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State Judge to Meadowsweet: It’s NY Ag & Markets Über Alles; Barb and Steve Smith Warn End May Be Near
Vital Raw Milk Update!
Date: 11/25/2008 2:25:22 AM ( 16 y ) ... viewed 4116 times State Judge to Meadowsweet: It’s NY Ag & Markets Über Alles; Barb and Steve Smith Warn End May Be Near
Date: Sunday, November 23, 2008 at 08:31PM
http://www.thecompletepatient.com/journal/2008/11/24/state-judge-to-meadowswe...
David E. Gumpert-blogmaster
Mark McAfee in his comment on my previous post about the federal case against him advises would-be dairy farmers to set up small herdshares as an economically feasible way to make raw milk more widely available.
Just don’t try that tactic in New York.
In a blunt decision issued Thursday that no doubt has the tough guys at the New York Department of Agriculture and Markets doing high-fives, state judge John C. Egan Jr. sided completely with the agency in its long-running feud with Meadowsweet Dairy LLC, and owners Barb and Steve Smith (pictured above at their dairy, last January). The Smiths set up a limited liability company to serve the herdshare role for 120-plus shareholders in the Ithaca, NY, area, who wanted access to such unpasteurized dairy products as yogurt, butter, and cream, which are prohibited for dairies that obtain raw milk permits from the state. NY Ag & Markets didn't take well to the idea of a small dairy operating outside its grasp, nor of setting a precedent that other dairies might look to.
The immediate issue was Meadowsweet’s request for a preliminary injunction to prohibit NY Ag & Markets from conducting seemingly arbitrary searches of the dairy and seizures of Meadowsweet’s products, and to allow the LLC’s members regular access to their products. At one point, NY Ag & Markets threatened to lock the couple up.
The judge essentially ruled against each argument offered by Meadowsweet’s lawyer, Gary Cox of the Farm-to-Consumer Legal Defense Fund:
--To the Meadowsweet argument that the state’s arbitrary seizures of raw dairy products threatened to put the dairy out of business, the judge stated: “...the Court finds the plaintiffs’ allegations that they ‘run the risk of’ losing product, being searched at any time and having their personal belongings seized at any tie, speculative. Furthermore, any financial injuries sustained as a result of the loss of product do not establish irreparable harm. Thus, the plaintiffs have failed to establish irreparable harm...” Guess he thinks they have a money tree in the back yard to keep replacing the thousands of dollars worth of product NY Ag & Markets doused with bleach.
--To the Meadowsweet argument that its limited liability company should be outside the regulation and arbitrary inspections of NY Ag and Markets, the judge stated: “The Commissioner is entitled to full access to Meadowsweet, and may also examine and open any package or container of any kind...” In other words, NY Ag & Markets can conduct searches whenever it wants, any time of day or night. Never mind the U.S. Constitution’s Fourth Amendment.
--To Meadowsweet’s argument that its shareholders aren’t purchasing dairy products, and thus aren’t “consumers,” the judge cited various dictionary definitions of the term “consumer” and concluded: “The Court further determines that the LLC members are ‘consumers’ of raw milk products based on the plain meaning of the word.” So much for Article 1, Section 10 of the U.S. Constitution that “no state shall...pass any...law impairing the obligation of contracts...” (This is the same clause that prohibits use of anything except gold and silver coin as money.)
In sum, the judge fell back on the tired old argument of protection: “Finally, the Court holds that a balancing of the equities weighs the State’s favor, based on the broad powers of the Department of Agriculture and Markets and the State’s interest in regulating the dairy industry for the safety of consumers.”
Barb and Steve Smith in an email to their shareholders today said, “It seems very possible that we will have to stop distributing raw milk and yogurt ... and that our friendly inspectors will be watching soon.” The Farm-to-Consumer Legal Defense Fund is considering whether to appeal. Given the judge’s forceful decision, an appeal would seem to be more of a long shot than ever.
NY Ag & Markets is already licking its chops--in a press release posted Friday the agency indicated its inspectors are already organizing squads “dedicated to administering and enforcing the State’s food safety laws and regulations to protect the public health...” Yes, I’d say the Smiths can expect visitors.
Clearly, the whole herdshare approach has been called into question. While the concept has received backing in Ohio cases, a negative decision in a major population center and dairy state like New York is a big blow against raw milk.
I don't know if I'm projecting too much here, but watching the parade of Clinton-era Establishment big shots being appointed by President-elect Barack Obama doesn't give me a lot of confidence that we'll see a push for change coming from the top down, either. For now, the regulators are still calling the shots.
And then Mark McAfee comments:
" The tricky part happens when it gets big enough to get noticed and money is involved.
What ever happens in grammas kitchen does not matter unless she goes and tries to sell it at the farmers market or local store or she tries to brag about it on the internet
In California, if I sell raw milk to someone to make something for OPDC, the milk pool auditors ( think of them as the raw milk IRS but worse ) will come calling wanting to know exactly what happed to every drop of raw milk. Every pound is counted and they make us pay them for the raw milk ( a % by CDFA law ) even though I can not participate in the milk pool. It is corrupt and I just take it with a smile....cause if I complain it gets bad really quick.
The paradigm changes when the tipping point is reached. That means people voting with dollars and then votes will change the rules.
Yes... it is enough to make a person vomit....we have not held tightly to our rights and they have slipped away like grains of sand in our hands. Getting back these basic nutritional rights will be much harder and longer than the path to their loss."
Mark McAfee
Also see:
http://www.thecompletepatient.com/journal/2008/11/23/the-united-states-of-ame...
It is precisely the recovery of these "rights" (that Mark mentions) where I am advocating the fullest disclosure. Government does not and will not fully inform you of your Rights! Government is incapable of that and honestly it is not the responsibility of government to fully inform you of all your natural born rights. Government is force! It is empowered to systematically enforce their regulations. The problem is that although there are limits to government's jurisdiction the people don't know the limits themselves and therefore they are unknowingly allowing government to enforce their regs into people's lives! This occur on a daily basis from the moment of birth onto the moment people take their last breath. The problem in this case is that operating under a LLC is not a right! re: "To the Meadowsweet argument that its limited liability company should be outside the regulation and arbitrary inspections of NY Ag and Markets" - this is wishful thinking at best! There is no negotiating with enforcement powers once you have willingly and knowingly entered into the ring! LLC is a privilege that is issued by the state/State. Government privileges then are fully regulated by government, period! That is the nature of a "fictitious entity":
http://www.mjtlegal.com
However: "Rights" i.e "nutritional" (as in the right to Life) are not granted by any government. It is risky business to ask for government consent to accomplish something that you can do on your own without that consent. What government gives government either takes away or regulates/taxes to death! If you want to create something and donate it to government then you have the freedom to register that thing (with the government agency) and do just that. But if you want to build something for your self and/or for your community and yet don't want to hold the legal title then there are other options than those offered by government.
In regards to what David apparently said above here: "Just don’t try that tactic in New York." referring to the "herd share" strategy suggested by Mark: Herd shares themselves are not the issue. The business form is. If you use the governments form you are asking for government';s regulation. The government can not regulate what they don't "own" They essentially own the legal forms when you legally register them. Lawfully avoid that nexus by using another non-governmental form.
More comments at:
http://www.thecompletepatient.com/journal/2008/11/24/state-judge-to-meadowswe...
Thank you David!
Chef Jem
Executive Producer:
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