Amos Miller had his day in court, but he failed to show cause as to why Miller’s Organic Farm and he “should not produce the summoned information and grant summoned access.” That’s what federal Judge Edward G. Smith states in a newly issued court order.
And that order, according to Paul Flanagan, a USDA Food Safety and Inspection Service (FSIS) investigator, will have him inspecting Miller’s Organic Farm in Bird-in-Hand, PA, beginning at 10 a.m. on July 11.
Armed law enforcement officers will be allowed to accompany the FSIS inspector onto the Amish farm, which produces unpasteurized raw milk and other products.
If the inspection comes off without incident — which is likely since the Amish are pacifists — it will have taken FSIS more than three months since a subpoena duces tecum was issued under the authority of the U.S. Secretary of Agriculture to get Flanagan access to the farm.
The chain of events that brought Miller’s Organic Farm to USDA’s attention apparently began this past November just outside Disneyland at the Anaheim Marriott Hotel when Orange County health officials embargoed various raw milk products, including cream, yogurt, kefir and butter.
The products from the Pennsylvania farm were being held in the hotel’s coolers for Miller, who was attending a conference by the raw milk advocacy group the Weston A. Price Foundation.
Then, five months later, the U.S. Centers for Disease Control and Prevention (CDC) conclusively linked two listeriosis illnesses — one in California and one in Florida — to Miller’s Organic Farm. Both victims with Listeria monocytogenes infections were hospitalized and one died.
It was shortly after the CDC report that Flanagan began his attempts to inspect Miller’s Organic Farm. The operation had not been through a federal inspection since 2011. That one was conducted by the U.S. Food and Drug Administration (FDA).
Judge Smith, who ruled from the bench after hearing three hours of testimony on June 28, issued his detailed order on June 30.
It states that Miller’s Organic Farm includes a slaughter and/or process facility for poultry and meat located at 648 Millcreek Road in Bird-in-Hand, PA, which is within Lancaster County.
“Because Miller’s Organic Farm is a slaughter and/or processing facility, defendants are obliged to provide USDA with a) access to the farm’s business operations; and b) an opportunity to examine defendants’ facilities, operations, and records,” Smith’s order states.
The federal judge notes that in enforcing the Federal Meat Inspection Act, the Secretary of Agriculture has all the powers of the Federal Trade Commission to issue administrative subpoenas. It was under that authority that an April 4 subpoena was issued. Flanagan hand-delivered it to Miller on April 13.
Miller refused to comply, saying that it infringed upon the First Amendment freedom of association rights of the farm’s “private membership association.” He turned Flanagan away several times in April and May.
However, Smith, ruled that the subpoena does not infringe on anyone’s rights to freely associate, and he found that enforcing the subpoena is not an abuse of the court’s discretion.
The enforcement order states that the July 11 inspection can continue “day to day” until it is complete. The subpoena covers all buildings, storage areas “and parts thereof.”
Miller can ask for the credentials of federal officers and receipts for any samples taken. FSIS can drive onto the property and use all the “tools of their trade” for completing the inspection, including scientific equipment.
FSIS personnel do not have to sign Miller’s private membership agreement as a condition of the inspection.
USDA is also free to do a follow-up inspection 90 days later to see if “any violations found have been cured.” After that, if Miller has complied with the court’s order and satisfied the administrative subpoena, the judge ruled that the matter can be dismissed.
Raw milk advocate and author David Gumpert, who writes The Complete Patient blog, does not seem to think it will end that easily or quickly for Miller.
“Remember, the regulators have had Miller in their sights for years,” Gumpert writes. And he doubts that they will “let Miller off easily, now that they finally have him in their grasp.”
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