Only Seven States to Go
January 13, 2018Montana: 43rd State to Legalize Raw Milk Distribution
January 13, 2018By Pete Kennedy, Esq.
Michigan raw dairy consumers and producers owe Mike Lobsinger a debt of gratitude. Lobsinger, a retired businessman and leaseholder in a herd lease arrangement, along with farmers Joe and Brenda Golimbieski, are the ones most responsible for a favorable court ruling establishing the principle that consumers can obtain raw dairy products other than milk under a herdshare or herd lease agreement. (A herdshare agreement involves someone purchasing an ownership interest in a dairy animal or animals and hiring the farmer to board, care for and milk the animal(s); the difference in a herd lease agreement is that someone leases the dairy animal(s) and has ownership rights in the animal(s) for the term of the lease.) Thanks mainly to Lobsinger and his attorneys, John Stiers and Elise Arsenault, legal action taken by the Michigan Department of Agriculture and Rural Development (MDARD) to stop the distribution of cream, butter and other raw dairy products to leaseholders at the Golimbieski farm was not successful, thus establishing a case law precedent. The case shows the power that consumers have to make an impact. (See Michigan: Leaseholder Lobsinger Sues over Seized Cream for background.)
Lobsinger believes it is the consumers’ right to select the farmer from whom they get their food but also that it should be the consumers’ responsibility to do what they can to back up their farmer when the farmer is facing an enforcement action from a government agency. In supporting the Golimbieskis, Lobsinger, who is a member of both the Weston A. Price Foundation and the Farm-to-Consumer Legal Defense Fund, went far beyond what consumers would typically do to protect their farmer.
In March 2013, MDARD issued a written policy, Policy 1.40, which legalized the distribution of raw milk through a written herdshare or herd lease agreement. Policy 1.40 stated that herdshare programs were to include distribution of raw whole milk only, and that products such as butter, yogurt and cheese could only be sold or distributed by licensed producers. The “Catch 22” is that Michigan law prohibits even licensed producers from selling products such as raw butter, cream and yogurt.
The Golimbieskis, who have a Grade A dairy operation, Hill High Dairy, were distributing raw butter and cream under their herd lease program to consumers who had signed a herd lease contract. Lobsinger, who obtains raw cream to put in his coffee, was one of them.
Whenever the MDARD inspector was conducting her semi-annual inspections of Hill High Dairy, she would seize raw dairy products she found in a refrigerator located in a utility room on the farm. In 2015 MDARD filed a court action against each of the Golimbieskis, Hill High Dairy and B.J.’s Boarding, an entity that was formed to lease cows to those wanting to get raw milk. The department petitioned the court to issue an injunction prohibiting the four parties from, among other things, distributing raw dairy products other than milk to leaseholders.
Lobsinger entered the fray by successfully intervening as a third-party defendant in the case, claiming that MDARD was interfering with his property right to have milk produced by his cow separated into cream. Despite the successful intervention into the case, Judge James Jamo issued an order enjoining the Golimbieskis, Hill High Dairy and B.J.’s Boarding from violating any applicable Michigan food and dairy laws. The judge did state in the opinion granting the injunction that there was no proof the defendants had violated any laws.
During a June 2016 inspection of Hill High Dairy, inspectors again seized and confiscated raw dairy products, including Lobsinger’s cream; subsequently, MDARD petitioned Judge Jamo to find the four defendants in contempt of court for violating the injunction. Lobsinger successfully intervened in the case again as a third-party defendant in the contempt petition and also filed a separate action against MDARD in the Michigan Court of Claims, suing the agency on the grounds that seizure of his cream violated his due process rights. The relief Lobsinger sought included a ruling that “another individual or agent may separate Lobsinger’s cream and skim milk on Lobsinger’s behalf without MDARD licensure or oversight and may deliver Lobsinger’s cream and skim milk to Lobsinger as long as the milk and cream are used exclusively for the personal consumption of Lobsinger and his family.”
In December 2016 Judge Jamo ruled that the defendants were not in contempt, establishing a legal precedent that raw dairy products other than milk can be distributed under a herd lease or herdshare arrangement without violating Michigan law. Ironically, at the time the Golimbieskis received word about the ruling on MDARD’s inspection, MDARD inspectors were once again seizing raw dairy products at the farm as they conducted an inspection.
When the inspectors finished their next scheduled inspection in June 2017 without seizing Lobsinger’s cream (or any other raw dairy products), Lobsinger withdrew his lawsuit figuring that he already had a favorable ruling in the contempt case that he didn’t want to jeopardize since MDARD was no longer confiscating products it once saw as contraband during its inspections of the Golimbieski farm. Lobsinger made it clear that if MDARD tampered with his cream in the future, he wouldn’t hesitate to sue the department again for its violation of his rights.
Lobsinger hired attorneys to fight MDARD because he wanted the public to know that the department was going after individual property rights in seizing dairy products from the Golimbieski farm. A look at the transcripts in the Golimbieski court case shows the contempt MDARD had for the leaseholders’ property rights. MDARD’s attorneys characterized Lobsinger retaining another leaseholder to separate Lobsinger’s own milk into cream as an illegal activity. The attorneys claimed the case was about a Grade A dairy violation and had nothing to do with property and contract rights. MDARD’s position was that there was no difference between sales of cream to the general public and distribution of cream to the owner of the milk from which the cream was processed. The department was in effect claiming that if someone went to Lobsinger’s house to separate milk into cream that it would have jurisdiction and could stop this “illegal transaction.”
Fortunately, Judge Jamo wasn’t buying into what Lobsinger called MDARD’s “gibberish.” He asked MDARD attorney Danielle Allison-Yokum if there was any case law to back up this assertion; the attorney admitted there was not.
Lobsinger’s intervention changed the dynamic in the Golimbieski case. Instead of the case concerning a Grade A dairy violation, the focus switched to the issue of property rights. Lobsinger’s willingness to hire attorneys to protect those rights made that happen. It shows the impact one individual can make.
