It is undisputed that the second and third drugs used in Kentucky's three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide [p. 114] paralyzes the lung muscles and results in slow asphyxiation. App. 435, 437, 625. Potassium chloride causes burning and intense pain as it circulates throughout the body. Id., at 348, 427, 444, 600, 626. Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be "constitutionally unacceptable." Ante, at 53.
The constitutionality of Kentucky's protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentucky's system is constitutional, the plurality states, because "petitioners have not shown that the risk of an inadequate dose of the first drug is substantial." Ante, at 53–54. I would not dispose of the case so swiftly given the character of the risk at stake. Kentucky's protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs. I would vacate and remand with instructions to consider whether Kentucky's omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.
The Court has considered the constitutionality of a specific method of execution on only three prior occasions. Those cases, and other decisions cited by the parties and amici, provide little guidance on the standard that should govern petitioners' challenge to Kentucky's lethal injection protocol.
In Wilkerson v. Utah, [[99 U.S. 130] (1879), the Court held that death by firing squad did not rank among the "cruel and unusual punishments" banned by the Eighth Amendment. In so ruling, the Court did not endeavor "to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted." Id., at 135–136. But it was "safe to affirm," the Court stated, that "punishments of torture...,and all others in the same line of unnecessary cruelty, are forbidden." Id., at 136.
[p. 115] Next, in In re Kemmler, 136 U.S. 436 (1890), death by electrocution was the assailed method of execution. The Court reiterated that the Eighth Amendment prohibits "torture" and "lingering death." Id., at 447. The word "cruel," the Court further observed, "implies...something inhuman...something more than the mere extinguishment of life." Ibid. Those statements, however, were made en passant. Kemmler 's actual holding was that the Eighth Amendment does not apply to the States, id., at 448–449, a proposition we have since repudiated, see, e.g., Robinson v. California, 370 U.S. 660 (1962).
Finally, in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), the Court rejected Eighth and Fourteenth Amendment challenges to a reelectrocution following an earlier attempt that failed to cause death. The plurality opinion in that case first stated: "The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence." Id., at 463. But the very next sentence varied the formulation; it referred to the "[p]rohibition against the wanton infliction of pain." Ibid.
No clear standard for determining the constitutionality of a method of execution emerges from these decisions. Moreover, the age of the opinions limits their utility as an aid to resolution of the present controversy. The Eighth Amendment, we have held, "'must draw its meaning from the evolving standards of decency that mark the progress of a [p. 116] maturing society.'" Atkins v. Virginia, 536 U.S. 304, 311– 312 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). Wilkerson was decided 129 years ago, Kemmler 118 years ago, and Resweber 61 years ago. Whatever little light our prior method-of-execution cases might shed is thus dimmed by the passage of time.
Further phrases and tests can be drawn from more recent decisions, for example, Gregg v. Georgia, 428 U.S. 153 (1976). Speaking of capital punishment in the abstract, the lead opinion said that the Eighth Amendment prohibits "the unnecessary and wanton infliction of pain," id., at 173 (joint opinion of Stewart, Powell, and Stevens, JJ.); the same opinion also cautioned that a death sentence cannot "be imposed under sentencing procedures that creat[e] a substantial risk that it would be inflicted in an arbitrary and capricious manner," id., at 188.
Relying on Gregg and our earlier decisions, the Kentucky Supreme Court stated that an execution procedure violates the Eighth Amendment if it "creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death." 217 S.W.3d 207, 209, 210 (2006). Petitioners respond that courts should consider "(a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible." Brief for Petitioners 38 (emphasis added). The plurality settles somewhere in between, requiring a "substantial risk of serious harm" and considering whether a "feasible, readily implemented" alternative can "significantly reduce" that risk. Ante, at 52 (internal quotation marks omitted).
I agree with petitioners and the plurality that the degree of risk, magnitude of pain, and availability of alternatives must be considered. I part ways with the plurality, however, to the extent its "substantial risk" test sets a fixed threshold for the first factor. The three factors are interrelated; a strong showing on one reduces the importance of the others.
[p. 117] Lethal injection as a mode of execution can be expected, in most instances, to result in painless death. Rare though errors may be, the consequences of a mistake about the condemned inmate’s consciousness are horrendous and effectively undetectable after injection of the second drug. Given the opposing tugs of the degree of risk and magnitude of pain, the critical question here, as I see it, is whether a feasible alternative exists. Proof of "a slightly or marginally safer alternative" is, as the plurality notes, insufficient. Ante, at 51. But if readily available measures can materially increase the likelihood that the protocol will cause no pain, a State fails to adhere to contemporary standards of decency if it declines to employ those measures.
Kentucky's Legislature adopted lethal injection as a method of execution in 1998. See 1998 Ky. Acts ch. 220, p. 777, Ky. Rev. Stat. Ann. §431.220(1)(a) (West 2006). Lawmakers left the development of the lethal injection protocol to officials in the Department of Corrections. Those officials, the trial court found, were "given the task without the benefit of scientific aid or policy oversight." App. 768. "Kentucky's protocol," that court observed, "was copied from other states and accepted without challenge." Ibid. Kentucky "did not conduct any independent scientific or medical studies or consult any medical professionals concerning the drugs and dosage amounts to be injected into the condemned." Id., at 760, ¶3. Instead, the trial court noted, Kentucky followed the path taken in other States that "simply fell in line" behind the three-drug protocol first developed by Oklahoma in 1977. Id., at 756. See also ante, at 43, n. 1 (plurality opinion).
Kentucky's protocol begins with a careful measure: Only medical professionals may perform the venipunctures and establish intravenous (IV) access. Members of the IV team must have at least one year's experience as a certified medi- [p. 118] cal assistant, phlebotomist, emergency medical technician (EMT), paramedic, or military corpsman. App. 984; ante, at 55 (plurality opinion). Kentucky's IV team currently has two members: a phlebotomist with 8 years' experience and an EMT with 20 years' experience. App. 273–274. Both members practice siting catheters at ten lethal injection training sessions held annually. Id., at 984.
Other than using qualified and trained personnel to establish IV access, however, Kentucky does little to ensure that the inmate receives an effective dose of sodium thiopental. After siting the catheters, the IV team leaves the execution chamber. Id., at 977. From that point forward, only the warden and deputy warden remain with the inmate. Id., at 276. Neither the warden nor the deputy warden has any medical training.
The warden relies on visual observation to determine whether the inmate "appears" unconscious. Id., at 978. In Kentucky's only previous execution by lethal injection, the warden's position allowed him to see the inmate best from the waist down, with only a peripheral view of the inmate's face. See id., at 213–214. No other check for consciousness occurs before injection of pancuronium bromide. Kentucky's protocol does not include an automatic pause in the "rapid flow" of the drugs, id., at 978, or any of the most basic tests to determine whether the sodium thiopental has worked. No one calls the inmate's name, shakes him, brushes his eyelashes to test for a reflex, or applies a noxious stimulus to gauge his response.
Nor does Kentucky monitor the effectiveness of the sodium thiopental using readily available equipment, even though the inmate is already connected to an electrocardiogram (EKG), id., at 976. A drop in blood pressure or heart rate after injection of sodium thiopental would not prove that the inmate is unconscious, see id., at 579–580; ante, at 59 (plurality opinion), but would signal that the drug has [p. 119] entered the inmate's bloodstream, see App. 424, 498, 578, 580; 8 Tr. 1099 (May 2, 2005). Kentucky's own expert testified that the sodium thiopental should "cause the inmate's blood pressure to become very, very low," App. 578, and that a precipitous drop in blood pressure would "confir[m]" that the drug was having its expected effect, id., at 580. Use of a blood pressure cuff and EKG, the record shows, is the standard of care in surgery requiring anesthesia. Id., at 539.
A consciousness check supplementing the warden's visual observation before injection of the second drug is easily implemented and can reduce a risk of dreadful pain. Pancuronium bromide is a powerful paralytic that prevents all voluntary muscle movement. Once it is injected, further monitoring of the inmate's consciousness becomes impractical without sophisticated equipment and training. Even if the inmate were conscious and in excruciating pain, there would be no visible indication.
Recognizing the importance of a window between the first and second drugs, other States have adopted safeguards not contained in Kentucky's protocol. See Brief for Criminal [p. 120] Justice Legal Foundation as Amicus Curiae 19–23. Florida pauses between injection of the first and second drugs so the warden can "determine, after consultation, that the inmate is indeed unconscious." Lightbourne v. McCollum, 969 So.2d 326, 346 (Fla. 2007) (per curiam) (internal quotation marks omitted). The warden does so by touching the inmate's eyelashes, calling his name, and shaking him. Id., at 347. If the inmate's consciousness remains in doubt in Florida, "the medical team members will come out from the chemical room and consult in the assessment of the inmate." Ibid. During the entire execution, the person who inserted the IV line monitors the IV access point and the inmate's face on closed-circuit television. Ibid.
In Missouri, "medical personnel must examine the prisoner physically to confirm that he is unconscious using standard clinical techniques and must inspect the catheter site again." Taylor v. Crawford, 487 F.3d 1072, 1083 (CA8 2007). "The second and third chemicals are injected only after confirmation that the prisoner is unconscious and after a period of at least three minutes has elapsed from the first injection of thiopental." Ibid.
In California, a member of the IV team brushes the inmate's eyelashes, speaks to him, and shakes him at the half- [p. 121] way point and, again, at the completion of the sodium thiopental injection. See State of California, San Quentin Operational Procedure No. 0–770, Execution by Lethal Injection, §V(S)(4)(e) (2007), online at http://www.cdcr.ca.gov/News/docs/RevisedProtocol.pdf.
In Alabama, a member of the execution team "begin[s] by saying the condemned inmate's name. If there is no response, the team member will gently stroke the condemned inmate's eyelashes. If there is no response, the team member will then pinch the condemned inmate's arm." Respondents' Opposition to Callahan's Application for a Stay of Execution in Callahan v. Allen, O.T. 2007, No. 07A630, p. 3 (internal quotation marks omitted).
In Indiana, officials inspect the injection site after administration of sodium thiopental, say the inmate’s name, touch him, and use ammonia tablets to test his response to a noxious nasal stimulus. See Tr. of Preliminary Injunction Hearing in 1:06–cv–1859 (SD Ind.), pp. 199–200, online at http://www.law.berkeley.edu/clinics/dpclinic/LethalInjection/Public/MoralesTaylorAmicus/20.pdf (hereinafter Timberlake Hearing).
These checks provide a degree of assurance—missing from Kentucky's protocol—that the first drug has been properly administered. They are simple and essentially costless to employ, yet work to lower the risk that the inmate will be subjected to the agony of conscious suffocation caused by pancuronium bromide and the searing pain caused by potassium chloride. The record contains no explanation why Kentucky does not take any of these elementary measures.
The risk that an error administering sodium thiopental would go undetected is minimal, Kentucky urges, because if the drug was mistakenly injected into the inmate's tissue, not a vein, he "would be awake and screaming." Tr. of Oral Arg. 30–31. See also Brief for Respondents 42; Brief for [p. 122] State of Texas et al. as Amici Curiae 26–27. That argument ignores aspects of Kentucky's protocol that render passive reliance on obvious signs of consciousness, such as screaming, inadequate to determine whether the inmate is experiencing pain.
First, Kentucky's use of pancuronium bromide to paralyze the inmate means he will not be able to scream after the second drug is injected, no matter how much pain he is experiencing. Kentucky's argument, therefore, appears to rest on the assertion that sodium thiopental is itself painful when injected into tissue rather than a vein. See App. 601. The trial court made no finding on that point, and Kentucky cites no supporting evidence from executions in which it is known that sodium thiopental was injected into the inmate's soft tissue. See, e.g., Lightbourne, 969 So.2d, at 344 (describing execution of Angel Diaz).
Second, the inmate may receive enough sodium thiopental to mask the most obvious signs of consciousness without receiving a dose sufficient to achieve a surgical plane of anesthesia. See 7 Tr. 976 (Apr. 21, 2005). If the drug is injected too quickly, the increase in blood pressure can cause the inmate's veins to burst after a small amount of sodium thiopental has been administered. Cf. App. 217 (describing risk of "blowout"). Kentucky's protocol does not specify the rate at which sodium thiopental should be injected. The executioner, who does not have any medical training, pushes the drug "by feel" through five feet of tubing. Id., at 284, 286– 287. In practice sessions, unlike in an actual execution, there is no resistance on the catheter, see id., at 285; thus the executioner's training may lead him to push the drugs too fast.
[p. 123] "The easiest and most obvious way to ensure that an inmate is unconscious during an execution," petitioners argued to the Kentucky Supreme Court, "is to check for consciousness prior to injecting pancuronium [bromide]." Brief for Appellants in No. 2005–SC–00543, p. 41. See also App. 30, ¶105(j) (Complaint) (alleging Kentucky's protocol does not "require the execution team to determine that the condemned inmate is unconscious prior to administering the second and third chemicals"). The court did not address petitioners' argument. I would therefore remand with instructions to consider whether the failure to include readily available safeguards to confirm that the inmate is unconscious after injection of sodium thiopental, in combination with the other elements of Kentucky's protocol, creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain.
1 ^ . Hanging was the State's prior mode of execution. Electrocution, considered "less barbarous," indeed "the most humane" way to administer the death penalty, was believed at the time to "result in instantaneous, and consequently in painless, death." In re Kemmler, 136 U.S. 436, 443–444 (1890) (internal quotation marks omitted).
2 ^ . The Court also ruled in Kemmler that the State's election to carry out the death penalty by electrocution in lieu of hanging encountered no Fourteenth Amendment shoal: No privilege or immunity of United States citizenship was entailed, nor did the Court discern any deprivation of due process. Id., at 448–449.
3 ^ . The plurality deems medical standards irrelevant in part because "drawn from a different context." Ante, at 60. Medical professionals monitor blood pressure and heart rate, however, not just to save lives, but also to reduce the risk of consciousness during otherwise painful procedures. Considering that the constitutionality of Kentucky's protocol depends on guarding against the same risk, see supra, at 114; ante, at 53–54 (plurality opinion), the plurality's reluctance to consider medical practice is puzzling. No one is advocating the wholesale incorporation of medical standards into the Eighth Amendment. But Kentucky could easily monitor the inmate's blood pressure and heart rate without physician involvement. That medical professionals consider such monitoring important enough to make it the standard of care in medical practice, I remain persuaded, is highly instructive.
4 ^ . Petitioners' expert testified that a layperson could not tell from visual observation if a paralyzed inmate was conscious and that doing so would be difficult even for a professional. App. 418. Kentucky's warden candidly admitted: "I honestly don't know what you'd look for." Id., at 283.
5 ^ . Because most death penalty States keep their protocols secret, a comprehensive survey of other States' practices is not available. See Brief for American Civil Liberties Union et al. as Amici Curiae 6–12.
6 ^ . Florida's expert in Lightbourne v. McCollum, 969 So.2d 326 (Fla. 2007) (per curiam), who also served as Kentucky's expert in this case, testified that the eyelash test is "probably the most common first assessment that we use in the operating room to determine...when a patient might have crossed the line from being conscious to unconscious." 4 Tr. in State v. Lightbourne, No. 81–170–CF (Fla. Cir. Ct., Marion Cty.), p. 511, online at http://www.cjlf.org/files/LightbourneRecord.pdf (all Internet materials as visited Apr. 14, 2008, and in Clerk of Court's case file). "A conscious person, if you touch their eyelashes very lightly, will blink; an unconscious person typically will not." Ibid. The shaking and name-calling tests, he further testified, are similar to those taught in basic life support courses. See id., at 512.
7 ^ . In Indiana, a physician also examines the inmate after injection of the first drug. Timberlake Hearing 199.
8 ^ . The length of the tubing contributes to the risk that the inmate will receive an inadequate dose of sodium thiopental. The warden and deputy warden watch for obvious leaks in the execution chamber, see ante, at 45–46 (plurality opinion), but the line also snakes into the neighboring control room through a small hole in the wall, App. 280.


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INDICTMENTS found and returned in the Superior Court Department on May 16, 1985.
Suzanne Rudalevige for the defendant.
Catherine E. Sullivan, Assistant District Attorney, for the Commonwealth.
KAPLAN, J. Ivan and Rolando Mercado, brothers, stood joint trial on four charges against each: armed assault with intent to murder, mayhem, assault and battery with a dangerous weapon, to wit, a baseball bat, and the same offense with a shod foot, all arising from an incident in Belmont on May 6, 1985. The "intent to murder" charges were reduced by the trial judge to "intent to kill." As to Ivan only, the shod foot charge was dismissed at the close of the Commonwealth's case. A Middlesex jury brought in verdicts of guilty on the other charges. [Note 1] We deal with Rolando's appeal in which he complains of the judge's denial of motions for required findings of not guilty, and of certain instructions to the jury. We affirm his convictions except the shod foot conviction, which we reverse.
1. The case. The jury could well have seen the case thus. About 3:45 P.M., the eventual victim, Patrick Conlon, having finished his day's work, arrived home at 8 Bradley Road, Belmont. He had a meal and about 4:30 P.M. tried to take a nap in his bedroom on the second floor. This fronts on Bradley Road, a narrow, east-west, one way street, with traffic directed west; 8 Bradley is on the southerly side of the street. Conlon found sleep impossible because of extended, loud revving of a car engine. Looking out the window he saw the offending vehicle, a blue Chevrolet Malibu, parked at the curb in front of his house. The hood was up, but as Conlon watched, a man emerged from under the hood, closed it, and entered the car. The car took off, passed west to the end of the street, raced to the right up Pearson Road and, evidently circling the block, returned to Bradley Road and parked in the same spot as before, some five feet back of another car. Conlon had seen the car narrowly miss a child crossing the street on a tricycle. Revving began again, the hood went up, and man resumed work under it.
because of danger to children on the block, and complained of the noise. The man, identified as the defendant Rolando, slammed his wrench on the radiator, approached Conlon, and said, "What are you going to do, huh?" He struck at Conlon, who blocked the blow with his left hand and knocked Rolando to the ground with his right.
Here Ivan, who, unobserved by Conlon, had been sitting in the car, or standing near the hood, went to the back of the car and took from the trunk a black aluminum baseball bat. He stepped behind Conlon, who was "hunched over" Rolando with an arm raised. Without a word, Ivan, using a two handed grip as if hitting a baseball, brought the bat down on the back of Conlon's skull. Conlon put a hand to the wound; blood ran through his fingers. He tried to rise. Ivan, moving to Conlon's right side, swung again with the same grip and caught Conlon in the forehead above the right eye. As Conlon collapsed to the street, Rolando, unharmed, scrambled up. While righting himself, Rolando "sort of kicked" Conlon, "like a nudge," between kidney and chest. About the same time, or perhaps some seconds after the kick, Ivan struck Conlon's inert body with the bat between shoulder and head. At his point, Rolando took the bat from Ivan and, from his upright position, brought it down on ("whacked") Conlon; probably, as will be seen, the blow struck Conlon on the head. The bat was then thrown into the trunk of the car. The brothers entered the car together and, with the defendant driving, sped off, leaving Conlon on the street, lying on his side, motionless and bleeding, with his head resting on the rear tire of the parked car. The whole episode, from Rolando's blocked blow to the brothers' departure, lasted no longer than two minutes or so.
Conlon was in the hospital for nine days, returned after eight days for a restorative operation requiring four hospital days, and was out of work for three months. Besides a disfiguring scar on his forehead, he suffers from an enophthalmos condition (nonalignment of his right eye with the left), total loss of sense of smell, and total loss of hearing in his left ear.
Reserved to point 4 below are the facts regarding the arrest of Ivan and Rolando by the police on May 7, the day after the incident.
account of Ivan's blows and Rolando's taking the bat from him has multiple support in the evidence, and here we need to emphasize that this evidence also supports a finding that Rolando was so positioned that he could observe and apprehend fully what Ivan was doing to Conlon and the gross effects of those attacks upon Conlon. Valstyn explained how his attention was diverted just after the bat was in Rolando's hands. [Note 3] Wilkins, however, observed Rolando "whacking" Conlon. It is perhaps unnecessary for analytic purposes to locate where on Conlon's body the whacking bat fell, since the blow was in any case accumulative to Ivan's blows and their results, which Rolando saw. As indicated, however, the probabilities appear to be, and the jury could find, that the blow was to Conlon's head and, further, was a severely damaging blow. On the whole case, the jury could find Rolando guilty of three of the offenses charged on both an individual and a joint-enterprise basis.
here was Conlon with a nice prospect of dying which this defendant acted to hasten; wounds were repeated and serious, with large blood loss, repeated hospitalizations, difficult surgery, and lasting injuries. See Commonwealth v. Gabbidon, 398 Mass. 1 , 5-6 (1986); Commonwealth v. Shea, 398 Mass. 264 , 270 (1986); Commonwealth v. Fidler, 23 Mass. App. Ct. 506 , 515 (1987).
Complicity: In the particular case, it requires but a small shift of emphasis to find guilt of the foregoing crimes on a basis of joint venture. Of course this is not an instance of partners deliberating in advance to commit a crime, with subsequent acts rendering each responsible for the other's conduct as well as his own. But, whether from the time of Ivan's entry into the fray, [Note 4] or from the moment of the approximate coincidence of Rolando's kick and Ivan's third swing of the bat, to the time of the joint flight from the scene, we have an identity of purpose and a common endeavor, symbolized by the passing of the bat, which could be found to constitute a criminal joint venture. Similarly, in Commonwealth v. Fidler, supra, the defendant Fidler and others fell upon three persons on a deserted street at night. As the assault appeared coordinated, some prior planning might have occurred, but we did not rely on that possibility. It was appropriate, nevertheless, to charge Fidler with the acts of the others; we affirmed convictions for assault and battery by means of a dangerous weapon and armed assault with intent to kill, saying: "There are cases where such liability [in joint venture] arises without prior planning or agreement. So it has been held enough that at the climactic moments the parties consciously acted together in carrying out the criminal endeavor, each thereby becoming responsible for the acts of the others. An element of mutual assent at those moments no doubt there is, but there need not have been an anticipatory compact." 23 Mass. App. Ct. at 513. [Note 5] Near the present case is Commonwealth v.
We have spoken of all but the conviction of assault and battery which counts on a "shod foot" as a dangerous weapon. As indicated above, there was proof that the defendant, after scrambling up, kicked Conlon. There was no direct evidence that his foot was "shod," but if that may be inferred, we still have "[t]he essential question, when an object which is not dangerous per se is alleged to be a dangerous weapon," namely, "whether the object, as used by the defendant, is capable of producing serious bodily harm." Commonwealth v. Marrero, 19 Mass. App. Ct. 921 , 922 (1984). Here the testimony (by Valstyn) was that the kick resembled a "nudge." [Note 7] Although the matter may not be altogether clear, out of abundant caution we hold that the appeal from the shod foot conviction should succeed. See also Commonwealth v. Appleby, 380 Mass. at 304; Commonwealth v. Davis, 10 Mass. App. Ct. 190 , 193 (1980).
evidence, the defendant first says there was no proof he knew, before the incident began, that there was a bat in the trunk of the car. This is an irrelevancy. He asserts that, being pinned down by Conlon, he could not see what Ivan was doing, but that is unlikely on its face, and the jury could surely find otherwise. The defendant denies there was evidence that the bat, when wielded by him, actually landed on Conlon. Wilkins' testimony was to the contrary: he saw the bat strike Conlon's body, but could not say just where. The defendant hopes to discredit Wilkins because the preceding testimony by this witness varied in detail from the testimony of others, [Note 9] but such evaluations (taking account, it may be, of the differing points of vantage of the witnesses, among other things) were for the jury. The defendant attempts to erect a bulkhead between Ivan's actions and his own, but in fact they coincided and connected. In his entire approach to the facts in this case, the defendant seems to ignore the settled propositions that witness credibility is for the jury, see Commonwealth v. Clary, 388 Mass. 583 , 588-589 (1983); that evidence may be sufficient as against a motion for a required finding although there are elements in it that are inconsistent or contradictory, see Commonwealth v. Fitzgerald, 376 Mass. 402 , 410-411 (1978); Commonwealth v. Parker, 389 Mass. 27 , 31 (1983); and that inferences from particulars of the evidence which are "reasonable and possible," not "necessary or inescapable," may be accepted by a jury as collectively persuasive of guilt beyond a reasonable doubt, see Commonwealth v. Beckett, 373 Mass. 329 , 341 (1977). To subscribe to the defendant's arguments would be to subvert the principle of Commonwealth v. Latimore, 378 Mass. 671 , 677-678 (1979), by which intendments are to be made in favor of the Commonwealth when reviewing a denial of a required finding. See also Commonwealth v. Burbank, 388 Mass. 789 , 797 (1983); Commonwealth v. Davida, 17 Mass. App. Ct. 511 , 512 (1984).
The defendant's objections taken to the judge's instructions are also untenable. The judge, charging at some length about joint venture, spoke consistently with such authority as Commonwealth v. Soares, 377 Mass. 461 , 470, cert. denied, 444 U.S. 881 (1979), that "one who aids, commands, counsels, or encourages commission of a crime while sharing with the principal the mental state required for the crime is guilty as a principal." See also Commonwealth v. Medeiros, 354 Mass. 193 , 197-198 (1968), cert. denied, 393 U.S. 1058 (1969); Commonwealth v. Casale, 381 Mass. 167 , 173 (1980); Commonwealth v. Champagne, 399 Mass. 80 , 86 (1987). The judge went on to say, in the sense of Commonwealth v. Fidler, supra, and other cases, that "a prearrangement of a pre-existing plan is not required." He was also quite correct in his further statement that the jury might "infer the necessary mental state from the defendant's knowledge of the circumstances and subsequent participation in the offense." See Commonwealth v. Soares, 377 Mass. at 470; Commonwealth v. Champagne, 399 Mass. at 87.
There was objection to the judge's statement, rather roughhewn yet sufficiently clear, that one could be "privy" to the intent and acts constituting the crime of mayhem and thus be found guilty of it. This instruction would be understood to refer to the extended charge on joint venture, and so was not unduly cryptic.
The judgment of conviction of assault and battery with a shod foot is reversed and the relevant verdict is set aside. The other judgments are affirmed.
[Note 1] Each was sentenced to eight to ten years' imprisonment at M.C.I., Cedar Junction, upon each conviction, the sentences to run concurrently.
[Note 2] Aside from the massive head wounds, Conlon sufferd a minor abrasion of his left knee. When he woke in the hospital, he had a pain, he said, in his side, a cut on his right hand, and a swelling of an arm. The doctors who testified made no mention of these latter complaints.
[Note 3] Valstyn's girlfriend, who had been standing next to him at 19 Bradley Road, began to scream; he turned to help her into the building. As he turned back seconds later, he saw one of the Mercados throw the bat into the trunk. Then the pair drove off.
Shaughnessy, after witnessing Ivan's first two blows, turned and went into the house to summon the police.
[Note 4] We note that the judge instructed on self-defense and defense of a third person, but the verdicts indicate that the jury were unmoved.
[Note 5] Supporting citations were: Brown v. Perkins, 1 Allen 89 , 96-98 (1861); Commonwealth v. Morrow, 363 Mass. 601 , 608-609 (1973); Commonwealth v. Ferguson, 365 Mass. 1 , 8-9 (1974).
[Note 6] In other jurisdictions, to like effect, see Fuller v. State, 43 Ala. App. 632, 637-638 (1966); Bass v. State, 172 So.2d 614, 617 (Fla. Dist. Ct. App. 1965); People v. Richardson, 32 Ill.2d 472, 477 (1965); State v. Cantrell, 1 Or. App. 454 (1970).
[Note 7] See also note 2, supra.
[Note 8] The defense called Rolando, his girlfriend Diane Maddon, and her sister Kathleen Maddon, both evidently present near the encounter. Kathleen's testimony seemed especially contrived. See also note 12, infra.
[Note 9] Wilkins saw Conlon standing in the street arguing with Rolando, and then saw Ivan hit Conlon from behind. Conlon fell into the street and Ivan hit him twice more before handing the bat to Rolando.
[Note 10] Miranda warnings were properly and repeatedly given.
[Note 11] That a judge should give the added charge on request was repeated in Commonwealth v. Matos, 394 Mass. 563 , 566 (1985). Our court had used the word "must." 18 Mass. App. Ct. 212 , 214-215 (1984). We take no particular point on the difference.
[Note 12] Far more influential with the jury than the admitted lie may have been the implausibility of defendant's testimony about the occurrence on May 6, including his statements that Ivan did not hit Conlon in the head, but in the back and legs; his inability to identify the black hat taken from Ivan's car as belonging to Ivan or as figuring in the incident; his statement that Conlon hit him repeatedly in the face leaving it "black and blue," although a police photograph taken on the day of the arrest and introduced in evidence showed no bruises of any kind.

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Rucker v. Pace Motor Lines, Inc.
The claimant was not represented and did not appear at oral argument.
The respondents were represented by David Schoolcraft, Esq., Duhamel Schoolcraft.
The Second Injury Fund was represented by Kenneth Kennedy, Esq., Assistant Attorney General.
This Petition for Review from the August 6, 1998 Finding and Dismissal of the Commissioner acting for the Fourth District was heard April 30, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.
The respondents have petitioned for review from the August 6, 1998 Finding and Dismissal of the Commissioner acting for the Fourth District. In that decision the trial commissioner concluded that the respondents failed to provide proper notice to the Fund and thus denied the respondents' request to transfer pursuant to § 31-349. In support of their appeal the respondents contend that although their initial notice of request to transfer was defective because it was filed too early, this defect was rectified by a second notice provided on June 30, 1995.
The trial commissioner found the following relevant facts. The claimant sustained a compensable injury on November 22, 1993, and because of a previous disability the claimant's injury was materially and substantially greater than it otherwise would have been. On August 16, 1994, the respondents filed with the Fund a notice of intent to transfer the claim pursuant to § 31-349. This initial notice was filed during the claimant's 38th week of benefits. On September 2, 1994, the Fund acknowledged receipt of said notice, and did not include any objections to the notice. On June 30, 1995, the respondents filed re-notice which included the voluntary agreements, the medicals, and the information requirements of § 31-349. (Finding ¶ 14). The notice of June 30, 1995 (the "second" notice) was filed during the claimant's 83rd week of benefits. The respondents paid 104 weeks of benefits on November 19, 1995.
The Fund conceded that the claim medically qualified for transfer pursuant to § 31-349. The Fund further conceded that the second notice constituted proper re-notice pursuant to § 31-349 as amended by P.A. 95-277. However, the Fund maintained that the proper re-notice does not "cure" the initial notice which was defective because it was filed too early. The trial commissioner concluded that based upon the date of injury rule, § 31-349 as amended by P.A. 93-429 applied to the instant case, and that the initial notice was thus improper because it was not filed "no earlier than one year and no later than ninety days before the expiration of the first one hundred and four weeks of disability. . . ." Section 31-349 (Rev. to 1993). The trial commissioner thus denied the respondents' request for transfer of the claim.
"As a condition precedent to the liability of the Second Injury Fund, the employer or its insurer shall: (1) Notify the custodian of the fund by certified mail no later than three calendar years after the date of injury or no later than ninety days after completion of payments for the first one hundred and four weeks of disability, whichever is earlier, of its intent to transfer liability for the claim to the Second Injury Fund; (2) include with the notification (A) copies of all medical reports, (B) an accounting of all benefits paid, (C) copies of all findings, awards, and approved voluntary agreements, (D) the employer's or insurer's estimate of the reserve amount to ultimate value for the claim, (E) a two-thousand-dollar notification fee payable to the custodian . . . and (F) such other material as the custodian may require."
Additionally, P.A. 95-277 provides in subsection (e) that "[a]ll claims for transfer of injuries for which the fund has been notified prior to July 1, 1995, shall be deemed withdrawn with prejudice, unless the employer or its insurer notifies the custodian of the fund by certified mail prior to October 1, 1995, of its intention to pursue transfer."
As discussed in Hall v. Gilbert Bennett Mfg. Co., 241 Conn. 282 (1997), P.A. 95-277 indeed applies retroactively to cases in which the claimant's second injury occurred prior to the statute's July 1, 1995 effective date. This retrospective operation means that (1) renotification is necessary for notices properly and timely filed prior to July 1, 1995, and (2) that initial notice to the Fund may be given pursuant to the provisions of P.A. 95-277 § 3 (b) if the criteria of the statute can be met at the time notice is attempted. Audi v. Blakeslee Arpaia Chapman, 3418 CRB-3-96-9 (August 4, 1997). The amended statute cannot be used, however, to somehow rehabilitate a notice that was defective when it was filed in 1994, before P.A. 95-277 took effect. See Szedlmayer v. Moore Special Tool Co., 3764 CRB-4-98-1 (March 25, 1999). Under the version of § 31-349 in effect at that time, and at the time of the claimant's injury, the respondents' 1994 notice was submitted too early. When P.A. 95-277 took effect, it not only redefined the time period within which notices could be filed; it also made a host of new documents (and a $2,000 check) integral to a complete notice for transfer. The respondents cannot somehow append the time frame of P.A. 95-277 § 3 (b) to the version of § 31-349 that was enacted by P.A. 93-429. Thus, the renotification provision of § 31-349 (e) is inapplicable to this case, and the respondents' filing of a renotice on August 18, 1995 is of no legal import. Crute, supra, (citing Audi, supra).
The respondents' second argument is that their June 30, 1995 notice constituted timely initial notice under § 31-349 (Rev. to 1993). As P.A. 95-277 had not yet become effective as of June 30, 1995, we agree with the respondents that § 31-349 (Rev. to 1993) applied based upon the date of injury rule. However, we have previously explained that "renotification is necessary for notices properly and timely filed prior to July 1, 1995." Crute, supra; Szedlmayer, supra. Thus, even if the June 30, 1995 notice is deemed to be proper initial notice, the respondents nevertheless fail in their attempt to transfer the claim because they did not file a re-notice on or before October 1, 1995 as required by P.A. 95-277.
Regarding revisions to § 31-349, the date of injury rule is normally applied (Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635, 636, f.n. 1 (1999)); however, because the notice provisions of P.A. 95-277 would be meaningless if the date of injury rule were used, P.A. 95-277 must be applied retroactively. See Hall v. Gilbert Bennett Mfg. Co., 241 Conn. 282 (1997); Szedlmayer v. Moore Special Tool Co., 3764 CRB-4-98-1 (March 25, 1999); Bass v. Chesebrough-Ponds, USA, 3709 CRB-3-97-10 (November 27, 1998).
The respondents' third and final argument is that their initial notice of August 16, 1994, although technically defective because it was filed too early, nevertheless should be deemed sufficient notice under § 31-349 (Rev. to 1993). Specifically, the respondents contend that the Fund did not reject the notice at that time and that the premature notice did not prejudice the Fund in any way. The respondents argue as follows: "The Fund's remedy in this case, if it thought the notice was premature, was to reject same and put the carrier on notice of its mistake so that it could be cured. . . . Having failed to do that, and having accepted the notice and set up a file on the case, the [F]und cannot now argue lack of jurisdiction." (Respondents' Brief at 12) (emphasis added).
We do not doubt that, as a practical matter, the Fund had enough information to investigate this claim if it so wished. However, our courts have stated time and again that the liability of the Fund is to be construed very narrowly, and statutory requirements of notice must be specifically met. Szedlmayer, supra.
Indeed, "our Supreme Court has said: `We conclude that the giving of timely notice is the condition precedent to an effective transfer of liability to the Fund under § 31-349.'" Soares v. Max Services, Inc., 42 Conn. App. 147, 168 (1996) cert. denied (9/19/96), (quoting Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 396 (1993) (emphasis in original). Neither the Appellate nor the Supreme Court has decided the issue of whether the Fund may waive the notice requirements of § 31-349.
In Soares, supra, the court assumed for the purpose of argument (without deciding) that estoppel and waiver may apply against the Fund. Id. at 168, 175. In Soares, the insurer claimed that the Fund had agreed to accept transfer at an informal hearing. However, the court found that there was no evidence of the alleged agreement in the record and thus the court did not address the allegation in its decision. Id. at 173.
The Board in its decision Soares v. Max Services, 13 Conn. Workers' Comp. Rev. Op. 185, 1718 CRB-1-93-5 (March 21, 1995) explained that the Fund could not agree to accept transfer in the absence of strict compliance with the notice provisions of § 31-349. The Board reasoned that "the Fund's representatives do not have the power to waive the jurisdictional requirements of the very statutes that define the Fund's duties and liabilities." Id. at 188. In affirming that decision, the Appellate Court inSoares, opined that on the matter of waiver, the respondents "have not demonstrated that there was even a `right' existing on the part of the fund or its representatives to waive its statutory obligation, as public employees acting pursuant to § 31-349, to require compliance with the notice requirement before they accepted the transfer of a claim to the fund."Soares, 42 Conn. App. 147, 176.
In the instant case, we note the respondents' argument that the Fund did not reject the initial notice of August 16, 1994 and their argument that the fact that the notice was filed too early did not prejudice the Fund. However, based upon our reasoning inSoares, and the Appellate Court's decision affirming that decision, we conclude that the Fund lacked the authority to waive strict compliance with the notice provisions of § 31-349.


The UNITED STATES FISH AND WILDLIFE SERVICE and Ronald E. Lambertson, in his capacity as Regional Director of the U.S. Fish and Wildlife Service, Defendants.
*1095 Cindy Hill Couture, Couture and Hill, Northampton, Mass., James Dumont, Middlebury, Vt., for plaintiffs.
Helen Toor, Asst. U.S. Atty., Burlington, Vt., Abner Cooper, U.S. Dept. of Interior, Newton Corner, Mass., Carl G. Dworkin, Albany, N.Y., for defendants.
Plaintiffs moved for a temporary restraining order and preliminary injunction to enjoin the United States Fish and Wildlife Service from introducing chemical lampricides into Lewis Creek, a stream feeding into the Vermont side of Lake Champlain, on September 23, 1990. A hearing was *1096 held and evidence was submitted on the motions on September 21 and 22, 1990. At the conclusion of the hearing, the Court denied plaintiffs' motions from the bench and by written order entered on September 22, 1990. The following findings of fact and conclusions of law supplement the Court's September 22 order.
1. The United States Fish and Wildlife Service and the New York State Department of Environmental Conservation, in cooperation with the Vermont Department of Fish and Wildlife, have initiated an eightyear program designed to reduce the population of sea lampreys in Lake Champlain. The sea lamprey is a species of parasitic fish that preys on fishes valued by the sports fishing industry. The program includes the controlled release of two chemicals TFM and Bayer 73, designated "lampricides" into streams and deltas flowing into Lake Champlain, where the sea lamprey larvae, or ammocoetes, develop. Final Environmental Impact Statement: Use of Lampricides in a Temporary Program of Sea Lamprey Control in Lake Champlain with an Assessment of Effects on Certain Fish Populations and Sportfisheries (July 19, 1990) (Government Exhibit B) (hereafter FEIS), at 1.
2. As required by the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2) (C), and its regulations, 40 CFR Part 1505, the U.S. Fish and Wildlife Service prepared draft and final Environmental Impact Statements for the lampricide project. The draft statement (DEIS) was released for public review in November 1987. The comment period on the DEIS ended December 1, 1989. The FEIS was made available for public comment in August 1990. On September 11, 1990, the Fish and Wildlife Service issued its "Record of Decision" on the program. Record of Decision (Government Exhibit D), at 6, 16.
3. Permits for the lampricide treatments were issued by the New York Department of Environmental Conservation, the Adirondack Park Agency and the Vermont Agency of Natural Resources. Id. at 6.
Achieve maximum practical short-term reduction of parasitic phase sea lamprey via 2 applications of chemical lampricides to 13 tributaries and 5 delta areas. The first application would include all significant lamprey producing tributary and delta areas. Timing and scope of the second application would be based on post treatment ammocoete recovery surveys but would be planned to occur 4 years after the first treatment, and would likely be as extensive.
Id. at 6-7. Other aspects of the overall program include stocking the lake with trout, steelhead and salmon, and assessing economic and environmental impacts. Id. at 7.
5. The program calls for eventual release of TFM (3-trifluoromethyl-4-nitrophenol) in portions of nine New York streams, three Vermont streams and the Poultney River, shared by both states as an interstate boundary. Six New York streams and one Vermont stream, Lewis Creek, are slated for treatment in September 1990. One Vermont stream initially recommended for TFM treatment, Indian Brook, will not receive lampricides in order to protect the northern brook lamprey, a threatened species inhabiting that stream. Delta areas in New York waters of Lake Champlain are scheduled for treatment with Bayer 73. Id. at 8, 9.
6. Pursuant to the program, TFM was released into Boquet River on the New York side of Lake Champlain, during the morning of September 11. Affidavit of Plaintiff Jeffrey W. Elliott in Support of Motion for Temporary Restraining Order, September 18, 1990 (Plaintiffs' Exhibit # 2) (hereafter Elliott's First Affidavit), at ¶ 15.
7. The final release of the 1990 series was scheduled to occur at approximately 8 a.m. on September 23, 1990, in Lewis Creek, which empties into the lake in North Ferrisburg, Vermont.
*1097 8. Lake Champlain supports native, nonparasitic species of lamprey in addition to the sea lamprey, as well as other fishes, mollusks, and other aquatic animals. FEIS at 82-98.
9. TFM affects not only sea lampreys. The chemical also may harm numerous other species, including certain plants and invertebrates as well other fishes. FEIS at 123-172.
10. Plaintiff Jeffrey W. Elliott is an aquatic biologist from Lancaster, New Hampshire, who uses the Lake Champlain region for recreation and study.
11. Elliott is an active member of Plaintiff Preserve Appalachian Wilderness (PAW), a citizens organization with members throughout the northeastern United States, dedicated to the preservation and enhancement of wilderness and the diversity of species in the region.
12. Elliott first learned of the Lake Champlain lampricide project in November 1989.
13. On September 19, 1990, plaintiffs filed suit in the United States District Court for the District of Massachusetts, seeking to permanently enjoin the project. At the same time, plaintiffs filed motions for a temporary restraining order and preliminary injunction. On the following day, that court, the Hon. Frank H. Freedman presiding, denied the motion for a temporary restraining order and ordered the case transferred to the District of Vermont.
14. Plaintiffs' complaint alleges that the project violates the federal Clean Water Act, 33 U.S.C. §§ 1251 et seq., the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and the Endangered Species Acts of Vermont and New York, 10 Vt. Stat.Ann. §§ 5401-5408; N.Y. Envtl. Conserv. § 11-0535. Only the claims under NEPA and the Vermont Endangered Species Act were raised as grounds for the motions before the Court.
15. Plaintiffs argue that NEPA procedures were violated in several respects. A central claim is that the Fish and Wildlife Service did not consider, and could not have considered, certain objections to the project submitted by the U.S. Environmental Protection Agency on September 10, 1990, since implementation of the project began promptly the following day. Elliott also testified that he submitted comments that were not addressed in the FEIS. Further, he maintains that the FEIS did not address the synergistic effects caused by the combination of lampricides with chemicals already present in the lake. Finally, NEPA may be implicated by Elliott's testimony that the apparatus for dispersing TFM at the Boquet River was being used improperly and that the individuals monitoring this process were biased and unqualified, contrary to procedures specified in the FEIS. As to the Vermont Endangered Species Act, plaintiffs assert that the lampricide project threatens several endangered species of fish and mollusks, in violation of the Act.
16. The Vermont Endangered Species Act directs the Vermont Secretary of Natural Resources to adopt by rule a state-endangered species list and a state-threatened species list. 10 Vt. Stat.Ann. § 5402(a). A species is determined to be endangered "if it normally occurs in the state and its continued existence as wildlife or a wild plant in the state is in jeopardy." Id. § 5402(b). A species is determined to be threatened "if its numbers are significantly declining because of loss of habitat or human disturbance and unless protected will become an endangered species." Id. § 5402(c). The Act proscribes the killing of any member of an endangered or threatened species, except as authorized by the Secretary. Id. § 5403(a).
17. The Vermont Agency of Natural Resources has promulgated regulations containing state-endangered and threatened species lists. Vermont Fish and Wildlife *1098 Regulations § 10 (effective June 23, 1989), reprinted at 10 Vt.Stat.Ann.App. § 10.
18. Plaintiffs assert that "the release of lampricides into Lake Champlain and its surrounding rivers and streams has caused and will cause immediate and irreparable harm to the ecology of the Lake Champlain region, including harm and death to endangered species." Plaintiffs' Motion for Preliminary Injunction.
19. More specifically, plaintiff Elliott alleges that "TFM will kill any and all species of lamprey without distinction," that "[a]s a molluscide, TFM will kill numerous species of mollusks, including at least clam species which are known to me to be in danger of extinction throughout the states of Vermont and New York," and that "TFM is toxic to many small aquatic species ... which are known to me to be in danger of extinction throughout the states of Vermont and New York." Elliott's First Affidavit, at ¶¶ 12, 13. In a second affidavit, Elliott claims that numerous species listed by the New York Natural Heritage Program as vulnerable or threatened species in New York State "will suffer irreversible harm by the release of TFM into the watershed of Lake Champlain." Affidavit of Plaintiff Jeffrey W. Elliott in Support of Motion for Temporary Restraining Order, September 18, 1990 (Plaintiffs' Exhibit # 1), at ¶ 3.
20. Among the species identified by Elliott, only the lake sturgeon appears on the Vermont Endangered Species List of the Agency of Natural Resources. Four species all fish listed by Elliott appear on the Vermont Threatened Species List: eastern sand darter, northern brook lamprey, quillback, and American brook lamprey. No threatened or endangered species of mollusk are known to live in proposed treatment areas. See FEIS at 121.
21. None of the species on the Vermont lists are known to exist in Lewis Creek. FEIS at 90-91.
22. Of these species, only the lake sturgeon and the quillback inhabit the lake itself; the remaining four live only in streams or rivers within the lake's watershed. FEIS at 90-91.
23. Treatment of streams with TFM is designed to insure that the chemical concentration remains within a restrictive range. FEIS at 190.
24. The Fish and Wildlife Service projected that, among threatened or endangered species, only the northern brook lamprey and eastern sand darter would be affected by the lampricide treatments, with effects on the latter "of insignificant impact to the whole population." Neither species inhabits Lewis Creek or waters downstream of Lewis Creek. FEIS at 142, 198. No threatened or endangered species is expected to suffer significant risk from TFM treatment in Lewis Creek. Id. The projections are based on considerable factual evidence, including laboratory studies of toxicity of TFM to sea lampreys and nontarget fish, records of impacts on nontarget fish from about 2,000 Great Lakes stream treatments, studies of caged nontarget fish subjected to routine treatments, and results of bioassays of TFM against nontarget fish in water from a Lake Champlain tributary. Id. at 141.
25. The Aquatic Nuisance Control Permit issued for the lampricide project by the Department of Environmental Conservation of the Vermont Agency of Natural Resources states that only two species formally recognized as threatened by the State of Vermont "will be potentially impacted by the proposed TFM treatment." These are the American brook lamprey, in Trout Brook, and the northern brook lamprey, in Indian Brook. Permit included in FEIS at K-2, 5-6. Indian Brook was subsequently withdrawn as a site for treatment.
26. On September 11, 1990, Elliott observed officials dispersing lampricides into Boquet River, on the New York side of the lake. Elliott noticed one dead sea gull and dead insects of two species, but no other dead animals in the vicinity during and following the dispersal of the lampricides. Elliott also observed fish that appeared to be in stress.
*1099 27. The Court finds that the release of lampricides in Lewis Creek is unlikely to have any significant harmful impact on any endangered or threatened species.
28. In a Renewed Motion for Temporary Restraining Order, filed in this Court on September 21, 1990, plaintiffs raised as an additional ground for the motion "a strong possibility that the release of these lampricides into Lake Champlain will result in deleterious health effects on those many individuals who receive their drinking water from this source."
29. On this point, plaintiffs rely primarily on the September 10, 1990 letter by Elizabeth Higgins Congram, Assistant Director for Environmental Review at the Boston EPA office, to Ronald E. Lambertson, Regional Director, U.S. Fish and Wildlife Service. (Government Exhibit C.) The letter states that "any detected residues [of lampricide] would result in the need to provide the public with alternative drinking water supplies, whether requested or not."
30. The U.S. Fish and Wildlife Service took measures to mitigate any health risks attending the project, including advance notification to all affected landowners, the provision of free, commercially bottled water, and the arrangement of alternative watering of livestock in affected areas. FEIS at 191-195.
31. The FEIS also states that "toxicological literature indicates that human exposure to concentrations of TFM, Bayer 73 and other constituents or impurities in these formulations in the treatment and plume areas, will not cause adverse health effects." FEIS at 192.
32. The Commissioner of the Vermont Department of Health concluded that if TFM is applied and monitored, and the public and affected landowners notified, as outlined in the DEIS and relevant permits, there will be negligible risk to the public health. Letter to Timothy J. Burke, Commissioner, Vt. Dept. of Environmental Conservation, October 27, 1989, printed in FEIS at L-12. Efforts to protect the public are further detailed in a letter by William Bress and Michael Gates of the Vermont Department of Health to Elizabeth Higgins Congram at the EPA. FEIS at N-23.
33. No public water supplies in Vermont will be significantly affected by the lampricide project. Persons whose privately-owned water supplies may be affected will be protected by monitoring, notification, and provision of alternative water supplies. Bress & Gates Letter; testimony of Ralph Abele.
34. Plaintiffs' Renewed Motion for Temporary Restraining Order further relies on comments submitted by the Adirondack Council in response to the DEIS. Plaintiffs contend that the Adirondack Council asserts "that there is an unconsidered likelihood that components of the biocide released will result in the immediate and irreversible release of other toxics from the lake and stream bed, including PCB's and heavy metals." The Court has carefully reviewed the Adirondack Council's comments on the DEIS, reprinted in FEIS Appendix N, and finds no reference to the claim attributed to it by plaintiffs. A letter by Daniel Plumley of the Council, dated October 13, 1988, says "the DEIS should address the question of health advisories which are now in effect on PCB-laden fisheries." FEIS at N-173. A subsequent letter by Gary Randorf, Executive Director of the Council, dated January 31, 1990, expresses "concern that lamprey control and the rush to apply large doses of chemical lampricides to Lake Champlain has taken precedent [sic] over the many other ills now threatening to destroy the lake [such as] the dumping of toxic chemicals, including dioxin, PCBs, and chloroform. ..." FEIS at N-218. The Court has found no other comments by this organization referring to PCBs.
35. Plaintiffs have introduced insufficient evidence to show that the release of lampricides into Lewis Creek in accordance with program mitigation measures poses a significant threat to human health.
36. Defendants filed a memorandum of law in opposition to plaintiffs' motions in this Court on September 21, 1990. The *1100 matter was heard on September 21 and 22, 1990. Both parties were represented by counsel at the hearing, and both parties introduced documentary evidence and were prepared to offer testimony. The Court issued its oral ruling denying the motions after hearing the testimony of plaintiffs' witnesses and arguments by counsel.
Plaintiffs initially filed two motions, for a temporary restraining order (TRO) and for a preliminary injunction. A TRO is an order that may be granted without notice to the adverse party in limited circumstances. Fed.R.Civ.P. 65(b). Where the adverse party has notice, as here, and there has been an adversary hearing on the application for a TRO, it may be treated as a motion for a preliminary injunction. Levas and Levas v. Village of Antioch, Ill., 684 F.2d 446, 448 (7th Cir. 1982); Delaware Valley Transplant Program v. Coye, 678 F. Supp. 479, 480 n. 1 (D.N.J.1988). Accordingly, the motion for a TRO is treated together with the motion for preliminary injunction, and the Court disposes of them as one.
It is well established in this Circuit that a party seeking a preliminary injunction must show that it is likely to suffer possible irreparable injury if the injunction is not granted and "either (1) a likelihood of success on the merits of its case or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in its favor."
the moving party must demonstrate that such injury is likely before the other requirements for the issuance of an injunction will be considered. Irreparable harm must be shown by the moving party to be imminent, not remote or speculative, and the alleged injury must be one incapable of being fully remedied by monetary damages.
Id. (citation omitted). See also Fireman's Fund Insurance Co. v. Leslie & Elliott Company, Inc., 867 F.2d 150, 151 (2d Cir. 1989) ("a finding of irreparable harm is an absolute prerequisite to the issuance of an injunction").
Violations of the procedures required by NEPA do not by themselves constitute irreparable harm sufficient to justify injunctive relief. Town of Huntington v. Marsh, 884 F.2d 648, 653 (2d Cir.1989), cert. denied, ___ U.S. ___, 110 S. Ct. 1296, 108 L. Ed. 2d 473 (1990). The alleged harm must stem from the government action sought to be enjoined and must be of the sort that the statutes relied upon are designed to avert. Thus, in Natural Resources Defense Council v. Callaway, 524 F.2d 79, 82-83 (2d Cir.1975), the court, finding violations of NEPA, directed the entry of a preliminary injunction prohibiting the Navy from continued dumping in the Long Island Sound where "substantial evidence" was presented that the polluted material proposed for deposit at the site would disperse and "contaminate and destroy the first nurseries and marine resources on the coast." An injunction should not issue, by contrast, where the harms are unrelated to the law relied upon. Plaintiff Elliott, for example, observed insects and a gull that he believed may have been killed by TFM in the Boquet River. Assuming TFM was the cause of these animals' demise, they were undoubtedly irreparably injured, in one sense, by the actions of the government agencies. But the irreparable injury that plaintiffs must show to justify a preliminary injunction must be an injury of the sort that is legally actionable. Significant damage to the overall ecology of the lake or harm to threatened or endangered species might constitute irreparable injury in the required sense, but plaintiffs have been unable to persuade the Court that such injury is likely to occur as a result of the Lewis Creek lampricide release.
*1101 The phrases used by the Second Circuit to describe the burden of proof a showing of "probable irreparable harm" or that plaintiffs are "likely to suffer possible irreparable injury if the injunction is not granted" are not self-explaining, and leave open the question whether plaintiffs must show by a preponderance of the evidence that they will suffer irreparable harm without the injunction, or whether plaintiffs need only show something less conclusive, perhaps "a threat of irreparable injury." See Town of Huntington, 884 F.2d at 653 (proof of "threat of irreparable injury" to environment, in addition to a violation of NEPA procedures, would justify injunctive relief). Whatever the level of proof required, however, plaintiffs in this case have failed to carry even a minimal burden. They have not persuaded the Court that irreparable harm is of any significant likelihood as a result of the release of TFM in Lewis Creek. Harm to threatened and endangered species and to human health was alleged, but the allegations are not supported by the evidence presented. While vulnerable species live in Lake Champlain and its tributaries, there is no reason in fact to suppose they will suffer harm from the Lewis Creek release. Similarly, while it may be true that the effects of TFM on humans are uncertain and adverse, plaintiffs have not shown that the TFM release in Lewis Creek is likely to expose the public to the chemical.
Plaintiffs are legitimately concerned for the health of Lake Champlain and the life it supports. The heart of their complaint is expressed in ¶ 17 of Elliott's First Affidavit: "[T]he loss of biological diversity and stability which will result from the lampricide project cannot be predicted. Any loss of biological diversity which results will deplete the resiliency of the Lake Champlain ecosystem." A preliminary injunction issued by this Court would not stop the Lake Champlain lampricide project, however. Six of the seven lampricide applications scheduled for 1990 occurred prior to the commencement of proceedings in this Court. The project is slated to continue in the coming years, and may be enjoined should the plaintiffs persuade the Court of the merits of their complaint. But the request for a preliminary injunction concerns only the seventh 1990 application, to Lewis Creek; as to that particular episode, plaintiffs have not carried their burden of showing a threat of irreparable harm should the preliminary injunction not issue. Because the motion is disposed of on this threshold ground, the Court does not address, and intimates no views on, plaintiffs' likelihood of success on the merits. Accordingly, the Renewed Motion for Temporary Restraining Order and the Motion for Preliminary Injunction are denied.
 At the hearing, plaintiffs introduced evidence to support their allegations that the lampricide program violates NEPA and the Vermont Endangered Species Act. The Court makes no findings as to these allegations and intimates no view on their merits; plaintiffs' motions are denied, as explained below, solely because plaintiffs have failed to establish that they will suffer irreparable harm from the September 23 application of lampricide.
 Of course, the present concern of the Court relates only to Lewis Creek; plaintiffs will have the opportunity in future proceedings to develop a case that the lampricide program as a whole should be enjoined.