The Complete Patient

One of the reasons I’ve been so fascinated with the issue of raw milk—I didn’t, after all, launch this blog as a “raw milk blog”—is that it is a proxy issue affecting a variety of food and health issues.

The debate taking place on my two previous posts provides additional confirmation. Before explaining, I must say that I find some of these discussions so amazingly articulate and well thought through that I feel like I’m on intellectual overload after reading through them.

To me, much of the recent discussion can be related to the emerging issue of world food shortages and price rises. There was a fascinating Wall Street Journal article last week arguing that the problem of food shortages and rising prices can be partially blamed on small dairies in New Zealand. If only they listened to economists, and allowed the necessary billions in investment, there could be less land devoted to pasture and more huge confinement dairies that would be more “productive,” helping solve the problem of high food costs.

The WSJ’s implied argument—if only you’d give up your silly little farms—is similar to the argument made by concerned2 in a comment on my previous post: “I think there would be a swell of support from many in public health looking for solutions to chronic disease, obesity, and poor nutrition problems that plague the poor and disenfranchised populations in the inner city in the US (due in part to limited access to affordable, nutritious food). Maybe CDC and others would even pony up funds. But, if such proposals include ‘raw dairy products,’ the unfortunate reality is that the controversy over food safety (and hot button situation with raw dairy) could eclipse and end an otherwise wonderful effort.”

In other words, give up this craziness about raw dairy, and everything becomes possible with regard to “affordable, nutritious foods,” including “an otherwise wonderful effort,” whatever that is.

But, of course, we have enough experience now to know what they have in mind when they throw around euphemisms like “improved productivity” and “solutions to chronic disease.” They want more of the same. More confinement dairies with their sick animals and pollution. Fewer small farms and less pasture feeding. More processing to eliminate all bacteria and enzymes. More commoditization. Ever less emphasis on locally grown food and the community it encourages. More regulations to control what foods farmers can produce and sell. In the end, cheap and ever-less-nutritious food.

They shake their heads, yes, in favor of more locally produced food, but when push comes to shove, the economists, agriculture officials, and public health people see food as just another commodity, like oil and copper. Simply produce more of it at lower cost, with more regulation for “safety.”

But we here in the U.S. have been to the other side of the mountain. And now we are left to literally battle against all the power the state can throw at us—police stings, surprise raids, undercover agents—for the simple right to drink milk and eat butter and yogurt that hasn’t been treated according to a faceless bureaucracy’s dictates. I sure hope other countries follow the lead of New Zealand’s dairy farmers, while they still have the leverage. Tell the money men and economists what they can do with their grand food plans.

As I drove around on country roads in central Pennsylvania earlier this week, I felt envious of the people who live near Mount Holly Springs and Elizabethtown. I saw lots of cows grazing on open pasture—a sight you don’t see in most parts of the country. Many farms advertised raw milk and grass-fed beef.

I came home with a cooler filled with all kinds of delicacies—cottage cheese, crème fraiche, cream cheese, yogurt, Swiss cheese—all made from raw milk. And all purchased from local farms. (I'd rather not say which ones.)

Was I violating Pennsylvania laws by purchasing such products? Was I violating federal law by transporting them across state lines…actually, several state lines?

It doesn’t seem right that because I live a few hundred miles away, in a different state, I should be denied access to such products from local farms. Any more than people who live near Mark and Glenn should be denied access. (The photo above shows the empty cheesemaking vat at Mark Nolt's farm, rendered idle by Pennsylvania Department of Agriculture agents, who stole its machinery.)

But that’s the situation today. I learned from some of Mark Nolt’s supporters who came to Pennsylvania from North Carolina that that state just passed legislation to prohibit herd shares.

The craziness is compounded by the fact that the world is now facing up to the reality that agribusiness can’t provide all the food that is needed. So here we have this wonderful healthy fresh food, being produced in a local community for a local community, and a government agency is confiscating it and prosecuting the farmers who work their tails off to produce it.

Government-sponsored harassment is just another aggravation for many farmers, who struggle to link up with consumers, because our transport system is tailored to agribusiness, not to small farms serving local communities.
I just learned more about some of these difficulties from the owner of a Boston food market that is committed to providing only locally-produced food to his inner-city customers (described in more detail in an article I just did for BusinessWeek.com).

Lionette’s Market in Boston’s South End neighborhood is using a variation of the CSA (community supported agriculture) concept to raise $200,000 of financing from its customers to expand the market. Some 50 customers are paying anywhere from $2,500 to $10,000 apiece, and in the process advance-purchasing various quantities of food over the next two years. The idea is so popular, the owner actually has a waiting list of customers who want in.

While my article focused on the innovative financing, a much bigger challenge, says Jamey Lionette, an owner, is simply getting food from the 100 or so Northeast farms he relies on transported into the city. Some aren’t close enough to shippers, so have to drop their good off at other farms that are on shipping lines. Some bring it in themselves via vans and small trucks. Some rely on small distributors. “The infrastructure to get local food into the city has been wiped out,” Jamey told me.

Jamey would love to open another one or two or three markets in other neighborhoods of Boston, using the same community-based financing, since there’s little question that demand is there, be it for local eggs or grass-fed beef or fresh vegetables. For now, though, he’s having a hard time seeing through the process of dealing with 100 local farms for even one store. Eventually it will happen, since demand trumps all in this country…doesn’t it?

As strong as the stench coming from the Pennsylvania Department of Agriculture was yesterday in Mark Nolt’s trial, it actually intensified today, in a tiny Elizabethtown courtroom, about 50 miles down the road, where Glen Wise went on trial for selling raw dairy products without a permit.

So unpleasant was the odor that even the judge of the Magisterial District Court in Elizabethtown, Jayne Duncan--sitting in front of engraved copies of the Declaration of Independence and the first page of the U.S. Constitution, and hearing arguments from a farmer without a lawyer—got enough of a whiff that she dismissed two of the three citations against Glen, and reduced the fine on the third from a possible $300 to $50. She labeled the PDA’s approach in handling its investigation of Glen “unfair” by failing to notify him in a timely manner of its undercover purchases of dairy products.

But implicit in her action was a condemnation of the PDA’s entire entrapment approach in going after Glen.

Like yesterday, the PDA sent its chief attorney, Brook Deur, to prosecute the case against Glen, who, like Mark yesterday, is a Mennonite and chose not to have legal representation. (Mennonites also don’t like to have their faces photographed, so the photo above of Glen and supporters is taken from the back.) With Deur was the PDA’s main witness, Joe Goetz, a food sanitarian with the agency’s Bureau of Food Safety for the last two-and-a-half years, and its undercover officer of the day. Like Tony Russo yesterday, Goetz painted a picture of an employee forced into distasteful actions, except his assignment was even more questionable than that described yesterday in the Mark Nolt case.

At first, it sounded like standard practice. “I was directed by my supervisor to make a purchase of raw milk and kefir” from Glen Wise, Goetz stated. He described how he went to the Wises’ Shady Acres Dairy Farm on three occasions--Nov. 14, Jan. 8, and March 8—each time purchasing half a gallon of raw milk and a quart of kefir.

But when it came time for cross examination, Glen was ready. “Did you see the sign on the refrigerator, “Dairy products for sale to CARE members only?”

Goetz said, “Honestly, I did not pay attention to any signs.”

But it got worse. “Are you a CARE member?”

“Yes.”

“So you did sign a CARE contract?”

“Yes”

“Did you read that contract?”

“Yes”

When Deur objected that Goetz was being asked to interpret the law, the judge intervened. “What was the purpose of the contract?”

“I was asked to sign the contract by my supervisor,” Goetz answered.

The judge followed up: “What did you expect that the contract provided?”

Goetz said he couldn’t recall.

The point here is very important, though. The CARE membership agreement (CARE is the Communities’ Alliance for Responsible Eco-Farming and requires all members to pay a $20 annual membership fee) states at the start, in bold, all caps:

“All CARE MEMBERS MUST INITIAL AND CERTIFY, UNDER PENALTY OF PERJURY WITH THE INTENT TO BE LEGALLY BOUND TO THE FOLLOWING…”

There follow eleven clauses that must be initialed indicating, for example, that the member isn’t aware of any medical conditions that would prevent him or her from consuming raw dairy and supports CARE’s mission statement. However, the first clause in the list states: “Whereas, that HE/SHE is not acting under color of law to entrap, hurt, prosecute, or otherwise trespass/and/or and gather information for any agency, corporation, person or other entity to in any way negatively affect the CARE Alliance/Association, its board of directors, members or its purpose.”

Judge Duncan hadn’t seen the CARE contract in advance, but she made copies of it during a recess in the proceedings.

In her ruling, Judge Duncan said that Glen’s argument that the CARE contract is a private arrangement between the farmer and the consumer, and thus outside the state’s raw-milk permitting requirements, “is outside the scope of this court’s authority.” In effect, she was leaving the matter to the Common Pleas Court, where Glen intends to appeal the single citation he was found guilty on.

Afterwards, there was general satisfaction in Glen’s camp. Bill Reil, a local constitutional law expert who advised Glen and sat with him at the defendants’ table, said, “We walked out of there with one citation instead of three. That was the best we could have hoped for.”

Mark Nolt, who was among the 40 or so supporters, was also impressed. “We lost the battle, but we’re winning the war.”

The presence of a written contract may have provided Glen Wise with a case that will be easier for a judge to relate to than it has been in the Mark Nolt case.

Even the most despotic regimes hate to impose martial law and put soldiers into the streets to back up the police in putting down citizen uprisings. Despots worry that, when push comes to shove, and protesting citizens don’t do as they’re told, soldiers may hesitate before firing on their fellow citizens—possibly including friends and relatives--for something as terrible as carrying signs of protest or failing to obey orders to disperse. If that happens, the despots are really in the soup.

Listening to the lawyer-less Mennonite farmer, Mark Nolt, cross-examine Anthony Russo, a Pennsylvania Department of Agriculture microbiologist-turned-undercover-agent, got me thinking about such encounters between citizen soldiers and their subjects. Russo, a lanky bearded fellow who has been with the agency 21 years, had just testified about two occasions when top PDA food safety official Bill Chirdon asked…no, demanded, that Russo accompany him on an “undercover” assignment. The undercover assignment involved going to a farmer’s market near the state capital of Harrisburg and purchasing raw dairy products from Mark Nolt so he could be put on trial.

Russo's first assignment came July 6, 2007, at a farmer’s market in Carlisle, and went off without a hitch, as Russo purchased a half gallon of milk and a quart of kefir, as Chirdon waited outside the market in a car. Presumably Mark would recognize Chirdon, and possibly endanger the well planned and highly coordinated operation.

“I asked (Mark) about the kefir, and he said there were 13 positive bacteria in it,” recalled Russo. The employee took the items back to the lab and confirmed they were, indeed, raw dairy.

A week later, Chirdon made the same request of Russo. This time, Russo hesitated. “Once again, it was a busy day at work,” recalled Rousseau. “He (Chirdon) asked me to go. He’s my boss, so I said I would go.” Rousseau purchased half a gallon of milk and some buttermilk, and brought them to his boss waiting outside the market.

When the judge asked Mark if he had questions for Russo, Mark inquired about who drove the car and where they parked on each occasion.

Russo answered, obviously uncomfortable about having to confront the victim of his subterfuge, because he then volunteered: “I was nervous about going. I don’t like doing that kind of stuff. I was hoping you weren’t there because I didn’t want to get any samples.”

After the trial, and the guilty verdict by Judge Day, several of the Mennonite women in the audience—easily identifiable by their bonnets and traditional dresses—approached Russo and thanked him for his honesty. He seemed touched, as well he should have been. He’s just a regular guy trying to do his job, avoid trouble, and eventually get a nice pension.

Interestingly, the guy who put Russo up to all this, Bill Chirdon, wasn’t present at the trial. It’s apparently the first time he hasn’t shown up at a court proceeding or a raid that Mark can recall. Maybe Chirdon didn’t want to be called as a witness and have to be cross-examined by Mark. Or maybe he didn’t want to face questions about the questionable seizure of equipment during the most recent raid he led on Mark’s farm. Or maybe he didn’t want to face the battery of television and other reporters who waited outside when the trial ended (see photo above).

Later, back at the Nolt farm in Newville, where the inventory in the store’s cooler is a bit thin, Mary Ann Nolt, still in her black bonnet and purple dress, expressed wonder at what she had seen at the trial. “I was sitting in the court room and there were all these important people there. They have these degrees. They were taking time from their busy day for this. We’re just a tiny speck. Why are we so important? Why are we a threat to them?…I wonder when they go home tonight. Will they feel they did an honest day’s work? Will they feel good about what they did?”

Tony Russo may well have gone home with the same feeling lots of people in that courtroom had. None of us worked very hard, but we all sure needed a shower.

The big surprise today wasn't that Mark Nolt was found guilty on four citations of selling raw milk without a permit, and fined $1,051 on each citation. That was nearly a foregone conclusion, since Mark refused to engage a lawyer.

No, the big surprise was the seriousness with which the Pennsylvania Department of Agriculture took the case against Mark, and the resulting show of force it put together.

The PDA had an attorney, Brook Deur, who brought with him three PDA employees as witnesses to testify against Mark. Two testified in detail how they purchased raw milk and other dairy products undercover from Mark on three occasions at farmer's markets in the central Pennsylvania area about 30 miles west of Harrisburg. A third witness, the head of the lab, testified both that Mark had refused to renew his raw milk permit as of September 1, 2006, and that the milk the other two witnesses had purchased from Mark at the farmers markets was, indeed, raw. 

Mark told me afterwards that there were at least two U.S. Food and Drug Administration agents in the audience of about 30 who crammed into the tiny courtroom in a nondescript single-story building in Mt. Holly Springs that houses the district court, along with a couple of businesses.

In addition, there were at least half a dozen Pennsylvania state troopers present, and likely other plain-clothese agents. The troopers handcuffed and arrested one of the approximately 150 protesters who gathered outside the court, Phil Beachy, a local farmer, for refusing to stand far enough off the highway that runs in front of the courtroom to suit their tastes.

The event also attracted probably eight or ten news media representatives--both newspaper and television reporters--mostly from the Harrisburg area, but at least one from Philadelphia.

When Judge Susan Day pronounced Mark guilty after a 90-minute session, she told him he has thirty days to appeal. He said he plans to, and in that case, will likely have a lawyer. More to come. (Thanks to Dwayne Haus, a local naturopath, who let me use his computer and its cell hookup, to file this report.)