Similarly, plaintiffs' evidence does not sustain the allegation that implementation of the proposed marketing order will cause a reduction of the uniform price paid to farmers and reduce the Producer Settlement Fund in both Orders 2 and 4, and thus result in irreparable harm to plaintiffs pendente lite.
Initially, it must be said that it is unclear from plaintiffs' complaint what class of farmers will experience irreparable harm if a reduction of the uniform price occurs. If plaintiffs refer to Order 2 dairy farmers as a class, we find substantial evidence in the record which challenges the validity of such an averment. The evidence establishes that there are 18,602 producers under Order 2. Mr. Hand's reply affidavit, to the affidavit of Herbert L. Forrest, argues that approximately 10,300 of the eligible producers voted. The affidavit concedes that 90% of those voting voted in favor of the amended order. Additionally, plaintiffs concede that 80% of the producer members of cooperatives associated with plaintiff "Pennmarva" voted in favor of the amendment. We agree, as argued by plaintiffs, that the referendum may not validate an otherwise invalid order; however, the vote is eloquent testimony that a vast majority of the producers approve of the amended order and do not believe it to be a source of irreparable injury, and we find that it is not. We note also the intervention of cooperatives in this action. We find especially probative of the proposition that the marketing order, as amended, will not cause plaintiffs irreparable harm the fact that the intervenors, Dairlea Cooperative, Inc., Northeast Dairy Cooperative Federation, Inc., and Eastern Milk Producers Cooperative Association, Inc., have vigorously denied that they will suffer harm if the proposed marketing order is implemented. Indeed, they have argued that they will be harmed if this Court stays the order as urged by plaintiffs. We note that the intervenors respectively represent a group of Order 2 producers many times the size of the approximately sixteen Order 2 plaintiff dairy farmers who voted against the order. Judging from the dimensions of intervenors' financial interests at stake, it would seem that they would suffer substantially greater harm than plaintiffs if the proposed marketing order has the adverse impact on the blend price of Order 2 producers plaintiffs contend.
Of course, plaintiffs may argue that even if the class of Order 2 producers will not suffer irreparable injury that the named plaintiffs will. The answer to this argument is that in regard to the blend price reduction contention there is no evidence to support individual harm to named plaintiffs.
If plaintiffs argue that as a result of the reduced blend price Order 4 producers will suffer irreparable harm, we find that as to this anticipated harm there is an adequate administrative remedy. Indeed the Secretary has promptly responded to this concern of Order 4 producers and held an administrative hearing. There is no evidence to support the contention that Order 4 producers will be irreparably harmed before the Secretary acts on the proposals regarding amending Order 4. Nor is there any evidence that irreparable harm will occur prior to final hearing in this action.
In conclusion, we find that plaintiffs have not made a proper showing that irreparable harm will result, pendente lite, either from the alleged reduction in the blend price or the diminution of the Producer Settlement Fund. The expedited final hearing is a more equitable safeguard for all parties in interest than the remedies urged by plaintiffs.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 440 F. Supp.]
AND NOW, this 28th day of October, 1977, after consideration of the pleadings, evidence produced at hearing, affidavits submitted by the parties, memoranda and oral argument, IT IS ORDERED that plaintiffs' motion for preliminary injunctive relief is DENIED.
IT IS FURTHER ORDERED that all discovery be completed on or before November 30, 1977. Plaintiff is ordered to FILE a final pretrial order pursuant to Local Rule 7 on or before December 12, 1977. Final pretrial conference is scheduled for December 15, 1977 at 3 P.M. in chambers.
IT IS FURTHER ORDERED that final hearing is scheduled for December 16, 1977 at 10 A.M. in Courtroom 8-B U.S. Courthouse - 601 Market Street, Philadelphia, Pa.
BY THE COURT:
CLIFFORD SCOTT GREEN, J.
AND NOW, this 28th day of October, 1977, on the motion of Tuscan Dairy Farms, Inc. for leave to appear as an intervening defendant in this action, the Court having considered the said motion with supporting affidavit and the proposed answer, and the plaintiffs' objections thereto, and the defendant Secretary of Agriculture having no objections thereto, and it appearing to this Court that the applicant is entitled to become a party under Rule 24(a) and should be permitted to intervene, it is ORDERED, that Tuscan Dairy Farms, Inc. have leave to intervene in this cause and is hereby made a party to this action, and may file its answer within seven days from the date of this Order in the same manner and with like effect as if named an original party to this cause.
BY THE COURT:
CLIFFORD SCOTT GREEN, J.