Michigan: State Control Over Private Property

By Pete Kennedy, Esq.

A troubling aspect of food regulation is how government agencies believe they can intrude into activity that is far removed from the stream of public commerce. A glaring example of this is now a matter of public record in Michigan. On October 14, there was a hearing in Ingham County Circuit Court over a petition from the Michigan Department of Agriculture and Rural Development (MDARD) to hold dairy farmer Joe Golimbieski, his wife Brenda, Hill High Dairy LLC, and BJ’s Cow Boarding in contempt for violating a court order enjoining them from violating Michigan’s Food Law, Grade A Milk Law, and Manufacturing Milk Law; a transcript of the hearing has been released.

Joe Golimbieski is the sole operator of Hill High Dairy LLC, which sells milk produced by the LLC’s 70 cows to Horizon. Brenda Golimbieski is the manager of BJ’s Cow Boarding, which leases its own herd of 15 cows to those wanting to obtain raw milk. Judge James Jamo issued an injunction against the four defendants in January 2016 after MDARD claimed that, among other things, the four were illegally distributing raw butter and cream (see Wise Traditions Fall 2016 issue, “Michigan—Leaseholder Lobsinger Sues over Seized Cream” for background).

In 2013 MDARD adopted a written policy, Policy 1.40, that legalized the unregulated distribution of raw milk through a written herdshare or herd lease agreement (a herdshare agreement involves a person 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 holds ownership rights in the animal(s) for the term of the lease). Policy 1.40 stated that herdshare programs were only considered to include raw milk and not other dairy products such as butter and cream; the production of other dairy products was subject to applicable MDARD laws such as licensing requirements. The policy did acknowledge that the distribution of raw milk to shareholders was not a sale but rather just the shareholder obtaining milk from his or her own animal(s).

What MDARD didn’t count on when it filed for an injunction against the Golimbieskis, Hill High Dairy, and BJ’s was that a leaseholder would intervene in the action, but that is what happened when Mike Lobsinger successfully petitioned the court to be added to the case as a third-party defendant. Lobsinger has his milk separated into cream by another leaseholder at the Golimbieski farm; he has filed a separate lawsuit against MDARD for denial of his due process rights stemming from the seizure of his cream by an MDARD inspector during a raid of the farm in June 2016. Lobsinger was also a third-party defendant in the contempt hearing in October; it was his presence that changed the dynamic in the case from focusing only on whether there were violations of Michigan dairy and food laws to also covering what private property rights shareholders and leaseholders have.

The contempt hearing began with MDARD’s attorney Danielle Allison-Yokom pursuing the alleged violations by the defendants but ended with the department on the defensive. In her attempt to show that the defendants had violated the law, Allison-Yokom stated, “There is no exception anywhere in the law that permits processing by any person, herd share member, entity or anyone else of dairy products. You must have a license to do that activity” (Michigan Department of Agriculture v. Golimbieski et al, “Motion to Show Cause” transcript, File no. 15-574-CZ (October 14, 2016) , p. 31).

Lobsinger’s attorney, John Siers, exposed how far-reaching this assertion of state jurisdiction went in his response to the state’s claim: “Well, at what point does the individual herdshare member have any property rights? …the herdshare members are doing it [processing] for their own consumption. This is not entering into the stream of commerce. This is not being turned around and sold to other people…This is a private property question. This is milk belonging to the herdshare members. This state wants to tell the herdshare members that they cannot change that milk in any way. They can’t allow it to separate. They can’t … churn it into butter. But if we were to go to Trader Joe’s, Kroger, and buy high butterfat milk and decide to turn that into another product in our own home or even bring in somebody to help us with that, now, is that processing (transcript, p.39-40)?”

Allison-Yokom’s response to Siers was this: “…the department does not say you can’t take milk home, or Mr. Lopsinger [sic] can’t take milk home and process it in his own kitchen. The statute and the enforcement scheme limits their authority there. But he can’t have someone else do it for them. To do that, that person must be licensed” (transcript, p. 45).

When Judge Jamo asked, “…has this particular issue been addressed in any case law in this state?”, Allison-Yokom admitted that it had not (transcript, p. 47).

The word “private” would have no meaning if the judge sided with MDARD on this matter. The state is claiming that if Lobsinger had someone come to his house to separate the cream in his kitchen, the state would have jurisdiction. The Michigan dairy processing laws were meant to cover sales and distribution to the general public, not to prevent the owner of raw milk from having someone else process that property into another dairy product for the owner’s own consumption. If the court sides with MDARD on this one, private property rights and common sense are out the window.

This article appeared in the Winter 2016 issue of Wise Traditions, the quarterly journal of the Weston A. Price Foundation.

About the Author

Pete Kennedy

Pete Kennedy is a Florida attorney who has worked on issues governing raw milk production and distribution since 2004. He compiled a summary of raw milk laws in each of the fifty states and is currently a consultant for WAPF on, among other things, policies and laws regarding raw milk. Pete was a founding board member of the Farm-to-Consumer Legal Defense Fund (FTCLDF) and served as vice president and then president for many years. He has consulted on and drafted raw milk, cottage foods, and food sovereignty legislation; drafted and reviewed herdshare agreements; worked on embargo, seizure, and recall cases involving raw dairy products; worked on foodborne illness outbreaks attributed to raw milk consumption; handled issues involving on-farm slaughter, custom meat, and poultry processing as well as problems with zoning and local ordinances.