Kentucky and Ohio: Raw Milk Battleground

By Sally Fallon Morell and Pete Kennedy, Esq.

A lot is happening in Kentucky and Ohio, starting with two unfortunate incidents—an undercover sting operation and a police raid—with silver linings in the form of pending legislation to legalize the sale of raw milk in both states.

UNDERCOVER ENTRAPMENT

Amish dairy farmer Arlie Stutzman won a victory on April 17 when Judge Thomas D. White denied the motion of the Ohio Department of Agriculture (ODA) for a default judgment against him in a hearing at the Holmes County Court of Common Pleas. If the judge had granted the ODA’s motion, the Court would have ordered a permanent injunction against Arlie, restraining him from violating the Ohio Dairy Code and the Administrative Rules adopted thereunder. ODA had originally filed for a preliminary and a permanent injunction against him on Dec. 19, 2005. Judge White had granted the preliminary injunction on January 17, 2006; and ODA had filed a default judgment motion on March 15 to obtain the permanent injunction when Arlie had failed to file an answer to the initial motion as required by the Ohio Rules of Civil Procedure. Arlie filed a response to the motion for default judgment on April 14. At the hearing Judge White ruled that the filing was a sufficient answer to the ODA’s initial motion and set a June 30 date for a final hearing on the merits of ODA’s motion for a permanent injunction.

The dispute in this case arose from a transaction on September 20, 2005 when Arlie accepted two dollars from an ODA undercover agent after providing him with a gallon of milk in an unlabeled container furnished by the agent. ODA claims the transaction was a sale that violated state and federal labeling laws. Arlie claims that the money he accepted was a donation and that he only took the money after the agent persisted in asking what he wanted for the milk. The incident garnered several newspaper reports which cast the ODA in a very bad light.

In denying ODA’s motion for a default judgment, Judge White stated that several legal issues would be considered before the Court at the June 30 hearing:

1. Was the transaction a sale or a donation? If the transaction was a donation, it would not fall under the Ohio Dairy Code and would, therefore, be outside the jurisdiction of the ODA.
2. Did the actions of the ODA agent constitute entrapment? Even if the transaction was a sale, the judge could deny the motion for a permanent injunction if there was an entrapment. Arlie claims he would not have accepted two dollars for the milk had it not been for the actions of the agent.
3. Do the ODA’s actions violate Arlie’s First Amendment right to the free exercise of religion? At the April 17 hearing Arlie (who represented himself) cited several passages from the Bible in support of his belief that he has a religious duty to provide food to those in need. He claimed an injunction would penalize him for obeying the teachings of his religion in giving food to those in need who ask for it.

On the same day as the hearing, the ODA made a surprise move by issuing Arlie a Grade A dairy license. Previously, he had held a Grade B license (allowing him to sell his milk for cheese), which he had maintained without a single penalty or customer complaint for over 12 years until the ODA revoked it following an administrative hearing on February 8. ODA moved to issue the Grade A license after public outrage over Arlie’s treatment. Less than six weeks earlier, before the ODA had realized the public anger over their actions in this case, an ODA inspector had told Arlie that he would not be able to obtain even a Grade B license unless that license was issued in the name of either his wife or his son.

We’ll be watching this case carefully as several important legal issues are involved.

THE POLICE ACT TOUGH

Gary and Dawn Oaks of Double O Farms in Verona, Kentucky, started a cow-share program in 2004 and have seen it grow to over 100 families. On March 6, 2006, just after noon, Gary pulled into St. Bernard’s Church parking lot in Cincinnati, Ohio to deliver milk to waiting shareholders. He proceeded to unlock the back door of his trailer of his vehicle when suddenly several policemen and agriculture officials from Kentucky and Ohio stormed up, blocking access to the shareholders. The police officers told the shareholders not to touch the milk—the “white liquid substance” as they called it—and refused to give identification when shareholders asked for it.

“Shut up, this doesn’t concern you,” was their response. When some of the shareholders tried to explain that this did concern them, that they were being denied access to the milk from their own cows, the response was the same—rude and intimidating.

The officials took Gary to the other side of the parking lot and would not let shareholders get close to him. When some shareholders tried to go to their cars, parked near Gary’s truck, the officers shouted “Get away from the trailer!” So the shareholders—mothers and children—continued to observe. Inside the car, the police browbeat Gary, attempting to make him confess that he was selling raw milk.

Gary then came out from one of the police cars and the shareholders started to walk toward him to offer support. His face was bright red and he looked ill. “Gary, you don’t have to tell them anything,” said one witness. “You don’t have to say a word until you talk to your lawyer.”

For her pains, one officer got close to her face and said, “Look lady, shut up.”
Gary was taken into another car while officials transferred the items from Gary’s trailer to official state vehicles. Witnesses could see that Gary looked very ill and on the point of collapse. But their requests to the police to call 911 were met with derision. “I am 911, so shut the hell up,” shouted one officer.

However, one shareholder did call 911 on her cell phone. By this time, Gary was lying down on the cold, wet cement next to a police car. The ambulance arrived a few minutes later and took Gary away.

A VENDETTA

Following the incident, Gary has checked into the hospital several times with undisclosed difficulties. At an informal hearing convened by the Kentucky Milk Safety Board, the Oaks were told that they or their shareholders could only consume their milk on the property—anyone carrying the milk away would be subject to criminal charges.

Shortly thereafter, however, Kentucky officials took a softer tack, promising to “study the issue,” which means that the Kentucky Cabinet for Health Services is conducting an internal investigation to determine whether they have jurisdiction over herdshares.

It turns out that the Oaks had been the subject of intense harassment from a neighbor for several years and that the two Kentucky dairy officials involved in the raid had been egged on by the same neighbor. Both the Oaks and the shareholders are considering their legal options and the cow share program continues unimpeded. Shareholders have helped with the milking and chores during Gary’s illness.

While the state of Kentucky is holding off for the moment, the state of Ohio sent the Oaks a certified letter on May 25 stating that the state is considering legal action against Gary related to the raid on March 6. The first step in this process is an administrative hearing.
Donations to help defray legal and medical expenses would be most welcome and can be sent to Double O Farm, 14340 Brown Road, Verona, Kentucky 41092.

AGENCY SUPPORT

Meanwhile, proponents for legislation to legalize raw milk in Kentucky, headed by Ben Abell of the Community Farm Alliance, testified at two House Agriculture Committee hearings. The legislators were enthusiastic about the idea of legalizing raw milk sales under certain guidelines; many of them grew up on farms and told stories of consuming raw milk themselves.

On the second day of testimony, a Kentucky Department of Agriculture spokesman said that his agency was aware of consumer demand for raw milk and raw milk products and realized the opportunity this presented to Kentucky’s small farms. He announced that the department would conduct a series of meetings in order to recommend legislation for legalizing raw milk sales in the next session.

Surprisingly, a spokesperson for the Health Department stated that the agency was committed to working with the agriculture department to evaluate whether raw milk sales could be made legal while maintaining adequate requirements to protect the public health. So the odds of legalizing raw milk sales in Kentucky look good. Stay tuned.

THE OHIO HEARING

Mark McAfee, president of Organic Pastures Dairy in California, testifies on the superior safety record of raw milk before the Ohio House Agriculture Committee, May 10. Since 1990, the dairy has sold 40 million servings of raw milk without incident; during the same period there were 19 recalls of pasteurized milk products in the state of California.

Ohio officials are proceeding carefully after negative publicity over ODA tactics. They had begun proceedings against a large cow share program in southern Ohio after two raw-milk-drinking individuals from two different families in the Dayton area suffered from campylobacter infection in January. (No other shareholders reported any illness.) Resistance from the shareholders to requests for information has led to a standoff for the moment. The shareholders are ably represented by attorney David Cox.

All eyes are now focused on House Bill 534, the “Raw Milk” bill, which had its first hearing on May 10. Over 170 supporters of raw milk heard Warren Byles, Executive Director of the Raw Milk Organization of Ohio, Sally Fallon of the Weston A. Price Foundation, Mark McAfee of Organic Pastures Dairy, attorney David Cox, Ohio dairy farmer Paul Schmitmeyer and Carol Goland, Executive Director of the Ohio Ecological Food and Farm Association, testify on the health, safety and economic benefits of Nature’s Perfect Food.

Participants in the May 10 testimony before the Ohio House Agriculture Committee included (first row, left to right) Toldeo chapter leader Kris Johnson, RN, New Hampshire chapter leader Marita Whitaker, Toldeo chapter leader Lisa Bowe, Sally Fallon, president of the Weston A. Price Foundation, Lims chapter leader Laurie Smith and Mark McAfee, president of Organic Pastures Dairy; and (second row, left to right) dairy farmer Paul Schmitmeyer, Rawson chapter leader Dr. Wayne Feister, Kenton chapter leader Jaime Feine, dairy farmer and Defiance chapter leader Ralph Schlatter and Warren Byles, Executive Director of the Raw Milk Organization of Ohio.

Particularly impressive was a presentation by Marilynn Anater, senior and co-valedictorian at Lehman Catholic High School in Sidney, Ohio, who described the results of her science fair project entitled “The Nutritional Content of Bovine Milk: A Comparative Analysis.” Her project, which received an award from the Ohio Department of Agriculture, described chemical analyses used to demonstrate the denaturing of proteins and sugars in pasteurized milk.

Several moving testimonials followed and word from the corridors is that the legislators were impressed. The Raw Milk Organization of Ohio is well organized and cautiously optimistic about the passage of the raw milk bill along with an end to strong arm tactics against Ohio dairy farmers.

This article appeared in the Summer 2006 edition of Wise Traditions, the quarterly journal of the Weston A. Price Foundation.