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Murphy v. Benson


October 1, 1959


Author: Lumbard

Before LUMBARD, Circuit Judge, GALSTON and ANDERSON, District Judges.


Robert Cushman Murphy and six other home-owners in Nassau and Suffolk Counties, New York, brought this action in May of 1957 to enjoin the defendants, officials of the United States and the New York State governments from spraying their properties with DDT in solution as part of a federal government program to spray aerially Nassau and Suffolk Counties for the purpose of eradicating the gypsy moth. The plaintiffs' bill alleged that the government activities purportedly authorized by Section 102 of the Department of Agriculture Organic Act of 1944, 58 Stat. 735, as amended, 7 U.S.C. Section 147a (1958), and the New York Agriculture and Marketing Code Section 164, would deprive them of property without due process of law in contravention of the Fifth and Fourteenth Amendments to the Constitution, and constituted a common-law trespass. In addition to the prayer for an injunction, the bill sought damages for such harm as might result to the plaintiffs from the spraying, if the program were carried out. Later the same month, Judge Byers, upon affidavits and after hearing argument, denied a motion for a preliminary injunction. 151 F.Supp. 786. From this denial of a preliminary injunction no appeal was taken.

During June of 1957, the spraying program was conducted over the counties of Nassau and Suffolk, including the properties of the plaintiffs. Subsequently, the case was tried during February and March of 1958 before Judge BRUCHHAUSEN who dismissed the complaint in June, 1958. 164 F.Supp. 120. The trial judge held, inter alid, that no legal rights of the plaintiffs had been violated and that the plaintiffs had not shown that they had suffered damage by reason of the spraying. We find it unnecessary to reach the merits of the plaintiffs' claim for injunctive relief. The 1957 spraying program, which precipitated this suit, has been completed and the record amply indicates the unlikelihood of a future aerial spraying in the area of plaintiffs' property. We, therefore, hold the question of granting injunctive relief to be moot and direct the dismissal of so much of the bill as seeks such relief.

United States Department of Agriculture officials testified at trial that their program called for only one major aerial spraying.Follow up treatment was to be on a local basis where field investigation showed that moth egg masses had not been totally destroyed. By what means the follow up might be carried out was uncertain and dependent upon future research with various chemicals and methods of ground and aerial spraying. Furthermore, Department officials testified that a single spraying by air has proved entirely effective in other parts of the Eastern United States and additional aerial sprayings have not been necessary.The trial judge stated in his opinion and in his findings of fact that it seemed unlikely that there would be further aerial spraying on Long Island in light of the effectiveness of the 1957 campaign, and the record amply supports those findings.

It is true that Department officials could not state with certainty at trial that further aerial spraying would never be necessary, but the mere possibility that at some future date conduct similar to that engaged in by the defendants in the past may again be contemplated is not sufficient to prevent a dismissal for mootness. Norwegian Nitrogen Products Co. v. Tariff Commission, 274 U.S. 106 (1927).In the Norwegian Nitrogen Products case, the plaintiff, claiming a right to a hearing before the Tariff Commission, sought to enjoin its investigation. While the suit was pending, the investigation was completed, and the Commission's recommendation was sent to the President. The Supreme Court, in vacating the decision below with directions to dismiss as moot, reasoned:

The Commission has filed its report with the President and the President has made his decision and proclamation fixing the revised tariff. Either may revive the investigation but neither is under a duty to do so. Assuming that the plaintiff is entitled to a hearing of the character demanded whenever an investigation is had, which we do not decide, it would be an idle ceremony to require such a hearing upon an investigation which we may not command and which may never be made. 274 U.S. at 111-12.

This reasoning applies to the situation presented by the record in this case. Plaintiffs may not require the court to determine their legal rights under a set of circumstances which it appears probable will not arise again. Plaintiffs' constitutional claim is based primarily on the manner in which the 1957 spraying program was conducted. It appears from the record that the technique to be employed in any further spraying, wherever it may be, will be redetermined in each case.*fn1

Cases such as United States v. W.T. Grant Co ., 345 U.S. 629 (1953), and United States v. Trans-Missouri Freight Ass'n, 166 U.S. 290 (1897), relied upon by the plaintiffs, are not in point. These cases, in which contentions of mootness were rejected, concerned illegal courses of conduct discontinued because of the commencement of prosecution, and likely to be reinstituted upon a dismissal. The acts involved in the present case were discontinued because they had achieved their objective, and the evidence indicates little likelihood of their repetition. Motives of self-interest, which were highly influential factors in the formation of the Court's conclusion that the illegal conduct in W. T. Grant and Trans-Missouri would probably be renewed, are not present here. Nor is the plaintiffs' position supported by cases dealing with government activities periodic in nature, and certain to be repeated, such as Southern Pac. Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515 (1911).

There remains for consideration plaintiffs' claim for damages. We note that since the prayer for injunctive relief must fail for mootness, there is a question whether the federal court retains jurisdiction over the damages claim, either as an independent federal cause of action or as a claim pendant to that for injunctive relief. We do not need to decide this question, since in any event the plaintiffs are not entitled to damages on the record before us.

We agree with the district judge that the plaintiffs have failed to prove what damages, if any, they have suffered by reason of the spraying. Further, we think that plaintiffs' counsel, by the conduct of their case at trial and by their amended complaint, clearly indicated an intention to abandon the claim for damages in this case. The original complaint, filed prior to the spraying, contains only a single, general reference to the claim for damages, without any indication of what their nature or amount might be, and the amended complaint, filed subsequent to the spraying and subsequent to the completion of the trial in order to conform to the evidence, contains no reference at all to the damage claim or the amount of damages sought. In addition, the trial record contains no testimony, expert or otherwise, as to the amount of damages suffered by the plaintiffs.

The judgment of the district court with respect to the injunctive claim is vacated and the cause is remanded with instructions to dismiss the prayer for injunction as moot. The judgment with respect to the claim for damages is affirmed.

Per Curiam: The motion to substitute a party respondent is withdrawn pursuant to stipulation of counsel. The petition for writ of certiorari is denied.

Mr. Justice DOUGLAS dissenting: In my view the issues involved in this case are of such great public importance that I record my dissent to the denial of certiorari.

The petitioners in this case are residents of a heavily populated suburban area in Long Island, New York, who brought an action in 1957 to enjoin respondents, federal and state officials, from carrying out a threatened program of aerial spraying of their lands, homes, gardens and orchards with a mixture of DDT and kerosene designed to eradicate the gypsy moth, an insect injurious to forests. The program is part of a campaign embarked in 1956 by the Department of Agriculture to spray more than 3,000,000 acres of land in 10 States.

Petitioners alleged in their complaint that the threatened spraying was unauthorized by statute and so injurious to health and property as to violate the Fifth and Fourteenth Amendments.

The District Court denied a motion for preliminary injunction on May 24, 1957. 151 F.Supp. 786. Pending trial petitioners' homes, persons and lands received the spray. Respondents then contended that, because they had completed the spraying, the request for an injunction had become moot.

At the trial numerous experts testified to the public need for the spraying and the feasible methods available for the eradication of the gypsy moth. Petitioners attempted to adduce evidence that the use of multi-engine airplanes was unnecessary, that their property had not been infested with the moths, and that the use of ground spraying equipment and helicopters was a feasible means of avoiding uninfested areas with the spray.

Expert witnesses testified that the spraying of pastures with the mixture, which consisted of one pound of DDT in one gallon of kerosene base solvent, applied at the rate of one gallon per acre, inevitably produces measurable quantities of DDT in milk from cattle which feed on the pastures, and that crops*fn1 which have been sprayed by DDT should not be fed to cattle. Nevertheless, dairy farms, pastures, homes, gardens, orchards, swimming pools, and fish ponds received the spray; and in some cases, it seems, they received substantially more than the planned one gallon per acre.

There was evidence that one of the petitioners who sells milk from her dairy had measurable contamination in the milk as late as five months after the spraying, which made its sale illegal under both federal and state regulations.

There was evidence that the vegetables grown by one of the petitioners for family use were rendered inedible and the leaves on some of his vines turned brown, rotted and fell off as a result of the spraying. Another petitioner, who spent $13,000 developing her land for chemical-free food production, testified that after the planes came over her plants were damaged and the fruit was withered, making it inedible. Several other petitioners complained that their fruits, vegetables and berries were made unfit to eat.

Fish owned by two of the petitioners were said to have been killed by the spray; and dead birds were also reported. Predatory insects were also said to have been destroyed and as a result the quantity of red spiders and other pests increased. There was evidence that clothing was spotted and even ruined and that children coughed from the spraying and their eyes watered.

The extent of the danger of DDT to human health was a matter of sharp dispute among the numerous expert witnesses in the case. The testimony on many facets of this issue was extensive and elaborate. Yet the District Court made only one finding on the subject. It found: "The spraying program, which is the subject of this action, at the rate of one pound of DDT per gallon of solvent per acre, is not injurious to human health." No more specific findings were made on the matter and the court refused to make any findings on the spray's effect on milk, fruits, vegetables or other crops or products . Its only other finding on the issue of injury was that the spray "does not cause any considerable loss of birds, fish, bees or beneficial insects."

The complaint was dismissed on the ground, inter alia, that there was no proof of damages or that further spraying with airplanes was a likelihood. 164 F.Supp. 120.

The Court of Appeals, without reaching the merits, vacated the decision of the District Court with directions to dismiss on the ground of mootness. 270 F.2d 419. It held that respondents' evidence that another wholesale spraying operation was unlikely precluded the petitioners from obtaining an injunction.*fn2 The respondents did not, however, give positive assurance that they would not spray the area again if it became necessary. In fact, it was indicated that if studies reveal that the eradication was not complete, respondents will resort to further poisoning, though perhaps only local in nature and possibly with different equipment. The program clearly was not abandoned.

In other cases we have held that the cessation of the activity complained of did not render the case moot, e.g., United States v. W. T. Grant & Co ., 345 U.S. 629, 632, and if future activity of the nature complained of is feared, the courts are not impotent to fashion a remedy which minimizes any injury from a recurrence of the practice.

The public interest in this controversy is not confined to a community in New York. Respondents' spraying program is aimed at millions of acres of land throughout the Eastern United States. Moreover, the use of DDT in residential areas and on dairy farms is thought by many to present a serious threat to human health as evidenced by the record in this case as well as alarms sounded by others on the problem. The need for adequate findings on the effect of DDT is of vital concern not only to wildlife conservationists and owners of domestic animals but to all who drink milk or eat food from sprayed gardens.

We are told by the scientists that DDT is an insoluble that cows get from barns and fields that have been sprayed with it. The DDT enters the milk and becomes stored by people in the fatty tissues of the body.*fn3 Because it is a potential menace to health the Food and Drug Administration maintains that any DDT in milk in interstate commerce is illegal.*fn4

The effect of DDT on birds and on their reproductive powers and on other wildlife,*fn5 the effect of DDT as a factor in certain types of disease in man such as poliomyelitis, hepatitis, leukemia and other blood disorders,*fn6 the mounting sterility among our bald eagles*fn7 have lead to increasing concern in many quarters*fn8 about the wisdom of the use of this and other insecticides. The alarms that many experts and responsible officials have raised about the perils of DDT underline the public importance of this case.

I express no views on the merits of this particular controversy. Nor do I now take a position on the issue of mootness. But I do believe that the questions tendered are extremely significant and justify review by this Court.

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