FDA and USDA: Cheese Is Serious!
April 30, 2011Morningland Dairy, Missouri
June 1, 2011
By Pete Kennedy, Esq.
Update, Fall 2014
The efforts of the Minnesota Department of Agriculture (MDA) to punish Gibbon dairy farmer Mike Hartmann continue to be unsuccessful. In April, Sibley County District Court Judge Erica H. MacDonald had found that Hartmann had violated the terms of his probation because he had continued to sell raw milk illegally off the farm (Minnesota statute states that a consumer can only secure or purchase raw milk on the farm) and had refused to cooperate with MDA. Hartmann had been put on probation in October 2012 for violation of the Minnesota Food and Dairy Code; he was stopped for a motor vehicle violation in December 2012 which resulted in further charges (see Updates, Winter and Spring 2013 below for more information). The judge had thrown out five criminal charges subsequently brought against Hartmann, ruling that the evidence resulting from the motor vehicle stop was obtained illegally. At the sentencing hearing on June 11, however, Judge MacDonald refused to punish Hartmann for violating the terms of the October 2012 probation.
In refusing to punish Hartmann, Judge MacDonald stated at the June 11th hearing that Hartmann had made a “good faith effort” and that “no further action” would be necessary.
Zenas Baer, the farmer’s attorney, remarked that the judge found that Hartmann had made a good faith argument for why he believes he is operating legally and called the decision “a rebuke of the state.” Baer said, “The court affirmed the bedrock principle that the state cannot insert itself into a private transaction between consenting adults to buy a natural product or interfere with the type of foods that a parent might choose to nourish her family with.”
Hartmann has long believed that the Minnesota and U.S. Constitutions give him the right to sell the product of the farm direct to a consumer and he also claimed that the state raw milk statute doesn’t require the customer to pick up at the farm, only to “secure” it—an argument that helped convince the judge he was sincere in his belief that he wasn’t breaking the law. After the hearing the farmer said, “Everyone has their own lives and it should be up to them to decide what they want…now I can freely work with my customers and it’s going to make my days a little easier.”
Hartmann’s court battles might not be over. MDA officials told the media that the agency was conducting an ongoing investigation of the farmer, refusing to stop its persecution of someone whose food has benefited the health of thousands. For his own part, Hartmann was thinking of challenging the court order ruling that he violated probation even though the judge had not penalized him and had discharged the probation. In 2005, Hartmann had a case between himself and MDA go all the way to the state Supreme Court on the issue of whether a farmer can sell his products without state regulation. The court ruled that Hartmann could sell the products of the farm without a license but was still subject to other regulations; the farmer is still looking for a chance to change that ruling.
Source: Maytal Levi, “Raw Milk Advocate Wins Court Victory” (June 11, 2014), KEYC-TV Mankato
On October 29 Sibley County District Court Judge Erica H. McDonald dismissed five criminal charges brought by the state of Minnesota against Gibbon dairy farmer Mike Hartmann for violations of the Minnesota food and dairy code. Two of the charges arose from evidence seized during a December 4, 2012 stop of Hartmann’s vehicle by a state trooper; the other three came from the execution of a search warrant by Minnesota Department of Agriculture (MDA) officials on January 9, 2013 at Hartmann’s farm (see Spring 2013 and Fall 2013 updates below for more).
The key to the dismissal of the charges was Judge McDonald granting a motion to suppress any evidence obtained during the vehicle stop by state trooper Joseph Heyman, who testified that he initially stopped Hartmann’s truck because he did not see a rear license plate on the truck and the truck appeared to the state trooper to be a commercial motor vehicle that did not have the required Department of Transportation markings or number. Heyman subsequently conducted three warrantless searches of the vehicle during the stop, seizing raw milk and raw cheese from Hartmann’s truck at the instruction of MDA; the discovery of the food led to the granting of the warrant for the January 9 search on the Hartmann farm.
In granting the suppression motion filed by Hartmann and his attorney Zenas Baar, Judge McDonald held that while the initial stop was legal, Heyman’s searches of the truck were not because there was no probable cause that Hartmann had committed any crime. The state trooper admitted that he quickly discovered after the stop that there was a rear license plate on the vehicle. The judge found that Hartmann’s truck was not a commercial vehicle under Minnesota law and therefore that any state statute allowing for spot checks of commercial vehicles was inapplicable. Judge McDonald ruled Heyman “impermissibly extended the scope and duration of the stop.”
Since it was the illegal search of the truck that led to the execution of the search warrant on the Hartmann’s farm, the judge also held that any evidence obtained from the January 9 search was inadmissible as evidence. With the state having no other evidence on which to rest any of the criminal charges against the farmer, MDA is still searching for a way to put Hartmann out of business―something the department has been unsuccessfully looking to do for many years.
There is still a remaining charge against the farmer for a probation violation in October 2012; Hartmann had received six months’ probation for pleading guilty to two misdemeanors for violations of the state food and dairy code. The problem for MDA is that the probation violation charge is also based on evidence illegally obtained by Heyman during the vehicle stop. The Minnesota Constitution gives the farmer the right to sell and peddle the products of the farm; MDA needs to respect this provision and stop going after farmers like Hartmann. The hundreds of families currently obtaining food from the Hartmann farm would say the same.
The state of Minnesota continues its efforts to shut down Gibbon farmer Michael Hartmann’s business. In the early hours of the morning on August 8, a state trooper pulled over Hartmann in his truck on a highway in Anoka County as the farmer was in the process of making food deliveries to the patrons of his farm. The pretext for the stop was that the farmer was driving with part of his truck over the white fog line on the right side of the highway; the trooper created the pretext by tailgating Hartmann’s truck. When the trooper pulled up behind the truck, Hartmann—thinking the trooper wanted to pass him—moved over to the right to give the trooper a better line of sight to pass.
Once the state trooper confirmed that the truck was Hartmann’s, he had the truck towed to a gas station across town, leaving the farmer stranded on the side of the highway. Agents from the Minnesota Department of Agriculture (MDA) searched the truck at the station, confiscating all food they found. Hartmann eventually recovered his empty truck that afternoon.
Shortly after the stop and seizure, a Sibley County prosecutor announced that the state was going to file a motion to have Hartmann jailed, claiming the farmer had violated the terms of his parole. In October 2012, Hartmann pleaded guilty to two counts of violating the state food and dairy code, receiving a $585 fine and six months probation. There is currently a contempt of court action for violating that probation and the state is planning to bring two separate sets of criminal charges against the farmer as well for alleged violations of the state food and dairy code within the past year.
Hartmann has maintained for years that he is not violating the law because the Minnesota Constitution gives him the right to sell and peddle products of the farm without a permit or inspection. MDA is continuing to go after Alvin Schlangen and Hartmann because it knows it can eliminate a substantial amount of the raw milk shipped into the Minneapolis-St. Paul area if it shuts down the two farmers. MDA refuses to make any distinction between the public and private distribution of food; at this time, Minnesota remains by far the most draconian state in terms of raw milk enforcement.
In addition to continuing its harassment of Alvin Schlangen, the Minnesota Department of Agriculture (MDA) has stepped up its campaign against the department’s long-time target, Gibbon dairy farmer, Mike Hartmann. On January 15 the Sibly County District Attorney filed charges against Hartmann for illegally selling raw milk and selling improperly labeled cheese; in a stop for a motor vehicle violation in early December 2012, the police officer stopping Hartmann’s vehicle reported that the farmer was transporting raw milk and raw cheese. The Sibley County DA further piled on against Hartmann on February 11 when he brought three additional charges against the farmer for illegally selling raw milk, operating without a food handlers license, and distributing misbranded food. The charges stem from a search warrant executed by department inspectors at the Hartmann farm in January; MDA is sparing nothing in attempting to imprison or, at the least, permanently put out of business a farmer who has benefited the health of hundreds of Minnesota families for many years.
On October 15, Gibbon dairy farmer Mike Hartmann pled guilty in Sibley County court to two misdemeanor counts of illegally selling raw milk and raw milk products and selling other foods without a food handler’s permit. Under the plea bargain he reached with the county district attorney, Hartmann also was to pay a $585 fine and be put on six months unsupervised probation. Further, the farmer was to comply with all state food licensing and labeling laws within sixty days. As part of the agreement, all charges were dropped against Hartmann’s wife Diane, his brother Roger, and alleged dropsite coordinator Linda Schultz; all four individuals had been charged with eight misdemeanor counts and one gross misdemeanor count for violations of the state food and dairy code.
Hartmann has been battling the Minnesota Department of Agriculture (MDA) the last twelve years, continually frustrating the department in its efforts to stop the sale of nutrient-dense foods to consumers in the Twin Cities area; going after his wife and the sixty-eight-year-old Schultz showed the level to which MDA was willing to stoop to shut him down.
The department’s shameful tactics haven’t been limited to Hartmann either. In Alvin Schlangen’s administrative case, an MDA employee implied in an affidavit that she ordered and received food from Schlangen even though she wasn’t a member of Freedom Farms Coop (FFC), the private buyers club for which Schlangen is a volunteer manager. While the employee placed an order on FFC’s website, she never actually paid for the order nor did she receive any product. It’s time for the Minnesota state legislature to take notice and put a stop to MDA’s actions by clarifying the law on the sale and distribution of raw dairy products with the passage of new legislation.
On June 29 a pretrial hearing was held for Gibbon farmer Mike Hartmann in connection with nine criminal charges brought against him for alleged violations of the state food and dairy code. Hartmann’s wife Diane, his brother Roger Hartmann, and alleged dropsite coordinator Linda Schultz all face the same charges but none was at the hearing (see Wise Traditions Summer 2012 issue for background). Diane Hartmann was scheduled to appear for the hearing; when she did not show up, Judge Perkins issued a warrant for her arrest and incarceration. The judge had previously issued an arrest warrant for Roger Hartmann and Schultz after neither appeared for a May 3 hearing in the case.
At the June 29 hearing, the judge entered a not-guilty plea for Hartmann when the farmer refused to enter a plea himself. Judge Perkins scheduled Hartmann’s trial to begin on August 28 in the Sibley County District Court. Mike Hartmann and the other defendants are charged with one gross misdemeanor and eight misdemeanor counts. Maximum penalties are one year in jail and/or a $3,000 fine for the gross misdemeanor and ninety days in jail and/or a $1,000 fine for each misdemeanor.
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
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.
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 Updates Summer and Fall 2010 below 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 Update, Fall 2010 below 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.
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.
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.
