Wisconsin: DATCP Raids Hershberger Farm
BY Pete Kennedy, Esq. | June 7, 2010
The morning of June 2, 2010 started out like most other busy days on the farm of Vernon & Erma Hershberger and their family of eight boys and one girl, ranging in age from 18 down to 2 years. Shortly before 10:00 a.m., Vernon went to pick up some equipment from a neighboring farm. Immediately after he left, Cathleen Anderson, Regulatory Specialist from the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) along with Sauk County Health Department Sanitarians, Nick Oasen and Mitch Lohr, arrived and entered the farm store building, paying no heed to “Private Property” signs posted on the building. Erma immediately called Vernon on his cell phone; and she asked the officials to wait for him outside the building, which they did, stepping out into the parking lot.
|Vernon refused consent even after they threatened to get a warrant, explaining to the officials that they had no jurisdiction to inspect his farm because he had not applied for a license and he was not selling to the public but merely distri-buting products to members of his private buying club.
Upon arriving at the scene, Vernon was asked by Anderson for his consent to let them do an inspection of his private facility. Vernon refused consent even after they threatened to get a warrant, explaining to the officials that they had no jurisdiction to inspect his farm because he had not applied for a license and he was not selling to the public but merely distributing products to members of his private buying club.
At 11:45a.m. Jacqueline Owens, Field Service Director from DATCP, showed up with a warrant along with four or five deputies from the local Sherriff’s Department. Anderson handed Vernon the warrant; Vernon requested a few minutes to look it over which they granted, but when he asked them to wait until he had called his attorney they refused saying that the warrant was valid and they would wait no longer. They then entered the farm store building.
They began the inspection in the storage freezers in what is call the “processing room” and took
inventory of all the items that were in the freezers, also making notes about labels and temperatures. They did a total inspection of the building including the restroom facilities, the lighting, and anything else that they would typically inspect in a licensed facility. After they were done in the processing room they went into the grocery storage room and then into the culturing room, taking a basic inventory of everything that was on the shelves. They then moved on into the walk-in cooler.
In the cooler, they wrote down every individual item name and lot number and any other information that they could find. Next, they went into the store area where there were two chest freezers, a three-glass-door display freezer and approximately twenty feet of shelving. After they had gone through the whole store, Oasen commented on the cleanliness of the building and processing equipment along with the overall appearance of the facility.
|Vernon said he was shocked! He had dealt with ‘cease and desist’ letters and even went through a long, drawn out lawsuit but nothing quite like this.
Anderson and Owens took a total of twelve samples of various products; Vernon took a similar sample of each item. When the sampling was done, Owens said, “Now comes the hard part.” Owens went on to advise Vernon that they were going to tape shut all the chest freezers and put tags on the doors of the other coolers and freezers and that he would not be allowed to take anything off the shelves without written approval from DATCP. She told him the tags would be good for 14 days; if things were not worked out between DATCP and the farm, the agency could extend them for another 14 days. She ended saying that they would leave him some food for his family to eat but that everything else must stay intact on the shelves as it was then.
Vernon said he was shocked! He had dealt with ‘cease and desist’ letters and even went through a long, drawn out lawsuit but nothing quite like this. His head was going in circles: How to make the mortgage payments? Would the inventory be left on the shelves to rot?
|As all these things were going around in my head, I thought to myself: As we head into the future we do not know what it holds but we know Who holds it and that’s what counts.
Just as if all that wasn’t enough, after the officials were done with the taping and sealing they headed for the milkhouse. After taking samples, they gave Vernon a paper demanding that the milk in the bulk tank must be disposed of by dumping it out onto the fields. In order to make sure that the milk could not even be used by Vernon’s family, they opened the lid and dumped in a large glop of blue dye. By the time the officials left it was 5:00 p.m.
After the day’s chores were done, Vernon said, “I sat down and went into our business email and WOW!! Fifty new messages--how’s that for some support?” He then called the Farm-to-Consumer Legal Defense Fund to ask a few questions. He also talked with David Gumpert and then Ted Beals on some sample testing issues. After looking over the emails, he tried to get some sleep; it was close to 11:00 p.m.
In Vernon’s words:
Coming from an Amish background, we had been taught the biblical principles of non-resistance and loving and praying for our enemies and those who persecute us. I slept only a few hours and meditated a long time, seeking the Lord and His will in these troubling circumstances. What would Jesus do? Bible passages like: “Blessed are you, when men shall revile you and persecute you, and say all manner of evil against you falsely for my sake”. (Matt. 5:11) “But I say unto you, ‘Love your enemies, Bless them that curse you, do good to them which hate you, pray for them which despitefully use you, and persecute you’.” (Matt. 5:44) Also Psalms 37 has promises that we can claim for our own if we trust in him.
There is another phrase that is very powerful that I strongly believe in: There’s no greater love that a man can have than to lay down his life for his friend. If we become so passionate about something that we are willing to lay down our lives for it, there is a power that kicks in, which is beyond measure. As all these things were going around in my head, I thought to myself: As we head into the future we do not know what it holds but we know Who holds it and that’s what counts.
On June 8, Owens and Anderson returned to the farm without a warrant, attempting to conduct another inspection. Vernon refused the request for inspection and the officials left his premises. Before they left, they served Vernon a ‘Summary Special Order’ which would subject him to fines of up to $5,000 per violation if he is not in compliance with Wisconsin food and dairy law.
Patricia Barrett, Esq.
Sauk County District Attorney
Sauk County Court House
515 Oak Street
Baraboo, WI 53913
How You Can Help
DATCP has referred Vernon’s case to the Sauk County District Attorney, Patricia Barrett, for potential prosecution. Everyone is urged to contact Barrett’s office and request that she not prosecute the Hershberger case. Sauk County residents are especially encouraged to contact the District Attorney and inform her that you will not vote for her the next election if she pursues the Hershberger case. The District Attorney has already taken so many calls on this case that they are no longer accepting them; but you can still contact the DA’s office by email, fax and/or postal mail. Here is the contact information:
Here are some points to make:
- The County DA should not be spending taxpayer money, pursuing cases like this in which there is no victim or injury. There has been no complaint filed by anyone against the Hershbergers.
- The only injury in a case like this occurs when the farmer or food distributor is prosecuted and consumers who were obtaining foods they deem best for their health and the health of their families have now lost their source of those foods.
- The right of consumers to obtain the foods of their choice from the source of their choice is a political issue; cases like this in which there has been no injury do not belong in the courts. The County DA should exercise her discretion not to take on these cases.
- With the tough economic times and all the cutbacks in government spending, the County DA should not be using its remaining enforcement dollars pursuing victimless crimes.
- Let the County DA know how food direct from farms has benefitted your health and the health of your family.
DATCP does not respect freedom of food choice nor the right to be left alone. The agency’s enforcement actions do not protect the public health; they only deny individuals the right to obtain the foods they believe best for their health and the health of their families.
Please help Vernon and Erma Hershberger.