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



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            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.
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