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Jump to. Court decided that the type of branding mandated by Secretary of Agriculture constitutes cruelty to animals because other less painful and equally effective alternatives exist and therefore freed dairy farmers to use other branding methods like freeze branding.

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Plaintiffs in this action seek to have me convert the temporary restraining order I issued on April 4, 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.

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. News Thus, as amended by the Act, 7 U. 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.

Department of Agriculture Notice LD 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. Freeze, chemical, or other branding methods are not acceptable. 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. 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. Department of Agriculture Notice LD They argue primarily that the regulation is arbitrary and capricious in violation of the Administrative Procedure Act, 5 U.

They also argue that the regulation was not published as required by 5 U. At a preliminary injunction hearing held April 14th and 15th,plaintiffs presented eight witnesses. The first, Dr. Charles E. Short, D. Plaintiffs' second witness, Dr. Theodore Seeking some hot Lyng. In freeze-branding, a branding iron is submerged in liquid nitrogen until it reaches the temperature of that nitrogen 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 Seeking some hot Lyng brand.

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.

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He Seeking some hot Lyng 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. Of course, this wouldn't be the case if the branding iron was electric thermostatically controlled, but LD makes no mention of such a device. William D. Whittier, D. 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 usedDr.

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 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. 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. 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. 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 the perforation with dye.

He testified that this brand would be visible from approximately 30 feet.

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Short was then recalled as a witness. He testified that, based on the testimony of Seeking some hot Lyng other witnesses, freeze-branding would be preferable to hot-iron branding because it was less painful. He testified that it would be better to brand on the body of a cow rather than her face, and that he would recommend anesthesia before any face branding. He felt that tatoos were an acceptable alternative to branding, because they were easy, healed rapidly, resulted in minimal infection, and, in his experience, remained visible for 10 to 12 years.

He also testified that, as far as he knew, no one had ever been prosecuted in New York for hot-iron branding. John F. Kullberg, the President of the American Society for the Prevention of Cruelty to Animals, testified that his organization, which was chartered inhad upwards ofmembers nationwide, and that it was clear to him that hot-iron face branding constitutes absolute cruelty to an animal when less painful alternatives are available.

Finally, plaintiff Douglas Burdick, a dairy farmer, testified that he was unwilling to hot-iron brand his cows on the face, in part because he feared prosecution by anti-cruelty organizations, and in part because he had experienced difficulties with a similar method of de-horning cows. Lee E. Miller, D. Unlike any of plaintiffs' witnesses, Dr. Miller had considerable experience with hot-iron face branding. He testified that there was no need for a squeeze chute, but only that the head of the cow need be immobilized.

He also testified that the hot-iron did not seem to bother the cow after one second, that it did not cause any cows to lose milk producing capability and it did not instill fear of humans in the cow.

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He testified that freeze-branding, by contrast, caused facial swelling not caused by hot brands. In his judgment, hot branding was preferable because freeze-branding took much longer, the liquid nitrogen could cause freeze burn to the farmer or the cow, and could not be controlled as easily as an electric, thermostatically controlled hot-iron. In his experience, tatoos caused a far greater reaction from the cow because ears are more sensitive, tatoos get faint and difficult to read over time, and infection especially by contagious warts is much easier.

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He found either type of brand equally difficult to camouflage. After two weeks of hot-iron branding considerable s of cows on the jaw, he had noted no infections in any of them. Richard C. Call, a dairy farmer from Genesee County, New York, testified that he had branded approximately cows in his herd with an electric iron.

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Although he had never branded cows before, he was able to brand his cows with little difficulty by closing the stall around the head of the cow, gripping the cow's nose with a nose lead a device compared to a pair of pliersand branding the cow. His cows would react for one to two seconds, but would be able to eat normally the same afternoon they were branded. None of his cows developed infections from the hot-iron, and Mr.

Call preferred the hot-iron because it was quicker and there was no risk of spilled liquid nitrogen. Jerry Newcomb, the Administrator of the Dairy Termination Program, testified for defendants that he was responsible for the development of LD He developed the regulation with the help of a veterinarian, Dr. He testified that the Department of Agriculture needed an immediate program which would result in visible, recognizable, and permanent identification of dairy cows to be taken out of production, because there was a concern about these cows being diverted as had occurred under the predecessor Milk Diversion Program.

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He testified that pain to the animal was taken into consideration by the Department when looking at alternatives, and that, in particular, the Department had rejected freeze-branding as an alternative in part because of the additional stress caused to the animal by the lengthy branding process. Billy Johnson's testimony was essentially in agreement but added that LD was patterned after the hot iron branding practices from one of the western states. At the outset, I hold that all plaintiffs have standing to bring this action.

The Humane Society is specifically authorized under New York State law to prosecute violations of animal cruelty laws. This differentiates it from the plaintiffs in Sierra Club v. Morton, U. Other courts have specifically recognized standing for animal protective societies in similar cases. Seeking some hot Lyng, e. Kreps, F. Richardson, F.

The Burdicks' interests are evident: under the challenged regulation, they are forced against their will to brand their cows on the face with a hot-iron, and thereby expose themselves to the risk of prosecution for animal cruelty. Defendants argue that, in this instance, the ASCS is under the control of the CCC in implementing the branding regulations, and that an injunction against the branding regulations will effectively amount to an injunction against the CCC's DTP program.

I disagree. This injunction is deed only to prevent the implementation of LD as it now stands. Defendants argue that LD is unreviewable because of 5 U. Chaney, U. The Court reiterated its holding in Abbott Laboratories v.

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