White lightning

A flap over an apparent investigation into a raw milk operation near Middlebury led to a clash, of sort, between Elkhart County Sheriff Brad Rogers and the U.S. Department of Justice. Rogers saw DOJ efforts as heavy-handed and called the feds out.
Posted on Dec. 18, 2011 at 12:00 a.m.

David Hochstetler doesn’t want to be in the limelight.

“I’d rather just be left alone,” he said.

As a producer of raw milk, though, Hochstetler — operator of Forest Grove Dairy south of Middlebury — finds himself at the center of controversy. He’s faced repeated inspections by federal regulators, apparently, and his situation prompted Elkhart County Sheriff Brad Rogers to intervene, advising the feds to watch their step or face arrest by his department.

“With Mr. Hochstetler, he’s had harassment and ongoing visits that were unreasonable,” said Rogers, who told federal officials in a Dec. 2 email that they would need warrants before conducting any more inspections of the man’s farm. “I just told them they were no longer welcome unless they had a warrant.”

Now, judging by the response to his actions in the blogosphere, Rogers is the toast of online raw milk activists and others who think the federal government oversteps its bounds.

“I think it’s great that the local sheriff is supporting the local farmers,” said Gary Cox of the Farm-to-Consumer Legal Defense Fund, a non-profit group active in defending access to raw milk.

Hochstetler is left unsure what happens going forward — federal officials “backed off now. I don’t know how long,” he said — while federal authorities remain largely mum.

“As much as I would like to give a reaction, I would not,” said U.S. Department of Justice attorney Ross Goldstein, recipient of the email from Rogers.

More than just raw milk

The roots of the controversy stem, in part, from differing views about raw milk — that is, unpasteurized milk — and the role the government should have in regulating its trade and use.

The U.S. Food and Drug Administration says unequivocally that, no, raw milk is not safe to drink because of the bacteria it can contain. Federal law prohibits commercial transfer of raw milk across state lines, while under Indiana law, it’s illegal to sell the product, though producers come up with arrangements under which consumers own or lease milk-producing cows, allowing them access to raw milk.

Proponents say the dangers of raw milk are overblown and that the product contains nutrients not found in pasteurized milk.

For Rogers, a Republican with ties to the Elkhart County tea party movement, it’s not about the pros or cons of raw milk, necessarily. It’s about the federal government trampling on individual rights, something he sees happening in the Hochstetler case.

FDA officials have asked repeatedly to inspect Hochstetler’s farm, Rogers said. The farmer initially acquiesced, but finally grew tired of the repeated inspections and started prohibiting inspectors’ entry. Ultimately, Ross, the Justice Department attorney, subpoenaed Hochstetler, ordering him to appear before a grand jury, and Hochstetler turned to the sheriff for assistance.

“To me it’s not about raw milk. It’s about upholding my oath of office and being a guardian of the Constitution,” said Rogers. The repeated inspections and inspection requests, as he saw it, amounted to “harassment from federal agencies.”

As such, he fired off the email to Goldstein, threatening the arrest federal agents if they try to inspect Hochstetler’s operation without a warrant.

“This is notice that any further attempts to inspect this farm without a warrant signed by a judge, based on probable cause, will result in federal inspectors’ removal or arrest for trespassing by my officers or I,” it reads in part.

Subpoena withdrawn

In an interview at his office, Rogers said the feds are limited in what they can do by provisions in the U.S. Constitution and Bill of Rights. He alluded to the Fourth Amendment, which guards against unreasonable searches and seizures, and the 10th Amendment, which grants states powers not reserved for the federal government.

“The arrogance of thinking federal law trumps everything flies in the face of the 10th Amendment,” Rogers said. “If we think the federal government trumps everything, we’re destined for big trouble in the freedoms here in our country.”

Goldstein fired back to Rogers with his own letter, sent via email soon after he received the sheriff’s missive. The Justice Department attorney cited the Federal Food, Drug and Cosmetic Act, which gives agents authority to enter facilities where food is processed or manufactured.

“Because it is a federal law, indeed an Act of Congress, officers or employees of the FDA may do so lawfully, without regard to any Indiana law to the contrary,” Goldstein wrote.

A warrant would not be required to inspect Forest Grove Dairy. What’s more, refusal to permit entry to the operation “is in itself a federal criminal offense, which under certain circumstances is a felony punishable by imprisonment for up to three years,” Goldstein wrote.

Either way, Hochstetler received a certified letter on Dec. 6 from federal officials saying the subpoena ordering the dairy farmer to appear before a grand jury had been withdrawn, Rogers said.

‘An open case’

Advocates for small-scale farmers and raw milk advocates are overjoyed over the turn of events, first reported by David Gumpert in his blog, The Complete Patient. Gumpert is a journalist, blogger and author of a book on raw milk.

“That is what the local food movement needs: more local and county sheriffs who know the Constitution and are willing to stand up for it!” Bev Hill wrote in her blog, Good Food 4 All.

Federal officials remain tight-lipped. “I’m afraid that we can’t respond to any questions regarding Forest Grove, as this is an open case,” Siobhan DeLancey, an FDA spokeswoman, said in an email.

Forest Grove was cited in March 2010 by the FDA as the source of an outbreak of at least 12 cases of campylobacteriosis caused by raw milk. Furthermore, the company received a warning from the FDA in 2007 stemming from alleged illegal distribution of raw milk across state lines.

Hochstetler, for his part, says he’s just filling demand for a product and vaguely indicates he’ll continue.

Speaking at his rural farm, in an agricultural zone south of Middlebury where Amish on bicycles and in horse-drawn buggies ply the roadways, he doesn’t want to say much. But he wonders if agencies like the FDA don’t have it in for small family farms producing raw milk, like his.

“Harassment,” he said. “Thinking I’ll get tired of it eventually and leave.”

If raw milk is going to be available, he continues, consumers need to clamor.

“It’s going to be the consumer’s voice that needs to be heard,” he said. “The consumer needs to know what’s happening out here in the country. They need to known their rights to eat are being taken away.”


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