Plover Violation

7/29/2019 Plover Violation

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CERTIFIED MAILRETURN RECEIPT REQUESTED

U.S. FISH AND WILDLIFE SERVICE.ComplainantV.

TOWN OF SCARBOROUGH.RespondentSeized on or about: 24 JULY 2013Item(s): One (l) Piping plover carcass

I1 SEPTEMBER 2OI3Civil Penalty ProceedingEndangered Species Act of 1973l6 u.s.c. $$ l53t-rs44File No. 13-502INV 2013503524

Place of Seizure: Town of Scarboroush. ME

NOTICE OF VIOLATION

Respondent, the Town of Scarborough, is a municipality in the State of Maine. Respondentmanages public use on Pine Point Beach, which is located within the Town of Scarborough,Maine. Pine Point Beach is seasonally occupied by nesting seabirds including the piping plover(Charadrius melodus). The piping plover (Charadrius melodus) has been protected since 1985 asa "threatened" species (except in the Great Lakes watershed region where it is listed as an"endangered species") under the Endangered Species Act of 1973 (ESA). l6 u.s.c. $$l53l-1544;50 C.F.R. $ 17.11(h);50Fed.Reg.50726-50734(Dec. ll, 1985). Inaddition,thepiping plover (Charadrius melodus) is protected by the Migratory Bird Treaty Act of l9l 8(MBTA) and other federal and state laws and regulations. l6 U.S.C. $ 703-712; 50 C.F.R. g10.13; s0 C.F.R. $ 2l.l l.Piping plover (Charadrius melodus) eggs, chicks, and adults are vulnerable to a number of threatsincluding human and vehicular disturbance and taking and predation from, among others, gulls,foxes, and dogs. Therefore, the Service has issued guidelines for ways to manage beaches so as toavoid 'taking' this vulnerable species. Implementating this full suite of measures requires bothconsiderable commitment and expense.I And failure to employ even one measure may underminethe guideline's intended conservation benefit.On May 9,2001, a U.S. Fish and Wildlife Service (Service) endangered species biologist first senta letter to the Respondent to provide comments on the "Town of Scarborough Piping PloverProtection Ordinance," which did not require that dogs be leashed at all times on the Respondent'sbeaches during the piping plover (Charadrius melodus) nesting season. The Service informed theRespondent that piping plovers (Charadrius melodus) are protected by federal and state laws, andthat the Respondent's ordinance was insufficient to protect against a "take" under the ESA. TheI For instance, the Service's endangered species biologists have estimated that the cost of replacing just one pipingplover (Charadrius melodus) fledgling and its future productiviry would exceed $ 16,000.


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Service recommended that the Respondent require dogs to be leashed while on the beach duringthe piping plover's (Charadrius melodus) nesting season. The Service also noted that "indeviating from our standard guidelines the [Respondent] is at risk of being held liable for dog andvehicle impacts to plovers."On June 25,2002, the Service sent a second letter to the Respondent, reiterating previous concernsand informing the Respondent that "your policy does not adequately protect plovers fromunleashed dogs." It stated that "unleashed dogs constitute a very serious threat" to piping plovers.Moreover, "[flailure of a dog owner to adequately control the animal on a beach used by ploverscould result in a law enforcement action by the Service if the dog should kill or otherwise harm aplover." The letter included information on the Service's "Guidelines for Managing RecreationalActivities in Piping Plover Breeding Habitat on the U.S. Atlantic Coast," which was developed inorder to help communities and individuals avoid a"take" under section 9 of the ESA. Insubsequent informal communications, Town officials recognized that voice control was'impossible' and the Service's biologist concurred, stating that "[T]here is no way that dogs onvoice command can be kept from their instinctive behavior to chase piping plovers."On April 12,2004, the Service sent a third letter to the Respondent, which repeated the importanceof keeping dogs leashed during the piping plover (Charadrius melodus) nesting season, andreminded the Respondent that as recently as 2003, a piping plover (Charadrius melodus) waskilled by a dog at one of the Respondent's beaches. This letter discussed the definition of "take"under the ESA and the MBTA, and notified the Respondent that the Service has the authority toimpose civil and criminal penalties for such violations. The Service also rejected theRespondent's proposal to order that dogs remain under "voice control" stating that "Our decadesof experience with dogs and piping plovers is that a voice control policy does not work. Dogsfollow their basic instincts and chase piping plovers and other migratory birds. Adults and chicksare fragile and can be taken before a dog owner can react. Such an ordinance would beunenforcable by your local law enforcement."On May 5,2004, the Service and the Maine Department of Inland Fisheries and Wildlife (lFW)jointly sent a fourth letter, which urged the Respondent to reconsider a leash requirement duringthe piping plover (Charadrius melodus) nesting season. One of the Service's endangered speciesbiologists explained the Serviceos reasoning and position on this matter at the Scarborough TownCouncil Special Meeting on May 12,2004, emphasized that dogs must be leashed during the entirenesting season to adequately protect the piping plover (Charadrius melodus) because voice controlfor dogs is ineffective and unenforceable, and cited prior incidents of dog predation of pipingplovers in the Town as well as at other beaches. Representatives from IFW, Maine AudubonSociety, and the Conservation Commission also made statements in support of leashing dogsduring the piping plover (Charadrius melodus) nesting season.At the next Scarborough Town Council Regular Meeting on May 19,2004, the Respondentrejected proposals to increase the dates and times at which dogs are prohibited from Town ofScarborough beaches and tighten requirements on leashing dogs during the summer months.Instead, the Respondent approved an amended Animal Control Ordinance, Chapter 604-10, whichpermits dogs to go unleashed on the beach between sunrise and 9:00am as long as a responsibleparty maintains "voice control." On July 10,2073,IFW contacted the Respondent to ask for a


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review of the Animal Control Ordinance, Chapter 604, less than five (5) days before the followingtake occurred.On July 15,2013, the Respondent did knowingly cause to be committed an un-permitted take of apiping plover (Charadrius melodus) at Pine Point Beach in the Town of Scarborough, Mainethrough the Animal Control Ordinance, Chapter 604-10, which was adopted by the Town despiterepeatedly being informed that voice control over unleashed dogs would be ineffective inpreventing take of piping plovers. Witnesses observed an unleashed dog take a piping plover(Charadrius melodus) on July 15,2013 and a Maine Game Warden subsequently informed theService that the piping plover (Charadrius melodus) take occurred at Pine Point Beach. On July16,2013, Maine Audubon and IFW examined the bird carcass and determined that it was a pipingplover (Charadrius melodus) from Pine Point Beach. On July 17 , 2013, a Town residentcontacted the Maine Game Warden and informed him that she was the owner of the dog that killedthe piping plover (Charadrius melodus). The Town resident wrote and signed a statementadmitting that her unleashed dog spotted a piping plover (Charadrius melodus), chased it, andkilled it, despite her voice commands to the contrary. The Town resident stated that the takeoccurred on July 15,2013 at7:00am. On July 24,2013, the Service received custody of thepiping plover (Charadrius melodus).Complainant alleges that while subject to the jurisdiction of the United States, Respondentcommitted the following violation(s) of Federal law:COUNT I:On or about July I 5,2013, Respondent did knowingly cause to be committed an un-permitted takeof a piping plover (Charadrius melodus) at Pine Point Beach in the Town of Scarborough, Mainethrough the Animal Control Ordinance, Chapter 604-10, which has been adopted as Town law bythe Respondent. The piping plover (Charadrius melodus) was listed as a "threatened" specieson December I I, 1985 under the ESA (except in the Great Lakes watershed region where it islisted as an "endangered" species). l6 U.S.C. $$ l53l-1545; 50 C.F.R. $ l7.l l(h); 50 Fed. Reg.50726-507 34 (Dec. I I , 1985). Under the implementing regulations, it is unlawful for any personto take any threatened species within the United States, 50 C.F.R. $$ 17.21(cXl), 17.31(a). Theterm "person" includes municipalities. 16 U.S.C. $ I 532( l3). The term "take" of an endangeredor threatened species means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, orcollect, or to attempt to engage in any such conduct. l6 U.S.C. $ 1532(19), 50 C.F.R. $ 17.3. Itis also unlawful to cause any such violation to be committed or to solicit another to commit such aviolation. l6 U.S.C. $ 1538(g). Knowing violations of the ESA carry a maximum of a $25,000civil penalty and a maximum of $100,000 criminal penalty and incarceration, l6 U.S.C. $ 1540(b)and l8 U.S.C. $ 3571.In this case, starting in 2001, the Respondent was repeatedly notified by the Service's endangeredspecies biologists and other wildlife conservation organizations that dogs should remain leashedon the Respondent's beaches at all times during the piping plover's (Charadrius melodus) nestingseason in order to prevent a take as voice control over dogs is ineffective. Service biologists sentthe Respondent letters on May 9,2001, June 25,2002,Apri1 12, 2004, and May 5,2004, informingthe Respondent of federal laws and potential penalties for having an ordinance that does not


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adequately protect against a take of the piping plover (Charadrius melodus) and informing theTown that voice control of dogs was ineffective in preventing take. Meetings and informalcommunications with Town officials making the same points also occurred. One of the Service'sendangered species biologists, as well as other biologists, also explained the Service's reasoningand position on this matter at the Siarborough Town Council Special Meeting on May 12,2004.On May 19,2004,the Respondent amended the Animal Control Ordinance, Chapter 604, to permitdogs to go unleashed on the beach between sunrise and 9:00 a.m. as long as a responsible partymaintains "voice control."Notwithstanding the Service biologists repeated warnings, at7:00am on July 15,2013, theRespondent did knowingly cause to be committed an un-permitted take of a piping plover(Charadrius melodus) through the Animal Control Ordinance Chapter 604-10, which permittedRachel Speed's dog to be unleashed and thereby take a fledged piping plover (Charadriusmelodus). Respondent therefore violated l6 U.S.C. $ 1538(a)(l)(G), which prohibits any personfrom violating a regulation issued to protect threatened species, or violated l6 U.S.C. $ 1538(g) bycausing a violation of $ 1538(a)(l)(G). Therefore a civil penalty of $12,000.00, the statutorymaximum for this particular violation, is proposed to be assessed.PROPOSED CIVIL PENALTY:By reason of the violation referred to above, Complainant proposes to assess Respondent a civilpenalty of $12,000.00. This notice initiates the civil penalty proceeding. Respondent mayanswer this notice by:

(l) paying the proposed $12,000.00 civil penalty;(2) undertaking informal discussions with Complainant, which may include settlement ormitigation proposals;(3) filing a petition for relief in accordance with sections l l .l l and l l .l2 of the regulations; or(4) taking no action and awaiting the final assessment decision by Complainant.Regardless of the answer Respondent chooses to make, Respondent should read the regulations at50 C.F.R. Part I I since they govern this proceeding and explain Respondent's rights therein. Anyanswer Respondent makes must be submitted within 45 days from the date of this notice andshould be sent to the address at the end of this notice.PAYMENT OF CIVIL PENALTY:Respondent may resolve this matter immediately by paying the civil penalty and executing thefollowing agreement. Completion and timely return of this agreement will terminate this civilpenalty proceeding.Actions required to pay the civil penalty:


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(l) An officer or agent authorized to bind the Town of Scarborough, ME must sign anddate the following agreement:The Town of Scarborough, ME, through its officer or agent who has signed below does herebyknowingly and in consideration of the above:

(a) WAIVE all of its rights in this matter, including its right to a hearing; and(b) PAY a civil penalty of $12,000.00 to be deposited in the Reward Accountadministered by the U.S. Fish and Wildlife Service.

SIGNATURE DATE

POSITION

SOCIAL SECURITY NUMBER/TAXPAYER IDENTIFICATION NUMBER

(2) Respondent must return the signed statement, together with a certified check ormoney order made payable to "U.S. Fish and Wildlife Service" in the amount of$12,000.00, to this office at the address below within 45 days from the date of thisnotice. If the signed statement and payment are not returned within 45 days, thisoffer shall be deemed terminated.Your case has been assigned to Dave Rothstein, who can be reached at (413) 253-8600. Shouldyou have any questions or wish to discuss the matter further, please contact him. Please use yourfile number on all correspondence.Return the signed statement,together with payment, to:Office of the Regional SolicitorU.S. Department of the Interior ./One Gateway Center, Suite 612 { (.-Newton, MA 02458-2881(617) s27-3400cc: SAC, Region 5SA Holmes

FOR THE DIRECTOR

CZz--'?.^ANDREW TITTLERActing Assistant Regional Solicitor

Documents

Plover Violation