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Plover Violation

Plover Violation

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Published by David Harry

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Published by: David Harry on Sep 12, 2013
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11/16/2013

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CERTIFIED
MAIL
RETURNRECEIPT REQUESTEDU.S.FISH
AND WILDLIFE
SERVICE.
Complainant
V.
TOWN
OF
SCARBOROUGH.
RespondentSeized
on or
about:
24JULY
2013
Item(s):
One
(l)
Pipingplover
carcass
I1
SEPTEMBER
2OI3
Civil
PenaltyProceedingEndangered
Species
Act
of
1973
l6
u.s.c.
$$
l53t-rs44
File
No.
13-502
INV
2013503524
Place
of
Seizure:
Town
of
Scarboroush.
MENOTICE
OF
VIOLATION
Respondent,
the
Town
of
Scarborough,is
a
municipality
in the
State
of
Maine.
Respondentmanages
public
use
on PinePointBeach,
which
islocated
within
the
Town
of
Scarborough,
Maine.
Pine
Point
Beach isseasonallyoccupiedbynesting
seabirds
including
the
piping plover(Charadrius
melodus).
The
piping plover (Charadrius
melodus)
hasbeen
protectedsince
1985
as
a
"threatened"
species
(except
in
the Great Lakes
watershed
regionwhere
it
is listed
as an
"endangeredspecies")under theEndangered
Species
Act
of
1973
(ESA).
l6
u.s.c.
$$
l53l-1544;50
C.F.R.$
17.11(h);50Fed.Reg.50726-50734(Dec.
ll,
1985).
Inaddition,the
pipingplover(Charadrius
melodus)
is
protectedby the
MigratoryBird
Treaty
Act
of
l9l
8
(MBTA)
and
other federal
and state
laws
and
regulations.
l6
U.S.C.
$
703-712; 50C.F.R.
g
10.13;s0
C.F.R.
$
2l.l
l.
Pipingplover (Charadrius
melodus)
eggs,
chicks,
and
adults
are
vulnerableto
a
number
of
threats
including
human
and
vehicular
disturbance
and
taking
and
predation
from,
amongothers,gulls,foxes,
and dogs.
Therefore,theService
hasissued
guidelines
for
ways
to
managebeaches
so
as
to
avoid
'taking'
this
vulnerable
species.
Implementating
this
full
suite
of
measures
requiresbothconsiderable
commitment
and
expense.IAndfailure
to
employ
even
one
measure
mayunderminethe
guideline's
intendedconservationbenefit.On
May 9,2001,
a
U.S. Fish
and
Wildlife
Service(Service)
endangeredspecies
biologist first
sent
a
letterto the
Respondent
toprovide
commentsonthe
"Townof
Scarborough
Piping
PloverProtectionOrdinance,"
whichdid
notrequirethat
dogs be leashed
at
all
times
on
the Respondent's
beaches
during
the
pipingplover(Charadrius
melodus)
nesting
season.
The
Service
informed
theRespondent
that
piping
plovers
(Charadrius
melodus)
are
protected
by
federal
and state
laws,
and
thatthe Respondent'sordinancewas
insufficient
toprotect
against
a
"take"
under
the
ESA.
The
I
For
instance,the
Service's
endangered
species
biologists
haveestimated
that
the cost
of
replacing
just
one
piping
plover(Charadrius
melodus)
fledgling
and its
future
productiviry
would
exceed
$
16,000.
 
Servicerecommended that the
Respondent
require
dogs
to
be leashed
while
on the
beach
during
the
piping
plover's
(Charadrius
melodus) nesting
season.
The Service also
noted
that
"in
deviating from our
standard
guidelinesthe[Respondent]is
at
risk of
beingheld
liable for
dog
and
vehicle
impacts
toplovers."
On June
25,2002,
theService
sent
a
second
letterto the
Respondent,
reiteratingprevious
concernsand
informing
the
Respondent
that
"yourpolicy
does
not adequatelyprotect plovers
from
unleashed
dogs."
It
stated
that "unleashed
dogs
constitute
a
very
serious
threat" topiping
plovers.
Moreover,
"[flailure
of
a
dog owner
to
adequately
control
the
animal
on
a
beach used
by
plovers
could
result
in
a
law
enforcement action by the Service
if
the dog should
kill
or otherwise harm
a
plover."
The letter included
information
on
the Service's
"Guidelines for
Managing Recreational
Activities in
Piping Plover
Breeding
Habitat
on
the U.S.
Atlantic
Coast,"
which
was developed
in
order
to
help
communities
and
individuals
avoid
a"take"
undersection
9
of
the
ESA.
In
subsequent
informal
communications,
Town
officials
recognized that
voicecontrol
was
'impossible'
and
the Service's
biologist
concurred, stating that
"[T]here
is no waythat
dogs
on
voice
command
can be
kept
from their instinctive
behavior
to
chase
pipingplovers."
On
April
12,2004, the Service
sent
a
third
letter
to the Respondent,
which
repeated
the importance
of
keeping
dogsleashed
during
the
pipingplover(Charadrius
melodus)nesting
season,
and
reminded the
Respondent
that
as
recently
as
2003,
a
pipingplover(Charadrius
melodus)was
killed
by
a
dog
atone
of
the Respondent's
beaches.
This
letter
discussed
the
definition
of
"take"
under
the
ESA
and
the
MBTA,
and
notified
the
Respondent
thatthe Service
has
the
authority
toimpose
civil
and
criminal
penalties
for
such
violations.
The Service
also
rejected
the
Respondent'sproposal
to
order that
dogs
remainunder
"voice
control"
stating that
"Our
decades
of
experience
with
dogs and
piping
plovers
is
that
a
voicecontrol
policy
does
not
work.
Dogs
follow
their
basic
instincts
and
chase
piping
plovers
and
other
migratory
birds.
Adults
and
chicks
are
fragile
and can be
taken before
a
dog owner
can
react.
Such an
ordinance
would
be
unenforcable
byyourlocallaw
enforcement."On
May
5,2004,
theService
and
the
Maine
Department
of
Inland
Fisheries
and
Wildlife
(lFW)
jointly
sent
a
fourthletter, which
urged the
Respondent
to
reconsider
a
leash
requirement
during
the
piping plover(Charadrius
melodus) nesting
season.
One
of
the Service's
endangered
species
biologists
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 control
for
dogs
is
ineffective
and
unenforceable,
and
cited
prior
incidents
of
dogpredation
ofpiping
plovers
in
the
Town
as
well
as
at
other
beaches.
Representatives
from
IFW,
Maine Audubon
Society,
and
the Conservation
Commission
also madestatements
in
support
of
leashing
dogs
during
the
piping plover(Charadrius
melodus) nesting
season.
At
thenextScarborough
TownCouncil
Regular
Meeting
on
May
19,2004,
the
Respondent
rejectedproposals
to
increase
the
dates and
times
at
which
dogs are
prohibitedfrom Town
of
Scarborough
beaches and
tighten
requirements onleashing
dogs
during
the summermonths.
Instead,
the
Respondent
approved
an
amended
Animal
Control
Ordinance, Chapter
604-10,
which
permits
dogs
to
go
unleashed on
the
beach
between
sunrise and
9:00am
as
long
as
a
responsiblepartymaintains
"voice
control."
On
July 10,2073,IFW
contacted the
Respondent
to
ask
for
a
 
reviewof
the
Animal
Control
Ordinance, Chapter604,
less
than
five
(5)
days
beforethe
following
take occurred.On
July
15,2013,
the
Respondent
did
knowingly
cause
to
be
committed
an
un-permittedtake
of
a
pipingplover(Charadrius
melodus)
at
Pine Point Beach
in
the
Town
of
Scarborough,
Maine
throughthe
Animal
Control
Ordinance,Chapter 604-10,
which
was adoptedby the
Town
despite
repeatedlybeing
informed
that
voicecontrol
over
unleasheddogs
would
be
ineffectivein
preventingtake
of
piping
plovers.Witnesses
observedan unleashed
dog take
a
piping plover(Charadrius
melodus)on
July
15,2013
and
a
Maine
Game Warden subsequently
informed
the
Servicethat the
piping plover (Charadrius
melodus) take occurred
at
Pine PointBeach. On
July16,2013,Maine Audubon
and
IFW
examined
the
bird
carcass
and
determinedthat
it
was
a
pipingplover(Charadrius
melodus)
from
PinePoint
Beach.
On
July
17
,2013,
a
Town
resident
contacted the
Maine
Game
Warden
and
informedhim
that
she
wasthe
ownerof
the dog
that
killed
the
pipingplover(Charadrius
melodus).
The
Town
resident
wrote
and
signed
a
statement
admitting
that
herunleashed
dog spotted
a
piping plover(Charadrius
melodus),
chased
it,
and
killed it,
despite her
voice
commands tothe
contrary.
The
Town
resident
stated
that
the take
occurredon
July
15,2013
at7:00am.
On
July
24,2013,
the Service receivedcustody
of
the
piping plover(Charadrius
melodus).
Complainant
alleges
that
while
subject
to
the
jurisdiction
of
the
United
States,Respondent
committed
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
take
of
a
pipingplover (Charadrius
melodus) at Pine
Point
Beach
in
the
Town
of
Scarborough,
Maine
through the
Animal
Control
Ordinance,Chapter 604-10,
which
has
been adopted
as
Townlaw
bythe
Respondent.
The
piping plover (Charadrius
melodus) was listed
as a
"threatened"
species
on December
I
I,
1985
underthe
ESA
(except
in
the Great Lakes watershedregion where
it
is
listed
as
an
"endangered"
species).
l6
U.S.C.$$
l53l-1545;
50
C.F.R.$
l7.l
l(h);
50
Fed.
Reg.
50726-50734
(Dec.
I
I
,
1985).
Under the
implementing
regulations,
it
is
unlawful for
anyperson
to take
anythreatened species
within
the
United
States,
50
C.F.R.$$
17.21(cXl),
17.31(a).
The
term
"person"
includes
municipalities.
16
U.S.C.$
I
532(
l3).
The
term
"take"of
an
endangered
or threatened
speciesmeans
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.
It
isalso
unlawfulto
cause
any
such
violation
to
be
committed
or
to solicit
another
to
commit
such
a
violation.
l6
U.S.C.$
1538(g).
Knowing
violationsof
the
ESAcarry
a
maximumof
a
$25,000
civil
penalty
and
a
maximumof
$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
Respondentwas
repeatedly
notified
by theService's
endangeredspecies
biologists
and
other
wildlife
conservation
organizationsthat
dogs
should remain
leashedon
the Respondent's
beachesat
all
timesduring the
piping
plover's
(Charadrius
melodus) nesting
season
in
ordertoprevent
a
take
as
voice
control
over
dogs
is
ineffective.
Service
biologists
sentthe Respondentletterson
May 9,2001,
June
25,2002,Apri1
12,
2004,and
May5,2004, informing
the
Respondent
of
federal laws
and
potential
penalties
for having
an
ordinancethat
does
not

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