnesota Department of Agriculture (MDA).
Aside from the criminal trial, Schlangen has an ongoing administrative case with MDA as well. The department is seeking an order suspending the farmer’s deliveries to the buyers club. The administrative proceedings have been contentious. In order to make their case, MDA has to show that the farmer is not just delivering to members of a private club, but is selling to the general public. MDA inspector Jennifer Ericksen submitted an affidavit stating she placed a food order on FFC’s website, failing to mention that she never paid for nor received the order—the website was simply a convenience for actual members of the club. Hansen, who is also representing Schlangen in the administrative case along with FTCLDF general counsel Gary Cox, has asked the judge to reject Ericksen’s affidavit because she lied by omission.
In a great victory for freedom of food choice, a six-member jury found Freeport, Minnesota farmer Alvin Schlangen not guilty on three criminal misdemeanor counts for violations of the state food and dairy code.
The case was referred by the Minnesota Department of Agriculture (MDA) to the Hennepin County District Attorney’s office. MDA alleged that Schlangen illegally (1) sold raw milk, (2) sold food without a food handler’s license, and (3) distributed adulterated and/or misbranded products. A fourth charge on a labeling violation was dropped at the beginning of his criminal trial.
Schlangen, a volunteer manager for the Freedom Farms Coop (FFC), was raided by MDA twice in 2010 and once in 2011; the department seized thousands of dollars worth of the members’ food. The charges against Schlangen stemmed from a March 2011 raid in which MDA impounded Schlangen’s truck and confiscated all of the club members’ food on it.
The cooperative has leased farm animals and pays for their care. As the managing member of the co-op, Mr. Schlangen provides a service by delivering nutrient-dense food to FFC members.
The courtroom was packed with members of FFC throughout the three-day trial. At one point, Judge Robert Small commented how well behaved the children in the courtroom were. When a spectator at the trial responded, “It must be the raw milk,” the judge said, “I didn’t hear that.”
In an interview with journalist David Gumpert, jury foremen Eric Hemingway stated that the prosecution did not prove its case, noting that Schlangen distributed but did not sell food and that no one became sick from the food he distributed. Also significant was the fact that when the jury asked during its deliberation whether cow shares (referring to the FFC’s herd lease agreement) were legal neither the judge nor prosecutor Michelle Doffing could give them an answer.
Schlangen still faces a second criminal trial in Stearns County, Minnesota, on six misdemeanor counts for alleged violations of the state food and dairy code. The courageous farmer is also in the middle of an administrative case with MDA in which the department is seeking an order to stop his deliveries.
Schlangen has never wavered in his determination to connect families with nutrient-dense food; none of the enforcement actions against him has stopped the farmer from pursuing this goal. His acquittal has galvanized the food rights movement across the country.
Trials for criminal charges against Freeport poultry farmer, Alvin Schlangen, in Hennepin and Stearns Counties, were rescheduled. The Hennepin County trial for four alleged violations of the state food and dairy code was rescheduled to begin on September 17, 2012; the Stearns County trial on six alleged violations of the food and dairy code is set to begin October 9 (see Wise Traditions Summer 2012 issue for background). In addition to the criminal trials, Schlangen is also a party to an administrative hearing in which the Minnesota Department of Agriculture (MDA) is seeking an order suspending Schlangen’s sales for eleven alleged violations of the state food and dairy code; a hearing on the matter has been scheduled for December 4. The discovery phase of the case has been underway since the winter with MDA trying to get information from Schlangen relating to the operation of food buyers clubs the farmer has managed in the past and present. Schlangen requested a stay of the case from administrative law judge, Manuel Cervantes, on the grounds that evidence disclosed in the administrative matter could be subsequently used against him in the criminal case, destroying his fifth amendment privilege; the judge denied the request and, instead, issued a scheduling order for the case. MDA would likely use an order suspending Schlangen’s sales as a pretext for seeking fines or possibly further criminal charges for future conduct the department regarded as violating the food and dairy code.
MDA’s treatment of Schlangen and Hartmann amounts to nothing more than bullying farmers who have stood up to the department’s efforts to restrict food freedom in the state in an attempt to discourage other farmers from doing the same. Minnesota remains the most draconian state in terms of raw milk enforcement.
Update, Summer 2012: See combined Schlagen/Hartmann updates in MDA Crackdown
On August 2, 2011 Alvin Schlangen, a poultry farmer and manager of the Freedom Farms Coop, was charged with four criminal misdemeanor counts for violating state food and dairy laws. The charges were selling milk that wasn’t pasteurized, selling milk that wasn’t properly labeled, selling food without a food handler’s permit and selling and delivering adulterated or misbranded food.
Freedom Farms Coop leased a herd of dairy cows from a farmer in the state; Schlangen delivered raw milk produced by the herd as well as raw milk products to the members of the coop. According to the Minnesota Department of Agriculture (MDA) raw milk could only be obtained by consumers at the farm, it could not be delivered to them; only pasteurized milk could be legally delivered. In MDA’s view delivering raw milk was also a violation of both the milk labeling statute and the law prohibiting the delivery of misbranded food. Aside from the raw dairy products, Schlangen delivered to the coop members other products such as meat and produce as well. The department’s position was that he needed a permit to do so even though the farmer does not distribute any food to the general public. Under the Minnesota Constitution any products grown and cultivated on the farm don’t require a permit (in Schlangen’s case, poultry and eggs); with regard to any foods not grown on the farm, the department made no distinction between public and private.
Prior to the charges being filed against Schlangen, MDA raided the farmer three different times. On June 15, 2010, the department conducted a warrantless search of space Schlangen rented at the Traditional Foods Warehouse in Minneapolis embargoing all the food he stored at the facility. The following week on June 23, MDA raided Schlangen’s farm in Freeport, again embargoing all food it found on the premises. On March 9, 2011 Schlangen was stopped by St. Paul police while making a delivery in that city and had his truck towed to MDA headquarters. Almost all the food in the truck was seized and embargoed by the department. That same day the department raided the Traditional Foods Warehouse facility again seizing all the food stored there by Schlangen (see Wise Traditions Summer 2011 issue).
The state’s enforcement actions against Schlangen haven’t moved the courageous farmer to back down at all against MDA. He remains committed to providing quality food to the members of Freedom Farms Coop. His trial is set for May 14; if there is justice, MDA’s police state tactics will be on trial as well.
Update, Summer 2011–Schlangen and Hartmann Cases
On March 9, Alvin Schlangen, a poultry farmer and manager of the Freedom Farms Coop, was stopped by the St. Paul police and a Minnesota Department of Agriculture compliance officer, Jim Rutger, while making a food delivery to buyers club members near the campus of Macalester College. Schlangen’s truck was towed to MDA headquarters, and almost all the food in the truck was embargoed by the department. Later that day, MDA officers went to the Traditional Foods Warehouse in Minneapolis, seizing and embargoing all food Schlangen stored in space that he had rented at that location. MDA offered to release some of the embargoed food that day if Schlangen purchased a mobile food retail license; the farmer refused, claiming that his distribution of food to buyers club members was not subject to MDA jurisdiction. The department seized over five thousand dollars worth of food. Schlangen has requested an administrative hearing to contest the legality of the seizure, which is yet to be held.
The day after the raid, MDA’s main target, Gibbon farmer, Mike Hartmann, won a round against the department when Sibley County Judge Rex Stacey ruled that Hartmann was not in contempt of court for disposing of food on his farm that had been embargoed by the department in 2010. (See Wise Traditions Spring 2011 issue for background.) With the department’s consent, the Hartmanns had been allowed to remove the embargoed food for family use. MDA was seeking to collect over eleven thousand dollars in fines from Hartmann for being in contempt.
In their fight with the state, both Schlangen and Hartmann have received considerable support from consumers in the Twin Cities area. In recognition of the work these consumers have done to support their farmers and protect access to nutrient-dense food, Bloomington was chosen as the site for the Third Annual International Raw Milk Symposium, which was held on May 7. Over two hundred people attended the event sponsored by the Farm-to-Consumer Foundation and the Foundation for Consumer Free Choice. The symposium focused on the partnership between consumers and food producers to ensure a choice in obtaining raw milk and other foods that people want and require for their health.
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Only in a world of savages do we fight not over the injustice of enslaving other beings and treating their bodies as our property but rather how we should be permitted to do those things to others.