By Bob Unruh
The ruling comes from Circuit Court Judge Patrick J. Fiedler in a court battle involving a number of families who owned their own cows, but boarded them on a single farm.
The judge said the arrangement is a "dairy farm" and, therefore, is subject to the rules and regulations of the state of Wisconsin.
"It's always a surprise when a judge says you don't have the fundamental right to consume the foods of your choice," said Pete Kennedy, president of the Farm-to-Consumer Legal Defense Fund, which worked on the case on behalf of the farmers and the owners of the milk-producing cows.
The judge's original ruling came in a consolidation of two cases that presented similar situations: Cows being maintained and milked on farms for the benefit of non-resident owners. He refused to grant a summary judgment declaring such arrangements legitimate, deciding instead to favor the Wisconsin Department of Agriculture, Trade and Consumer Protection, which opposed them.
"Plaintiffs argue that they have a fundamental right to possess, use and enjoy their property and therefore have a fundamental right to own a cow, or a heard (sic) of cows, and to use their cow(s) in a manner that does not cause harm to third parties. They argue that they have a fundamental right to privacy to consume the food of their choice for themselves and their families and therefore have a fundamental right to consume unpasteurized milk from their cows," the judge wrote.
Bunk, he concluded.
"They do not simply own a cow that they board at a farm. Instead, plaintiffs operate a dairy farm. If plaintiffs want to continue to operate their dairy farm then they must do so in a way that complies with the laws of Wisconsin."
He cited an earlier consent decree involving one of the farm locations, which had been accused of being the source of a "Campylobachter jejuni infection" and said there are state reasons to require standards and licenses.
Identifying the cases as the "Grassway plaintiffs" and the "Zinniker plaintiffs," the judge said both were in violation of state rules and regulations.
It was, however, when the plaintiffs petitioned the judge for a "clarification" of his order that he let fly his judicial temperament.
"The court denied plaintiffs' motion for summary judgment, which means the following:
"(1) no, plaintiffs do not have a fundamental right to own and use a dairy cow or a diary (sic) herd;
"(2) no, plaintiffs do not have a fundamental right to consume the milk from their own cow;
"(3) no, plaintiffs do not have a fundamental right to board their cow at the farm of a farmer;
"(4) no, the Zinniker plaintiffs' private contract does not fall outside the scope of the state's police power;
"(5) no, plaintiffs do not have a fundamental right to produce and consume the foods of their choice; and
"(6) no, the DATCP did not act in an ultra vires manner because it had jurisdiction to regulate the Zinniker plaintiffs' conduct.""It is clear from their motion to clarify that the plaintiffs still fail to recognize that they are not merely attempting to enforce their 'right' to own a cow and board it at a farm. Instead, plaintiffs operate a dairy farm," he wrote.
Kennedy said the ruling is outlandish.
"Here you have a situation where a group of people, a couple of individuals, boarded their cows which they wholly owned, with Zinniker farms, and paid them a fee for the boarding."
He continued, "The judge said people have no fundamental right to acquire, possess and use your own property."
The dispute is part of a larger battle going on between private interests and state and federal regulators over just exactly who makes the decision on the difference between a privately held asset and a commercial producer.
The Los Angeles Times recently profiled a case in which prosecutors had arrested the owner of a health food market and two others on charges of allegedly illegally producing unpasteurized dairy products.
The arrests of James Cecil Stewart, Sharon Ann Palmer and Eugenie Bloch just a few weeks ago advanced the government's crackdown on the sale of so-called raw dairy products.
But Fiedler's arguments weren't unique.
Attorneys for the federal government have argued in a lawsuit still pending in federal court in Iowa that individuals have no "fundamental right" to obtain their food of choice.
The brief was filed early in 2010 in support of a motion to dismiss a lawsuit filed by the Farm-to-Consumer Legal Defense Fund over the U.S. Food and Drug Administration's ban on the interstate sale of raw milk.
"There is no 'deeply rooted' historical tradition of unfettered access to foods of all kinds," states the document signed by U.S. Attorney Stephanie Rose, assistant Martha Fagg and Roger Gural, trial attorney for the U.S. Department of Justice.
"Plaintiffs' assertion of a 'fundamental right to their own bodily and physical health, which includes what foods they do and do not choose to consume for themselves and their families' is similarly unavailing because plaintiffs do not have a fundamental right to obtain any food they wish," the government has argued.
WND has reported several times on fed crackdowns on producers of raw milk for friends and neighbors, including when agents arrived to inspect a private property belonging to Dan Allgyer in Pennsylvania at 5 a.m.
The Iowa case alleges the federal restrictions on raw milk are a violation of the U.S. Constitution, according to a report at Natural News.
The federal attorneys want the case dismissed.
"The interest claimed by plaintiffs could be framed more narrowly as a right to 'provide themselves and their families with the foods of their own choice,'" the government document states. But the attorneys say that right doesn't exist.
"The FDA essentially believes that nobody has the right to choose what to eat or drink," said the Natural News site, which explains it covers topics that allow individuals to make positive changes in their health, environmental sensitivity and consumer choices.
"You are only 'allowed' to eat or drink what the FDA gives you permission to. There is no inherent right or God-given right to consume any foods from nature without the FDA's consent."
The Natural News report continued, "The state, in other words, may override your food decisions and deny you free access to the foods and beverages you wish to consume. And the state may do this for completely unscientific reasons – even just political reasons – all at their whim."
The report blames the aggressive campaign against raw milk on large commercial dairy interests, "because it threatens the commercial milk business."
The reason cannot be safety, the report said, since a report from the Weston A. Price Foundation revealed that from 1980 to 2005 there were 10 times more illnesses from pasteurized milk than from raw milk.
The federal government attorneys say the FDA's goal is to prevent disease, and that's why the "ban on the interstate sale of unpasteurized milk" was adopted.
The attorneys conceded that states ordinarily are expected to regulate intrastate activity but noted, "it is within HHS's authority … to institute an intrastate ban as well."
Natural News reported the ban could be seen as violating the 10th Amendment to the U.S. Constitution, which leaves to states all powers not specifically designated in the Constitution for the federal body.