On December 7, 2011 the USDA’s National Organic Program (NOP) inadvertently violated its own policies and released the name of a Nebraska man who had accurately reported a farmer who was flouting the legally binding organic rules.
In so doing, the NOP unleashed upon Evrett Lunquist a multi-year plague of legal pleadings, and a barnload of legal expenses to defend himself.
After his name was released in response to a request under the Freedom of Information Act, the man who correctly reported the violations, Biodynamic farmer and part time inspector Evrett Lunquist, was sued for $7.6 million in a Nebraska Court by Paul A. Rosberg, the vengeful farmer who had violated organic rules. Later in the proceedings, International Certification Services was added as a defendant.
After more than 18 months of tedious hearings and a numbing cascade of motions filed by the plaintiff, Lancaster County Judge Paul D. Merritt finally in August 2013 issued a summary judgment dismissing the case.
After the expensive ordeal of defending himself against the allegations unleashed by the NOP’s procedural error, Lunquist, who followed the letter of the law acting as a private citizen when he initially reported the violations, had racked up more than $43,000 in legal expenses. While he received no support or acknowledgement of responsibility from the NOP, he and his family did find generous support from their church and their community. I have previously reported on this case both here and here.
This convoluted case calls into question the ability of the USDA and its National Organic Program (NOP) to stand behind citizens and inspectors who report violations of organic standards. Consequently, the case has sent a palpable chill through America’s network of organic inspectors, and may thereby compromise consumer confidence in the integrity of the USDA’s “Certified Organic” label. Meanwhile, another kind of food certification – Certified Naturally Grown — is emerging.
Through its Agricultural Marketing Service (AMS), which supervises the organic program, the USDA said it was unable to comment on the case. AMS and NOP were also apparently unable to find a way to support Lunquist in this lawsuit, as requested by Nebraska Congressman Jeff Fortenberry at an Ag Appropriations subcommittee hearing April 18, 2013.
AMS Administrator David Shipman responded at that hearing: “We made a mistake…It is really regrettable. I have looked at this case a number of times and sat with legal counsel trying to figure out how we can in some way help that individual…but the avenue to actually help in a financial way, I have not found a path forward on that yet. It is an extremely regrettable situation, and we aware of it.” Shipman has since retired.
A year earlier, as the case against Lunquist dragged on, organic program Administrator, Miles McEvoy published a policy statement on how the agency handles complaints about organic certification.
“Organic integrity relies on the ability of inspectors to register complaints without fear of reprisal. A ‘chilling effect’ from the threat of disclosure and retaliation could make it much less likely that individuals will report to the NOP suspected fraud, misconduct, or other actions that undermine organic integrity.” — Margaret Scoles, IOIA
Posse Comitatus Rides Again?
Plaintiff Paul Rosberg represented himself pro se in this case, as he has represented himself often. According to court records, Rosberg has filed several dozens of lawsuits in Nebraska over the past 30 years.
The plaintiff’s legal attack in this case, and in others, closely parallels the philosophies and strategies of the Posse Comitatus, a loosely organized far-right social and survivalist movement. The movement has pioneered the use of false liens and other forms of paper terrorism.
After having been found to be out of compliance with organic standards, Rosberg threatened to bankrupt Lunquist. Then in a March 5, 2012 letter with an ominous subtext, Rosberg wrote: “Please let me assure you I WILL NOT do any physical damage to you or your family. I am a Christian and I have a wife and 16 children.”
As someone who has been involved in dozens of lawsuits, Rosberg proved adept at disruptive strategies. In pursuing Lunquist – who acted carefully within the law to protect the public from fraud — Rosberg filed over 30 pleadings, motions or objections, drastically dragging the case out over time before his complaint was finally dismissed this summer.
In an interview before one of the many hearings in Lancaster County Court, Rosberg told me that he owned 260 cows and 240-acres of farmland, and that he leased two thousand more acres of land for farming. “I’m a sharecropper,” he said.
Meanwhile Back at the Farm: Hiring a Hit Man
During the stretch when Rosberg was pressing his suit against Lunquist, he and his wife Kelly were indicted by a federal grand jury on a separate but related matter: six counts of fraud for selling misbranded meat through their company, Nebraska’s Finest Meats, to the Omaha Public Schools. If convicted they face fines and prison terms.
On Friday the 13th of September, 2013, just days before yet another hearing to assess legal fees in the dismissed suit against Lunquist, Rosberg was arrested and taken into federal custody. He is incarcerated under contract at the Douglas County Jail in Omaha, Nebraska.
According to the Lincoln Journal Star Rosberg is accused of trying to hire two hit men to murder two witnesses in his federal meat trial. According to an affidavit, on Monday September 1, just one month out from the date of his trial for violations of the Federal Meat Inspection Act, Rosberg asked a man and his brother if they would kill two government witnesses. The accuser, who had worked for Rosberg for six weeks, said Rosberg twice asked him to kill two witnesses scheduled to testify for the government at his federal trial.
Rosberg will be arraigned on charges of solicitation to commit a crime of violence.
The Big Chill
Because he was in jail, Rosberg did not appear in court on Monday, September 16 for yet another hearing, this one on assessing legal fees in the lawsuit he filed against Lunquist. The hearing involved a marked measure of paper shuffling and box checking by the judge, to insure his ruling would not be vulnerable to the appeals Rosberg had previously vowed he would file.
After processing the thick stack of exhibits and motions in order, the judge said he would look at everything, and then later rule on the matter of attorney fees. No matter how the judge rules, it seems unlikely Paul Rosberg will have the wherewithal or the inclination to pay Lunquist.
Realizing his situation, Evrett Lunquist long ago asked the NOP to make things right for him, since it was their mistake that brought on the lawsuit. The NOP declined to help with legal costs or to issue a public apology. Over the course of the lawsuit, the agency had been slow to provide documents needed by the defense, thereby driving up legal expenses. The NOP did, however, ultimately provide an official Declaration corroborating the validity and accuracy of Lunquist’s original complaint. At that time the agency stated it would take precautions to ensure this never happens again.
Lunquist told me his motivation for filing a complaint in the first place was to preserve organic integrity. “If people run roughshod over it,” he said, “then organic will have no meaning. In my mind I was doing the right thing by submitting information. This turn of events has been stupefying.”
In an interview after the September 16 hearing on attorney fees, Lunquist said that the lengthy legal ordeal had been not only expensive, but also nerve wracking. “It should have been a much shorter course of events,” he said.
Last March Lunquist and his attorneys, Gene Summerlin and Marie Jensen, traveled to California to participate in a training conference of the International Organic Inspectors Association (IOIA), the professional organization of organic inspectors. Lunquist’s attorneys spoke at a workshop on managing the legal risks faced by official inspectors and by private citizens.
A main point that came across at the meeting is that if you file a complaint outside of the government mandated responsibilities of an inspector, maintaining your anonymity scrupulously is the only way you can assure your name is not released. If your name is released, you are thereby exposed — vulnerable to lawsuits from disgruntled farmers and processors accused of violating the rules. That harsh reality is true whether you are an official organic inspector or an independent citizen, as Lunquist was in this instance.
The USDA said that it was unable to comment on the judge’s dismissal of Rosberg’s suit against Lunquist. While Lunquist has had to defend himself, he has had strong backing from family, church and community.
Onward to Higher Ground
This apparent vulnerability to personal lawsuits has had a chilling effect through the community of organic inspectors, and it threatens to undermine consumer confidence in the integrity of the USDA “organic certification.”
Participants at the inspectors training program earlier this year generally agreed that it is naive to think that your name and contact information will remain confidential if you file a complaint. Almost anything can be ferreted out by virtue of the Freedom of Information Act (FOIA), and by data mining strategies as made apparent this year through the extensive revelations about government or business intrusions into private communications.
Anything submitted to the government can – and very well may be – released. The NOP was legally bound to release a copy of the complaint to Rosberg, but it should have redacted Lunquist’s name, contact, and other identifying information.
Lunquist acknowledged that many observers regard his legal travails as part of pattern that has created the chilling effect for organic inspectors. He told me that several inspectors approached him at the meeting and said they have filed similar complaints, and might well have gotten caught up in similar costly lawsuits.
Lunquist said there was general agreement on the need to act within the USDA mandate for organic inspectors, or to protect your anonymity if you are not acting in that role. If organic inspectors and citizens want to remain private, they must take pains to remain anonymous.
The farmers of Common Good have established a website to keep people informed about the case, and to try and raise money to cover the cost of Lunquist’s legal defense. “We have received donations amounting to about half of our legal bills,” Ruth Chantry told me. “That support from our church, our community, and many wonderful people has meant a lot to us.”
Evrett Lunquist and Ruth Chantry’s stories are told in Higher Ground, a documentary film about their Common Good Farm, one of only two Demeter Certified Biodynamic farms in Nebraska. The documentary, produced by Open Harvest Co-op, is posted on Youtube.
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AUTHOR’S DISCLOSURE: I serve on the board of the consumer-owned Open Harvest Co-op in Lincoln, Nebraska. Common Good Farm is among 110+ local farms that do business with our co-op. The co-op has donated money to help cover the cost of Lunquist’s defense.