The core issue with herd share/cow share/goat share ingredients is that depending on how they are worded, they are often seen by authorities as poorly disguised attempts by people to avoid registration as a grade A facility. Here in WA, for example, there was a cow share that Dee Creek ran that was the test case for making herd shares illegal (http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5608a3.htm
). The WSDA saw the share agreements for what they were, as they were written. They were attempts to skirt the law. Our WA law permits private ownership and consumption of raw milk. But herd shares are typically not the same in kind as private ownership. Even in this latest FTCLDF iterations of the contracts, the language does not provide for bona fide ownership, but seems to be some combination of historical agistment and modern legal positions. For example, there are no contractual provisions for disposition, orderly sale, exclusive use, etc. Undivided interest means more in property law than only an interest in milk. Why doesn't the contract spell out the rest of possessory rights to enumerate their specifics? It's details like this that make share contracts challenging and can weaken the raw milk position.
Here's what bona fide property ownership entails under common law:
- Right to control and use as one pleases, and to control others to use or not use
- Right to benefit from any part of the property
- Transfer/sale/bequeath/collateralize rights
In the usual contracts, all of these rights are not present, nor is the property well described. They are not present for the underlying owner, and in many cases they are not even present for the paper representing the underlying property (eg. no free transference of share)
In an agistment agreement, the contract would need to specify all of those rights to the owner, and specify duties expected of the agistor, for it to imitate bona fide ownership. This is not done in most herd share agreements. And in some cases, there is active ignoring of this fact, and in some states, there is statutory permission. And in some states, like WA, there is case law to back up that herd shares (ie. incorporating one or more animals and selling limited shares or undivided interests in them for the purpose of milk) are not legal.
All I'm trying to say is be careful. Laws vary among all of the states. I read the FTCLDF contracts, and although they do provide protection for the farmer, it could turn out like it did here in WA. Or it could be allowed. In most states, shares are a gray area. Not much case law, like Vicki said.