49 Agric. Dec. 23 'The lack of credulity for such a claim was fully addressed in respondent's Brief filed on October 23, 1987, pages 12-17. Judge Kane also implied that it was respondent's obligation to supply such additional data (Finding of Fact 41). Yet, this ignores the proper role of the Department in milk marketing hearings. It is not the Secretary's responsibility to generate the evidence. That is the role of the participants. The Market Administrator may present some general statistical data and may prepare some exhibits from his data at the request of participants. From there on out, it is the participants who must carry the evidentiary ball. At the end of the hearing, the Department has a record from which it must decide whether a proposal, or a modification thereof, is supported by evidence and effectuates the purposes of the statute. Because of the process involved, the type and extent of evidence invariably is different for each hearing based on the choices made by the participants with regard to their presentations and cross examinations. In the extensive Recommended Decisions and final Decisions, the Department comments on virtually all of the factual evidence in the record, regardless of the weight to be attributed to it. The Initial Decision and Order shows a lack of understanding of this process and seeks out some rubric of evidentiary material that must exist in every location adjustment hearing. Hence, for example, Judge Kane notes that the Order 126 hearing had a list of weighted average distances and a list of other plants competing for sales that were commented on in the Recommended Decision and final Decision for Order 126 (Initial Decision and Order, page 52). The mere fact that Judge Kane could find no such list in the Order 106 record is given as res ipse loquitur proof, that the Order 106 hearing did not contain substantial evidence and that the Secretary had altered his standards of analysis without sufficient explanation. The fallacy of the Judge's theory becomes even more apparent if one would analogize to two ordinary criminal bank robbery cases. In the first case, there is eyewitness identification, videotape of the robbery, and circumstantial evidence (recovery of gun, money, lack of alibi, etc.). In the second bank robbery case, there is no eyewitness or videotape, but an abundance of circumstantial evidence. Under Judge Kane's thesis, a conviction cannot be obtained in the second case simply because the types of evidence were not as extensive, or because the Judge in the first case relied on a type of evidence (e.g. videotape) not found in the second case. In the instant proceeding, like the bank robbery cases, one must look at the evidence received, and the analysis thereof, in each case and decide whether it was sufficient for that case. This is what was not done to any extent by the Administrative Law Judge. Yet, as the Judicial Officer has often stated, each rule must be judged solely on the basis of its own record. The very few comments on the rulemaking record itself merely indicate a lack of appreciation by the Judge of the intra-market flow of milk in Order 106. For example, Judge Kane notes that there was no data on possible New Mexico or Texas milk supplies to Chandler, Ponca City or Tulsa (Finding of Fact 27). Yet, as was documented in the above discussion of the rulemaking record, 94% of Oklahoma's milk comes from Missouri, Oklahoma and Kansas, and milk in the market flows south from the Kansas supply and from Northeast to Southwest from the Missouri border. There is no logical reason to presume, discuss, analyze, account for, or encourage, any significant shipments of milk to Chandler or Tulsa from New Mexico or Texas. Similarly, the Judge questions why Kansas milk, rather than Missouri milk, was seen as a likely supply for Chandler, while failing to recognize the record evidence that the Kansas supply is only 2/3 of the distance of the Missouri supply and there are no plants or significant consumption centers between much of the Kansas supply and Chandler. The Judge also wonders why the Secretary discussed Tulsa when considering Missouri milk and the proper location adjustment for Chandler. Yet again, the record evidence noted above discloses that Tulsa is the second leading consumption center in Oklahoma, is directly in the path from Missouri to Chandler, and is 60 miles closer to Missouri. Obviously, a price incentive is necessary to compensate Missouri producers for bypassing Tulsa and delivering to the Oklahoma City area. 49 Agric. Dec. 23 The Judge also looks with disfavor on the use of the officially noticed Household Goods Carriers Guide for milages. Yet, he ignores the fact that this publication is used in virtually every milk rulemaking hearing involving milage since it is more precise than, and lacks the self-interest of, industry witnesses. Finally, the other major flaw in the Judge's consideration of the substantial evidence issue is his failure to distinguish between where a handler procures and sells, and where he is expected to procure and sell. The latter factor is of extreme importance with regard to setting location adjustments, while the former is little more than a curiosity to be noted. This distinction was discussed at length above and will not be repeated here. It should just be reiterated that it is not the purpose of the Order to compensate a person in Chandler to backhaul milk to Tulsa. This is akin to shipping, from Chandler, coals to Newcastle, iron ore to the Mesabi, and sea shells to the sea shore. Neither can one properly structure the prices within an order on the basis that some handler in Tulsa may find a milk supply in New Mexico, any more than one can set the Class I differentials for the whole country on the basis that some handler in Green Bay may find a milk supply in Fort Lauderdale. The Initial Decision and Order fails to appreciate this distinction, and, thus, expresses confusion and consternation at what is perceived to be contradictory statements and determinations in the various rulemaking documents (Initial Decision and Order, page 52; Finding of Fact 37). In summary, the rulemaking record herein reveals the amendment was supported by substantial evidence. Petitioner's presentation has failed to rebut this conclusion and the Initial Decision and Order herein has focused on peripheral matters which are irrelevant to this issue. Hence, the ruling of the Administrative Law Judge on this issue was erroneous and must be reversed. III. If the Petition Were Not Dismissed, the Relief Granted by the ALJ Since I am dismissing the petition, it is unnecessary for me to rule on what relief would have been appropriate if the petition were not dismissed. However, if the petition were not dismissed, I would have remanded the proceeding for the Secretary to determine the appropriate remedy in his legislative capacity, for the reasons set forth in Respondent's Appeal Petition at 36-69, attached as Appendix B, and Respondent's Reply Brief filed Oct. 11, 1988, at 5-7, attached as Appendix C. (These excerpts from respondent's briefs will not be published in Agriculture Decisions, since it is not necessary for me to decide this issue.) As stated in In re Baker & Sons, Dairy, Inc., 48 Agric. Dec. slip op. at 66-67 (Sept. 22, 1989), appeal docketed sub nom. Meadow Gold Dairies, Inc. v. Yeutter, No. 89-543-JJF (D. Del. Oct. 10, 1989): VI. If the Secretary's Temporary, Emergency Rulemaking Action 8 If the Secretary's temporary, emergency rulemaking action were held to be unlawful, the proper course would be to remand the proceeding to the Secretary to determine in his legislative capacity the appropriate action to be taken, which might or might not result in any payment to petitioners. See In re Defiance Milk Products Co., 44 Agric. Dec. 11, 57-62 (1985), aff'd on other grounds, No. 85-7179 (N.D. Ohio Dec. 12, 1986), aff'd, 857 F.2d 1065 (6th Cir. 1988); In re Borden, Inc., 37 Agric. Dec. 987, 997-1000 (1978), remanded, 38 Agric. Dec. 1061 (1979), dismissed per settlement agreement, 40 Agric. Dec. 1711 (1979); In re Babcock Dairy Co. of Ohio, 35 Agric. Dec. 431, 444-46 (1976), remanded sub nom. American Dairy of Evansville, Inc. v. Bergland, 627 F.2d 1252, 1261-62 (D.C. Cir. 1980) (remanding case to the Secretary to issue new provisions supportable on the record or to hold a new 'In Defiance, the Judicial Officer recognized that some courts had awarded monetary relief to some handlers, but the Judicial Officer did not adopt that policy as the proper Departmental policy. 'In In re Borden, Inc., 38 Agric. Dec. 1061 (1979) (remand order), the Judicial Officer remanded the proceeding to the ALJ to determine the damages. But that remand order does not reflect the Department's customary practice, since the remand order related to two related proceedings, one of which was controlled by a court decision holding that Borden was entitled to recover overpayments from the producer-settlement fund. Borden, Inc. v. Butz, 544 F.2d 312, 319-20 (7th Cir. 1976). 49 Agric. Dec. 23 hearing on the issue, at the Secretary's discretion, while granting petitioner prospective relief in the interim). In some cases, courts have remanded proceedings for further administrative consideration. See, e.g., Addison v. Holly Hill Fruit Prods., Inc., 322 U.S. 607, 619-23 (1944) (remand is the proper course where part of a rule is deemed invalid, so that the Administrator can retrospectively act as he would have done if he had limited himself to statutory authority); American Dairy of Evansville, Inc. v. Bergland, supra; Rodway v. USDA, 514 F.2d 809, 817-18 (D.C. Cir. 1975) (rule invalidated and proceeding remanded to the Secretary for a new rulemaking proceeding in compliance with the APA, with invalidated regulation to remain in effect in interim). In other cases, courts have refused to give refunds to prevailing parties, notwithstanding the illegality of administrative action. See, e.g., Blair v. Freeman, 370 F.2d 229, 239-40 (D.C. Cir. 1968) (where "nearby differential" was held invalid, equitable considerations precluded refund to prevailing parties). See, also, Lehigh Valley Coop. Farmers, Inc. v. United States, 370 U.S. 76, 99 (1962) (where regulation held invalid, Court left open question as to whether Secretary could retrospectively apply new regulation to impounded funds); accord United States v. Morgan, 307 U.S. 183, 185-98 (1939). For the foregoing reasons, the following order should be issued. Order The relief requested by petitioner is denied and the petition is dismissed. APPENDIX A In re Borden, Inc., 46 Agric. Dec. 1315 (1987), aff'd, No. H-88-1863 (S.D. Tex. Feb. 13, 1990). APPENDIX B Excerpt from Respondent's Appeal Petition, pp. 36-69. |