ELR Citation: ELR 20647
No(s). 90-263 (D. Vt. Oct 2, 1990)

The court refuses to enjoin the United States Fish and Wildlife Service (FWS) from introducing chemical lampricides into a Vermont stream that feeds Lake Champlain. Plaintiffs, an aquatic biologist and an environmental organization, moved for a temporary restraining order and preliminary injunction to stop the FWS from introducing the lampricides into Lewis Creek, claiming that such an action would violate the National Environmental Policy Act and the Vermont Endangered Species Act. The court first finds that the release of lampricides in Lewis Creek is unlikely to have any significant harmful impact on any endangered or threatened species and poses no significant threat to human health. FWS projected that, among threatened or endangered species, only the northern brook lamprey and eastern sand darter would be affected by the lampricide treatments. Neither species inhabits Lewis Creek or waters downstream of Lewis Creek. Although significant damage to the overall ecology of the lake or harm to threatened or endangered species might constitute irreparable injury in the required sense, plaintiffs have not persuaded the court that such injury is likely to occur as a result of the FWS' plan. The court notes that while the law does not explain what a plaintiff must show to establish "probable irreparable harm," the plaintiffs failed to make even a minimal showing. Moreover, a preliminary injunction would not stop the Lake Champlain lampricide project, and plaintiffs may seek to enjoin future project actions if they carry their burden of proof.

Counsel for Plaintiffs
Cindy Hill Couture
Couture & Hill
243 South St., P.O. Box 772, Northampton MA 01061-0772
(413) 586-6793

James Dumont
72 Court St., Middlebury VT 05753
(802) 388-4906

Counsel for Defendants
Helen Toor, Ass't U.S. Attorney
610 Federal Bldg., P.O. Box 570, Burlington VT 05402-0570
(802) 951-6725