dissenting.
I respectfully dissent. In my opinion, under the facts and circumstances of this case, judicial review of the Secretary’s Marketing Order is precluded. “Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.” Block v. Community Nutrition Institute, 467 U.S. 340, 345, 104 S.Ct. 2450, 2453, 81 L.Ed.2d 270 (1984).
The federal milk marketing program was enacted by Congress as part of the Agricultural Marketing Agreement Act of 1937 (AMAA) to establish and maintain orderly marketing conditions for agricultural commodities and to establish parity prices for farmers. “The regulation of agricultural products is a complex, technical undertaking. Congress channelled disputes concerning marketing orders to the Secretary in the first instance because it believed that only he has the expertise necessary to illuminate and resolve questions about them.” Community Nutrition, 467 U.S. at 347, 104 S.Ct. at 2454.
The marketing order in question here was effective after the regulatory procedure had been completed. It was approved by handlers of at least 50% of the volume of milk covered by the order and by at least two-thirds of the dairy producers by number or volume of the affected region which included all states east of the Rocky Mountains.
Plaintiffs state their claim as follows:
The Minnesota milk producers claim that the Secretary has acted and is acting outside the narrowly-enumerated authority granted under the AMAA in two distinct ways. First, the Secretary is maintaining and enforcing the Class I price differential provisions, which cause disorderly marketing conditions by stimulating an over-supply of milk, causing a decrease in the price Minnesota producers receive for their milk. Second, the Secretary is maintaining compensatory payment and down allocation provisions, which constitute economic trade barriers between markets east of the Rockies. These provisions are central to the pricing structure of the marketing orders. Together, these provisions affect both the price producers within a given order’s marketing area receive for their milk as well as the prices received by producers in other marketing order areas. The Minnesota producers challenge these provisions in all orders east of the Rockies because of the dramatic impact they have on prices Minnesota producers receive for their milk.
They claim that changing conditions have rendered the milk marketing orders — which were lawful when made — unlawful and in violation of the purpose of AMAA “to ensure that dairy producers throughout the country receive fair prices for the milk and that milk is consistently available to consumers in all areas.” Appellant’s Brief p. 4.
This claim is far different from the claim made in Stark v. Wickard, 321 U.S. 288, 64 *820S.Ct. 559, 88 L.Ed. 733 (1944). There, the Secretary’s Order directed the administrator to deduct funds coming into his hands from the producer’s sale price to make payments to cooperatives. These deductions reduced “the amount actually received by the producers for their milk”. Id. at 302, 64 S.Ct. at 567. As the statute assured producers of minimum prices for their milk such a deduction was a clear violation of the statute. There was no other forum than the courts to hear the producers complaint.
Here, the claim involves judgment as to whether or not the order in question is contrary to the express purposes of the AMAA. Such judgment involves the Secretary’s expertise. There will certainly be a difference of opinion between the Minnesota-Wisconsin producers and those in other parts of the country east of the Rockies that are benefitting from the order. Those producers are not parties to this action.
I believe that it is to be implied, from the wording of the statute, the statutory scheme, its objectives, its legislative history and the nature of the administrative action involved, that Congress did not intend to provide for judicial review under these facts.
Additional factors that support my position are:
1. The statute specifically gives handlers the right to judicial review but does not mention producers.
2. 7 U.S.C. § 608c(16)(B) provides an administrative remedy for producers. The Secretary shall terminate any marketing agreement when 50% of the producers producing more than 50% of the volume favor termination.
3. The issue before the court involves a complex regulatory scheme and a discretionary decision by the Secretary whose expertise is important. “A court’s deference to administrative expertise rises to zenith in connection with the intricate complex of regulation of milk marketing.” Blair v. Freeman, 370 F.2d 229, 232 (D.C.Cir.1966). It is unlikely that Congress would have intended to imply judicial review of such a complex procedure.
4.Most cases relied upon by the appellants relate to court actions where a new marketing order is involved. This case involves a question of terminating a validly enacted order.
I prefer the reasoning and analysis in Pescosolido v. Block, 765 F.2d 827 (9th Cir.1985). I would affirm the trial court.