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MURPHY v. BENSON

June 23, 1958

Robert Cushman MURPHY et al., and Archibald B. Roosevelt et al., Plaintiffs,
v.
Ezra Taft BENSON, etc., et al., Defendants



The opinion of the court was delivered by: BRUCHHAUSEN

This action was instituted by various property owners to restrain public authorities from spraying their lands with an insecticide, known as DDT. The spraying was part of a long term program to control or eradicate the gypsy moth, an insect known to defoliate trees.

Prior to the spraying of the subject area, in the late spring of 1957, the plaintiffs commenced their action, wherein they sought both a preliminary or temporary injunction and a permanent injunction. In accordance with the practice, the application for the preliminary injunction was based upon affidavits. After a hearing and consideration thereof, the application was denied by Judge Byers. The opinion is reported in D.C., 151 F.Supp. 786.

 Shortly thereafter the spraying, as planned, was commenced. It was completed early in June 1957. Thereafter issue was joined in the action and it proceeded to trial before this Court, without a jury.

 While the spraying encompassed other portions of the northeastern section of the country, the issues herein are concerned principally with the plaintiffs and their property.

 The plaintiffs, residents and property owners, located in the two Long Island counties of Nassau and Suffolk brought this action to enjoin or restrain the defendant Butler, the Federal official designated by his superiors to supervise the spraying operation in that area, and the defendant Carey, the State Commissioner of Agriculture, from committing trespasses upon their lands by means of low flying planes, discharging DDT Thereon. The defendant Benson, the Federal Secretary of Agriculture, although named in the complaint, was not served with the papers and has not appeared as a party in the action.

 The trial consumed almost a month. Some fifty witnesses testified, including a number of experts on the various phases of the case. Numerous exhibits were introduced into evidence.

 While there are factual disputes, differences of opinion among those testifying as experts and complex legal questions, there is no substantial controversy as to the history of the gypsy moth, the measures taken through the years to control or eradicate the insect and the reasons therefor.

 The Facts about the Gypsy Moth, the Measures Taken for Control and Eradication and the Reasons Therefor

 In 1869, the gypsy moth, a leaf eating insect and one of the prime pests of forest, shade, fruit and ornamental trees in Europe, was imported into Medford, a suburb of Boston, by a French scientist, interested in experimentation. Larvae of the moth escaped from his home. The insect became established in nearby areas. The spread of the insect was slow at first, but some twenty years later the moths were so abundant in the Medford area as to cause the defoliation of extensive acreages. The townspeople contributed a substantial sum of money for control measures.

 Millions of dollars have been expended since then by the Federal and State Governments in efforts to control or eliminate the pest. However, surveys disclose that despite such activities, the threat of damage by the gypsy moth has continued. The major infestations were located in the New England States and in portions of New York and New Jersey. Between 1953 and 1956, inclusive, male moths were recovered in numerous places on Long Island. In the fall and winter of 1956-1957 egg masses were found in various parts of Long Island, in the area between Brookville on the west and Amagansett and Greenport on the east. While there is no evidence of substantial defoliation in that area, more than six and a half million acres have been wholly or substantially defoliated in the northeastern States and more than 29 million acres, including three million acres in New York State were infected in varying degrees. The danger of forest fires in these sections has increased. During the course of years, experts from the various State Governments and informed individuals and organizations have conducted studies, experimented and suggested plans to deal with the situation, in conjunction with representatives of the Federal Department of Agriculture.

 The potential range of the gypsy moth extends westerly to the Mississippi River. In this area approximately one hundred million acres are susceptible to damage by the insect. It appears that wind currents, transportation of lumber, conveyances and the like may be carriers of the larvae of the moth.

 At a meeting in May 1952, the representatives of the council of State Governments called upon the Federal Agricultural Department to prepare a plan for the control or eradication of the moth in the various States. In order to prevent the spread of the moth south and west of the infected areas, it was concluded that a so-called barrier zone, twenty-five miles in width, extending from the Adirondack Mountains to Long Island Sound should be established. In 1956, the National Plant Board, an organization comprised of Regulatory Officials from the 48 States, and others, recommended a spraying program in the barrier zone, comprising three million acres, for the purpose of eliminating the threat of spread of the moth to the southern and central States. The spraying of Long Island was included in the program.

 During the past seventy years, the Government has expended large sums for the importation of predators and parasites, natural enemies of the gypsy moth and other destructive insects. This undertaking is a process of biological control, without the use of insecticides. It has not resulted in the elimination or eradication of the gypsy moth but has been helpful. The plaintiff Murphy, an experienced biologist, while claiming that biological control is feasible, conceded that the moth cannot be eliminated by such means. In more recent years that method has been supplemented by the use of insecticides, such as arsenate of lead and the chemical, known as DDT, consisting of fourteen parts carbon, nine parts hydrogen and five parts chlorine. The latter has come into extensive use during the past fifteen years. Although discovered much earlier, it wasn't until World War II, that wide usage of it came into play, first as an Army insecticide and thereafter in the forest and agricultural fields.

 The Effects of DDT upon the Health of Human Beings

 Although the plaintiffs contend that the chemical is deleterious to health and likely to cause future ailments they presented no evidence that they or anyone else were made ill by the spraying of DDT in the Long Island area.

 A real difficulty presents itself in coming to a definite conclusion as to the overall effects of the chemical. DDT has not been in use for a sufficient length of time to definitely evaluate its potentials. Furthermore, there are very few experts possessing the requisite broad and intensive experience with this pesticide. It appears that the defendants' expert, Dr. Hayes, is the only living physician in this country, who has engaged in experimental work as to the effect that DDT has on human beings. Coupled with these elements is the fact that some are so strongly in favor of organic farming, without the use of chemicals, or emphasize their preference for biological control that their judgments may be influenced by their leanings. Under these circumstances, it is appropriate that the experts' testimony be scrutinized.

 Analysis of the Testimony of the Plaintiff's Experts, Dr. William C. Martin, Dr. Malcolm M. D. Hargraves, Dr. Granville Knight and Dr. Francis M. Pottenger, Jr.

 Dr. Martin testified, in substance, that he is a specialist in geriatrics; that in 1954 he made 25 autopsies and found that the subjects had ingested an average of 3.5 parts per million of DDT; that DDT affects the nerves and damages cells in the liver, that it accumulates in the system unless eliminated, that some people are more susceptible to it than others, that he found 15 patients with DDT poisoning; that as a general rule most people subjected to a spraying of one pound per acre (the amount used on Long Island) would not be adversely affected, that it has a harmful effect on elderly people, that the average person has 6 parts per million of DDT in his system, that it is impossible to ascertain what tolerance or capacity human beings have for absorption of DDT, that he is in accord with the conclusion of the United States Public Health Service that DDT in a human being reaches a level of saturation or equilibrium, beyond which point the body eliminates the excess, that his views are in the minority, that the Public Health Service has done more work in this field than have others, that DDT is no more harmful in milk than in vegetables and that DDT accumulates in the enzyme system of the body and might not show its effects for thirty or forty years. Dr. Martin's experience with DDT, collateral to his study of geriatrics, does not seem sufficiently broad and intensive to warrant acceptance of his conclusions. There is no evidence that he has distinguished between massive doses of DDT or exposure indoors as compared with the spraying of it in adulterated form of one pound per gallon per acre, the solution used in the spray program on Long Island.

 Dr. Hargraves testified that most of his career has been spent as a medical consultant with the Mayo Clinic, rather than as a physician in private practice, that the average person stores 6 parts per million of DDT in his system, that persons hypersensitive to DDT are in the minority and that the spraying of one pound per acre is deleterious to health. Dr. Hargraves is heavily interested in the subject of conservation. While the witness is a physician of long experience, he has not indicated sufficient knowledge of the effects of DDT for acceptance of his opinion. On cross-examination, he stated that he had no knowledge as to how much DDT would enter the body on exposure to a spray of one pound per acre per gallon, that his opinion was based on subjective symptoms of his patients, i.e., what they told him about their ailments, that the symptoms of persons affected by DDT are also symptoms of other diseases and that physicians generally have not become alarmed over the dangers of DDT and similar hydocarbons.

 Dr. Knight is a California nose, throat and nutrition expert. He testified that DDT adversely affects people suffering from liver ailments, and that even small amounts may affect hypersensitive individuals. While the witness has read considerable literature and attempted to keep himself informed on the subject, his testimony consists largely of generalities and is not helpful. In fact, he ...


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