Industry Watchdog Re-files Legal Complaints against 13 “Factory Farms”

After a request to the USDA’s Office of Inspector General (OIG), sworn law enforcement agents from the regulatory agency’s Agricultural Marketing Service (AMS) have begun an ethics investigation into the conduct of the head bureaucrat at USDA’s National Organic Program, The Cornucopia Institute reported.

Deputy Administrator

Miles McEvoy

Source: USDA

Miles McEvoy, AMS Deputy Administrator, is under scrutiny for allegedly failing to enforce federal organic standards, giving favorable treatment to corporate agribusiness interests, and undermining the integrity of the National Organic Standards Board (NOSB), an advisory body authorized by Congress to help oversee the organic industry.

An AMS law enforcement officer flew to Wisconsin earlier this year to interview Cornucopia’s two codirectors, Will Fantle and Mark Kastel, and take sworn statements. More recently, the agent also met with Mr. Kastel, conducting an extensive interview, in Staunton, Virginia.

“This began with a formal letter to the OIG alleging that Mr. McEvoy was making inappropriate, agribusiness-favorable decisions in closing formal legal complaints Cornucopia had filed,” Cornucopia’s Kastel explained. “Now it has expanded based on serious concerns about ethical lapses in carrying out his job overseeing the NOSB under the Federal Advisory Committee Act (FACA).”

The complaints Cornucopia filed, which Mr. McEvoy closed without an investigation, contained hundreds of aerial photographs of 13 industrial-scale livestock facilities documenting what Cornucopia described as “illegal confinement practices” for thousands of dairy cattle and hundreds of thousands of laying hens.

[Click on images below to view larger versions.]

Thousands of cows on an Aurora “organic” dairy in

Texas that do not appear to be managed, as the law

requires, to promote their natural instinctive

behaviors. No birds outdoors at any of the 40 barns in

Tecumseh, Nebraska producing the certified organic

Smart Chicken brand. Photo illustrates fencing with

all gates open, beautifully manicured, freshly mowed

grass, all doors closed, with no signs of birds ever

being out.

Cornucopia also said the USDA was looking into Mr. McEvoy’s activities in carrying out his responsibility to administer the USDA’s responsibility to oversee the activity of the nation’s independent organic certifiers, working as agents on behalf of the USDA.

[Elements of the USDA’s McEvoy investigation are further outlined in the “More” section at the end of this release.]

In order to hold onto his position, which reportedly pays $175,000 a year (FOIA pending), and after enduring months of criticism and lawsuits by organic stakeholders, Mr. McEvoy reportedly solicited letters of support from several individuals and organizations in the organic industry. Some of the requests were allegedly made to individuals with affiliations in organic certification, an area over which he and the USDA are directly charged with oversight. This could potentially be viewed as coercive of someone in a subordinate position.

“If you have business before the National Organic Program, hoping to have approved a synthetic ingredient for your product, as an example, or you run a certification program whose future depends on receiving the blessing of Mr. McEvoy and his staff, you might feel pressured to affirmatively respond, even if you don’t agree with his management at the NOP,” stated Cornucopia’s Research Director, Will Fantle.

The regulations governing the conduct of FACA panels, like the NOSB, are explicitly designed to insulate them from undue influence by agency personnel assuring their independence.

At the spring 2014 meeting of the NOSB in San Antonio, Texas, Mr. McEvoy abruptly interrupted the proceedings, in the middle of a vote on a parliamentary issue challenging his authority, and gaveled the meeting closed for a recess. He had no legal right to chair the meeting.

After conferring on the phone with USDA officials in Washington, Mr. McEvoy approached one of the NOSB members and threatened that if the board member did not withdraw his motion, Mr. McEvoy would shut down the semiannual meeting and send everyone home. The board member relented after the intimidation and threat, materially changing the outcome of the meeting.

Under Mr. McEvoy the NOP has also systematically appropriated the NOSB’s authority to set its own agendas and work plans, and to control the rules governing their meetings. The subject of lawsuits, this disrespectful treatment of the organic community and the volunteers that Congress empowered to formulate organic policy, is a stark departure from the behavior of the Clinton and Bush administrations.

“The National Organic Program has overstepped its statutory authority by usurping NOSB responsibility over its procedures, work plans, board meeting management, and public input into changes in policy,” said Jay Feldman, Executive Director of Beyond Pesticides and former member of the National Organic Standards Board.

Cornucopia also announced that it had filed formal legal complaints against the USDA-accredited certifiers of 13 giant industrial-scale livestock facilities. These were the same factory farms that Mr. McEvoy’s NOP had dismissed prior complaints about in late 2014 without even investigating.

It was the second time the department had cleared the giant organic dairy and egg laying operations, confining thousands of animals each. According to Freedom of Information Act records, Mr. McEvoy personally visited some of the operations that Cornucopia had accused of serious violations of law. He stated they were “in compliance.” But his investigative staff were never given the green light to thoroughly audit the factory farms.

“The USDA ignored the evidence we presented, and refused to interview expert witnesses with first-hand knowledge, instead solely depending on the word of the organic certifying agencies theoretically inspecting these operations,” Kastel said. “These violations were so flagrant in nature that we decided to invest thousands of dollars in hiring professional aerial photography crews around the country—after all, one picture is worth a thousand words.”

“The NOP also ignored the photographic evidence, and the additional state regulatory documents we submitted at the end of 2014, again refusing to investigate,” Kastel added.

When assuming his position at the organic program, Mr. McEvoy declared that this is “the age of enforcement.” Yet the organic program, under this direction, closed Cornucopia’s complaints without ever opening an investigation. Instead, the department simply confirmed with their respective certifiers that all the operations were in “good standing.”

Kastel added, “It is our contention, after visiting some of these operations, and viewing the photographs, satellite imagery, and state regulatory filings, that many of them should have never received organic certification in the first place. By virtue of this, some of the certifiers Mr. McEvoy is deferring to could very well be co-conspirators. Solely depending on them when questions of impropriety of this nature come forward is thoroughly inappropriate and naive.”

The Cornucopia Institute said it has collected hundreds of proxy letters from certified organic farmers, business operators, and other industry stakeholders asking USDA Secretary Tom Vilsack to remove Mr. McEvoy from his position of authority at the National Organic Program.

MORE:

It should be noted that The Cornucopia Institute has an impressive track record of filing past meritorious legal complaints with the USDA. These have resulted in the decertification of and/or sanctions against a number of major agribusinesses alleged to be violating the organic standards, including Aurora Dairy (Colorado/Texas); the 10,000-cow Vander Eyk Dairy (California); Shamrock Dairy (Arizona), currently under appeal; Promiseland Livestock (Missouri/Nebraska); and others.

Other Ethical Problems with FACA Oversight:

McEvoy confirmed his knowledge of rumors, from authoritative sources on the NOSB itself, of an extramarital affair between a member of the NOSB and a powerful lawyer and lobbyist working on behalf of a major agribusiness petitioning the body to approve the addition of a synthetic nutraceutical for use in organics. That board member played an instrumental role in publicly advocating for the addition of the material on the National List of approved substances in organics. Mr. McEvoy is accused of not taking any action to investigate the allegation of this inappropriate outside influence on a FACA board.

In the past, under FACA rules, the USDA afforded the National Organic Standards Board the authority to set its own procedures for conduct of the board’s work. This was done by empowering a Policy and Procedures Subcommittee of the NOSB. The byproduct of their work resulted in a draft of a Policy and Procedure Manual (PPM), which was publicly noticed in the Federal Register and opened to comment by industry stakeholders and other citizens. After the draft was refined, it was officially approved and adopted by the USDA.After Mr. McEvoy took the reins at the NOP, he threw out the PPM and arbitrarily and capriciously changed many of the rules, including how synthetic materials are reviewed by the board. This was done without notice to the NOSB or publication, for comment, in the Federal Register. He also disbanded the Policy and Procedure Subcommittee, which was later reestablished after wholesale criticism from the organic community. “Actions by the NOP over the last couple of years have caused a slipping of organic integrity and a devaluing of the organic seal,” stated Dr. Barry Flamm. He added, “The first step for recovery would be to restore the 8/12 version of the Policy and Procedure Manual, including the vital sunset procedures. The organic community should be united on this, not at war—that makes no sense!” Dr. Flamm is uniquely qualified to comment on the alleged illegalities in Mr. McEvoy’s unilateral changes to the NOSB’s procedures. In addition to being a past chairman of the NOSB, Dr. Flamm also chaired its Policy and Procedure Subcommittee. This subcommittee authored, in collaboration with industry stakeholders and the public, the codified PPM that Mr. McEvoy threw out. Dr. Flamm currently sits on the board of directors of The Cornucopia Institute.

Violating the Intent of Congress (the Organic Foods Production Act)

Congress explicitly gave the NOSB the authority to choose outside, independent scientists to advise the board in their decision-making concerning potentially approving synthetic ingredients or farm inputs. Often, these synthetics were approved for temporary use until organic alternatives could be developed. Since the NOSB is not a scientific body, Congress recognized the fact that they would need well-informed and unbiased advice. However, the USDA, instead of the board, has been selecting the contractors and scientists who are doing the reviews. An in-depth analysis by The Cornucopia Institute, published in The Organic Watergate, outlined that, instead of impartial academics, all too often the contracted outside reviewers were current or former agribusiness executives or consultants to Big Food interests. Under Mr. McEvoy, the solution to the documented conflicts of interest was not to do away with the perceived conflicts, or to respect the congressional intent by allowing the NOSB to choose their own advisers, but rather to make the names of the scientists authoring the Technical Reviews a secret from the public. Now, neither Cornucopia nor other industry stakeholders, or even the NOSB members themselves, can determine if the authors are professionally qualified to perform review functions or if conflicts of interest exist.

McEvoy has also been accused of being too cozy with the industry’s leading lobby group, the Organic Trade Association, and with the certifiers themselves, which he is charged with overseeing.

As an example, subsequent to the filing of the “flyover” complaint against 13 organic concentrated animal feeding operations (CAFOs), Mr. McEvoy appeared at a national meeting of accredited certifying agencies (ACAs). Instead of articulating the department’s intent to thoroughly examine Cornucopia’s formal legal complaints, he coached the certifiers on damage control issues in case of media inquiries concerning what he referred to as “their clients.”

The Age of Enforcement or Sweetheart Deals for Major Agribusinesses?

In addition to the 13 legal complaints that Cornucopia has once again filed, which focus on allegedly illegally operated factory farms, there is a history under Mr. McEvoy of depending on certifiers to do the investigations when they themselves might be culpable of aiding and abetting violations of the organic standards.

Cornucopia, based on regulatory language, decided to refile their complaints against the certifiers since the regulations mandate that the NOP “shall” investigate all formal legal complaints involving certifiers; however, the regulations give the program discretion as to whether or not to investigate complaints against organic operations themselves.

Based on FOIA documents obtained from the USDA, Mr. McEvoy has also been criticized for undue secrecy in the enforcement process of federal organic regulations. Not publicly releasing the names of operations found to have committed violations, the size of their individual fines, and what specifically the NOP has found them guilty of, has eliminated the deterrent effect upon other would-be scofflaws in the organic industry.

The program has also been accused of negotiating sweetheart deals with violators, signing a series of consent agreements, instead of imposing fines or banning them from organic commerce.

This cloak of secrecy has deprived the public of determining whether the NOP is doing an adequate job of enforcing the law.

An Action Alert from The Cornucopia Institute, with instructions on how to submit the proxy to Secretary Vilsack calling for the removal of National Organic Program director Miles McEvoy, is available at: https://www.cornucopia.org/2015/09/sign-the-proxy-letter-remove-current-usda-organic-management/