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UNITED STATES DEPARTMENT OF AGRICULTURE 

AGRICULTURAL MARKETING SERVICE 

BEFORE THE ADMINISTRATOR 

In re:

2 Creeks Farm/Ellinghuysen

Peterson, Minnesota 

Administrator’s Decision 

APL-73-20

This Decision responds to an Appeal (APL-073-20) of a Notice of Proposed Suspension 

of National Organic Program (NOP) certification issued to 2 Creeks Farm/Ellinghuysen 

(Ellinghuysen) of Peterson, Minnesota, by Midwest Organic Services Association (MOSA), an 

USDA-accredited certifying agent. The operation has been deemed not in compliance with the 

Organic Foods Production Act of 1990 (Act)1

 and the U.S. Department of Agriculture (USDA) 

organic regulations.2 

BACKGROUND 

The Act authorizes the Secretary to accredit agents to certify crop, livestock, wild crop, 

and/or handling operations to the USDA organic regulations (7 C.F.R. Part 205). Certifying 

agents also initiate compliance actions to enforce program requirements, as described in section 

205.662, Noncompliance procedure for certified operations. Persons subject to the Act who 

believe they are adversely affected by a noncompliance decision of a certifying agent may appeal 

1

 7 U.S.C. 6501-6522 

2

 7 C.F.R. Part 205 

Page 1 of 10 
such decision to the USDA Agricultural Marketing Service (AMS) pursuant to §205.680 

Adverse Action Appeals Process – General, and § 205.681, Appeals of the USDA organic 

regulations. 

FINDINGS OF FACT 

1. Ellinghuysen is an organic operation initially certified on February 22, 2010 for crops and 

livestock, specifically, dairy goats for milk. 

2. On September 16, 2019, AMS issued an Administrator’s Decision (APL-046-19) denying 

Ellinghuysen’s April 5, 2019 Appeal to a March 15, 2019 Notice of Proposed Suspension for 

Ellinghuysen’s livestock certification. The Administrator found that Ellinghuysen had been 

unable to comply with the requirement that its goat herd receive 30% of its dry matter intake 

(DMI) from pasture and recently had also been unable to demonstrate that its available 

pastures produced enough dry matter to allow for its goat herd to receive 30% of its DMI 

from pasture. 

3. On November 12, 2019, Ellinghuysen requested an administrative hearing which was 

acknowledged by NOP that same day. The hearing is still pending. 

4. On May 29, 2020, MOSA issued a Notice of Noncompliance. 

5. On June 29, 2020, MOSA issued a Notice of Proposed Suspension. 

6. On July 20, 2020, Ellinghuysen filed an Appeal. 

DISCUSSION 

The USDA organic regulations at 7 CFR §205.237, Livestock feed, state that, “(c) During 

the grazing season, producers shall: (1) Provide not more than an average of 70 percent of a 

ruminant’s dry matter demand from dry matter fed...This shall be calculated as an average over 

Page 2 of 10 
 

the entire grazing season for each type and class of animal. Ruminant animals must be grazed 

throughout the entire grazing season for the geographical region, which shall be not less than 120 

days per calendar year... (2) Provide pasture of a sufficient quality and quantity to graze 

throughout the grazing season and to provide all ruminants under the organic system plan with 

an average of not less than 30 percent of their dry matter intake from grazing throughout the 

grazing season...” 

The organic regulations at §205.239, Livestock living conditions, state that, “(a) The 

producer of an organic livestock operation must establish and maintain year-round livestock 

living conditions which accommodate the health and natural behavior of animals, including: (1) 

Year-round access for all animals to the outdoors, shade, shelter ... (2) For all ruminants, 

management on pasture and daily grazing throughout the grazing season(s) to meet the 

requirements of §205.237...” 

The organic regulations at §205.240, Pasture practice standard, state that, “The producer 

of an organic livestock operation must, for all ruminant livestock on the operation, demonstrate 

through auditable records in the organic system plan, a functioning management plan for pasture 

... (b) Producers must provide pasture in compliance with §205.239(a)(2) and manage pasture to 

comply with the requirements of §205.237(c)(2), to annually provide a minimum of 30 percent 

of a ruminant’s dry matter intake (DMI), on average, over the course of the grazing season...” 

The organic regulations at §205.400, General requirements for certification, state that, “A 

person seeking to receive or maintain organic certification under the regulations in this part must: 

(a) Comply with the Act and applicable organic production and handling regulations of this 

part...” 

Page 3 of 10 
MOSA issued the June 29, 2020 Notice of Proposed Suspension stating that Ellinghuysen 

hadn’t adequately responded to the prior Notice of Noncompliance which stated that the 

November 21, 2019 inspection had shown there wasn’t enough available pasture for the goats to 

meet the requirement that the goats receive 30% of their DMI from pasture for the 2019 grazing 

season. MOSA found that Ellinghuysen’s

(b) 

(4)

 acres of pasture available to the lactating doe goats 

couldn’t, even under optimal production conditions, produce dry matter in a quantity needed to 

ensure the goats receive 30% of their DMI from pasture. 

Ellinghuysen stated its opposition to the 30% DMI requirement, claiming it is not in the 

best interest of the goats, and in fact is detrimental to their health, as goats don’t graze like cows 

and sheep but rather are ‘browsers’. Ellinghuysen states that when it tried locking the goats out 

on pasture, they didn’t graze, but instead became stressed. Ellinghuysen stated that all goat 

producers oppose the 30% DMI requirement for goats. 

A review of the evidence shows Ellinghuysen has a long history of noncompliance with 

the 30% DMI requirement of the organic regulations. MOSA had issued a Notice of 

Noncompliance to Ellinghuysen on January 12, 2015 citing to a violation of the DMI 

requirement; and a Notice of Proposed Suspension on March 4, 2015; with an Administrator’s 

Decision of November 9, 2015 (APL-019-15) denying Ellinghuysen’s Appeal. Ellinghuysen 

requested a hearing on December 10, 2015. While Ellinghuysen’s requested hearing was 

pending, MOSA issued another Notice of Noncompliance on July 27, 2016; and a Notice of 

Proposed Suspension on January 30, 2017. An Administrator’s Decision of September 11, 2017 

(APL-019-17) denied Ellinghuysen’s Appeal, and again Ellinghuysen requested an 

administrative hearing on September 25, 2017 which was acknowledged September 28, 2017. 

Subsequently, MOSA issued another Notice of Noncompliance on February 2, 2018, but then 

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issued a Notice of Noncompliance Resolution on September 28, 2018 after Ellinghuysen 

submitted adequate documentation of meeting the 30% DMI requirement. Therefore, on October 

29, 2018, AMS/NOP and Ellinghuysen entered into a Settlement Agreement whereby 

Ellinghuysen withdrew its requests for hearing regarding the two previous Administrator 

Decisions (APL-019-15 and APL-019-17), and agreed to comply with the required 30% DMI 

from pasture during the grazing season for its goat herd, as well as specific recordkeeping 

requirements. 

However, on January 21, 2019, MOSA issued a Notice of Noncompliance stating that for 

the 2018 grazing season it had considered Ellinghuysen’s available pasture; production of the 

pasture; and the dry matter fed to the herd divided by lactating does and kids/yearlings. 

Calculations of the amount of dry matter that the goats, by type, would need to obtain to meet the 

30% DMI requirement couldn’t be obtained from the available pasture. On March 15, 2019, 

MOSA issued a Notice of Proposed Suspension which resulted in a September 16, 2019 

Administrator’s Decision (APL-046-19) denying Ellinghuysen’s April 5, 2019 Appeal of the 

Notice of Proposed Suspension and affirming the suspension of Ellinghuysen’s livestock 

certification. The Administrator found that Ellinghuysen had been unable to comply with the 

requirement that its goat herd receive 30% of its DMI from pasture and recently had also been 

unable to prove that its available pastures produce enough dry matter to allow for its goat herd to 

receive 30% of its DMI from pasture. On November 12, 2019, Ellinghuysen requested a hearing 

before an Administrative Law Judge. The hearing is still pending. 

As Ellinghuysen’s organic certification is active pending final adjudication, MOSA has 

continued to oversee Ellinghuysen’s compliance with the organic regulations. MOSA conducted 

the annual inspection of Ellinghuysen on November 21, 2019, covering the 2019 grazing season, 

Page 5 of 10 
at which the inspector found that Ellinghuysen’s

(b) 

(4)

 available acres of pasture for lactating goats 

in 2019, even with optimal production, couldn’t produce enough dry matter for the goats to meet 

the requirement of obtaining 30% of their DMI from pasture. MOSA issued a Notice of 

Noncompliance on May 29, 2020, detailing the inspection findings. Specifically, the notice 

stated that the 

(b) (4)

 lactating adult does had access to a 

(b) 

(4)

acre pasture and a 

(b) 

(4)

acre pasture which 

were managed as one pasture in 2019, with the 

(b) (4)

 does grazing for 2 weeks and then alternating 

with the 

(b) 

(4)

yearlings which grazed for 1 week. The inspector considered the grazing times of 

the does, the available acreage, and the total production of dry matter under the best 

management; and found that the dairy herd wouldn’t be able to obtain 30% of its DMI from 

pasture. After Ellinghuysen failed to provide an adequate response to the notice, MOSA issued a 

Notice of Proposed Suspension on June 29, 2020. Although the notice didn’t specifically 

identify whether the suspension was being proposed as to Ellinghuysen’s livestock and/or crop 

certification, only noncompliances regarding livestock regulations were cited. Therefore, it is 

only the livestock certification which is at issue. 

Ellinghuysen stated in its July 20, 2020 Appeal that forcing goats to graze by locking 

them out to pasture is negligent and inhumane because goats are browsers, not grazers. 

Ellinghuysen states its goat herd has 24/7 access to quality pasture and the inspector even noted 

that “all groups appeared in superior body condition and that you had a well maintained, 

beautiful herd. The continued health of your herd indicates that your goats acquired the 

appropriate amount of DM over the grazing season.” Ellinghuysen submitted an article on goat 

nutrition as well as a letter from a “ruminant nutritionist,” both of which state that goats are 

browsers, don’t naturally eat grass pasture but rather prefer leaves, shoots, and woody plants; and 

forcing goats to pasture is detrimental to the goats’ health. The nutritionist states that the DMI 

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requirement is oriented toward dairy cows, not goats. Ellinghuysen stated that he spoke to all 

goat producers in the United States in 2015, and all agreed that the 30% DMI requirement isn’t 

appropriate for goats. 

Ellinghuysen has voiced opposition to the 30% DMI requirement for the past several 

years. Ellinghuysen stated in its June 4, 2015 Appeal to the March 4, 2015 Notice of Proposed 

Suspension that the requirement has been a hardship for dairy goat producers and resulted in 

‘stressed’ goats standing by the pasture gate, and lower production and profits. Ellinghuysen 

stated in its April 5, 2019 Appeal to the March 15, 2019 Notice of Proposed Suspension that the 

30% DMI requirement isn’t in the best interest of the goats as it forces them to graze like cows 

or sheep which is not in a goat’s nature because they are browsers. Ellinghuysen states that 

organic goats should have access to vegetative pasture but not be forced to eat a certain percent 

by grazing. 

The AMS Administrator in the November 9, 2015 Administrator’s Decision, addressed 

Ellinghuysen’s contention that the pasture compliance regulations “are not broad enough to 

include the type of animals in his operation.” The Administrator stated that there are certified 

operations raising goats that are compliant with the requirements and there are not different rules 

for one type of ruminant versus the other, i.e. goats versus cows or sheep. The Administrator 

concluded that Ellinghuysen had not met the DMI requirements for the prior four years, which 

dated to its initial certification. The AMS Administrator stated again in the September 11, 2017 

Administrator’s Decision that the regulations have clear grazing requirements for all ruminants 

regardless of whether it is more difficult to demonstrate compliance for goat operations. Most 

recently, in the September 16, 2019 Administrator’s Decision, for which a hearing is pending, 

the Administrator stated that Ellinghuysen has been unable to comply with the requirement that 

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its goat herd receive 30% of its DMI from pasture and recently has been unable to demonstrate 

that its available pastures produce enough dry matter to allow for its goat herd to receive 30% of 

its DMI from pasture. The inspector stated in the November 21, 2019 Livestock Inspection 

Report that Ellinghuysen’s herd “appeared in superior body condition,” and was well maintained 

and beautiful; and also that Ellinghuysen has “struggled with determining the DMI requirements 

of their herd as they are an incredibly productive herd and current DM for a herd of this 

production and body size is debatable.” However, all goat herds are required to meet the 30% 

DMI requirement set forth in the organic regulations as long as those regulations remain in 

effect. The pasture requirements for organic ruminants are intended for a range of livestock and 

conditions and provide flexibility for various grazing strategies. Public comments submitted 

during the Access to Pasture rulemaking process did not raise concerns to AMS about goats 

meeting the DMI from pasture during the development of those requirements. AMS provides 

several resources on calculating dry matter demand and DMI specifically for dairy goats on its 

website. Currently, there are 63 organic livestock operations raising goats. This demonstrates 

that goat operations can comply with the pasture requirements for organic ruminant livestock. 

Although the recently issued Notice of Noncompliance of May 29, 2020 and Notice of 

Proposed Suspension of June 29, 2020 address the same regulation violations for which 

Ellinghuysen was cited in several previous years, the current adverse action notices are separate 

actions and address ‘new occurrences’ of the noncompliances during the 2019 grazing season 

found at the November 21, 2019 inspection. The inspection by MOSA confirmed that these 

noncompliances occurred subsequent to the 2018 inspection regarding the 2018 grazing season, 

and are therefore, separate from the case before the Administrative Law Judge at this time. 

Page 8 of 10 
CONCLUSION 

The USDA organic regulations assure consumers that products with the USDA organic 

seal meet consistent, uniform standards. Key to these standards is that products with the USDA 

organic seal are produced and handled in accordance with the organic regulations. However, the 

evidence substantiates that Ellinghuysen has a long history of failing to comply with the organic 

regulations and has again violated the regulations regarding livestock feed (7 C.F.R. §205.237); 

livestock living conditions (7 C.F.R. §205.239); and pasture practice standards (7 C.F.R. 

§205.240); and therefore also general requirements for certification (7 C.F.R. §205.400). 

Ellinghuysen has been unable to consistently comply with the requirement that its goat 

herd receive 30% of its DMI from pasture and has also been unable to demonstrate that its 

available pastures produce enough dry matter to allow for its goat herd to receive 30% of its 

DMI from pasture for the 2019 grazing season. These violations have occurred despite prior 

notices of noncompliance, notices of proposed suspension, Administrator Decisions ruling 

against Ellinghuysen, and a settlement agreement giving Ellinghuysen an opportunity again to 

come into compliance. Ellinghuysen has voiced its opposition to the 30% DMI requirement for 

goats for several years. However, Ellinghuysen chose to become certified organic and as long as 

Ellinghuysen is certified organic, it must comply with all organic regulations regardless of 

whether it personally is opposed to a specific regulation. Due to Ellinghuysen’s systemic and 

repeated violations of the organic regulations, specifically the 30% DMI requirement, it may not 

remain certified. 

Page 9 of 10 
_________________________________ SUMMERS 

DECISION 

The July 20, 2020 Appeal is denied, and the June 29, 2020 Notice of Proposed 

Suspension is affirmed. Ellinghuysen’s livestock certification is to be suspended for 1 year. 

However, pursuant to 7 C.F.R. §205.662(f)(1), Ellinghuysen may apply for reinstatement of its 

livestock certification after completion of the 1-year suspension period. The request for 

reinstatement must be accompanied by evidence demonstrating correction of the noncompliances 

found by MOSA and corrective actions taken to comply with and remain in compliance with the 

Act and the organic regulations. While its livestock certification is suspended, Ellinghuysen may 

not sell, represent, or label its agricultural products resulting from its livestock as organic. 

Attached to this formal Administrator’s Decision denying Ellinghuysen’s Appeal is a 

Request for Hearing form. Ellinghuysen has thirty (30) days to request an administrative hearing 

before an Administrative Law Judge. If Ellinghuysen waives the hearing, this Administrator’s 

Decision suspending Ellinghuysen’s livestock certification will become final. 

Done at Washington, D.C., on this _____ 24th

day of ________________, 2021. February

Digitally signed by BRUCE

BRUCE SUMMERS Date: 2021.02.24 21:32:43 -05'00' 

Bruce Summers 

Administrator 

Agricultural Marketing Service 

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