Michigan MDARD’s Farewell Present to Mark Baker

This past June heritage breed hog farmer Mark Baker announced that he was getting out of commercial farming and would be moving to a smaller farm where he and his family would continue to grow their own food. After a four-year battle with the state of Michigan over his challenge to an Invasive Species Order (ISO) on feral hogs, Baker had grown tired of dealing with state agencies and an unfavorable regulatory climate and was ready to move on to homesteading. Little did he know that the Michigan Department of Agriculture and Rural Development (MDARD) was going to give him a final reminder of why he wanted out of commercial farming.

Baker operates a custom slaughterhouse on his farm in Missaukee County, mainly slaughtering and processing chickens for some 200 families in his community. He also has a permit from MDARD enabling him to sell chicken and pork raised on his farm and each year pays a renewal fee for the permit. His plan was to keep the permit and continue sales of pork and chicken until he sold the farm.

In July Baker received a letter from MDARD stating that he was being denied a permit to conduct his custom slaughter business because he hadn’t paid his renewal fee. When Baker’s wife Jill produced the canceled check showing he had paid, the department changed its story, now claiming it was denying the permit because Baker refused to let MDARD officials conduct an inspection of his farm during a December 2015 raid of his farm, Baker’s Green Acres (BGA). MDARD had obtained a warrant to search the farm; someone contacted the department to notify it that there was a picture in a magazine story of a chef holding a ham that the story said was produced by BGA. MDARD wanted to search Baker’s premises to make sure the meat he was selling was slaughtered and processed at a USDA facility.

Baker responded to this latest accusation by explaining that he hadn’t refused an inspection but had only asked the inspectors to wait until some friends of his arrived at the farm to observe the proceedings. The inspectors decided to leave rather than wait.

On August 5 MDARD relented and renewed Baker’s permit; before the renewal, an official from the department called a farmer who relied heavily on Baker’s establishment for her meat sales and told her that she couldn’t use the facility at BGA because it wasn’t permitted.

The harassment from MDARD over the permit convinced Baker to move his timetable up on his sales of chicken and pork; on August 27 Baker decided to surrender his permit saying that MDARD’s jurisdiction over his business was like a forced partnership that he no longer wanted to have. It’s the kind of partnership where the farmer supplies the labor and innovation and MDARD supplies the red tape.

Baker said that regulation by MDARD is not about food safety but control; a belief many others hold. He pointed out that bureaucrats should not be able to use their influence to pick winners and losers. He said that he was no longer going to put his family through MDARD’s harassment.

The MDARD permit denial of BGA was retribution for Baker’s successful challenge to the ISO on feral swine issued by the Michigan Department of Natural Resources (DNR) in December 2010. The ISO, which had the strong backing of the Michigan Pork Producers Association prohibited the possession of a number of breeds of swine. When asked to clarify what the ISO meant, DNR issued a declaratory ruling establishing that whether a pig violated the ISO was not going to be determined by whether the pig was living in the wild or outside containment but rather on its physical characteristics. According to the declaratory ruling, a pig could be prohibited if it has either “curly or straight tail structure” or “either erect or folded/floppy ear structure.”

Baker, who was raising heritage breed mangalitsa pigs, filed a lawsuit challenging the constitutionality of the ISO in April 2012. DNR, through the state attorney general, responded to the lawsuit by filing a countersuit of its own, seeking to have Baker’s pigs condemned and destroyed for violating the ISO. Later, after Baker became publicly critical of Michigan Attorney General Bill Schuette for his handling of the case, DNR amended its complaint and sought a court order fining Baker $700,000–$10,000 for each pig Baker owned that it claimed was illegal.

Just weeks before the case was to go to trail, DNR changed its position on Baker’s pigs, now saying they were legal; this shift by the agency resulted in the dismissal of both Baker’s lawsuit and DNR’s countersuit in February 2014. DNR officials did not want the case to go to trial because they knew Baker would expose the declaratory ruling for the sham that it was. DNR subsequently withdrew the declaratory ruling but the ISO is still on the books to this day. As Baker has said many times, there is no evidence that there is a feral swine problem in Michigan.

Even though the focus has been more on DNR and the Michigan Pork Producers Association, MDARD was right in the middle of the creation of the ISO. Nancy Frank, state veterinarian in MDARD’s Division of Animal Industry, had a major role in the creation of the order. MDARD was also responsible for significant losses in Baker’s business because he stood up to the state. Shortly after Baker filed his lawsuit, MDARD employees started contacting restaurants purchasing pork and other products from Baker intimidating them into dropping their business with the farmer; Baker lost almost all of his restaurant accounts. MDARD also worked with the U.S. Department of Agriculture to inform slaughterhouses not to process feral swine, effectively limiting Baker’s access to those facilities.

Food produced at Baker’s Green Acres has never been accused of making anyone sick.

Baker and his family have paid the price for his successful challenge to government and industry’s attempt to create the conditions for cutting out the market share for heritage breed hog farmers. MDARD’s latest harassment was one final message to the farmer that it’s time to move on.

Share

Michigan Raw Dairy – How One Consumer Made an Impact


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 that consumers can obtain raw dairy products other than milk under a herdshare or herd lease agreement. 1 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, establishing a case law precedent. The case shows the power to make an impact that consumers have.

Lobsinger believes it is the consumer’s 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. Lobsinger, who is a member of both the Weston A. Price Foundation (WAPF) and the Farm-to-Consumer Legal Defense Fund (FTCLDF), went far beyond what consumers would typically do to protect their farmer in supporting the Golimbieskis.

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 only raw whole milk and that products such as butter, yogurt and cheese, etc., 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 and seeing that 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 “jibberish”. 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 focus of the case being on a Grade A dairy violation, it was on property rights. Lobsinger’s willingness to hire attorneys to protect those rights made that happen. It shows the impact one individual can make.

1 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.

Share

Michigan Group Works to Find Common Ground Between Raw Milk Advocates and Policy Makers

All across the United States, raw milk is a controversial issue. Over the past year alone there have been several high-profile legal cases and legislative battles surrounding the question of whether raw milk should be available for sale to the public and in what capacity.

Michigan was the first state to ban raw milk sales in the late 1940s and the least likely state to deregulate it now – yet it is there that a group of 13 individuals, made up of farmers, academics, healthcare professionals and regulators, have been quietly working together for six years to find common ground between raw milk advocates and legislators. Continue reading

Share