CA Herdshare Issue May Get Quicker Legal Appraisal Than Expected in Upcoming Rawesome Hearing

For months, tedious negotiations have dragged on between the California Department of Food and Agriculture (CDFA) and a group of dairy farmers over the protocol for herdshares in the state.

Some hundreds of tiny California dairies offer herdshare arrangements, enabling small groups of consumers to gain ownership of cows and goats in exchange for regular supplies of raw milk. Only two dairies, Organic Pastures Dairy Co. and Claravale Farm, are licensed by the state to sell raw milk via retail and other public markets.

A working group of farmers and CDFA representatives was formed more than a year ago, after the CDFA and local prosecutors began issuing cease-and-desist orders to several small dairies with herdshares, and one of the dairies filed suit against the state. The state argued that the herdshares were subject to regulation by the CDFA, while the farmers argued that the herdshares were private arrangements between consumers and farmers, outside the scope of state regulation. Adding credence to the farmers' argument, herdshares apparently aren't even mentioned in California laws and regulations, which would seem to leave them in the private sphere.

I was initially skeptical of the negotiation effort, but the simple fact that it has continued and the parties are still positively inclined seems a sign of progress The working group has been negotiating over possible parameters whereby the herdshares might carry out some sort of milk and animal testing, but otherwise be free of the sort of expensive facilities requirements and extensive regular testing and oversight for registered raw dairies like OPDC and Claravale. There has been talk of introducing legislation covering herdshares backed by the working group in the upcoming legislative session.

Now it turns out the entire herdshare issue could get a judicial review sometime over the next week, when a  pretrial hearing is held in Los Angeles in connection with the Rawesome Food Club case. While many people have focused on internal disputes about outsourcing, the main charges in the original case grow out of a herdshare arrangement Rawesome and its operator, James Stewart, had with Sharon Palmer, operator of a Ventura County farm. Palmer's Healthy Family Farms provided raw goat milk to Rawesome until a little over two years ago.

The June 30, 2010, multi-agency raid on Rawesome also included a raid by state and local officials on Palmer's Ventura County farm in connection with her raw milk activities. Within a couple months of that raid, she ended the herdshare arrangement because she felt the state was intent on harassing her out of the raw dairy business, and she concentrated on sales of eggs and chickens.

But as part of the pretrial hearing, scheduled to begin tomorrow, Palmer's lawyer has subpoenaed Richard Estes, the CDFA's chief counsel, to quiz him about statements attributed to him that California has no law applying to herdshare arrangements. It's not clear Estes will obey the subpoena, but the matter will become an  issue in the hearing, and the judge could throw out some or all of the charges against Palmer, Stewart, and  Victoria Bloch (a third defendant) if he decides that herdshares are, indeed, outside the state's purview. At the end of the hearing, the judge will be deciding on whether there is enough evidence in the case to send it to trial.