Appeals Court Prohibits Two WI Farm Families from Distributing Raw Milk, Unless…

Wisconsin farmer Mark ZinnikerAn NBC News/Wall Street Journal poll released a couple days ago showed that more than 70% of Americans feel the country is “headed in the wrong direction.” 


Now, “headed in the wrong direction” can mean different things to different people—failure to deal with immigration problems, education system deficiencies, rising prices in the face of stagnant and declining wages, health system screwups— but certainly the ongoing worries about  the poisoning of the food system have to be up there as well. We’ve seen the worries expressed via heavy citizen opposition to genetically modified (GMO) food. So I’d put judicial opposition to privately-distributed food in the “wrong direction” category as well. Especially when that opposition comes in the face of growing public preferences to be able to access good wholesome food, and buy it privately. 


This is all prelude to the latest court decision against privately-distributed food to come out of Wisconsin—an appeals court decision against two farm families (Kay and Wayne Craig and Petra and Mark Zinniker). The cases were similar to that involving Vernon Hershberger last year.   


In all these cases, Wisconsin's Department of Agriculture, Trade and Consumer Protection argued that the farmers required dairy and retail licenses to sell food to private groups of consumers. You can’t just have one.  And if per chance the farmer obtained both licenses, and tried to include raw milk among the items being sold to food club members? Why, the sales aren’t allowed, since sales of raw milk except on an incidental basis (whatever that means) are illegal.  A classic Catch-22.


The original state judges together with the appeals court judges have now all ruled against the Craigs and Zinnikers. In the Hershberger case, the judge overseeing the case, Guy Reynolds, made no effort to hide his desire to see the farmer convicted of similar offenses of selling food to members of a food club without what DATCP said were required dairy and retail licenses. 


Except in the Hershberger case, the judge didn’t get to rule. The people ruled, in the form of a 12-person jury, which 15 months ago acquitted Hershberger of all the licensing charges. 


So now you have a situation where Hershberger is free to farm and serve his member community, and the Craigs and Zinnikers are prohibited from doing the same thing….unless… Unless they insist on having the same rights as Hershberger. To do that, they are presumably going to have to take the same action Hershberger did—just go and do it. Challenge the state to stop them. Let a jury of 12 ordinary citizens decide if they are criminals for serving a private community with good food. 


I say this appreciating that it’s much easier for me to give advice than for them to carry it out. But I also say it knowing that the Zinniker family has been carrying out biodynamic farming in Wisconsin since 1943. And that the Craigs have been fighting DATCP since 2002. They’ve all had to be very persistent to have gotten to where they have gotten. They have a lot to lose, and the people of Wisconsin have a lot to lose if either or both families decide to fold up the tent. 

It’s become obvious, in rulings from Maine to Wisconsin to Missouri and elsewhere that there isn’t a single judge willing to rule against the insistence by America’s food oligarchy that the centuries-old practice of farmers selling food to members of their community is now illegal. At the same time, it’s become obvious that if Americans want to preserve that right, they are going to have to band together as communities and back their farmers in taking and preserving that right. People know things are going in the wrong direction—they need to come to the realization that they are the only ones who can fix it on the food front. 


Vernon Hershberger's community is coming together yet again--on August 26, for a fund-raising dinner in Milwaukee to help the farmer re-build a shed that was destroyed by fire just prior to his trial last year. I'll be there, together with Joel Salatin, Elizabeth Rich, Max Kane, and others. 

mark mcafee's picture

Got a call today from an organic certified raw milk dairyman in South Dakota that wanted to learn how to get his coliforms under 10. We talked for 45 min. He was part of a working group that was put together in response to threatened legislation that would compel and force the Ag department to change its HARDENED positions. I am impressed...Ag departments sitting down with farmers and working on standards together!!! Now that is the way America should work!! It was interesting that the farmer told me this: when the state regulators were queried about where coliforms came from they said "from cows feces..." We'll that is an incorrect answer. It is an ignorant canned political answer!! In fact we at RAWMI know that milk from a dirty milk filter with green all over it can have 1 coliform milk test results....we also know that a filter with nearly perfect cleanliness can have 50 coliform milk test results. Coliforms are everywhere: high SCC, failure in equip cleaning, BIOFILMS, low water cleaning temps, slow chiller systems, wet udders, are just a few origins to get started.....these are not fecal origins. Even though, SD has sat down with its producers, it appears that ignorance and canned quotable dogma still prevails. This is the same state that announced that Listeria had been found in a producers raw milk...and then they performed the requisite additional testing only to discover that it was not Listeria M but rather a benign none pathogen form...a total shoot first ask questions later. Ouch!!! What a screw up!! Boy, do we have a challenge. As producers, we not only have to learn ourselves, but we must also educate our ignorant regulators with out offending them.


mark mcafee's picture

Ok...I am totally proud of my daughter Kaleigh. She just completed a massive website renovation at OPDC. She did it all by herself and is now our webmistress...and all while 8 months pregnant with her third child and my fifth grandchild. I am just a little proud. But....what really impressed me was how far we have come. One close look at our store locator really shows why the FDA gets diarrhea every time they hear about OPDC raw milk and product proliferation. Check out our new store, CA is covered in raw milk. Not to mention the 1000 micro dairies that serve local communities. CA is a raw milk nation all by itself. The CA state opdc raw milk store map really shows it...

Hint to the FDA....we are in 600 stores statewide because people demanded it to be in those stores!!! Isn't it about time to sit down and talk?? Raw milk safety has been reduced to a science.

Ora Moose's picture

Mark, I'd suggest that reduction sounds too negative and should therefore be changed to magnified by science, that's how I see it anyways. And you should be proud I only have my one child and no prospects for grands so I can only imagine how that feels. Then again I don't have a million cows...


Ora Moose's picture

Oh and I can't help myself so have to ask, does she like Kaleighflower? Though I'm sure she's heard that a million times by now. You're cruel Mark, remember a boy named sue? And that was before sue had a bad connotation.

audine's picture

The OPDC raw milk store map is not entirely correct. All too often Humboldt County, way up in Northern California, is forgotten or ignored. We do NOT have access to raw milk, and I believe it's the same situation in Del Norte county. Humboldt County chose decades ago not to allow raw milk sales. Six or seven years ago Mark traveled up here and tried to convince our County Supervisors to change that law, but our local dairy industry and the Dept of Health prevailed. Sure I can buy aged raw milk cheese at Eureka Natural Foods but no fluid stuff, and it's easier to find locally-grown marijuana than it is to find a micro-dairy serving our local community. Unfortunately, not all of CA is "covered in raw milk."

mark mcafee's picture

"kaleigh" is the Scottish name for town dance or town celebration....and that she is and more. Ie...going out to the Kaleigh, not sure about the boy named Sue Johnny Cash thing, that's pretty cruel for sure.

mark mcafee's picture

I was just digging arround this afternoon and looked at the appeals decision on the Manna Store House Case One huge piece of advice...always use a jury when trying a case that involves families, police abuse and food freedoms. Judges just plain suck and follow the regulators lead regardless of police abuse of powers. Unless there is some other new news on is a horrible miscarriage of justice. It appears that judges have no problem with cops and swat teams entering your home and holding your peace ful family hostage for 6 hours with guns pointed at your family, while taking all of your food, taking away your computers and basically acting like nazis.

Disgusted. not give the regulators a target to begin with, turn on the cameras, always use a jury for these types of cases, and if you do have a raid....push "send" and have 200 people plus media show up to really make a scene and get not the news. Public Embarrassment and civil liability seems to be the only thing to keep the abusers in check.

David Gumpert's picture

Here is an analysis by a big law firm (Foley & Lardner) of the Wisconsin appeals court decision on raw milk, and it faults the appeals court for a technical oversight (and by implication, the appeal itself, for being based on inappropriate legality): 

"The court of appeals’ decision was a long time coming (two years after it was submitted on the briefs), yet perhaps it should not have come at all.

"The plaintiffs appealed from the denial of their motion for summary judgment. Appellate courts in Wisconsin typically do not have jurisdiction to hear appeals from the denial of a summary-judgment motion because decisions denying motions for summary judgment do not dispose of the entire matter as to the parties, a cardinal rule for creating final, appealable orders. The opinion from Wisconsin’s court of appeals appears to have missed the issue entirely."

Here's the link for the law firm's analysis. Warning: I found it difficult to access--you need a password, and the site seems very slow.

In sum, though, another reason to avoid the judges. They don't necessarily have the law straight and, as Mark indicates, they are by and large totally biased toward the government side--the regulators, cops, and prosecutors. 

Jan's picture

That's bad about Manna Store House. Another issue involving the noose tightening around our necks, is I was wondering if anybody, particularly those nurses or others who work in healthcare, had an opinion about biometric blood screening. This is the issue of biometric blood testing that corporations are doing on their employees who now are obligated to have health insurance. These "wellness" companies are doing biometric blood screenings on employees and if the employees do not fall into the guidelines, they are given a year to get their blood readings into the guidelines ( how? maybe through drugs). If they do not get their blood readings into alignment with the guidelines, the employee will be assessed a monthly fine for the cost of their corporate health insurance. These monthly fines could be hefty. I was wondering if people who ate real food would have a problem being inside these biometric guidelines? My opinion, it is all about money and this seems to me to be a draconian invasion and control of your body. Any opinions please? Any ideas how to end around besides quitting the job? Who decides what these blood readings should be?

David Gumpert's picture

It doesn't take a very vivid imagination to see corporations requiring employees to take blood pressure meds and statins to get people into "compliance." Don't forget, the numbers determining whether someone has high blood pressure or high cholesterol have all been coming down under pressure from the medical community (which in turn is being pressured by the drug companies). Don't forget, also, that blood pressure meds and statins (and others) are lifetime prescriptions--the drug industry's favorite. Their "annuity" products. 

What will be interesting is when people like some of us here say, "No meds for me." (I have refused these meds at various times, and made some docs very unhappy.) Will the people be fired for refusing to take the meds? Or, what if the stress associated with trying to come into compliance via natural means (exercise/diet/relaxation) stresses you out so much your blood pressure stays up? Could make for some interesting court cases. And I don't think it's too difficult to imagine where the judges likely to come down on such cases--the docs know all, right? 

Jan's picture

I think this is a result of Obamacare which changed everything about health insurance. Sure, you can't be refused for health insurance now, but the "unintended consequence" (I am not sure is it unintended) is that they can fine you for being out of compliance. "They" meaning the monied drug interests, are invading our bodies to control us in a way that history has never seen before. And this is just the beginning of their convoluted ideas to control us. Just my humble opinion. What's next, swat teams coming to our houses to inject us with drugs, ha ha? Is this really so far fetched? Just an extension of the state taking children away because the parents refuse standard cancer treatments. "Just because I'm paranoid doesn't mean they aren't after me". A lot of sheep out there who just accept this.

Jan's picture

There is a whole food movement here in Charlotte, NC but I don't know if there are enough people to band together here at any one particular place of employment to protest this kind of control. For my husband and me, it all boils down to freedom to put in our bodies what we want. In my case, that is traditional, clean foods and that is how I handle my health. If that coincides with the numbers that the "wellness" companies want, there is no problem for us. But if that doesn't fall into the numbers that the "wellness" companies want, there is a problem. Yes, I have no expectation that any judge would side with us. I had a girlfriend who works at a hospital and she had to get a lawyer in order not to have a flu shot. She did finally succeed though. It didn't go as far as going before a judge.

mark mcafee's picture

It does seem rational that healthier employees should be cheaper to insure. However...what a huge wastebasket full of ethical issues. That same company better have a big preventative health program and daily exercise programs.

As far as blood numbers or values are concerned....huge problems there also. One huge one...CRP values verses cholesterol values. Now that could start a real argument....right along with low fat verses high fat!!

Ora Moose's picture

Mark, after spending some time exploring your new company website, I can see why you would be proud of Kaleigh's work. Clean, simple and easy to understand should be a bottom line threshold and usually is even when you go all flashy and don't wish it to be true. And as for numbers and values remember we are all cows of a different size and color cholesterol so flexibility is a daily necessity for survival.

I think of it as ex-cersize since I don't do it much anymore, but when you are young and growing it is an important part of staying alive and strong in a material world with an ever growing police presence.

First line: There is no political solution (in music or food.) Teach and never stop learning especially when you think you already know it all and yes I do realize I'm speaking to myself. Why drink milk?

mark mcafee's picture

Great catch on the OPDC raw milk store are totally right, no OPDC raw milk in Eureka natural foods. Somehow that store was can hope. They are in Humboldt Co. Land of no legal raw milk in stores. However, OPDC raw milk does reach into Delnorte County and is sold in Crescent City.

Sometime soon, we will be gathering our forces to re approach the Humboldt Board of supv for another vote. Our distributor in that area has friends on the board and knows how to knock on the back doors.

I can remember three years ago, flying up to Humboldt for the meetings and hearings. I will never forget the icy reception by the health department. It was like they has succeeded from CA and state law did not exist. I also remember the very warm welcome from the very hip Ag Commissioner. He could and would advise me on how to grow Marijuana....but he was the "go to guy" at testimony time against raw milk. Funny how smart people can be paid to do really contorted things. I will always remember the dairyman that was connected to the Humboldt Creamery when he said....I would rather drink a cup of water from local "very dirty" river than to ever drink raw milk. He even brought a sample of river water with him for his testimony. Yet....he then bragged about the superior quality of his dairy products that were pasteurized.

I could not make any sense of this logic...neither could anyone else. How could superior quality dairy products come from filth....

Still scratching my head. The reason the very good people of Humboldt County do not have raw milk is because most do not know what they are missing.. And, the premiere political position of Humboldt Creamery in the food chain. Corporate protectionism. If pasteurized milk was so great...then it should do quite well up against raw milk in a fair store market fight. They are scared....simple as that.

Little old OPDC, scares big Huge Humboldt Creamery. I am very impressed. These are my private measures of true success. What a weird and truly unfree world we live in.