© Doreen Hannes

On February 26^th, I received word that the verdict had come in on Morningland of the Ozarks court case. Late on Sunday night I received the documents. [Order and Judgment here and Order on Permanent Injunction here] It took a little digesting, but one thing was clear straight out of the gate; if we want justice, we aren’t going to get it without a jury of our peers. Morningland was denied a jury trial.

Interestingly, in the section requesting that there be “Burden of Proof” to destroy the cheese, the judge finds that it’s unnecessary.  He says, “judicial review probes only the lawfulness of an agency’s order without consideration of its reasonableness”.  Further, he states, “The court finds no authority suggesting the State must prove defendant’s cheese unfit for human consumption…”, and also that the because of the “unsanitary surroundings” the “court must disregard the absence of sickness among consumers of defendant’s cheeses.” Reason, logic and actual illness and, evidently, due process are irrelevant if an agency decides to act against you.

The Charges

Morningland was charged with violating statute RSMo 196.545 by selling “Unlawful Dairy Products”.  Here is that statute with the AG’s assertions in italics and the cites from the judge in bold:
Unlawful sale of dairy products.

196.545. It shall be unlawful to sell, offer or expose for sale, or deliver manufacturing milk or any dairy products made from manufacturing milk which:

(1) Are produced by animals afflicted with a contagious or infectious disease deleterious to man or detrimental to milk quality;

(2) Are not colostrum free or which have been taken from a cow fed or in contact with any substance that is unhealthful or that may produce unhealthful, impure or unwholesome milk;

(3) Are adulterated by the addition of any unauthorized substance including water or other material foreign to milk;

(4) Have been handled by any person afflicted with an infectious or contagious disease; or

(5) Are produced in unhealthy or unsanitary surroundings or held in unclean or unsanitary containers.

Since he used one cite that was actually brought up by the AG’s office, we’ll deal with that one first.

Don Falls was the inspector for Morningland Dairy and came to the farmstead cheese plant once or twice a year to inspect the operation. Whenever an inspector inspects, they find something to put in their report. There is no perfect place and even the cleanest dairies I have ever seen get a mark up for “something” in any inspection. While Falls admitted that Morningland had made a lot of improvements on the property since the Dixons took over as General Managers, he cited their cheese harp (the thing that cuts the curds) as needing to be replaced. He also cited that there were areas of the concrete floor at doorways that needed to be painted. Even though a very thorough swabbing by the FDA, including the cheese harp and under the molding around the floors, revealed no listeria in the plant, the Judge found that Morningland’s Cheese was produced in “unsanitary surroundings”.  So if you have older equipment, it is likely to be deemed unsanitary in Missouri.

Now the second finding is really the most interesting. First of all, it wasn’t brought up by the AG’s office and secondly, the logic applied is astonishing. It follows the deductive reasoning of,  “God is love and love is blind; Ray Charles is blind therefore Ray Charles is God.”

In that vein, here’s the break down of the judge’s evident logic. Morningland had one spike in SCC (somatic cell count) in one month out of twelve. The “dairy expert” testified that a spike indicates a herd health problem. Morningland sold cows. Therefore, the cows that were sold were diseased cows.

So, one spike plus one idiotic comment plus sold cows equals diseased cows.

Makes perfect sense, right?

Don’t Sell Cows if You Need Money

The testimony of Tim Wightman, the “dairy expert” brought in by Farm to Consumer Legal Defense Fund, was highly significant in the judge’s decision. Wightman has written a book and is working with many others to set National Raw Milk Standards that incorporate many of the ideals in his book. His testimony sometimes left the dairy farmers in the court audience with their heads shaking “no” and jaws hanging open in disbelief.

Prior to Wightman’s testimony, the AG cross-examined Denise Dixon and showed their intent to malign the Dixons for selling cows in late September. Remember Morningland had been shut down on August 26^th and had to dump their milk for five and a half weeks awaiting the Missouri Milk Board’s okay to ship into the commercial milk chain. The AG asked Denise, “Why did you sell cows?” Denise replied, “We were financially stricken.”

They certainly were financially stricken. When you have dairy animals, they need to be tended. The Dixons had no income and all the continued expenses of running a dairy farm and a cheese plant (minus the employees) so they were forced to sell some dry cows to keep feeding their other cows. It happens every day. It’s a logical thing to do when faced with financial difficulties. It’s called cutting down on overhead.

Watch Out for Experts

Tim Wightman, the expert witness, testified that if there is an elevated SCC it is indicative of a potentially serious herd health problem. One spike in 12 months does not indicate a herd health problem. Two spikes in a row might very well be indicative of a problem, but one is a fluke and should be given all the intensive scrutiny reserved for an unlucky roll of the dice. Morningland’s SCC counts averaged in the 5-600k range, well below the State level of 750k, and the months following this spike were in line with their average.

Wightman’s standards are that SCC’s should always be under 300k, and no spikes are allowed. The problem with this is that we are talking about living animals with their own immune system, and both environmental and biological stresses can elevate SCC’s. 300k is a good ideal and should probably be pursued, but despite Mr. Wightman’s belief, it is not a requirement for good raw dairy. Testifying in court that your book’s statement of “no milk with an SCC higher than 300k should be used for raw dairy” is accurate is simply dishonest, and has proven to be fatal to Morningland Dairy.

The most stunning thing about Wightman’s testimony was when the Attorney General’s Counsel asked if selling cows would reduce the somatic cell count and he replied, “Yes.”

This was when the dairy farmers jaws were dropping. Mine included.

Really, Tim? Selling cows reduces the SCC? No qualifications in the equation? Selling cows reduces the SCC? Dry cows? Really?

Based on this statement of the “dairy expert”, the judge has ruled that Morningland had diseased cows in their herd and sold them to avoid detection. Those dry cows were obviously the source of contamination that led to Morningland’s problems. Never mind that they exhibited no symptoms, testing or proof, and no one became ill. Evidence is unnecessary.

Nice.

Do we really want these “National Raw Milk Standards”? Who will benefit?

Now Judges Regulate from the Bench

In the Final Order of Permanent Injunction, the judge prescribes what Morningland Dairy is to do if they desire to enter into commerce in cheese ever again. Oddly enough, the judge’s prescriptions are taken directly from a conversation with a noted cheese consultant that occurred in the presence of Don Falls of the Missouri Milk Board and myself. Almost verbatim.

Despite the judge’s admission in the Judgment that it would be unreasonable to ask the Milk Board to test each batch of cheese before destroying it, he requires that Morningland Dairy test each batch of cheese prior to offering it for sale. So the one’s with no investment don’t have to verify anything to destroy it, but those who have borne the cost and time to bring it to the point of sale must incur additional expense. Oh, and they must test the cheese prior to the 60^th day of aging, as well.

Despite citing the fact that the FDA found no listeria in their swabbing, Morningland must foam ceilings, floors, equipment and all utensils with a listeria killing foam and install listeria killing foggers in their plant.

The judge also prescribes temperatures at which to age the cheese, and that cheeses in the process of aging must be in a separate cooler from those that have already aged. A commingling prohibition on cheeses in various stages of maturation is now ordered by a court.

Additionally, and most unreasonably, Morningland must “verify that no animal for use in the production of Defendant’s cheese is infected with mastitis”.  How could this even be done? Prior to milking, a veterinarian with a microscope and all proper accoutrements must be present and each cow must be tested and wait to be milked until the vet has ascertained whether or not there is “mastitis” present.

Put simply, there is no way that anyone can make farmstead cheese under the conditions set forth by the judge in this ruling. But that’s been the desire of the Missouri Milk Board as agents of the FDA all along. They are doing just what the FDA wants them to do and the State of Missouri is acting in full agreement with the Federal agency which states “Raw dairy is inherently dangerous and should never be consumed by anyone, at any time, for any reason.”

Next Steps in this Case

The future of raw dairy in Missouri hangs on this case. While the judge acknowledged that he received the notice that Morningland has gone private and will not be engaging in commerce any longer thereby removing themselves from the jurisdiction of the Missouri Milk Board, he cites a statute that he claims disallows them from doing so.

The judge says that “to the extent that defendant purports an exemption of a new entity from regulatory requirements, the court notices RSMo 196.595 to the contrary…” So what does RSM0 196.595 say?

“196.595. Beginning September 28, 1981, no person shall produce, sell, offer for sale or process milk or cream for the manufacture of human food except in accordance with the provisions of sections 196.520 to 196.610 and the regulations promulgated hereunder.”

If we don’t get this ruling overturned, or an amendment to this statute removing “person” from the control of the Milk Board, we can look forward to the Missouri Milk Board promulgating regulations regarding what you can do with your own milk in your own kitchen. Want to make some home-made mozzarella? You’ll have to follow all the regulations the Missouri Milk Board wants you to follow.

Despite FDA assertions, desires, requirements and fears, I will make cheese if I want to, and I will not ask for permission from any agency. I’m just kind of stubborn that way. If you look around this state I bet you’ll find a lot more very stubborn people.

There are supposed to be 30 days to make a Motion for Reconsideration that will likely be followed by an Appeal in this case. According to Pete Kennedy of the Farm to Consumer Legal Defense Fund it could take up to a year in the appeal process. By that time Morningland’s cheddar cheese ought to be sharp enough to cut through the bones of the Missouri Milk Board and the FDA. But the Milk Board has just informed the Dixons that they want to come in and destroy the cheese in their cooler on March 9^th and 10^th.

Who needs laws and procedures? Now we not only have no due process, we have no appeal, we have no system left in real food but tyranny.

This article needs to spread far and wide. When I learned that Monsanto’s RR Alfalfa had been approved, I immediately thought of this issue. If farmers and not the creator of this GM product are responsible for all liability, Monsanto will be responsible for destroying even more farmers…..The USDA recently approved three GM products: another GM corn with processing potential issues, GM sugar beets and RR Alfalfa. Isn’t the USDA great?

Feel free to spread this article. It’s really important!

Cassandra Anderson
February 8, 2011

Phil Geertson is a conventional alfalfa seed grower who has been involved in efforts to stop GE (genetically engineered) alfalfa since 2003 resulting in a Supreme Court decision in 2010 on Forage Genetics/Monsanto’s GE alfalfa. Mr. Geertson began his career as a Registered Civil Engineer but later changed his life’s work to farming and plant breeding in order to enjoy the outdoors. He has spent the last 30 years farming and raising many diversified crops and has been a partner in alfalfa breeding programs for 25 years. When RR (Roundup Ready) alfalfa was first proposed, Geertson realized that all alfalfa could quickly be contaminated by the Roundup Ready RR gene and that is the reason that he was the lead plaintiff against the USDA for deregulating GE alfalfa in 2005. Deregulation of GE crops means that seeds and plants may be planted without any restrictions. Geertson said that GE alfalfa will contaminate all alfalfa plants!

US Federal Judge Breyer placed a nationwide injunction against growing GE alfalfa in 2007 and Monsanto took this case all the way to the Supreme Court. The Supreme Court removed the nationwide injunction against planting GE alfalfa, deeming it to be “too broad”. However, GE alfalfa seeds were still illegal to plant because the Supreme Court allowed Judge Breyer’s order barring planting of GE crops to stand until the USDA’s final Environmental Impact Statement was completed. The USDA completed the final Environmental Impact Statement in December 2010. The USDA announced that they deregulated GE alfalfa again for unlimited planting in January.

Geertson feels that this case will likely go back to Judge Breyer’s court, because the Supreme Court remanded the case back to Breyer’s court in their decision. Geertson also said that because of the bad science used by the USDA in its final Environmental Impact Statement, Judge Breyer may issue another injunction and the case will be tied up in court again. Click here for Geertson’s analysis of the USDA’s bad science.

Geertson also explained that alfalfa is particularly prone to contamination because it is a perennial plant (a plant that lives for more than 2 years) that can be cross pollinated by insects that travel long distances and alfalfa seeds can lie dormant in the ground for 10 to 20 years. Unlike corn, cotton and soybeans that are annuals and do not grow as feral plants in the environment and need to be planted each year, alfalfa is a perennial. Therefore, alfalfa will be permanently contaminated.

I asked Geertson if Forage/Monsanto’s Roundup Ready alfalfa seeds were cheaper when they were introduced- it was surprising when he said that the RR seeds were more expensive. He said that farmers like RR seed products because they are convenient: the farmers can plant them, spray them with glyphosate (the active ingredient in Roundup) and then forget about them until harvest. There is far less labor involved in planting RR products. When Monsanto introduces a new product, they have splashy ad campaigns and farmers line up to buy the new seeds. The small independent seed growers lose sales and go out of business or get bought out. Forage Genetics/Monsanto owns 60%-70% of the alfalfa market.

Roundup herbicides lose their value after a few years because while they are effective for a few years, weeds and other plants become resistant to them. The RR technology is worthless when the commercial crop has to compete with these weeds and other plants. The crop yields are reduced and difficult to harvest; the farmers must then revert to conventional methods to control the weeds. Some examples of this include the giant amaranth that has invaded GE corn and cotton fields; the same will true for GE sugar beets that will have to compete with red root pigweed. So, there is really no advantage to planting GE RR crops after a few seasons because weeds and other plants develop a resistance to glyphosate spray. But all of the small independent seed companies will be gone and Monsanto will own the agricultural seed industry.

Monsanto’s business has declined because their patents are expiring. For instance, Geertson estimated that 60% of their RR spray market was lost to cheaper generic brands. Geertson said that Monsanto has not been bashful about charging exorbitant prices for their patented RR spray. After Monsanto’s patent expired, generic glyphosate flooded the market and brought prices down dramatically.

GM Watch reports that Monsanto has raised prices for its products at a “whopping” rate in the past. For example, between 2006 to 2008, soybean seed prices rose from an average of $32.30 to $49.23 per bag; this calculates to a 52% increase. GM Watch further states, “Patenting also inhibits public sector research and further undermines the rights of farmers to save and exchange seeds. Monsanto devotes an annual budget of 10 million dollars to harassing, intimidating, suing – and in some cases bankrupting – American farmers over alleged improper use of its patented seeds.”

Phil Geertson has grave concerns about the health safety effects of GE products that have not been tested and proven safe.

He is also concerned about contamination by GE seeds that cannot be recalled from the environment.

Mr. Geertson said that he is dismayed over the lack of accountability of large corporations and individuals who are responsible for these potential health and environmental disasters.

If the USDA is successful in neglecting valid science and deregulating plants by decree, this may result in the loss of pure food and our very lives could be at stake.

Geertson has tried to warn farmers about the adverse effects of GE products but the farm media, the most direct way to reach many farmers in his opinion, refuses to publish his articles. He believes that the reason for this is because the media collects big advertising fees from GE product producers so the publications don’t want to offend their source of income. Therefore, farmers are prevented from learning about GE products that can irreparably contaminate the environment, among other things. Mr. Geertson is writing an article for farmers about the negative aspects of RR alfalfa. It may be necessary for him to get the information to the farmers by paying for advertising, probably from paid donations.

* MorphCity grants permission to reprint and share this article in its entirety.  Please cite the author and provide a live link to MorphCity.com.

©Doreen Hannes

The closing arguments for the January 11^th and 12^th trial were submitted by both the Missouri Attorney General’s office and Farm to Consumer Legal Defense Fund. The Attorney General’s office decided to throw in additional testimony from Joseph Frank, the expert cheese killer, in an attempt to rebut Dr. Ted Beals’ testimony. Should the Judge allow this testimony, it will lengthen the time for decision because the Defense will need to cross-examine Frank again and have that submitted to the Court.

These arguments really don’t contain any surprises from either side. In a nut shell, the AG’s office says that Morningland’s cheese is a public threat and Morningland is guilty of making life threatening food, and failing to roll over and die at the suggestion of the Missouri Milk Board. The State also asserts that Morningland has been guilty of operating an unsanitary and even filthy plant.

Morningland’s defense argues that the State is acting outside of the constraints of the law and has not followed proper procedure nor proven that Morningland’s cheese is a threat to the public, and that Morningland is and has been a clean and sanitary facility. The defense asks for monetary relief, although that request is far below the actual cost incurred by the business’s closure.

No one actually knows how long the judge may take to render his decision regarding the destruction of the cheese Morningland has been keeping under house arrest since the August 26^th shut down. It could be a week, a month or two months.

Meanwhile, Morningland Dairy LLC has dissolved.

The General Managers for Morningland Dairy, Joseph and Denise Dixon, have been trying to hang on since the State shut down their livelihood. Joseph has been traveling out of state working as an electrician to keep their family afloat while their life’s work and wealth is held in limbo by the Milk Board’s “condemnation, embargo and seizure” order. The six employees of Morningland and the investors in the company have also been robbed of at least part of their livelihood. In a broader view, a very economically depressed area has been dealt another financial blow by unreasonable regulations and untenable enforcement actions.

In a sense, the State of Missouri and the FDA have won. In another sense, they have lost. Through their policies and “science based” (not scientifically accurate) enforcement measures, they have killed a viable business dealing in interstate commerce, which is a win for them. However, the ex-General Managers of Morningland Dairy are not actually dying the death the regulatory agencies desire. They are going private, and expect to be making and shipping their cheese in early or mid-summer…So this is a win for individual choice, which is a loss for the regulators.

Since there is no indication at all that the FDA and their State counterparts are going to revisit their policies or conviction that raw dairy is “inherently dangerous and should never be consumed by anyone for any reason”, the Dixons have turned in their license for the cheese plant to the Missouri Milk Board. How can anyone have a reasonable expectation of profiting from their labor when, despite strong evidence to the contrary, the agencies regulating a product view it as “inherently dangerous”? Obviously, you can’t. The FDA’s motto should be, “If it’s good for you, we won’t allow you to have it. We are fulfilling our vision of public health-Sit down, shut up, and eat your GMO rations.”

Because of the lack of decency and intelligence exhibited by the regulatory agencies, the proponents of real food are increasingly boxed into a corner. The only logical and peaceable thing to do is to remove oneself from regulatory authority and go to direct private sale. If the agencies decide to literally outlaw real food, they may simply start a full on revolt. The escalation of the raw dairy war being waged by the FDA against the people has brought tremendous awareness to the issue of real food and real choice. This is important not only to those who enjoy real food, but to those who value freedom. Whether the agencies like it or not, we have an inalienable right to eat food without their interference or permission.

The Dixon’s ability to actually begin to make their cheese again is resting upon the judge’s decision regarding the cheese that has been under arrest for almost six months in their cooler. Should the judge free the cheese, they should be able to sell the very sharp cheddar to individuals wishing to purchase from them. This will hopefully give them enough capital to begin the process of making and aging their cheese again sometime soon. While this approach should eventually allow Joseph Dixon to return home and be with his family, it’s not likely that the six employees of Morningland will get back to their previous jobs.

At this point, the actual determination of the winners and losers in this case rests upon the individual Citizens of the Republic. If we are committed to preserving our food choices to ourselves, and opposed to allowing bureaucrats the authority to decide what we will eat, we will support Morningland’s move to direct private trade. We can get some real cheese made by real people using real ingredients that have actually been designed for human consumption. The agencies can regulate “commerce” and licensed entities, but they cannot regulate our thoughts…If we allow them to do so, we have lost already.

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There are several “industry” publications I receive so I can remain on top of the issues of concern in agriculture. One of these is Meatingplace. They had a small article, as their articles always are, and it was about Organic HACCP, and a seminar being given to teach “organic professionals” about implementing Hazard and Critical Control Point Analysis in their businesses. Isn’t that nice?

Here’s the last little bit of the article….

 

It is designed for individuals responsible for organic and food safety programs in small- to medium-sized processing facilities and those responsible for the communications messaging of the facilities. It is specifically relevant for organic and food safety program professionals, communications professionals, certifiers and inspectors.

The cost per person is $625.50 for OTA members and $695.00 for non-members. For more information, click here.

These costs, of course, are not part of the cost estimates given by the government for the implementation of the FSMA (Food Safety Modernization Act-PL111-353). When the costs of doing business become prohibitive, people will simply close their business. But first, the cost to the consumer goes up.

Since we are already seeing food riots in Tunisia, Algeria and Chili, and serious shortages are said to exist, we can look forward to extremely high food costs in the not so distant future. It isn’t because farmers have forgotten how to farm, or climate change, but because agriculture policies have driven farmers out of business.

Please, be prepared…..

©Doreen Hannes

On January 13^th, the second grueling day of the Morningland Dairy LLC marathon trial, ensued. For those who don’t know, court went on for ten hours on Tuesday and ten full hours on Wednesday. Early in the Wednesday proceedings there were approximately twenty people in the audience, but as noon approached the attendance grew to nearly forty-five. Wednesday was almost entirely devoted to defense witnesses with the exception of Sarah Blamely, technician from Microbe Innotech on behalf of the Missouri Milk Board. Miss Blamely testified to the processes she followed after receipt of the samples by courier. She stated that she believed Don Falls of the Missouri Milk Board was a representative of Morningland Dairy and that was why she allowed him to change information regarding batch numbers on Morningland samples.

Following Ms. Blamely, testimony was read into the record from State’s expert witness, Joseph Frank. It was interesting in that the three attorneys read lines of different characters like high school students reading for a play. You have to find some amusement in court or you would likely go tharn….and it’s a good thing that many of us in the audience had the capacity to think funny thoughts.

Defense Testimony Begins

Next was Denise Dixon, General Manager of the farmstead cheese plant. Both Morningland General Mangers, Joseph and Denise Dixon, were in Washington State at the American Cheese Society Convention on August 26^th, the day that the Missouri Milk Board embargoed, seized and condemned their entire cheese stock. Interestingly, although these terms, “embargoed, seized and condemned” were used repeatedly, no distinctions between the three terms were ever clarified.

Mrs. Dixon testified about general processes and her training in the operation of the cheese plant. She spoke of her concern for their customers and general impressions upon hearing of the notice from California Department of Food and Ag regarding their cheese and the inventory levels.  Mrs. Dixon also testified that there was an FDA recall notice sent out without their authorization and prior to their return to Missouri from the American Cheese Society convention Washington.

The Missouri Attorney General counsel, Jennifer Bloome, objected nearly every time a defense witnesses mentioned the  “FDA”, and made no exception to this mention by Denise Dixon. Defense Attorney, Gary Cox of FTCLDF (Farm to Consumer Legal Defense Fund) indicated that they did indeed have proof of this August 27^th recall notice regarding the objection of the Attorney General’s office at the admission of this testimony into the court record. Notably, the AG’s office did not object to the testimony of their own witnesses, Missouri Milk Board employees Gene Wiseman and Don Falls, both stating that they followed all FDA guidelines and procedures in their agency.

Perhaps the most revealing statement made all day came from Jennifer Bloome of the AG’s office in explanation of her objection to referencing the FDA involvement at Morningland. While I do not have the transcript in front of me, I wrote down what I heard her state, and am reasonably certain it is correct. Objecting to a reference of the FDA’s inclusion in testimony regarding invoices given to Don Falls of the Missouri Milk Board on August 27^th, she said, “The invoices were procured for a collateral matter and we would like to keep that separate from this case.” It would seem that the FDA and the Missouri Attorney General’s office are working together for further action against Morningland.

An inference was made by the AG’s office that the Dixons were trying to avoid discovery of listeria-laden cows in their herd. Ms Bailey-Brown of the AG’s office was questioning Denise Dixon and asked, “Do you expect us to believe that you sold cows after finding you had a listeria problem, and did not pick those cows?”  Joseph Dixon informed me that the cows they sold in the end of September or early October were dry cows due to freshen, and they simply couldn’t afford to continue to feed them, so they were sold. He said many went to slaughter at 54¢ per pound. Denise Dixon simply replied, “We were financially stricken.”  The Attorney General’s office pursued this reasoning for what seemed an inordinate amount of time to those of us in the audience remotely familiar with dairying…which was most of the audience.

An Actual Problem and “Standard” Driven Problems

Jedadiah York, Morningland’s Plant Manger testified next, and seemed understandably nervous. His testimony was mostly rudimentary, regarding the processes involved in making cheese. The most revealing thing in his testimony was that he picked the cheeses to be sampled straight from their cut stock with Don Falls present.  Previously, I understood that an employee had picked the cheese and neither Don Falls or Jedadiah were involved in that process. He also testified that he did not always record the date the first block of cheese from a batch was cut. He attested that the cheeses had always been aged at least 60 days, but he was occasionally busy and failed to make record of the dates certain batches had been cut. This is important because raw dairy cheeses are required to be aged 60 days, while no reports of illness or product complaints have ever surfaced, those lapses in record keeping are not helpful to Morningland Dairy’s plight.

Next came the testimony of Tim Wightman, a dairy consultant, Farm to Consumer Legal Defense Fund board member and major force in the push for National Raw Milk Standards. While the Attorney General’s office questioned his expertise, they nonetheless had done their research on Wightman and used his own standards to effectively malign Morningland Dairy because of one milk sample where their somatic cell count (SCC) went over the state grade A level of 750,000. Results from one full year of Morningland milk samples were read into the record and the SCC’s were from 160,000 to a one-time-only spike of 1.7 million. The average SCC was 600,000 or lower with only that one spike and several in the 300,000 range. Most dairy people will tell you that the records are indicative of a very well run dairy with good herd health, and the spike was likely due to someone forgetting to turn on the tank to cool the milk.  An error, yes, but not one worth destroying a business over.

Nonetheless, the AG’s office used Wightman’s standards from his own literature to cast aspersions on the herd health of Morningland. Mr.Wightman also inexplicably stated that when you remove cows from the milking line it will reduce your SCC. He testified that his standards require SCC’s of less than 300,000 with any spike being indicative of a potentially severe herd health problem, not a potential human error. The push for National Raw Milk Standards is a deep concern for many in the raw milk movement, and the standards expressed by Wightman on the stand in this trial are good examples of some of the basis for these concerns.

Star Witness Takes the Stand

There was only one witness left and this was Dr. Ted Beals. An extremely well educated, highly credentialed medical doctor and microbiologist, Beals was the indisputable star witness in the entire trial. Initially, while he was reciting his credentials, Judge Dunlap said, “While we could ask when you received your medical license, that could reveal your antiquity and that is not the habit of the court”, which drew some laughs from the peanut gallery. Dr Beals was articulate, thought provoking and quite authoritative in his testimony, which centered largely on the extremely pervasive presence of bacteria in general, and both listeria monocytogenes and staph aureus in particular. These two bacteria, the two contaminates resulting in the Milk Board decision to destroy Morningland’s cheese, are evidently highly present in the environment and all over each one of us.

From time to time, Dr. Beals was guilty of falling into narratives, but despite the lessons in bacterial behavior, his testimony remained germane to the topic. Near the end of his testimony, AG Bailey-Brown was attempting to infer that Beals was an anti-government radical by citing points the AG’s office had harvested from a power point presentation he had given at a raw milk symposium. Ms. Bailey-Brown asked a question that began with “Isn’t it true that you believe that….” which was so long and meandering that no one could follow it, and to which Cox entered an objection and Judge Dunlap replied, “As long as it isn’t to the truth of the matter and only to the beliefs of the witness, the witness can answer the question….That is, if he can remember the question.” Beals asked her to re-state the question, and not too surprisingly, she couldn’t recall it either. It definitely provided some much needed comic relief.

One of Beals’ responses (among many) that bears repeating was, “There are millions more bacteria in and on humans than there are cells in the human body…..”  Kind of like, “Auuugh! Nature! It’s all over me!”  And also, when the AG evidently (okay, I’m being generous here) misinterpreted some of Dr. Beals’ testimony given in deposition regarding “listeriosis resulting in 100% fetal mortality”, he corrected her cleanly. His response was, “No, that is not what I said. I said that if listeriosis resulted in an abortion it would cause 100% mortality in a fetus.”

Is Advocacy Terrorism?

It was interesting that the Attorney General’s office seemed intent on showing some kind of collusion by inquiring of witnesses for the defense as to their membership and/or position in the FTCLDF organization. As if being a member of this group somehow was akin to being a card carrying member of a terrorist group or something similar. Obviously Denise Dixon, is a member of the group as Morningland Dairy is being represented by FTCLDF Lead Counsel Gary Cox, and you must be a member of the group to be represented by the group’s attorney. Is it really that much of a surprise that an organization designed to represent the interests of farmers and farmstead producers with a focus on raw milk, would use it’s own experts in a trial? It appeared that the attempt to deride the testimony of the defense witnesses on this basis held little weight with the judge as his facial expression didn’t change a bit when everyone asked admitted to some type of an affiliation with the organization.

The Conclusion Draweth Nigh…Maybe

The 7:00pm adjournment time was met with no time left for oral closing arguments. Judge Dunlap, whom as I’ve said previously, is a very unorthodox judge, allowed that if the State wished, they could bring in their own medical doctor as an expert to rebut Dr. Beals’ testimony, provided that the defense had opportunity to depose as well. Barring developments in that realm, closing arguments are to be presented in written format. Gary Cox asked if there was a page limit, and Dunlap replied, “I guess 40 pages,” shrugging shoulders slightly and leaning his head forward a bit, “Holding to the law and consonant arguments….Explain why your side should win.” The written closing arguments are to be submitted to the court on January 28^th.  In the interim, the judge will review the testimony.

Barring any further developments on a potential suit involving the FDA as alluded to by Missouri Attorney General Jennifer Bloome, there may not be any updates on Morningland Dairy’s continued crisis for an entire week or so. As always, I will keep you apprised if this fluid situation changes…..Meanwhile, please do visit the UnCheese Party and make any donation you are capable of making. If you haven’t grasped it before now, our nation is in a serious crisis for real food. If we have no real farmers, we certainly will not have any real food.

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January 11, 2011,

Today was Morningland Dairy’s first day in court. Getting into the court room was almost like trying to get on an airplane, except for no one ‘touched your junk’, and I didn’t see any naked scanners there. You simply couldn’t even bring in a purse, laptop, cell phone or bottle of water. The law enforcement monitoring entry seemed to ease up a bit as the day wore on, but at first it was pretty durn tense out in the entry area.

Roughly forty five people were in the audience, and it filled the little spectator’s vestibule in the Howell County Missouri Court House. The unusual number in the audience drew Judge Dunlap’s attention and he commented upon it during his opening instructions on proper court room decorum. The presence of so many people on a very cold day when all area schools were closed because of questionable roads illustrates the importance of this case to the residents of South Central Missouri.

While this is just a small update for those who have been supportive of the dairy, there was a tremendous amount of detail that was covered in the testimony given today. The majority of the day was taken up with the testimony of Gene Wiseman, Executive Secretary of the Missouri Milk Board, and Don Falls, Environmental Specialist and lead Missouri Milk Board investigator and inspector of Morningland Dairy plant.

In my opinion, Gary Cox, attorney for Morningland from Farm to Consumer Legal Defense Fund, did a pretty good job on cross-examination. As many of you know, I have been somewhat critical of Mr. Cox in the past, and I simply want to give credit where credit is due. He did a good job today. So, a hat tip to Gary Cox is in order, and I will give it!

Wiseman stated that he ordered an embargo on Morningland Dairy’s cheese without any actual knowledge of contamination. That he had never scheduled a destruction date with Morningland, and that the State of Missouri had assumed all FDA documents, except for the one Cox showed him about investigations of dairy facilities. There is no state statute or regulation that categorically states that Missouri has accepted and adopted all FDA guidelines or standards….and the Attorney General’s office tried to disallow questioning about the FDA as hearsay. But since Don Falls worked with the FDA on their investigation of Morningland, it was allowed after all.

Judge Dunlap is rather unorthodox in his courtroom manner. Initially I thought he was entirely too helpful and lenient with the Attorney General’s office. I have never seen a Judge help to rephrase counsel’s questions after objection in the way that he did. But he showed the same latitude with Mr. Cox’s cross examination, so I think it is just his demeanor and it wasn’t apparent to me that he was showing bias in favor of the prosecution. Additionally, his questions for his clarification of the two Missouri Milk Board witnesses were germane, intelligent, and astute. So it doesn’t appear on its face that we are actually dealing with a foregone conclusion in favor of the State in this case.

All who are able are encouraged to attend the trial at 9 in the morning…..just a few hours from this writing. While the pace of today’s proceedings seems to indicate that the trial would have to continue into Thursday, it is scheduled to wrap up on Wednesday the 12th of January, 2010. All who attended today are deeply appreciated!

I will do a more thorough overview of the court case itself in the next couple of days, but not being allowed a laptop for note taking purposes makes this part of my job a little more difficult! Just remember, if you come to the Howell County Court House, leave everything outside in your car except for your keys. You can put those in the little bucket and walk through the detector. ======= For more info on this case, search this blog or go to UnCheese Party

©Doreen Hannes 2011

Missouri farmstead cheese plant, Morningland Dairy is going to be in Howell County Circuit Court at 9am Central time on Tuesday, January 11^th. The Missouri Attorney General’s Office is charging Morningland with 3 criminal charges and has also filed a “Preliminary Injunction” in hopes of getting a court order to destroy Morningland Dairy’s cheese.

It’s a sad time for a nation that espouses “freedom” as a mantra when food buying co-ops are raided at gun point and cheese plants that have been in business for 30 years with no illnesses can be put out of business and charged with crimes, seemingly for simply asking to have proper tests done before a State agency destroys their property. But that is where we are now in the good ole US of A. Pretending it isn’t happening isn’t going to be “healthful” or helpful for you or your progeny.

For those who would like to read a more thorough background on Morningland’s  legal issues, please visit the UnCheese Party website where many articles and click through links to many more articles are housed. The UnCheese Party began a fundraising effort to try to keep the raw cheese dairy from folding during the embargo that the Missouri Milk Board placed on their cheese on August 26^th, 2010.

Joseph and Denise Dixon are the General Managers and co-owners of Morningland Dairy LLC. Morningland is a licensed and inspected facility located in Mountain View, Missouri and they have lost nearly a full year of production and sales because of the embargo placed on the dairy by the Missouri Milk Board. It appears that the Milk Board is simply taking the lead position of the FDA in the federal agencies not-so-cold war against raw dairy. (Read FDA testimony for a better explanation)

The Charges versus the Facts

The Milk Board alleges that Morningland, whom they licensed and inspected and whom the State recognizes as a LLC in good-standing, has engaged in “Unlawful Sale of Dairy Products”, “Unlawful Interference with Milk Board Duties”, and (more here) “Failure to Comply with a Destruction Order”.

Morningland ceased all sales of its product after the Milk Board put an “embargo” notice on their cheese cooler on August 26^th. Hence, all sales prior to the 26^th were entirely within the bounds of the law, and therefore, lawful.  The FDA issued a voluntary recall –before- Morningland’s General Managers had opportunity to review the California Department of Food Agriculture tests that spurred the interest in Morningland by the FDA and the Missouri Milk Board.

Morningland never denied access to the Missouri Milk Board, nor did they refuse them the opportunity to test their products or deny them information. As a matter of fact, they asked that properly done, legitimate testing be done… and were told that the Milk Board didn’t have the funding, and would only test if someone had died from the product.  Morningland also followed a purely verbal instruction to cease production on their cheese. How could this possibly be construed to “interfere” with the Milk Board in their duties?

There was never a date given, nor an actual destruction order issued to Morningland to destroy or to have their cheese destroyed. All Morningland did was lodge their objection to the paragraph in the middle of a three page letter that said that the Milk Board would contact them to make an appointment to destroy their property and livelihood. So questioning the ‘belief’ of the Milk Board is now a criminal offense in the state of Missouri. How that jibes with “freedom” is beyond my ken. It certainly is a far cry from principles espoused by Thomas Jefferson….It’s a far cry from the principles associated with reason, logic, and due process in general.

The final point in the charges brought by the Missouri Attorney General is a “Preliminary Injunction” against Morningland and the cheese that has been languishing in their refrigerated cheese cave since August 26^th. The use of the term “preliminary” in this charge is very misleading. Should the court find for the Milk Board on this charge, the cheese, which is the evidence, would be destroyed quite quickly. In other words, “preliminary” means final, and “injunction” means destruction.

The Remedy?

Morningland Dairy is requesting a jury trial on all of these charges.

There is a general belief that the Missouri Attorney General’s office intends to try to separate the “preliminary injunction” (permanent destruction, rather) order from the other charges levied against Morningland. The hope is that the judge will see that the existence of the cheese in the cooler for scientifically accurate tests is integral to the case overall, and refuse to separate the “administrative” from the criminal. In my mind, the hope is that the judge will want to examine the real, whole milk straight from the farm instead of the ultra pasteurized homogenized version of milk that you find in your local grocery.  If you drink real milk, you know what I’m talking about here….If you don’t, you should!

Morningland reports that their Attorney believes that if the judge determines to hold the Milk Board responsible for proving that Morningland Dairy Cheese is contaminated, they have a great chance of winning. If the judge decides that Morningland has to prove they are innocent, like in the former Soviet Union, then there is a good chance they will lose.

Either way, on trial in Missouri is your right to decide what you want to eat. If Morningland loses this battle, the FDA will have one a precedent setting court case without even having to foot the Attorney bills. They will have won precedent of their assertion made in another FTCLDF (Farm to Consumer Legal Defense Fund) case that “You have No Right to any Particular Food”, “You Have No Right to Bodily or Physical Health”….and “You Have No Right to Contract”.

Hopefully the citizens of the Show Me State will Show Up and demand of the court that they do indeed have these rights, and that any infringement of these rights will be taken seriously.

I suggest that everyone with healthy dairy animals bring personal samples to the Howell County Court House to share amongst themselves…Otherwise, we can look forward to the new Food Destruction Agency catch phrase, “Tyranny, It’s What’s For Dinner.”….Or “Goat Milk?…Go to Jail.”

I like my dairy like I like my freedom. Raw.

©Doreen Hannes

As the Lame Duck Season ends in the US Capitol, several things become apparent. First is that we should have put the Lame Duck out of our misery. Not having done that, the most glaringly obvious thing is that we no longer have the semblance of a legitimate representative government left. At least not in any way that is meaningful.

It appears that we, as Citizens, are inclined to continue to do the same things, over and over again, hoping and praying that we can “take back our country” by calling, faxing, emailing, writing, reading, speaking and throwing the occasional coin in the wishing well. Guess what? It hasn’t worked.

Doing the same thing over and over again and expecting different results is one definition of insanity. It is also a sign of desperation.

No matter how many phone calls we’ve made, they’ve passed what we’ve called against. Obama Care, TARP, Food Safety, Real ID, the Patriot Act (again and again), NAFTA, CAFTA, SHAFTA, and everything else indecent, all “for our own good”. If it doesn’t make it through the Board Meeting that is Congress, we get it via Fiat, otherwise known as, Executive Order. It doesn’t matter what party it is that is in control. If it’s a goal of the global elite and necessary to break down the barriers of sovereignty, we’ll get it one way or another.

We now have a federal government with statutory authority to control everything you eat if you buy any part of it. We have a government that authorizes agencies to ‘touch your junk’, put you in preventive detention, read your mail, your email, and library history, listen to your phone calls, instruct your bank to “know their customer”, take your child’s DNA at birth, build “fusion centers” for re-education, control your land, your water, allow you to be guinea pigs without your knowledge or consent and more. And they keep us distracted by pitting Republicrats and Demicons against each other and getting us to call and plead for them to “please, please do the right thing” on this, that, or the other thing.

It’s so bad that I have the DC switchboard number memorized.

While I am not one for New Year Resolutions, I think it’s time that we resolve to quit wasting our time and energy on the Federal government.

Once the agencies have been authorized either via statute or Executive Order to exert their energy into a particular realm, they write regulations that we can spend energy commenting on and be handily ignored before they finalize the rule they just made. Like moving Plum Island to Kansas, and countless other issues.

All hope is not lost…Just almost lost. We have states where we can almost have a real effect, and the feds are truly dependent upon the states to enforce, enact, uphold, permit or otherwise carry out the federal initiatives, agendas, guidelines, standards or malarkey. State governments are smaller, and generally easier to hold accountable than the Federal government. For the most part, it doesn’t take an entire week away from home to directly interface with State representatives. Not that it is easy, but it is a lot easier to get to the state Capitol than to DC for almost everyone.

If we join together the various freedom oriented groups at the state level, be they Campaign for Liberty, Sovereignty Projects, Tenth Amendment Centers, Property Rights groups, Parental rights groups, Agriculture groups, Home School groups, or what have you, maybe, just maybe, there is a chance we can get some of the insanity headed our way from DC neutered, or at least constipated.

Since we have plenty of evidence of the direction the FDA and her sister agencies are going to go with “Food Safety”, I think it would be good to see if we can force the State legislators to publicly declare whether they think we have the right to decide for ourselves what we want to eat. To that end, I’ve pasted what is known as Model Legislation below…. A bill that should be easily and readily passed in any state that thinks their Citizenry is smart enough to choose their own food. Believe it or not, a bill that has no Corporation that can benefit from its passage at all.

If we are to be free, we must be able to eat, and we must be able to produce food and exchange that food for other useful items:

1.  The direct trade of any non-genetically engineered farm-produced goods or products exchanged within the state of (Missouri) shall not be subject to any state or local regulation.  No fees shall be imposed, licensure required, or regulations promulgated for farmers, ranchers, gardeners, or producers of any non-genetically modified food or feed items for direct trade, or for individuals procuring such goods for their own use.

2.  The provisions of this section shall not apply to gross negligence or criminal acts in the direct trade of farm-produced products exchanged within this state.

I am completely aware that this will not preserve all family farms, nor is it the entire answer to the nation’s ills, or the individual state problems, but it is certainly a step. It should allow some to continue on the land without implementing HACCP, NAIS for turnips or keeping three years of records that are subject to the HHS Secretary’s “opinion” of your product. It also brings to a head the issue of the Tenth Amendment.

It’s past time to take it to the bottom line. If States are supposed to do what ever the Federal government wants them to do, then why do we have State government at all?

So they passed Senate Bill 510. More on this tomorrow, but I wanted to get the news out to everyone.

Back from the Dead: Food Safety Bill Passes Senate in Unexpected Last-Minute Move

December 19, 2010 8:29 PM

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ABC News’ Matthew Jaffe reports:

In an unexpected move, the Senate today passed a sweeping food safety bill by unanimous consent, sending the bill back for a vote in the House before it will move on to President Obama’s desk.

“Very very important for our country,” Senate Majority Leader Harry Reid said this evening on the Senate floor. “Perfect legislation? No. But a broad broad step in the right direction. We haven’t done anything in this regard for more than a hundred years for our country. With all the changes in processing food, it’s so very important. I’ve spoken to the Speaker tonight and this will pass the House when they come back Monday night or Tuesday.”

The surprising development is only the latest bizarre twist for the measure. Just a few days ago the food safety bill was seen as dead on Capitol Hill, but the Senate this weekend modified it to resolve a revenue technicality and managed to pass it.

That revenue issue is key in the long bizarre story of the bill.

In July 2009 the House first passed the bill, aiming to prevent massive outbreaks of tainted food by giving the Food and Drug Administration the authority to order mandatory recalls and require more frequent inspections of high-risk food processing plants.

But the bill then languished in the Senate for 15 months in the face of opposition from Republicans who objected to it adding around $1.5 billion to the deficit.

Sen. Tom Coburn, R-Okla., argued that the bill needed to be fully paid for and do a better job of addressing regulatory failures. However, in November the Senate finally passed the food safety bill.

Except for one problem.

A tax provision included in the Senate bill violated the revenue rule, so instead of getting sent to President Obama’s desk, the bill remained stuck in Congress.

The Senate then put the food safety bill into the massive $1.1 trillion year-end omnibus bill, giving supporters of the measure renewed hope that it might still get passed after all.

But no.

Last Thursday, Reid, in the face of widespread GOP opposition, decided to scrap the omnibus bill in favor of a short-term continuing resolution to fund the government into early 2011.

At that point the food safety bill was considered dead. Until Sunday’s surprising development in the Senate, that is.