For two months earlier this year, Wisconsin dairy farmer Vernon Hershberger let the proposed contract sit unsigned on his desk.

The agreement specified that a nonprofit organization known as Right to Choose Healthy Food, and headed by raw food advocate Aajonus Vonderplanitz, would lease his farm’s 50 cows and dozens of chickens — “the works,” says Hershberger. In exchange, the organization would have access to all the food from the animals: milk, eggs, and meat.

Then, on June 2, agents from the Wisconsin Department of Agriculture, Trade, and Consumer Protection raided his Grazin’ Acres farm near Madison, and placed seals on the refrigerators in his small store. He was operating without a retailer license and a dairy license, the regulators said. The fact that he wasn’t open to the general public, but was selling direct to “members” of his farm, didn’t matter.

The day after the raid, Hershberger cut the DATCP seals and defiantly re-opened for business. His confidence was buttressed by the fact that he decided that day to sign the contract with Right to Choose Healthy Food.

The deal is “simple,” says Hershberger, and besides, “I think Aajonus knows what he’s doing.”

The wizard of raws

Vonderplanitz followed up by sending a letter to Wisconsin’s DATCP explaining that Hershberger

… is not engaged in commerce. His farm animals are leased to Right To Choose Healthy Food’s Grazin’ Acres Farm Coop Club who owns them. Vernon Hershberger is the boarder, caretaker, milker, packager, and deliverer of our animals’ products. Since the private club owns dairy, egg, and meat production, there is no commerce involved. Since no commerce of buying or selling raw milk and our other products to the public is involved, or distributed in public places, government agencies have NO JURISDICTION over the production, labeling and use of the club’s products consumed by its members, nor is any permit required … It is shameful for (DATCP) to try to prevent us from producing and distributing our health-giving raw milk and other farm products to our members by threatening and imposing false warrants, seizures, and arrests of our property. Since you were duly warned that this was a private club and you had no jurisdiction over it, your actions were criminal stealing, kidnap, and trespass.

Though DATCP agents have since been back to his farm twice more with search warrants, the last time taking Hershberger’s computer, checkbook, and other records, there has been no sign of any criminal or other charges being filed against the farmer.

If the experiences of other farmers like Hershberger are any indication, there’s a good chance no charges will come. Over the last eight years, Vonderplanitz has put together lease agreements giving Right to Choose Healthy Food, and its hundreds of consumer members around the country, the rights to the land and produce of about 40 small farms.

While there have been a number of raids, especially in recent months, as I described previously for Grist, there have yet to be any legal challenges brought against the lease arrangements, he says. “If they had jurisdiction, they would have busted us a long time ago,” he told me.

Not only is Vonderplanitz not afraid of a legal challenge, he welcomes one. “I hope they file charges against us,” he says. While the distribution centers in major urban areas, like the one raided in Venice, must comply with fire codes and zoning regulations, they need not comply with food licensing or labeling laws required of foods sold to the public, he argues. Nor must they comply with the federal prohibition on interstate sales of raw milk. There can’t be such a prohibition for member leaseholders, he maintains, since they own the farm products when they are produced.

“If you take your property from Pennsylvania to California, there is no federal jurisdiction,” he says. Vonderplanitz likens the farm lease agreements to automobile leases. “In lease agreements, you have total ownership of the contract and responsibility for the items leased. If you wreck a leased car, you are totally responsible.”

The analogy is important, he says, since lease-related law has a 75-year history of recognition by our legal system. “Herdshare” and “cowshare” agreements, used in many states to give raw-milk drinkers shares in cows and goats, are less legally secure, he says. He likens the rights of a herdshare owner to those of an owner of stock in a major corporation, where shareholders have certain financial rights, but don’t necessarily have right to the corporation’s products, or responsibility for the products. (Though herdshare rights were upheld by an Ohio court in 2006, and the state didn’t appeal the case.)

Vonderplanitz maintains that the lease agreements aren’t just devices to enable foodies to avoid complying with food licensing rules and the federal interstate raw milk prohibition, and has successfully persuaded farmers who’ve considered backing out of the agreements to stand firm.

In a case last winter, a Midwest farmer in the midst of a two-year lease agreement with Right to Choose considered shutting down his raw milk production after the U.S. Food and Drug Administration sought to enforce warning letters maintaining the farmer was violating the federal prohibition on raw-milk sales across state lines. Vonderplanitz says he told the farmer that his group would enforce its lease agreement by taking over the farm and cows to continue producing milk for members. The farmer, encouraged by Vonderplanitz’s commitment, decided to fire his lawyers, who’d encouraged him to accept the FDA mandate, and continue with the Vonderplanitz organization. Vonderplanitz says he notified the FDA, much the same as he did Wisconsin DATCP in the Hershberger case, that the farm was under a lease agreement, and says the farm continues to provide his members with raw milk.

Another farmer who signed on with RTCHF was Daniel Allgyer. He made his decision shortly after agents from the FDA showed up at his Pennsylvania farm last April with a search warrant and a letter alleging he was involved in interstate sale of raw milk. Allgyer continues to supply RTCHF with milk.

Vonderplanitz sees himself as having “rescued” these and other farmers from possibly being thrown out of business by FDA and state agriculture authority actions against private food organizations. “They have left all the people alone since I notified the authorities.”

The raid on the RTCHF warehouse in Venice, Calif., three weeks ago, along with that on Sharon Palmer’s farm in nearby Ventura County, whose goats are under lease to RTCHF, represent payback in Vanderplanitz’s view.

“They are looking for any way they can to break us,” he says. “They’re not going to get away from it.”

He says a number of prominent Los Angeles lawyers have offered legal services, and RTCHF plans to sue the government agencies involved in the raids against Rawesome and Sharon Palmer’s farm for $1 million apiece, for false arrest.

Crackdown habit

It’s hard to know what the government agencies will do. While they have clearly shied away thus far from a legal confrontation over the leasing matter, the various searches suggest officials are seriously considering legal action, such as charges of violating the ban on interstate sale of raw milk. Or else they could continue their harassment actions in hopes of intimidating consumers and farmers, and scaring them away from the increasingly popular leasing arrangement.

Even without government legal action against RTCHF, there is the pending suit against

the FDA by the Farm-to-Consumer Legal Defense Fund challenging the federal prohibition on interstate commerce of raw milk.

Clearly, we are moving closer to judicial consideration of how far consumer rights extend when it comes to consumers opting out of the factory food system and arranging for private access to the nutritionally-dense foods of their choice.