Murphy v. Butler/Opinion of the Court

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 produce measurable quantities of DDT in milk from cattle which feed on the pastures, and that crops 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 facts 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. D. C., 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. 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 possible 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, 73 S.Ct. 894, 97 L.Ed. 1303, and if future activity of the nature complained of is feared, the courts and 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. Because it is a potential menace to health the Food and Drug Administration maintains that any DDT in milk in interstate commerce is illegal.

The effect of DDT on birds and on their reproductive powers and on other wildlife, the effect of DDT as a factor in certain types of disease in man such as poliomyelitis, hepatitis, leukemia and other blood disorders, the mounting sterility among our bald eagles have led to increasing concern in many quarters 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.