362 U.S. 929 (1960)

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U.S. Supreme Court

MURPHY v. BUTLER , 362 U.S. 929 (1960)

362 U.S. 929

Robert Cushman MURPHY et al., petitioners,
Lloyd BUTLER, Area Supervisor, etc., et al.
No. 662.

Supreme Court of the United States

March 28, 1960

Messrs. Roger Hinds and Frank C. Mebane, Jr., for petitioners.

Solicitor General Rankin, Assistant Attorney General Doub and Mr. Alan S. Rosenthal for respondent Butler. Messrs. Louis J. Lefkowitz, Atty. Gen. of New York, and Paxton Blair, Sol. Gen. for respondent Commissioner of Agriculture and Markets of State of New York.

The motion to substitute a party respondent is withdrawn pursuant to stipulation of counsel. Petition for writ of certiorari to the United States Court of Appeals for the Second Circuit 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

Page 362 U.S. 929 , 930

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 produce measurable quantities of DDT in milk from cattle which feed on the pastures, and that crops1 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. [362 U.S. 929 , 931]

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