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April 16, 1986

RICHARD E. LYNG, in his Official Capacity as Secretary of the United States Department of Agriculture; and MILTON HERTZ, in his Official Capacity as Acting Administrator of the Agricultural Stabilization and Conservation Service of the United States Department of Agriculture, Defendants

The opinion of the court was delivered by: TELESCA

DECISION and Order

MICHAEL A. TELESCA, United States District Judge

Plaintiffs in this action seek to have me convert the temporary restraining order I issued on April 4, 1986 into a preliminary injunction. Defendants oppose plaintiffs' motion, and have cross-moved to dismiss the action. For the reasons set forth below, the temporary restraining order is converted to a preliminary injunction, and defendants' motion to dismiss is denied.


 The plaintiffs challenge the administratively prescribed method for branding cattle under the Dairy Termination Program ("DTP") as amended by the Food Security Act of 1985, P.L. 99-198. Under the program, the Commodity Credit Corporation ("CCC") is authorized to enter into contracts with producers of milk in the 48 states of the continental United States who agree to sell for slaughter or export all dairy cattle in which they have an interest and who, for a period of five years, agree not to acquire any interest in dairy cattle or the production of milk. Despite earlier measures to discourage over-production of milk, including the earlier Dairy Diversion Program and the freezing or reduction of the support price, the problem of milk supply exceeding commercial demand persisted. Thus to ensure a permanent reduction in milk production, and reduce the imbalance between supply and demand in the milk market, Congress established the Dairy Termination Program. See H.R. Rep. No. 99-271(I), 99th Cong., 1st Sess. 20-21, reprinted in [1985] U.S.C. Cong. and Ad. News 1124-25.

 Thus, as amended by the 1985 Act, 7 U.S.C. § 1446(d)(3) the Secretary of Agriculture is to establish and carry out the DTP for the 18 month period beginning April 1, 1986. Simply stated, any farmer who is accepted into the program, ultimately will be out of the dairy production business.

 In implementing the program, the Secretary is authorized by the Act to issue a regulation requiring some method of identifying cattle subject to such contracts. In furtherance thereof, the Deputy Administrator, State and County Operation, adopted U.S. Department of Agriculture Notice LD-249 which provides that all female dairy cattle in the DTP program shall be branded within 15 days after the dairy farmer is notified that he has been accepted in the program. That document provides "All female dairy cattle must be branded with a hot branding iron. Freeze, chemical, or other branding methods are not acceptable." The plaintiffs attack that aspect of the publication claiming that it is arbitrary and capricious because it is inherently inhumane and therefore an unreasonable method of marking or identifying those cows earmarked for removal from production. The plaintiffs claim that the Government's rigid adherence to a plan of marking cows which calls for facial branding by hot-iron method, is unreasonable, arbitrary and capricious when another method or other methods which would not involve as much pain to the animal and are equally effective are not permitted under the plan.


 At this stage of the proceeding, the facts appear as follows. Plaintiff, Humane Society of Rochester and Monroe County for the Prevention of Cruelty to Animals, Inc. is a special corporation with a statutory charge to prevent and prosecute cruelty against animals. Some members of its staff are empowered as peace officers under New York Criminal Procedure Law § 2.10 and New York Agriculture and Markets Law § 371. In addition, under New York Not For Profit Corporation Law § 1403, plaintiff as a corporation for the prevention of cruelty to animals is specifically authorized to ". . . prefer a complaint before any court, tribunal or magistrate having jurisdiction, for the violation of any law relating to or affecting the prevention of cruelty to animals, and may aid in presenting the law and facts to such court, tribunal or magistrate in any proceeding therein." Plaintiffs Douglas D. Burdick and Mary Jane Burdick are dairy farmers who have been accepted into the Dairy Termination Program at issue in this case.

 Plaintiffs specifically challenge the hot-iron face branding regulation published by defendants as U.S. Department of Agriculture Notice LD-249. They argue primarily that the regulation is arbitrary and capricious in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). They also argue that the regulation was not published as required by 5 U.S.C. § 552, that it contravenes New York State laws against animal cruelty, New York Agriculture and Markets Law § 353, and that it constitutes an impermissible delegation of rulemaking authority.

 At a preliminary injunction hearing held April 14th and 15th, 1986, plaintiffs presented eight witnesses. The first, Dr. Charles E. Short, D.V.M., a professor at Cornell University, testified that hot-iron facial branding was painful, could damage underlying facial structure (muscles used in chewing, salivary glands, and eyes), and that, because of the extent of enervation of the facial area, hot-iron branding was an "inhumane approach." He clearly outlined the potential for significant harm to the cows particularly if the branding process was inappropriately conducted.

 Plaintiffs' second witness, Dr. Theodore H. Friend, a professor of applied animal behavior (his specialty is animal stress physiology) at Texas A & M University, testified regarding "freeze-branding" as an alternative to hot-iron branding. In freeze-branding, a branding iron is submerged in liquid nitrogen until it reaches the temperature of that nitrogen (-320 degrees F). It then is applied to the cow for 40 seconds, and causes short-term hair loss in the branded area, and eventually the hair grows back in white. However, if the brand is applied for 60 seconds, it causes permanent hair loss like a hot-iron brand. Dr. Friend testified that a freeze brand is just as visible on a white cow as a fire brand is on a black cow, from a distance of 40 to 50 feet. He testified that in his experience, no infections had ever resulted from freeze-branding, and the brand healed in approximately four weeks with only some itching. He testified that it was easier to freeze-brand, because a farmer could tell when the brand was cold enough when the nitrogen stopped bubbling, whereas only much practice could enable one to tell when a hot-iron brand was hot enough. *fn1" He also testified that, although a cow might react to a freeze-brand for a few seconds, the cow would become quiet almost immediately thereafter as the surrounding skin became numb.

 Dr. William D. Whittier, D.V.M., a professor at V.P.I. College of Veterinary Medicine, testified that he prefers a freeze-brand because it is more legible and causes less pain to animals. Although Dr. Friend had testified that a brand should not be applied to the face of a cow (but if it were, that a freeze-brand should be used), Dr. Whittier had "no difficulty" with a freeze-brand applied to the face. He agreed that it was easier to use than a hot-iron because of the ability to tell when the iron had reached the proper temperature. He also felt it was easier because a farmer need only immobilize the head of a cow with, for example, a rope halter or a head catch, whereas "squeeze chutes" were recom@ended for hot-iron branding. He felt that any problem with visibility of freeze-brands on white-faced cows could be overcome by applying the brand for a longer time to remove the hair permanently. He also had had no experience with infections resulting from freeze branding. Although Dr. Friend felt that dairy farmers were more likely to have used freeze-brands than hot-iron brands, Dr. Whittier felt they were about equally common. He used dry ice rather than liquid nitrogen to cool the brand, and in his experience it took 30 to 35 seconds to brand a black cow, 40 to 45 seconds to brand a red cow, and 1-1/4 to 1-1/2 minutes to brand a white cow.

 Robert W. Birkenhauer of the Hasco Company, a manufacturer of cattle tags, also testified for plaintiffs. He testified that his company made both metal and plastic I.D. tags and notchers which could mark a cow by taking a notch out of its ear. He also produced a tattooing tool which would produce a two inch green tattoo in a cow's ear by perforating the skin on the ear and filling ...

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