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…"

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Gordon Watson
December 15, 2011 12:16 pm

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… Read more »

Ora Moose
December 16, 2011 1:05 am

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… Read more »

Southern Consumer
December 16, 2011 1:27 am

"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… Read more »

Barney Google
December 16, 2011 2:21 am

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 4:03 am

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 5:17 am

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 5:41 am

"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,… Read more »

Barney Google
December 16, 2011 9:12 am


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… Read more »

Violet Willis
December 16, 2011 9:20 am

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… Read more »

The Complete Patient
December 16, 2011 10:11 am

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… Read more »

Violet Willis
December 16, 2011 11:12 am

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… Read more »

Violet Willis
December 16, 2011 11:20 am

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 12:27 pm

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 12:46 pm

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… Read more »

Deborah Peterson
December 16, 2011 2:18 pm

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… Read more »

Sylvia Gibson
December 16, 2011 10:14 pm

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… Read more »

Ora Moose
December 17, 2011 1:48 am

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… Read more »

Kristen Papac
December 17, 2011 3:07 am
Sylvia Gibson
December 17, 2011 3:30 am
Sylvia Gibson
December 17, 2011 5:38 am

"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 8:30 am

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 10:23 am

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… Read more »

Gordon Watson
December 19, 2011 10:04 am

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 … Read more »