Accusing FDA of “Quasi-Criminal Action,” Amish Farmer Seeks “Public Court Forum”; Those in Favor of Raw Milk…

The Amish are reluctant participants in the legal system, no matter what the occasion. They prefer to stay very much within their own communities, and avoid conflict with the outside world.  

But Dan Allgyer has put together a credible and cogent response to the U.S. Food and Drug Administration’s motion for Summary Judgment in its move to implement a permanent injunction against interstate raw milk shipments from his farm.

The FDA action is designed to deprive more than 900 Maryland families of raw milk (and other foods) they obtain through the Grassfed on the Hill food club.

Indeed, Allgyer claims that the FDA action “has created a serious dilemma” by “violating (his) due process and equal protection under the law.” So much so that he “is prepared to proceed with a public court forum, if necessary.”  

The FDA obviously wants to avoid a public confrontation with an Amish farmer, which is why it filed a written motion for summary judgement in the first place. It hoped the judge would simply sign its pre-printed Permanent Injunction, allowing the big-shot Justice Department lawyers to walk away without having to confront their prey. No, a public hearing, with a humble dairy farmer making his own defense, in front of a courtroom full of buying club supporters, is not what the FDA had in mind when it launched this case last April.

Allgyer in his response makes two primary arguments. First, he contends he is operating a “private membership association” protected under the First and Fourteenth Amendments to the U.S. Constitution that protect right of assembly and due process.  He contends he did away with his Rainbow Valley Farms as a business entity and that his “Rainbow  Valley,a 1st and 14th (amendment) Private Membership Association, does exist and does not deal with the public; it only deals with private members…” He cites a number of U.S. Supreme Court rulings that make the case “that private membership associations are outside your jurisdiction and authority being exempt.”

In addition, he argues that the FDA’s action, though classified as a civil action, is in reality “a quasi-criminal action.” “It is a quasi criminal matter because of the severe sactions and consequences that could occur as a result of the FDA investigation and the inspection.” As such, he said, it “requires prior notice of the offense, probable cause and official complaint, which is totally lacking in this case.”

He asks for a “pre-administrative hearing…because of the loss of business and the chilling effect on Rainbow Acres Farm due to the FDA investigation and inspection.” Allgyer notes that, “Quasi-criminal refers to a proceeding which, though not actually a criminal prosecution, is sufficiently similar in terms of the sanction to be imposed, e.g. civil fine, loss of business, loss of employment, loss of license, suspension…, etc….In a quasi-criminal prosecution, all of the due process rights must be made available to the Defendant except presentment of the charge to a grant jury.” In other words, trying to stamp out a small enterprise should require more careful judicial consideration than just signing a pre-printed FDA order form.

Allgyer argues as well that the FDA has violated Privacy Act questions and failed to provide its investigators’ oaths of office. And he questions the legality of FDA “warning letters.”

He told me after filing the response that he asked for a public court hearing as a way to challenge the FDA’s tactics. “The FDA’s way is to scare people. What I’m saying is that I’m not scared…We have valid arguments. What we are doing is perfectly legal. What they are doing is illegal.”

Progessive Dairyman reports that its reader poll on whether raw milk should be legalized was its best read article of 2011. Maybe more to the point, more than 4,000 voted in favor, with only 80 voting no. Perhaps that explains why I never see any opponents to raw milk at the food rights demonstrations I attend.


Wisconsin raw dairy farmer Vernon Hershberger has had his court hearing to answer criminal charges changed from Jan. 4 to Jan. 11, at 1 p.m. The complaint provides the charges, and the courthouse address.

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23 Comments on "Accusing FDA of “Quasi-Criminal Action,” Amish Farmer Seeks “Public Court Forum”; Those in Favor of Raw Milk…"

Gordon Watson
December 15, 2011

I am very happy to see Dan Allgyer shoving-back. He's on a track similar to me. Today I filed suit in the Supreme Court of British Columbia against Fraser Health for stealing our milk and then lying about it, 2 years ago. My Claim is on my website, < > on the page "me suing Fraser Health"

the other page on my site is "Fraser Health prosecuting me" for contempt of the Court Order, prohibiting us from packaging/distributing raw milk for human consumption. That one's been booted over to April 2012

Marshall McLuhan said "information overload brings pattern recognition" As we compare notes from raw milk fans all over N America, it's obvious that Big Dairy is doing what psychologists call "projection". .. imputing to the innocent, what the criminal is doing himself. Public Health authorities being used as stooges to frame us up as outlaws, while the dairy cartel gets away with merchandising the dreck labelled "homo milk" …
the real hazard to public health is the industrial powder called Milk Protein Concentrate, brought in by the boatload from 3rd world countries, then folded-in to the nation's foodsupply, called 'milk ingredients'. Poisoning the nation slowly but surely

Ora Moose
December 16, 2011

I have been reading this blog for a good while, and truly appreciate the work and forum provided by David, as well as all the great informational posts by those of you in the industry. I am just a consumer who highly prizes freedom of food choice, so this comment may seem somewhat naive to some of you, but…

Could the legal ramifications for producers and consumers, the raids and clashes with FDA etc be avoided if the raw milk producers adopted a business model based on the highly successful, and recently fast growing CSA concept? I'd be glad to pay up front and provide working capital for the small dairy farmer, in exchange for weekly pickups of the product I already payed for, therefore I own.

People have been made sick by spinach and other vegetables, but I've never heard of a CSA getting shut down. I buy and eat retail raw oysters and know that there is a risk, as do thousands or possibly hundreds of thousands of people any given day. But I've never heard of a raw oyster or any fish farm operation getting the attention and harassment raw milk producers do.

So why is raw milk so much more of a blazing battlefield despite the track record of lack of illness in comparison?

Southern Consumer
December 16, 2011

"So why is raw milk so much more of a blazing battlefield despite the track record of lack of illness in comparison? "

In my opinion it has to do with well financed dairy associations and their lobbying efforts to stop this product from getting a toe hold.

On a side note, while in DC for business I visited the offices of my senators and representative and had discussions with their staff's regarding raw milk and the current FDA approach to this market. Not sure how beneficial it was but I will be in DC every 8-9 weeks and will continue to push them on this issue.

Barney Google
December 16, 2011

Ora Moose,

Farmshares were originally patterned off of the CSA model. The problem seems to lie in the fact that dairy products are regulatable in commerce, where vegetables and fruits are not.

Jennifer Feeney
December 16, 2011

According to this posting by Marion Nestle, the FDA does not have the resources to adequately police our food system.

Whether or not you agree with Nestle's stance that we need a more regulated food system, I find this article interesting.

I find it incredible that the FDA does seem to have adequate resources to go after the small farms that are not getting anyone sick.

Gwen elderberry
December 16, 2011

Incredible indeed. It makes the taxpayer feel their money has been spent wisely, and makes them feel their food is more safe. Sarcasm intended. An NPR documentary needs to be done on small farm raids, with pictures and videos. How about a CNN investigative report? The public needs to know about this, and they don't.

Ora Moose
December 16, 2011

"The problem seems to lie in the fact that dairy products are regulatable in commerce, where vegetables and fruits are not."


Is this written into official law anywhere at the federal or state level? It seems ludicrous that dairy products are considered in government regulation definitions to be any different than veggies, fruit or oysters, since the reality is that you can get sick from eating any of them.

Also, the feds seem to cling to the "across state lines" business factor as a deal breaker, as if making people sick with chemically or otherwise poisoned products vs. real food, within your own state isn't as big a deal.

Barney Google
December 16, 2011


For example:

Wisconsin statute 97.24(2)(b) – "No person may sell or distribute any milk or fluid milk products which are not grade A milk or grade A milk products to consumers, or to any restaurant, institution or retailer for consumption or resale to consumers. Grade A milk and grade A milk products shall be effectively pasteurized, and shall be produced, processed and distributed in compliance with standards established by the department by rule under this chapter."

The federal government clings to the "across state lines" business factor because that is where the federal government has jurisdiction. The feds have jurisdiction over interstate commerce, but not intrastate commerce (though the state governments often give jurisdiction over to the federal government though contractual agreements).

Violet Willis
December 16, 2011

Southern Consumer . . . lived in Virginia for many years before moving to Maine to farm and I have many connections on the Hill Still . . . (used to work there when I graduated from College) . . . please e-mail me privately . . . I know a great deal about lobbying . . .

It is all about Big Ag . . . what they have contributed to PAC's and now those that are beholden to them . . . how they are voting on Ag Issues.

If your congressman or Senator has voted for S-510 . . . don't even bother to see them . . . they got some big bucks from Big Ag . . . and they will not listen to you . . . you need to stand behind or put up someone in your area that is against this lawmaker . . . this is what "GRASSROOTS" is all about. , ,

This is what we are doing in Maine . . . we are supporting a Primary candidate against Olympia Snowe who voted for S-510 . . . and we are supporting Ron Paul for President in our upcoming caucuses . . . I am Ron Paul's County Coordinator in Maine . . .

We need to elect those that are for "FOOD FREEDOM" and not the staus quo . . . Democrat or Republican . . . they need to go.

We had a meeting here on our farm this past Tuesday for Ron Paul . . the largest farmer in our county was here with his wife . . . who are quite liberal as well as the non-affiliated grass roots Tea Party leader . . . we are in agreement on who the Presidential nominee should be . . .

Grassroots is the key . . . if any of you need help out there to start a movement . . . please let me know privately at:

Kind regards,


The Complete Patient
December 16, 2011

Ora Moose, Southern Consumer, Barney Google,
Dairy products are among the most intensely regulated of all products, much more than vegetables and fruit. The Pasteurized Milk Ordinance governs in endless detail how dairy producers are to go about their business, with both federal and state regulators watching closely. Thus, the regulators have a knee-jerk reaction against raw milk producers who try to set up herdshares, leasing agreements, or whatever designed to run outside the regulatory structure. It's almost akin to violating union rules, and threatening regulator job security. These regulators are adamant that anything in the dairy sphere must involve them…or be shut down. That's why there's been a severe challenge to so many private arrangements.


Violet Willis
December 16, 2011

David . . . you are so right here . . . which is why we need to elect those that are against this sort of regulatory war against whole foods . . .

Why do we have this sort of regulatory environment to begin with . . . it is those who we have voted in that scratch the backs of those that have donated to campaigns that will protect the bottom line . . . Taylor as head of the FDA . . . Gimme a break . . . this was the guy so entrenched with Monsanto . . . Obama nominated and then the Democratically controlled Senate confirmed . . .what is wrong here? . . . I would think that Democrats would be for whole foods . . .but this is sadly not so.

Everything needs to be cleansed . . . . we need to start in 2012 . . . all of us who value our freedom need to take a good hard look at our elected officials and determine if they are for food freedom or against it and then work to elect those that think like us . . . it will take those of us who put everything on the line for change . . . we may win some and we may loose . . . but we have to fight this battle and it will be hard . . . . that is why I have been so hard and opinionated on this list in the past . . .this is the kind of battle we are up against. . .

Kind regards,


Violet Willis
December 16, 2011

I will leave everyone with this thought . . .

Which candidate for President would most likely nominate someone like Joel Salatin as Secretary of Agriculture . . . .

Kind regards,


Amanda Rose
December 16, 2011

OPDC's FB page was just updated on the recall:

Looking at the comments, I particularly like the comment of Mark's daughter and paid OPDC marketer, who posted under her married name (sans "McAfee").

"Kaleigh Marie Lutz I heard we can donate to OPDC to help them since they have lost so much money!"

I could donate to a company with a $20K/day revenue or a soup kitchen. Hmmm….

Small Farmer
December 16, 2011

As a long time reader and a consumer of raw milk and raw milk products from our own animals, this blog has kept me informed on what everyone else has to deal with. It can be disheartening to see what is happening to the farmers and I feel bad for the consumers that are unsure if there source of nutrient dense food may suddenly dry up tomorrow.

It is disturbing that raw milk is so strongly attacked by the "authorities" who seem so absorbed in eliminating raw milk that they throw everything they can against it and make things up when it doesn't work.

Here is another blog post that takes some of the "experts" to task:

Having met some of the people that David writes about gives me hope that this fight can be won, it just won't be easy.

Deborah Peterson
December 16, 2011

Saw a very interesting thing tonight while driving back to San Diego from Burbank. Came upon a trailer with a sign on the back "Caution Livestock". Thought to myself "that's an interesting sign for horses", had thought it was a horse trailer with show horses in it! Well, when I pulled along side of it, I noticed a very curious advertisement emblazoned on the side of the trailer…..wait for it…wait…..yep, it was the Mobile Dairy Classroom brought to you by none other than the Dairy Counsel of California!!! Mobile Dairy Classroom???!!! More pasteurized milk propaganda for the masses!! Didn't know they had those things! Well, I think there should be a Mobile Raw Dairy Classroom going about & sharing information that people need to know about. What say all of you?

Sylvia Gibson
December 16, 2011

I'm hoping that Mr. Allgyer and the other harassed farmers along with those who enjoy the fruits of their labors stand together in this fight for human rights.

Getting the word out regarding what the govt is doing and how people can can have a say will be beneficial. I think many don't know what to do or what to say. I've been pushing to people to research what the current sitting powers have voted for and what they've said and done…..votes can make changes.

If you click on kaliegh's name it shows she works at OP… I would assume, as a business person you would ensure that there would be insurance to cover issues such as this recall and loss of revenue.

Since Mark has played the game with the state, and they just keep on adding more BS, (no surprise there), I wonder why he doesn't go on a media campaign to expose the behavior of government agencies that are abusing power and attacking small farmers. Why not show loudly, the differences in the attacks, ie lettuce recall, peanuts, turkey, etc and raw dairy…..loudly give those bullet facts about raw dairy and the difference in processing of pasteurized milk,, tell ALL of what is done to pasteurized milk and how the cows are raised and what they eat…. Graphic pictures would be embedded in people minds every time they go to pick up a jug of milk. Tell the laws verbatim….use their own laws and actions against them.They want to fight…give them a fight..

Just think, if they shut down his dairy, then he can convert that mobile milking barn into a propaganda trailer and drive all over the country educating the masses in a raw dairy classroom and expose the abuse from the govt, etc..

Ora Moose
December 17, 2011

to Small Farmer: Thanks for posting that link to the Homegrown & Handmade website. I just bought 5 copies of the book, it's a perfect gift!

These are the little things that make TCP such a great resource, the sharing of information for like-minded info-seeking people despite their differences. I agree with David that a little dissonance never hurt anyone, and hope that all of you keep posting despite accusatory, antagonistic comments. I'll even go out on a limb here and say COME BACK SOON, MARK! We do need all the education money can't buy… after a while it becomes clear what the different agendas are, and they are all almost equally valid and understandable. Some make more sense then others, but maybe I just need to learn more.

Kristen Papac
December 17, 2011
Sylvia Gibson
December 17, 2011
Sylvia Gibson
December 17, 2011

"January 2, McDonald's will debut a new ad campaign that focuses on showing customers where their food comes from. "

Will they inform the public about the added chemicals?

Sylvia Gibson
December 17, 2011

Fresh squeezed for me…Indeed, as more people learn of how their food is processed, it will affect the bottom $$$ LMAO! teach teach.

Sylvia Gibson
December 17, 2011

Received the following in an email. Per this email the way the decided it was OP milk was because they all drank it…..I guess no one ate groundbeef, turkey,chicken greens etc…and they all washed their hands well….

CDFA Release#11-069

Follow CDFA on Twitter:


Only colostrum remains under quarantine

SACRAMENTO, December 16, 2011 Raw milk products produced by Organic Pastures of Fresno County, with the exception of raw colostrum, have been released from a statewide quarantine that began November 15. CDFA imposed the quarantine in response to notification from the California Department of Public Health connecting E.coli O157:H7 food-borne illness to the dairy.

The facility was required to meet all sanitation requirements and comply with food safety regulations under state law before the quarantine could be lifted. During the quarantine, the facility was prohibited from producing raw milk products for the retail market. The order affected milk as well as raw butter, raw cream, raw colostrum, and a raw product labeled Qephor. At this time, the quarantine hold on raw colostrum remains because it is the subject of continuing investigation by the California Department of Food and Agriculture (CDFA).

The Department of Public Health identified a cluster of five children who were infected, from August through October, with the same strain of E. coli O157:H7. These children are residents of Contra Costa, Kings, Sacramento, and San Diego counties. Interviews with the families indicate that the only common reported food exposure is unpasteurized (raw) milk from Organic Pastures dairy. Three of the five children were hospitalized with hemolytic uremic syndrome, a serious condition that may lead to kidney failure. There have been no deaths. The findings that all of the children drank Organic Pastures raw milk and that this was the only common exposure among them established the dairy as the likely source of the illnesses.

The great majority of milk consumed in California is pasteurized. Raw milk is not pasteurized. Pasteurization is a process that kills harmful bacteria. In California, state law requires that raw milk and raw milk products shall bear the following warning on the label: "Warning – raw (unpasteurized) milk and raw milk dairy products may contain disease-causing micro-organisms. Persons at highest risk of disease from these organisms include newborns and infants; the elderly; pregnant women; those taking corticosteroids, antibiotics or antacids; and those having chronic illnesses or other conditions that weaken their immunity."

Symptoms of E. coli O157:H7 infection may include abdominal cramps and diarrhea which is often bloody. Most infected people recover within a week; however, some may develop complications that require hospitalization. Young children and the elderly are at highest risk for a potentially life-threatening complication known as hemolytic uremic syndrome (HUS), which includes kidney failure. People who develop symptoms of E. coli O157:H7 infection after consuming unpasteurized milk or milk products should consult their health care provider. Physicians who have patients suspected of having HUS or E. coli O157:H7 infections should report them to the local health department.


CDFA Protects!


Steve Lyle

Director of Public Affairs

California Department of Food and Agriculture


Gordon Watson
December 19, 2011

the Apostle Paul had his "thorn in the flesh" and Organic Pastures has Mary Martin. …. Reminds me of what Pete Peters used to say = 'what's the first thing an Overcomer needs ? Something to overcome!"
or the one old Sheldon Emry used to tell about a pastor challenging his congregants to say something positive about the devil. One lady thought, then replied, "well, he's always on the job"

Mark McAffee has figured out that every time MM has at him, , the volume of REAL MILK sold by Organic Pastures, goes up.