Then, on Valentine’s Day we were served papers requesting us to appear in Albany court on Feb 28 at a hearing with “THE PURPOSE OF THE HEARING IS TO PUNISH STEVEN AND BARBARA SMITH…FOR CONTEMPT OF COURT” (caps are original). Our attorney, Gary Cox, constructed a solid case on short notice and was prepared to call both Barb and me as witnesses at the hearing and calmed us a bit by saying the above phrasing was legalese for ‘the hearing will be to figure out what to do with you guys’.

The hearing was scheduled for 3:30 pm and several area dairy farmers and a blogger (David Gumpert, www.thecompletepatient.com) showed up in support. Due to the preceding trial, our hearing did not begin until 4:40 pm. The presiding justice, Judge John Egan, decided to simply hear oral arguments by the opposing attorneys and dispensed with witnesses and their testimony. The Dept attorney presented the facts about how I had shown contempt for a court order by refusing to unlock the door to our processing room when the Dept’s inspectors had surprised us with an administrative inspection warrant on Dec 19, 2007. While the warrant was for the inspection of the “dairy farm and milk plant”, the inspectors had not bothered to inspect the unlocked dairy farm but rather had turned around at the front door of our house when I refused to help them. My refusal was based on the fact that the warrant did not require my cooperation, only that I allow the inspection to proceed, which I had done by not standing in their way. The Dept attorney went on to enhance the facts by stating that not unlocking the door was the same as locking the farm gate (we don’t have one) and thus denying the Dept access to facilities that the Law requires the Dept to inspect. Gary Cox then presented the summary of our case and the argument that the warrant was facially invalid because it was directed at the wrong parties (Meadowsweet Yogurt, which hasn’t been in business since Jan 2007), it was to permit the Dept to inspect on “a continuing basis”, whereas warrants are generally only valid for 10 days from the day they are signed, and it allowed the Dept to determine the probable cause for warrant execution, which determination is a power reserved for the court to make not an agency. During his presentation, Gary referred to the Seneca County declaratory judgment action being transferred to Albany and requested a stay of the contempt hearing until the complete case could be heard. This prompted the judge to question the Dept attorney, who stated that by law the Dept had 60 days or until March 21 to initiate the transfer. On being prompted by Gary and Judge Egan, he further stated that Judge Bender had ordered the Dept to do their job and get the Order to him by March 6 since it was a simple matter and there was no need for delay. Finally, after the Court House building closed at 5:30, Judge Egan told Gary we were running out of time and Gary hastily completed his arguments. The Judge then said he would issue a written decision and asked both attorneys to keep him informed of the progress of the case transfer, to direct the transfer to his jurisdiction and to include reference to this contempt hearing on the transfer paperwork.

Since the contempt hearing, the LLC marked the 1st anniversary of its incorporation on Mar 1, 2008 by the members continuing to drink the realmilk of the LLC herd and the herd has continued to produce milk and is eagerly anticipating the greening grass of Spring. Today, Mar 5, we saw the first redwing blackbird at the feeder.
And the Dept has apparently wasted as much time as possible before sending the required Order to Judge Bender. Eventually, our contention that Meadowsweet Dairy, LLC is engaged in private and legal activity that the Dept has no authority to meddle with will be aired in the New York Supreme Court in Albany before Judge Egan but probably not before this summer. Stay tuned.

We had a fabulous turnout for the hearing in Albany on the 16th and Steve and I want to express our gratitude to all of you! There were about 40 advocates of raw milk, LLC members, and raw milk farmers from around the state in addition to the Ithaca Journal reporter who wrote a great article on the hearing. (http://www.theithacajournal.com/apps/pbcs.dll/article?AID=2008801180345) We are hoping for an even greater turnout on Tues, Jan 22 in Waterloo (details below in the press release, including time and address).

The hearing was long and exhausting for all of us. It lasted 7 hours on Thursday and then an additional 4 hours on Friday! Gary Cox, our lawyer, threw himself into the proceedings body and soul and gave very passionate and moving opening statement and closing argument. He was aggressive and sharp and we ended up with a really good record to take into the hearings in Waterloo. The hearing officer, a lawyer hired by Ag and Markets to preside at the hearing, now has basically as long as she needs to come to a decision. But as the transcript of the hearing won’t be ready for another couple weeks, and she stated at the end that in difficult cases, like this one, she can take several months, then we won’t be looking for a decision from her for a few months most likely.

Basically this hearing was Ag&Mkts asking the hearing officer to order us to cease and desist from what we are doing and to comply with their permitting because we are violating their regs by “selling” raw milk, by operating a milk plant without a license, and that our farm is unsanitary. Gary took the hearing officer point by point through ALL the Ag and Markets laws and definitions and showed her (and the department) all the flubs and inconsistencies in their laws which in fact point to the fact that we are not a milk plant, not “selling” milk, and that the sanitary conditions on the farm today are the same we have had all the 12 years we had a license under their jurisdiction.

In cross examination Gary got the “spy” to admit in so many words that he did NOT actually “buy” our products, but rather “obtained” them, so the State’s evidence of a sale flew out the window at that point. He got the Director of Milk Control to admit that his “policies” on raw milk licensing are not actually written down but are carried out consistently state wide, which according to Gary can be considered “illegal rulemaking”. And he established that we have never had complaints about our milk from anyone, so the sanitary conditions argument is weak.

The State, on the other hand, ended with very few balloons unpopped. Their closing argument amounted to: The Department has been operating this way since the 1930’s and so should continue to do so. Their policy on raw milk sales is clear (no matter what the laws say - he told the hearing officer she must read the regs “expansively”). The spy never said he didn’t buy the product (a falsehood belied by the stenographer’s notes). The LLC is a sham and just a cover (no evidence offered). And so there!

Toward the end of the proceeding the hearing officer was definitely listening to our testimony with interest, and even rolled her eyes when I said the Department had pretended all summer to not understand that we did not want to be licensed so they had an excuse to continue with inspections. So we are cautiously optimistic about her ruling, though Gary believes she may want to wait to see what the outcome of the hearings in Waterloo is first in order to use the judge’s legal grounds (i.e. which laws he references as justification for his decisions) in her written decision. If the hearing officer rules against us the Department will order us to cease and desist. If she rules in our favor she will be saying we do not need any permit and that our LLC system is a legitimate model for providing raw milk to folks. In either case, we now know the extent of their arguments and know how to rebutt them and have more evidence against them in the form of statements they made themselves and are well set to take a solid case to the judge in Waterloo on Tuesday.

Please join us in Waterloo at the County Courthouse at 1:30 pm on Tuesday, Jan 22. Judge Bender will be hearing oral arguments from Gary Cox and the Ag and Markets lawyer on several issues:

1. A motion, by us, to grant a preliminary injunction against Ag and Markets.
2. A motion, by Ag and Markets, to dismiss the case.
3. A motion, by Ag and Markets, to get the case moved to Albany.

It should be interesting and fun to see everyone! Meet raw milk people from around the country too! David Gumpert, the author of the Complete Patient, may be there as well.

If you are interested in carpooling from Ithaca contact Bethany Schroeder at nidus@pinax.com.

FOR IMMEDIATE RELEASE

Meadowsweet LLC c/o Steve and Barbara Smith, 2054 Smith Rd., Lodi, NY (607-582-6954) email:dairy@meadowsweetfarm.com

Legitimacy of Raw Milk Cow Share Program to be Tested this Week

In March 2007, dairy farmers Steve and Barbara Smith of Seneca County, NY dropped their raw milk dealer’s license in order to start an innovative cow share program. In an era where the pressures of agribusiness and state regulation threaten the viability of family run farms, the Smiths, who have more than 12 years experience at dairy farming, find themselves at odds with the New York Department of Agriculture and Markets.

The Farm-to-Consumer Legal Defense Fund (FCLDF), a national organization set up to defend farmers and consumers from government interference, has taken on the Smiths’ case. The Smiths’ struggles with the Department of Agriculture and Markets will serve as a test case to determine if the State’s regulatory power extends to a group of private citizens who produce and consume their own food of their own choice.

The Smiths reorganized their dairy into a limited liability company, Meadowsweet Dairy LLC (Meadowsweet) in March, 2007. The dairy delivers raw milk, yogurt, butter and buttermilk to the members of the cow share.

The newly formed LLC has only one asset, a herd of dairy cows. Meadowsweet members have an agreement with the Smiths to tend to, manage and house the herd for the benefit of the LLC. The equity interest for the LLC’s 110 members is in the form of raw milk and raw dairy products produced by the cow herd and processed by the Smiths. This is accomplished without permits or licenses. However, the State of New York, through the Department of Agriculture and Markets, is challenging the new farming model.

Since the inception of the cow share, the New York Department of Agriculture and Markets has pressured the Smiths and Meadowsweet LLC. Citing their responsibility to protect public health, the regulatory arm of the agency is being used to harass the dairy. The state agency has conducted numerous inspections, seized products, ordered the destruction of 260 pounds of raw dairy products, attempted to search the Smith’s house, issued letters threatening fines and penalties. And now the Department of Agriculture and Markets has ordered the Smiths and Meadowsweet Dairy LLC to appear in Albany and show cause why the Department should not shut down the operation and levy fines.

Over the next two weeks, Meadowsweet will confront the Department of Agriculture and Markets in two separate hearings. The first hearing will be at the Department offices in Albany on JANUARY 17 at 11AM. This is an administrative hearing within Department of Agriculture and Markets. The Department will consider ordering the Smiths to CEASE AND DESIST from providing milk to its cow share members.

The second hearing is set for JANUARY 22 at 1:30PM in Seneca County Court in Waterloo, NY. At this hearing, the Court Judge will consider issuing a preliminary injunction against the Department of Agriculture and Markets to keep the agency from further harassing the Smiths until the dispute between the newly formed cow share program and the Department is resolved.

January 17, 11 AM
Department of Agriculture and Markets
10B Airline Drive
Albany, NY
(Right next to the airport)

January 22, 1:30 PM
Seneca County Court
48 West Williams Street
Waterloo, NY

For more information contact: Steve and Barbara Smith, 2054 Smith Rd., Lodi, NY (607-582-6954) email:dairy@meadowsweetfarm.com

BACKGROUND
Since March 2007, Meadowsweet Dairy LLC has been operating as a duly formed limited liability company in the State of New York. Meadowsweet Dairy LLC has only one asset, a herd of dairy cows. The LLC and its members have an agreement with us, Steve and Barbara Smith, to tend to, manage and take care of the herd for the benefit of the LLC’s members and the members have an equity interest in the LLC in the form of raw milk and raw dairy products produced by the LLC’s herd and processed by us. All of this is being done without permits or licenses and the State of New York does not like this. Not at all.

Since March 2007, the New York Department of Agriculture and Markets has been trying to pressure us and Meadowsweet Dairy LLC out of business. For example, they have conducted numerous inspections, seized products, ordered the destruction of 260 pounds of raw dairy products, attempted to search our house, issued letters threatening fines and penalties, and have now issued an order requiring us and Meadowsweet Dairy LLC to show cause why the Department of Agriculture and Markets should not shut down the operation and levy fines. That show-cause order is now set for a hearing and a show down looms over whether the State’s police power extends to a group of private citizens who produce and consume their own food of their own choice.

This important case has been taken by the Farm-to-Consumer Legal Defense Fund. We are finally at the point of confronting the Department of Agriculture and Markets face to face in the next two weeks! The first date is at a hearing in the Ag and Markets offices in Albany on JANUARY 17 at 11AM.

We would be very grateful to have an ENORMOUS show of support at this hearing! This is an administrative hearing at which they are considering ordering us to CEASE AND DESIST from providing milk to the LLC members. The outcome is very likely to go against us because even though the state of New York hasn’t a shred of evidence to prove they are “selling” milk, the hearing officer seems to be very fearful of going out on a limb against Ag and Markets. She has already indicated this by her complete unwillingness to postpone the hearing at the request of our lawyer (he had a personal conflict with the date).

The second date is JANUARY 22 at 1:30 in Seneca County Court in Waterloo, NY. At this hearing the judge will consider issuing a preliminary injunction against Ag and Markets to keep them from further harassing us until the whole matter is resolved. Again, the more people who attend this hearing the better! We want to really pack the room!

ACTION TO TAKE
Be there! This is a case that will have repercussions for cow-share and herd-share agreements throughout the US. A large presence of raw milk supporters can make a big difference.

January 17, 11 AM
Department of Agriculture and Markets
10B Airline Drive
Albany, NY
(Right next to the airport)

January 22, 1:30 PM
Seneca County Court
48 West Williams Street
Waterloo, NY

So yesterday two inspectors from the Dept of Ag and Mkts appeared at our door in the middle of a snowstorm! They had come to “witness” the destruction of the dairy products they had seized back on October 11. Following that seizure Ag and Markets held an administrative hearing and determined through examination of their own evidence that our products were unfit for human consumption and had to be destroyed. Interestingly, our lawyer found out through a series of informal emails with the Ag and Markets lawyer that they had decided to destroy our stuff even before they held the hearing! Anyway, they came yesterday to carry out the destruction, which involved standing around while Steve and I dumped yogurt, buttermilk, and milk from organic, grass-fed cows into buckets and then they “denatured” it by dumping in a gallon of bleach, just in case we have the audacity to feed it to our pigs! (Since when is the Dept of Ag and Markets protecting pigs from the dangers of raw milk!) While they were standing around they noticed good, new yogurt in our cooler and asked if that had been made since the seizure date. We said yes. The inspector then said he would have to inventory that and take some photos. We said over our dead bodies (not our exact words). He then asked if we refused to let him take photos and we said yes. I also added that he only had the authority to do the destruction of the seized stuff and nothing else. He replied that he had every right to take photos. I said, no, that he was trespassing if he did anything other than carry out the destruction. At that point he left the room to call Albany and get his orders. He returned and said they told him to get the photos and that he had a perfect right to do that. I said if he tried to take photos I would call the sheriff. He again said he had the right to do that so I left to call the police. When I returned to the room Steve was still dumping yogurt and they inspectors were still standing there. when we were done, about 15 minutes later, the deputy arrived along with a reporter from the Fingerlakes Times whom I had also alerted.
The inspector introduced himself and told the deputy he had been sent from Albany to take photos and inventory any product made since the seizure. The deputy asked to see proof of his authorization to do this in the form of a warrant. The inspector suggested the deputy should talk to the Director of Ag and Markets in Albany, but the sheriff said “I could talk to the Pope and it won’t make any difference unless you have a warrant.” After a few more phone calls to Albany the inspectors were convinced that they were licked and departed back out into the snowstorm without the evidence they had hoped to obtain to use in their hearing in January.

We will keep you posted as things unfold in the following week. Meanwhile, keep publicizing this situation. Now that we are taking it all to court we will need lots of support and press. We will post a press release here soon.

for more information please contact: Steve and Barbara Smith
dairy@meadowsweetfarm.com
607-582-6954

Meanwhile we will keep on farming and putting out top quality milk, raw yogurt, raw butter and buttermilk! This is a struggle that the people are bound to win in the end! Keep the faith! Barb