This matter is currently before the Court on plaintiff's motion for a temporary restraining order and preliminary injunction. It was consolidated for a hearing on the merits, upon due notice to the parties, pursuant to Fed.R.Civ.P. 65(a)(2). After careful consideration of plaintiff's motions, the government's opposition by way of summary judgment, the oral arguments of counsel, and the entire record herein, the Court concludes for the reasons set forth below, that plaintiff's motion for injunctive relief must be denied.
Pursuant to Section 481 et seq. of the Foreign Assistance Act of 1961, 22 U.S.C. § 2291, et seq., and the United States' obligations under the Single Convention on Narcotic Drugs, the United States and Mexico undertook a joint effort to eradicate marijuana and poppy fields in Mexico in 1975. The United States is interested primarily in the destruction of poppy plants from which heroin is made; the government of Mexico is interested primarily in the eradication of marijuana, a main source of its domestic drug problems. The eradication program is directed and controlled by the Government of Mexico which spends approximately 30 million dollars annually for drug control efforts. Assistance provided by the United States amounts to approximately 10 million dollars annually. The eradication program consists of the aerial spraying of marijuana and poppy plants with the herbicides paraquat and 2,4-D.
Plaintiff's claims concern the use of paraquat, which, when sprayed on marijuana plants, makes them unusable within 24 to 72 hours. If, however, the plants are harvested immediately after spraying and removed from sunlight, the marijuana may be consumed with some residue of paraquat remaining. Paraquat, however, causes fibrosis of the lungs and, if consumed in sufficient quantities, may prove lethal. Studies conducted by the Center for Disease Control indicate that approximately 3.6% of the marijuana consumed in this country (approximately 600 metric tons) is contaminated with paraquat, with 12.8% of that concentrated in the Southwestern states.
Plaintiff alleges that United States assistance provided to the eradication program must terminate because, under the Percy Amendment, assistance may not be made available if the Secretary of HEW finds that "the spraying of an herbicide to eradicate marijuana plants ... is likely to cause serious harm to the health of persons who may use or consume the sprayed marijuana."
It is undisputed that the Secretary of HEW found earlier this year that consumption of paraquat-contaminated marijuana is likely to cause harm to the health of persons who use it. Under the language of the 1978 Act, this finding may well have operated to preclude further assistance by the United States. However, Congress recently enacted an amendment to the Act, eliminating the phrase "(assistance) ... may not be made available or used for any program involving the spraying of a herbicide, ..." and substituting "(assistance) ... may not be made available for the purpose of the spraying of a herbicide ..." (emphasis added). The purpose of this amendment, as explained in the Conference Report, was to continue providing assistance to the poppy plant eradication effort, while terminating assistance to marijuana eradication.
In furtherance of this legislative purpose, Congress appropriated approximately $ 9,410,000 in F.Y. 1980 to support the eradication program.
After Congress amended the Act on October 29, 1979, the State Department approached Mexican officials informally and inquired whether an amendment to the Cooperative Agreement, pursuant to which the assistance is given, would be acceptable. This amendment would specify that United States funds are designated "for the purpose of poppy eradication or narcotics interdiction." Thus far, Mexican officials have indicated their willingness to accept such an amendment.
This proposed limitation on the use of the funds, if accepted by the Government of Mexico, would bring the United States into compliance with the Percy Amendment by ensuring that the assistance provided is not used to support the spraying of marijuana with paraquat. In light of the fact that most of the 30 million dollars Mexico appropriates for its drug control efforts is channelled into its marijuana eradication program, it appears unlikely that it will refuse to use the assistance it receives from this country to further United States interests in poppy eradication.
The Court is mindful of the possible effect that a cut-off in funds could have on our relations with Mexico, and on United States drug control efforts, and is therefore unwilling to take such drastic action without some clear indication that the United States cannot comply with the Percy Amendment because Mexico will not accept the limitations imposed by that Amendment.
Accordingly, the Court has ordered the government to inform plaintiff whether or not Mexico has accepted the proposed amendment to the Cooperative Agreement and has authorized plaintiff to return to this Court for further consideration in the event that Mexico does not accept it.
Whether a case is appropriate for injunctive relief is determined by a weighing and balancing of the equities. Foreign policy considerations are involved here. The United States is making every effort to comply with the law. Moreover, it appears that even if an injunction were to issue, Mexico would continue its marijuana eradication program, and only terminate the poppy eradication program, which the United States has a vital interest in maintaining. In light of this balancing process, plaintiff has not sufficiently demonstrated its entitlement to the extraordinary relief it seeks at this time.
Plaintiff's motion for a temporary restraining order and injunctive relief is denied without prejudice. An appropriate order is entered herewith.