
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-2066                               CUMBERLAND FARMS, INC.,                                Plaintiff, Appellant,                                          v.                                JOHN LAFAVER, ET AL.,                                Defendants, Appellees,                                 ____________________                    BOSTON MILK PRODUCERS, INC., WAYNE HAPSWORTH,                        PRISCILLA ROWBOTHAM, AGRI-MARK, INC.,                        HAROLD LARRABEE AND ADRIAN WADSWORTH,                               Intervenors, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                               Selya, Boudin, and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Joel  C.  Martin,  James  B.  Haddow,  Petruccelli  & Martin,  and            ________________   _________________   _____________________        Sheldon A. Weiss on brief for appellant.        ________________            Janet  M.  McClintock,  Assistant  Attorney  General,  Michael  E.            _____________________                                  ___________        Carpenter,  Attorney  General,  and  Cabanne Howard,  First  Assistant        _________                            ______________        Attorney General on brief for appellees.            Jerrol A. Crouter,  Richard A. Spencer, Drummond Woodsum  Plimpton            _________________   __________________  __________________________        &  MacMahon on brief for Boston Milk Producers, Inc., Wayne Hapsworth,        ___________        Priscilla  Rowbotham,  Agri-Mark,  Inc.,  Harold  Larrabee  and Adrian        Wadsworth.                                 ____________________                                   August 24, 1994                                 ____________________                      Per  curiam.   The  Maine Dairy  Farm Stabilization                      Per  curiam                      ___________            Act, 36 Me. Rev. Stat. Ann. tit. 36,    4541-4547 (West Supp.            1993), imposes a tax on all packaged fluid milk sold in Maine            irrespective  of the origin of the milk, but only Maine dairy            farmers  are eligible for what  amounts to a  rebate from the            Maine Dairy Farm Stabilization Fund.  Cumberland Farms, which            sells to Maine consumers  milk produced by out-of-state dairy            farmers, filed suit against various Maine officials, alleging            that  the tax-and-rebate scheme  violates the restrictions on            state power inherent  in the Commerce  Clause.  The  district            court  denied Cumberland  Farms' motion for  summary judgment            and  granted  that of  the  defendants,  using the  following            reasoning as  the linchpin of its analysis:  "It is true that            the  proceeds [of the  tax] are .  . . used  to benefit Maine            milk producers,  but current  precedents permit this  kind of            economic  protectionism."    See  Cumberland  Farms, Inc.  v.                                         ___  _______________________            LaFaver, 834 F. Supp. 27, 32 (D. Me. 1993).            _______                      We believe that with  the intervention of West Lynn                                                                _________            Creamery, Inc. v. Healy, 114 S. Ct. 2205 (1994), which struck            ______________    _____            down a similarly discriminatory tax-and-rebate scheme imposed            by Massachusetts, the  reasoning of the district  court is no            longer  tenable.   Defendants  argue  that West  Lynn  is not                                                       __________            dispositive because the Massachusetts dairy tax was collected            primarily from out-of-state milk  sellers while the Maine tax            is collected primarily from in-state milk sellers.  The Court                                         -2-                                          2            has rejected such quantitative  distinctions in the past, see                                                                      ___            New  Energy  Co. v.  Limbach,  486  U.S.  269, 276-77  (1988)            ________________     _______            ("Varying   the  strength   of   the  bar   against  economic            protectionism according  to the  size and number  of in-state            and out-of-state firms affected would serve no purpose except            the  creation  of new  uncertainties  in  an already  complex            field."),  and  we  are compelled  to  do  the  same in  this            instance.  Accordingly, we deny the parties' request for oral            argument,  reverse the  decision of  the district  court, and            remand the case with instructions to  enter judgment in favor            of  the plaintiff  and  to conduct  any necessary  additional            proceedings in a manner consistent with this opinion.                      So ordered.                      __________                                         -3-                                          3
