No. 686. KING, ADMINISTRATRIX, v. PAN AMERICAN WORLD AIRWAYS. C. A. 9th Cir. Certiorari denied. Joseph Edward Smith for petitioner. Jesse H. Steinhart for respondent. Reported below: 270 F. 2d 355.

No. 692. UNITED STATES v. WOLFF. C. A. 3d Cir. Certiorari denied. Solicitor General Rankin, Assistant Attorney General Wilkey and Beatrice Rosenberg for the United States. George Gershenfeld for respondent. Reported below: 270 F.2d 422.

No. 698. CHAPMAN V. UNITED STATES. C. A. 5th Cir. Certiorari denied. G. Seals Aiken for petitioner. Solicitor General Rankin, Assistant Attorney General Wilkey, Beatrice Rosenberg and Felicia Dubrovsky for the United States. Reported below: 271 F.2d 593.

No. 707. HARRIS V. ILLINOIS. Supreme Court of Illinois. Certiorari denied. Charles A. Bellows for petiReported below: 17 Ill. 2d 446, 161 N. E. 2d

tioner. 809.

No. 708. MILLER V. UNITED STATES. C. A. 5th Cir. Certiorari denied. Charles William Tessmer for petitioner. Solicitor General Rankin, Assistant Attorney General Wilkey, Beatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 273 F. 2d 279.

No. 710. AMANA REFRIGERATION, INC., v. COLUMBIA BROADCASTING SYSTEM, INC. C. A. 7th Cir. Certiorari denied. L. M. McBride and John P. Ryan, Jr. for petitioner. Bruce Bromley, Ralph L. McAfee and Hammond E. Chaffetz for respondent. Reported below: 271 F. 2d

DOUGLAS, J., dissenting.

No. 662. MURPHY ET AL. v. BUTLER, AREA SUPERVISOR, PLANT PEST CONTROL DIVISION OF THE AGRICULTURAL RESEARCH SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL. The motion to substitute a party respondent is withdrawn pursuant to stipulation of counsel.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. Roger Hinds and Frank C. Mebane, Jr. for petitioners. Solicitor General Rankin, Assistant Attorney General Doub and Alan S. Rosenthal for Butler, and Louis J. Lefkowitz, Attorney General of New York, and Paxton Blair, Solicitor General, for the Commissioner of Agriculture and Markets of the State of New York, respondents. Reported below: 270 F.2d 419.

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.

1

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 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.

1 See Grass, Yearbook of Agriculture, 1948, U. S. D. A., p. 278.

929

DOUGLAS, J., dissenting.

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. The respondents did

2 The Court of Appeals remarked that in the event of a possible recurrence of spraying in the area, "it would seem well to point out the advisability for a district court, faced with a claim concerning aerial spraying or any other program which may cause inconvenience and damage as widespread as this 1957 spraying appears to have caused, to inquire closely into the methods and safeguards of any proposed procedures so that incidents of the seemingly unnecessary

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. Because it is a potential menace to health the Food and Drug

and unfortunate nature here disclosed, may be reduced to a minimum, assuming, of course, that the government will have shown such a program to be required in the public interest." 270 F. 2d, at 421, n. 1.

3 See Marth and Ellickson, Insecticide Residues in Milk and Milk Products, 22 J. Milk and Food Technology, 112, 145, 179. For an extensive bibliography see id., pp. 148-149, 181.