Stay of Execution on Cheese is Granted!

Stay of Execution on Cheese is Granted!

Morningland  Moves on to Appeal

March 9th 2011

In a surprisingly fast decision, the Judge in the Morningland of the Ozarks LLC’s case has ruled in favor of a “stay of execution” on destruction of the cheese in the farmstead cheese company’s refrigerated cave.

Yesterday at 1pm, there was a teleconference regarding  Morningland counsel’s request for a stay on the State’s desire to destroy all of the cheese that has been held under embargo since August 26th. The Judge had issued his Order for Judgment for destruction and had also issued a Permanent Injunction on Morningland LLC to stop them from making or selling cheese until a very untenable set of criteria were met by the company. Counsel Gary Cox requested a stay on destruction and asked the judge to dismiss the counter claims brought by Morningland LLC in their case with the Missouri Milk Board.

Today, March 9th, 2011, the day the Milk Board wanted to begin destroying the cheese, Judge Dunlap issued a five point ruling in favor of the Stay and now the case to destroy the cheese moves on to Appeal.

Morningland of the Ozarks LLC , has been in business for 30 years with no incidence of illness ever surfacing. Despite the history of companies like Morningland, the FDA issued a notice to consumers the same day the decision to grant a stay was being heard saying that raw dairy may “Pose a Health Threat”.

While Morningland of the Ozarks LLC has been put out of business by the seizure and complete halt of selling or producing cheese at the cheese plant, Morningland intends to move forward as a private health food association and hopes to make cheese again soon. Joseph and Denise Dixon, the prior principals of Morningland LLC said, “If we can just hold on until spring fully hits, when the grass comes in and the cows don’t need to be fed, we think we can weather this, and hopefully produce living, healthful food for our members again.”

Update: A Decision Expected on Monday

Today was the teleconference where the judge heard more information regarding the stay. He will make this decision on Monday.

What seems apparent from the documents – and you can read them below – is that the Missouri Attorney General’s office is scared that the cheese will get away. They even asked that the Dixon’s post a bond of $250,000.00, which was later reduced to $2,000.00. [At this point in this post, let me remind you to donate some money, some more money, via Pledgie because they really, really are in need. ]

This is the Memo in Oppostion Defendent’s Petition [opens as a PDF]. Can you count how many times the Plaintiff [state of Missouri] claims their rights? How one sided is that?

Here’s what the Memo says in regard to their fear that the cheese will sprout feet and abscond:

If a stay is granted and the cheese continues to remain undestroyed, Defendant [the Dixons] will retain control over it and the risk to the public remains great. Should the Defendant remain in control of the cheese, the cheese might be shipped out of state, stolen and consumed, or donated as food to a food pantry.

This is Exhibit A – Rescission of Activities and Practices Involving Production, Sale and Marketing of Raw Milk Products. This is where the Dixons tell the court that they are going private and will only sell to private members. This is the main reason that they need more donations. In order to stay alive and keep the farm running until the final judgment is rendered.

Here is Exhibit B – Request for Judicial Notice, where Joseph Dixon makes his claim, and rightly so…”follow the teachings and precepts of scripture as the absolute and final authority in heaven and upon the earth.”

As I understand it, the AG’s office is very uncomfortable with all of the transparency. They’d much rather have everything kept out of the public eye. No kidding. If I were them, I’d want that too.

Where the Cheese Meets the Landfill

This is serious, folks. Some of you have kindly offered to free the cheese, but please, you have to understand the seriousness of that action.

The Dixons have been instructed to send any freedom of cheese suggestions to the proper authorities…obstruction of justice charges will likely result. That means someone would likely go to jail. Doreen, for a time, the Dixon’s for longer. Obstruction of justice is a felony…know what I mean?

If you want to help, really help, show up on D-Day (currently scheduled for the 9th) with your video cameras, your recorders, signs. Doreen put it best: “Personally, I think that a few hundred people there with signs megaphones, cameras and notice to tv stations would be good. Here we are in a world where there are food riots and tons of reports about food shortages coming soon, and they are going to throw away an awful lot of food.”

This isn’t kindergarten, folks. This is tyranny.

Final Countdown?

In a 3-2-11 Letter to Gary Cox of the Farm-to-Consumer Legal Defense Fund, assistant attorney general Jessica Blome stated that “requesting a new trial does not stay execution of the Court’s Final Order of Permanent Injunction and Judgment and Order, entered February 23, 2011. Accordingly, this letter serves to provide your client with seven days notice that the Missouri State Milk Board will assist your client in the destruction of ‘all of its cheese products condemned by the Missouri State Milk Board on August 26, 2010’…Pursuant to the court’s Final Order, three inspectors from the State Milk Board will arrive at Morningland Dairy of the Ozarks in Mountain Grove, Missouri, at 10:00 a.m. on Wednesday, March 9, 2011, continuing to Thursday, March 10, 2011, to supervise your client in the destruction of the condemned cheese. The State Milk Board has made arrangements with a local, sanitary landfill for the disposal of the cheese.”

David Gumpert at The Complete Patient says it best in this post yesterday: “And now, smelling blood, the Missouri regulators are pushing for destruction of the Morningland inventory by next week, even though Missouri law and legal precedent allow for an automatic 30-day stay for imposition of sentence. [emphasis mine].

I particularly like the picture David used with that post. Says it all.

Need some comments on this Riverfront Times blog article

Circuit Court Ruling Puts Raw Milk Cheesemaker Out of Business

The Cheese House at Morningland of the Ozarks is no more.

The battle over raw-milk cheese has come home to Missouri. On Tuesday the Howell County Circuit Court upheld a ruling by the Missouri State Milk Board that Morningland of the Ozarks, a dairy in Mountain View, would have to destroy all the raw-milk cheeses it produced between January and June 2010, when traces of two bacteria, Listeria monocytogenes and Staphylococcus aureus, were found in samples taken from a store in California.

The decision effectively spells the end of the road for Morningland.

“Morningland had been in business for 30 years,” says Doreen Hannes, a spokeswoman for the dairy. “In that time, zero incidents of people getting sick from their raw-milk cheese have been reported, or even rumored.” [Read the rest of the article here, and please make some comments]

 

The Truth of the Matter Doesn’t Matter – Doreen Hannes

The Truth of the Matter Doesn’t Matter

© Doreen Hannes

On February 26th, 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 26th 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 60th 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 9th and 10th.

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.

Morningland Dairy…..Closing Arguments and Closing Business While Tryng to Make Lemonade out of Lemons

©Doreen Hannes

The closing arguments for the January 11th and 12th 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 26th 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.