As snow started to fall, a Mennonite dairy farmer arrived at the courthouse in Baraboo, Wisconsin, on March 2 for a hearing on four charges against him related to the production and distribution of milk and other foods. Vernon Hershberger operates Grazin' Acres Farm, a small family dairy farm in Loganville, and is part of a private food club that leases his cows and receives distributions of raw milk and other foods via what he calls a members-only "food pantry" on the farm.

The Case Against Hershberger

Wisconsin allows incidental sales of raw milk on-farm without a license. Critics claim that the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) interprets this law more strictly now than it has in the past.

Hershberger is being charged by the state of Wisconsin not with selling raw milk, but with operating a food establishment without a license, producing milk without a license, operating a dairy plant without a license and violating a hold order that was placed on his coolers during a June 2010 raid [3]. Hershberger claims he does not participate in commerce, but instead has a contractual arrangement with the leaseholders of the farm's livestock. The state's charges could land him in prison for three years [4], with fines of over $10,000.

Hershberger's case is being tried by Judge Guy D. Reynolds. In the hearing on the defendant's motions to dismiss, Judge Reynolds urged Hershberger, who is not currently represented by an attorney, to find representation by the end of March. As Hershberger entered no plea, preferring to wait on the results of his motions, the judge entered a plea of "not guilty" on his behalf and scheduled a tentative trial date of September 25.

State Accuses Hershberger of Breaking Bond

Assistant Attorney General Eric Defort accused Hershberger during the hearing of being in violation of his bail bond order. According to Defort, DATCP officials who attempted to inspect Hershberger's Grazin' Acres Farm on February 9, but did not receive permission from Hershberger to do so and left without a full inspection, reported to the Department of Justice (DOJ) that they saw food products on the property and believed that milk products were being sold.

Previously Hershberger signed -- and later retracted via letter [5] -- pretrial release conditions that he not sell food, manufacture or process dairy products for distribution, sell or distribute milk, allow anyone else to operate his farm in violation of those conditions or impede or obstruct any DATCP inspection.

Hershberger explained to supporters that he retracted his bond signature because "there was no way that I could live with my conscience in letting that food all rot and spoil and seeing those families with their children go hungry. ... I would rather go to jail or whatever it would take, but I cannot see people go hungry and not have food of their choice to feed to their families."

Judge Reynolds responded that the pretrial release conditions make clear that the court would not respond to letters, but would take action only on motions properly served and filed. He therefore did not respond to Defort's allegations. He did, however, admonish Herscherberger to follow the bond conditions.

Hershberger responded, "I will, your honor." Later, he told the judge, "I have no jurisdiction over the food distributed on my farm. The food belongs to other people."

The Case Against Wisconsin Dairy Farmers and Milk Drinkers

In an earlier Wisconsin case involving what is called a herdshare [6] program, Mark and Petra Zinniker [7], sought clarification of the legality of their program. Judge Patrick Fiedler ruled against the herdshare stating [8] that "no, Plaintiffs do not have a fundamental right to own and use a dairy cow or a dairy herd; no, Plaintiffs do not have a fundamental right to consume the milk from their own cow; ... [and] no, Plaintiffs do not have a fundamental right to produce and consume the foods of their choice."

Judge Fiedler retired soon afterwards and went to work [9] at the law firm Axley Brynelson, which represents [10] Monsanto [11].

Food Rights Activists Support Hershberger

Despite an impending snow storm, about 300 people gathered in front of the Sauk County District Courthouse in Baraboo before the hearing to support Hershberger, the food club members and what they say are food rights.

The "Raw Milk Freedom Riders [12]" group, unveiled a "Declaration of Food Independence" beside the courthouse steps. It proclaims that "inherent in every individual is the God-given right to procure the food of one's choice from consenting farmers and producers." Hershberger was the first to sign.

Food Club Members Defend their Contract and their Farmer

Members of Grazin' Acres private food club toasted "to food rights" with raw milk and homemade cookies.

One of the members of the club, Kelly West of Middleton, Wisconsin, said, "Vernon is not selling to the public. We pay him to board and care for our animals. We own the cows. We own the food. This arrangement is permitted under the Wisconsin State Constitution. ... We are not asking that this milk be able to be sold in the nearest grocery store, as wonderful and convenient as that would be. No, all we want is to be left alone. This government is supposed to protect our liberties, but instead it's taking them away."

West emphasized, "In the last several years, the family farm has become an endangered species. There have been undercover stings and raids on family farmers, and all over what? Milk! Vernon could go to jail for distributing milk! ... I can feed my kids soda pop and candy bars all day long. Is it healthy? No. Is it legal? Yes. I can give my kids fresh milk from a local farm. Is it healthy? Yes. Is it legal? No."

Judge Reynolds will respond to Hershberger's motions to dismiss, and any other new motions, in the next few months. Hershberger's trial is tentatively scheduled for September 25 - 28.