Virginia Ag Department Clarifies Policy on Herdshares


After two consecutive legislative sessions in which unsuccessful efforts were made that would have either banned or severely restricted herd share agreements, the Virginia Department of Agriculture and Consumer Services (VDACS) has clarified its policy on herd shares. In an email to the Farm-to-Consumer Legal Defense Fund (FTCLDF), a VDACS official stated, “The agency has currently taken a hands off approach to herd shares as long as there is a legitimate contractual relationship conveying ownership between the consuming individual and the animal/herd. Value added products such as yogurt, etc. (again in the context of a contractual relationship between owner and consumer) are still on the table and I’m not sure where we are going with that but the agency is not taking any action regarding those types of products at this time.”1

Herd share agreements are private contractual arrangements in which someone purchases an ownership interest in a dairy animal (or herd of dairy animals) and pays a fee to a farmer for boarding, caring for and milking the animal(s). The owner has the property right to obtain raw milk from the animal(s). It’s legal to purchase ownership in a dairy animal and it’s legal to obtain milk from a dairy animal you co-own; currently, there is nothing in the Virginia Code on herd shares. Herd share programs have been thriving in Virginia for many years.

In 2017 an amendment to a food freedom bill was introduced that would have banned herd shares; the inducement for the ban was the legalization of the regulated on-farm sale of raw milk. The Virginia Independent Consumers and Farmers Association (VICFA) and others–including the bill’s original sponsor, Nick Freitas–was successful in killing the legislation.

In 2018 opponents of herd shares–such as Virginia Farm Bureau, Virginia Agribusiness Council, and the Virginia State Dairymen’s Association–took a different tact; supporting the introduction of legislation in the Senate (SB 962) and the House of Delegates (HB 825) that would have officially legalized herd shares while attempting to intimidate both consumers and farmers from either entering into or continuing on with herd share agreements. Both bills required that shareholders assume joint liability if the herd or any milk produced by the herd was responsible for injury or illness; the way both bills read, giving raw milk to family or guests would be a crime. Both bills provided that violating any of the requirements in them would be first degree misdemeanors with criminal penalties of up to one year in jail and $2,500 in fines; everyday the violation continued would be a separate offense. Strong grassroots mobilization led by VICFA with help from the Weston A. Price Foundation (WAPF), FTCLDF and other organizations, carried the day; both bills died in committee.2

VDACS has long had a hands-off policy towards regulating herd share agreements but there have been reports of agency inspectors telling farmers that herd share agreements are illegal. Having a statement in writing from VDACS should help increase the sizable number of herd share programs in the state that already exist. The position of VICFA and its members has always been that the state has no jurisdiction over property rights in dairy livestock acquired through private contract, but there are others who were more hesitant to enter into herd share agreements without something in writing from VDACS on herd shares; they now have it.

In the past VDACS has been reluctant to acknowledge the legality of value-added products distributed through a herd share agreement, but recent precedent in other states shows the wisdom of VDACS current hands-off policy towards the distribution of raw dairy products other than milk.

In 2016 a Michigan court found a herd share operation not guilty of contempt for distributing butter and cream, among other product, to its shareholders; there was an injunction against the operation prohibiting it from violating Michigan’s dairy laws. The Michigan Department of Agriculture and Rural Development (MDARD) had adopted a written policy allowing only the distribution of fluid raw milk through herd share agreements; in spite of the policy and plenty of evidence showing that other raw dairy was distributed through the herd share, the judge ruled that MDARD had not made its case that there were any violations of the state dairy laws. The case turned in favor of the herd share operation when one of its shareholders, Mike Lobsinger, successfully intervened as a party to the contempt proceeding. One of the arguments made by Lobsinger’s attorney was that, with the raw milk being his property, it was none of MDARD’s business if he had that milk processed into cream.3,4

In 2012 the Office of the Tennessee Attorney General issued an opinion finding that an “independent or partial owner of any hoofed mammal” may use a dairy product made from the milk produced by such animal for the owner’s personal consumption or other personal use.”5 Tennessee has a herd share statute recognizing that anyone who has an ownership interest in a dairy animal can use “the milk from such animal for the owner’s personal consumption or other personal use.”6 When the Tennessee Department of Agriculture claimed that the statute only allowed the distribution of raw milk and no other dairy product, State Senator Frank Niceley, the sponsor of the herd share bill that passed into law in Tennessee, sought the attorney general opinion.

Herd share programs are at the heart of Virginia’s local food system; the written statement of policy from VDACS should only strengthen that. Hopefully, it will help convince herd share opponents not to introduce legislation again in the next legislative session; if they do, the grassroots will be there once more to contest them.

[1] Email dated August 7, 2018
[2] Pete Kennedy, “Victory in Virginia – Bills Threatening Herd Shares Now Dead”, RealMilk.com, 6 February 2018. Last viewed 9/12/18 at https://www.realmilk.com/victory-virginia-bills-threatening-herd-shares-now-dead/
[3] Pete Kennedy, “Wild Day in Michigan: A Court Victory and A Raid”, Farm-to-Consumer Legal Defense Fund website, 13 December 2016. Last viewed 9/12/18 at https://www.farmtoconsumer.org/blog/2016/12/13/wild-day-michigan-court-victory-raid/
[4] James S. Jamo, “Opinion and Order”, MDARD v Hill High Dairy, LLC et al, File No. 15-574-CZ, 8 December 2016. [view PDF]
[5] Robert E. Cooper, Jr., “Owner’s Use of Milk and Licensing of the Sale of Eggs”, State of Tennessee Attorney General Office, Opinion No. 12-04, 13 January 2012
[6] Tennessee Statute 53-3-119

High Stakes for Raw Milk in Wisconsin

This article is a collaboration between the Weston A. Price Foundation (WAPF) and the Farm-to-Consumer Legal Defense Fund (FTCLDF).

Wisconsin organic dairy farmer Chaz Self is a face of the crisis confronting milk producers across the country. Self’s cooperative recently dropped him as a member, leaving him scrambling to find another buyer for the milk his farm, Grassway Organics, produces. Self could be making up for some of the lost sales by selling raw milk; Wisconsin law allows the sale of raw milk on an “incidental basis.” The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) could be helping farmers like Self by using its enforcement discretion to let him sell raw milk. DATCP, however, recently served the farmer with a summary special order threatening the loss of his Grade A Milk Permit if he sold any raw milk for human consumption.

The farmer is currently dumping hundreds of gallons of high quality raw milk. Self’s case provides a great look at the unprecedented emergency dairy farmers are facing and how selling raw milk is a potential way to help keep thousands of them in business.

Self maintains a herd of around 100 cows on a 400-acre farm where he lives with his wife Megan and their three young children. His Jersey herd is 100% A2. The Selfs sell poultry, eggs, pork and beef to their customers on the farm and at farmers markets.


Last year Self appeared in the Netflix documentary, Rotten, a series of episodes uncovering fraud and corruption in the industrial food system. Self appeared in the episode “Milk Money” which discussed the production and sale of raw milk. Self never stated that he sold raw milk but the narrator of the episode implied that he did. Shortly after the episode aired, DATCP started investigating Self; the investigation wound up with the department issuing an order allowing him to keep his Grade A permit on the condition that he stop selling raw milk. This was an unjustified move, given that DATCP based its decision solely on what the narrator said he was doing; there was no other evidence mentioned in the order about Self selling raw milk.

To compound matters, on April 1 Self’s cooperative, Westby Creamery, terminated his membership; on April 18 DATCP sent Self a “notice of deadline to change assigned dairy plant”, stating the farmer has until April 30 to find a processor to pick up his milk. If he fails to do so, DATCP will revoke his Grade A permit; with the current state of the dairy industry, that is not an easy task.

The American dairy sector has been in a decades-long decline that is currently accelerating. In 1992 there were 131,535 licensed dairies in the U.S., at the end of 2017 there were 40,219.1 The number of dairies closing shop has increased substantially since the beginning of the year. In 1992 the average herd size for farms was 74 cows; by 2017 it had risen to 2342, showing the consolidation in the dairy industry and the exit of small farms from the commodity milk system.

Wisconsin went from about 29,000 dairy farms in 1995 to a little over 9,000 at the end of last year.1 Two particular recent developments have accelerated the decline of conventional and organic dairies in Wisconsin. First, more conventional milk is being shipped into Wisconsin from other states. In 2017 more than 100 trailer loads of milk per day3 was coming into Wisconsin from states such as Michigan, Indiana and Ohio; frequently this milk was being sold more cheaply than the price sellers of conventional fluid milk would normally get.

Secondly, this year certified organic CAFO dairies in Texas have increased shipments of milk to Wisconsin. According to a USA Today March 24 story by a Milwaukee Journal Sentinel writer, six certified organic dairy farms in Texas produced about 23% more milk than all of Wisconsin’s 453 organic dairy farms combined in 2016.4 The greater supply of organic milk has led to more quotas for producers and co-ops cutting back on members; in addition to Self, Westby Creamery recently terminated the contracts of seven other members.

The commodity milk system is becoming more untenable than ever for small farms. Recent prices around the country for conventional milk have been as low as $1.11 per gallon; while there are some organic producers that are still doing well, prices overall have declined substantially for organic milk. Farmers wanting to sell cows are finding little or no market. Oversupply and lower pay prices mean a race to the bottom for commodity milk.

One way for producers to escape or survive the commodity milk system is to sell raw milk for direct consumption; prices farmers can get for raw milk sales to the consumer are much higher than what they can receive for either conventional or organic milk intended for pasteurization. In Wisconsin the law is there for dairies to sell raw milk and improve their bottom line; the problem has been DATCP and its interpretation of what an “incidental sale” is.

The legislature passed the incidental sale law in 1957. The original intent of the law was that any sale of raw milk for human consumption was an incidental sale. At the time the law went into effect, there were over 100,000 dairies selling raw milk intended for pasteurization in the state 5; for all of them, sales of raw milk for direct human consumption were likely a very small percentage of total sales.

At one time DATCP interpreted the incidental sales law as meaning only one sale of raw milk per customer ever. In 2008 the department changed that, issuing a regulation that stated, “a sale is not incidental if it is made in the regular course of business, or is preceded by any advertising, or solicitation made to the general public through any communications media.” There is nothing in the statute legalizing incidental sales that prohibits advertising or solicitation.

DATCP’s interpretation of “not in the regular course of business” has been unfavorable to raw milk producers and consumers. It’s time for that to change; America’s Dairy Land is in an emergency situation. Dairies are going out of business every day in the state. DATCP can help Wisconsin dairy farms by either adopting a more liberal interpretation of what constitutes “not in the regular course of business” or by waiving enforcement against dairies selling raw milk direct to consumers in the regular course of business. For precedent on the latter step, DATCP only needs to look at the bordering state of Michigan.

Michigan law prohibits the sale or distribution of raw milk for human consumption; nevertheless in 2013 the Michigan Department of Agriculture and Rural Development (MDARD) adopted a written policy in which it would not take action against dairy farms distributing raw milk through herdshare agreements. MDARD set parameters that had to be in place, such as a written contract between the farmer and consumer for it to waive enforcement; DATCP could take a similar tact in Wisconsin.

DATCP is charged with promoting Wisconsin agriculture; one way it can do that with the current dairy crisis is to change its enforcement or interpretation of the law to one that benefits raw milk producers and consumers. Producers like Chaz Self have the quality raw milk and the potential demand to succeed. DATCP shouldn’t be preventing Self from selling raw milk. DATCP has an opportunity to help dairy farms stay in business. Ultimately, it would be great to pass a bill taking the word “incidental” out of the Wisconsin raw milk statute; but with the accelerated decline dairy is going through, there is no time to waste. The department should either adopt a new interpretation of the raw milk law or exercise its enforcement discretion now.

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[1] Dennis Halladay, “Here it comes: less than 40,000 dairies”, Hoard’s Dairyman, March 19, 2018. Last viewed 4/25/2018 at https://hoards.com/article-22818-here-it-comes-less-than-40000-dairies.html

[2] Corey Geiger, “Dairy farm numbers hover near 40,000”, Hoard’s Dairyman, February 26, 2018. Last viewed 4/25/18 at
https://hoards.com/article-22687-dairy-farm-numbers-hover-near-40000.html

[3] Pete Hardin, “March Dairy Meetings Somber in Wisconsin…”, Milkweed, Issue No. 465, April 2018; p. 5. [Wisconsin Farmers Union, “How Does It Work, and Would it Work Here?”, Dairy Supply Mgmt. in Canada, meeting 15 March 2018 at Dodger Bowl Banquet Center, Dodgerville, WI, recorded by www.wiseye.org; last viewed 4/25/2018 at http://www.wiseye.org/Video-Archive/Event-Detail/evhdid/12277]

[4] Rick Barrett, “Wisconsin’s small organic dairies squeezed by Texas mega-farms”, USA Today, March 24, 2018. Last viewed 4/25/2018 at https://www.usatoday.com/story/money/business/2018/03/24/wisconsins-small-organic-dairies-squeezed-texas-mega-farms/455330002/

[5] U.S. Department of Commerce, “County Table 10 – Dairy products and poultry and poultry products sold from farms: Censuses of 1959 and 1954”, U.S. Census of Agriculture: 1959, Volume 1, Part 14: Wisconsin (Chapter B – Statistics for Counties), p. 163. Last viewed 4/25/2018 at http://usda.mannlib.cornell.edu/usda/AgCensusImages/1959/01/14/866/Table-10.pdf


Photo courtesy of Grassway Organics LLC facebook page

A Wishlist of Just Laws for Those Who Feed Our Families


At the end of 2017 there were several enforcement actions and investigations underway against raw milk distributors. In a Kansas City district court the U.S. Food and Drug Administration (FDA) was seeking an order allowing it to seize and destroy $70,000 of camel milk and camel milk products, most of it unpasteurized. Government agencies in four different states were investigating a New Jersey food buyers club in connection with an illness attributed to raw milk consumption. In a separate investigation the New Jersey Department of Health sent cease and desist letters to a number of private residences in that state that were allegedly serving as dropsites for the distribution of raw milk and other nutrient-dense foods.

Out of the three cases, the only illness involved was traced to the administration of a brucellosis vaccine to a cow that resulted in active brucella showing up in the raw milk. In the FDA and New Jersey Department of Health investigations there were no allegations of adulterated raw dairy or other foods being distributed. Still, distributors in all three cases could be subject to criminal and/or civil penalties for distributing food their customers believed best for their health and well-being. As the new year gets underway what laws could be passed to better protect producers and distributors of nutrient-dense foods and improve the chances of those individuals getting justice if the government brings a formal administrative or judicial action against them. Here are some suggestions towards making this happen.

    Jury Nullification
    Jury nullification is the legal concept where the jury has the right to acquit the defendant even if the law points toward guilt if the jury believes that it would be unjust to apply the law given the facts of the case. Jury nullification can take place in either criminal or civil trials. The Alvin Schlangen and Vernon Hershberger trials, respectively in Wisconsin and Minnesota, were jury nullification cases where the juries refused to convict the two for violations of the food and dairy laws even though under the letter of the law either could have been found guilty.

    The U.S Supreme Court has recognized the right of a jury to acquit a defendant when it believes that the application of the law to the facts of the case would be unjust.1 The trouble with jury nullification at the federal level and in nearly all states is that even though the jury has the right to judge the law as well as the facts in a case, judges and defense attorneys are prohibited from informing juries that this right exists. States need to pass laws lifting this prohibition.

    In 2012 the New Hampshire legislature passed a law stating, “In all criminal proceedings the court shall permit the defendant to inform the jury of its right to judge the facts and the application of the law in relation to those facts.” In a 2014 case, State v. Paul2 the New Hampshire Supreme Court held that this law did not impose any obligation on the court to “instruct the jury as to jury nullification.”2,3

      In response to the supreme court’s ruling a bill (HB 133) was introduced in the 2017 New Hampshire legislative session that read: In all criminal proceedings the court shall inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy. At the request of the defendant or the defendant’s attorney, the court shall instruct the jury as follows: “If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty. Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.”

    The 2017 New Hampshire bill is the type of legislation that needs to pass to strengthen the juror’s right of nullification. At a minimum it makes no sense that a defense attorney cannot even inform the jury of this right. Jurors should not have to work in the blind as to their nullifying rights as they did in the Hershberger and Schlangen cases where the law prohibited the judge and the defense attorneys from telling the jury directly about jury nullification. Jury nullification is a bedrock of our justice system; jurors should be educated about it.

    Jury Trials in Food Condemnation Cases
    Government agencies generally have to petition courts to destroy food the agencies have seized. The government usually does this on the grounds of protecting the public health but in nearly all cases there is no evidence that the food from the same production batch under seizure has made anyone sick. For some producers or distributors a single court order to destroy food can put them out of business. In cases like the Kansas raw camel milk seizure the government hasn’t even alleged that the milk is adulterated or a threat to human health.

    In one Missouri case, a court ordered the destruction of over 30,000 pounds of raw cheese even though the cheese manufacturer, Morningland Dairy, had never been accused of making anyone sick in 30 years of doing business and neither FDA nor the Missouri Milk Board had tested any of the cheese subject to the destruction order. FDA had taken 100 environmental swabs at the facility all of which were negative for the pathogen. Judges who rule against destroying food are in a no-win situation even if the facts of the case favor the food producer or distributor; they are under tremendous pressure to err on the side of protecting the public health even if there is no real health threat at all. A jury would better take into consideration the evidence on the side of producers and distributors in these cases.

    Jury Trial for Cases Where the Government Seeks a Permanent Injunction Against Food Producers and Distributors
    An injunction is a court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury. A permanent injunction is a final court order that is permanently in effect unless the court lifts the order. Those who violate the injunction can face contempt charges with the possibility of fines and/or jail time.

    In Michigan the past couple of years the Michigan Department of Agriculture and Rural Development (MDARD) has brought court actions for injunction against two different raw milk producers, Hill High Dairy and Dairy Delight Cow Boarding, for matters that should not have been any of MDARD’s business. In the Hill High Dairy case the department tried to stop individuals leasing cows from having the leaseholders hire someone to process their own raw milk into other dairy products; in the Dairy Delight case the department tried to stop those in a herdshare program from selling, among other foods, oatmeal cookies and apple muffins to other shareholders without proper labeling. Both cases involved private, closed-loop transactions far outside the stream of public commerce; in the Hill High Dairy case, MDARD not only obtained an injunction against the dairy prohibiting it from violating state food and dairy laws but brought contempt charges against the dairy when its leaseholders continued to have their raw milk processed into other dairy products. Thankfully, the judge hearing the case brought some common sense to the matter when he ruled the dairy was not in contempt.

    Agencies like MDARD would be less likely to bring actions for an injunction and contempt suits for violation of an injunction in these type of cases if they knew that food producers and distributors would be entitled to a trial by a jury of their peers.

    Right to Jury Trial for Appeals of Administrative Rulings
    Government agencies seeking to punish food producers with penalties such as license revocation or fines can resort to administrative hearings where the odds of success are not as great for producers as they would be in a judicial court. Several raw milk producers have found out firsthand that administrative hearings are often one-sided proceedings in which those the agency is trying to punish are afforded little due process.

    One Ohio farmer had his dairy license revoked at an administrative hearing for taking a $2.00 donation for a gallon of raw milk he gave to an undercover officer from the Ohio Department of Agriculture. Raw dairy producers have been through administrative hearings where, even if the person presiding over the hearing ruled against the government agency, the agency had the power legally to ignore the ruling and issue the order it wanted to anyway.

    Parties can appeal the ruling to a judicial trial court; the courts sits as an appellate court for the appeal but is limited to reviewing just the record from the administrative proceeding. The system needs to change so that the trial court would sit as a trial court trying the matter from the beginning as if it had never been heard in the administrative proceeding (the legal term is de novo trial) to give the individual the agency seeks to punish a fresh start in a less biased proceeding. To further discourage government harassment there should be a right to a jury trial in the appeal of an administrative proceeding to a judicial court.

Even if a state currently has a favorable regulatory climate for the production and distribution of nutrient-dense food, it is still the right move to pass the laws suggested above in case the enforcement policy of the agencies ever change.

Producers and distributors of raw milk and other nutritious foods who take the risks they do to make those foods available deserve to get justice and not just law if a court action is brought against them. Greater protection is needed for those who provide for our sustenance.

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[1] Spanf v. United States 156 U.S. 51 (1895)
[2] State v. Paul 167 N.H. 39,42
[3] The jury instruction the trial court judge gave in the Paul case was: “You should follow the law as I explain it regardless of any opinion you may have as to what the law ought to be. If you have a reasonable doubt as to whether the State has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However, if you find that the state has proved all elements beyond a reasonable doubt, you should find the defendant guilty.” Paul, p. 41.

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.

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.

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