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UPDATE: Scarborough hopes to mitigate fine for death of protected bird

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UPDATE: Scarborough hopes to mitigate fine for death of protected bird

SCARBOROUGH — Town Manager Tom Hall Thursday said he will initiate "informal discussions" with the U.S. Fish and Wildlife Service to try to reduce or eliminate a $12,000 civil fine against the town for the killing of a piping plover by an unleashed dog on Pine Point Beach.

Hall received a five-page notice of violation of the federal Endangered Species Act from the agency Wednesday afternoon. The town's options include paying the fine, negotiating, or filing a petition for relief. The proposed fine is less than half the maximum of $25,000 that could have been assessed by the agency for a "knowing" violation.

In the notice, Andrew Tittler, an acting assistant regional solicitor for the agency, cited repeated warnings about a lack of town oversight of dogs on town beaches as the basis for the fine.

"Starting in 2001, the Respondent was repeatedly notified by the Service's endangered species biologists and other wildlife conservation organizations that dogs should remain leashed on the Respondent's beaches at all times during the piping plover's nesting season in order to prevent a take as voice control over dogs is ineffective," Andrew Tittler said in the letter.

The piping plover chick was killed around 7 a.m. July 15 by a dog owned by Scarborough resident Rachel Speed, Tittler said.  Speed cooperated with Maine Game Warden Tim Spahr's investigation and has not been charged by town, state or federal authorities.

"(Speed) wrote and signed a statement admitting that her unleashed dog spotted a piping plover ... chased it, and killed it, despite her voice commands to the contrary," Tittler said.

Dogs are allowed off-leash on town beaches from sunrise-9 a.m., June 15-Sept. 15 under the current ordinance.

Hall called the fine excessive and unjustified because the town has worked with state and federal agencies to protect endangered species. He said the Animal Control Ordinance was tightened after a dog killed a piping plover in 2003.

“(The fine) is absolutely exorbitant,” Hall said. "It is not as if we have ... done nothing in recognition of this."

Piping plovers have been considered a "threatened" species by federal standards since 1985, Tittler said. The species is considered endangered in the Great Lakes region.

Tittler disagreed the town has done enough, noting agency biologists have sent letters to the town at least four times since 2001 expressing concerns about allowing "voice control" for dogs on town beaches during piping plover nesting seasons.

The federal action comes a week before Town Councilors hold a public hearing and second vote on revisions to the Animal Control Ordinance that would prohibit "voice control" for dogs on town beaches from April 1-Sept. 15. The hearing will be held at 6 p.m. on Sept. 18.

“The town of Scarborough has a target on its back now,” Councilor Richard Sullivan said Thursday. “It has has been painted into a corner and I don't see any other way to satisfy U.S Fish and Game.”

Sullivan was part of the council ordinance committee that drafted revisions to the Animal Control Ordinance in response to the July 15 incident. The proposed revisions passed a first reading Aug. 1, but elicited strong opposition at that meeting and a Sept. 4 meeting, where the public hearing was postponed.

Sullivan said he has received emails urging the town to appeal the fine, but said the broader view is taxpayers may not be as willing to pay for an appeal.

Hall said passing the ordinance revisions could mean the fine will be dropped.

"It is the substantive part they are looking for," he said.

Passage would also give the U.S. Army Corps of Engineers a clear signal that wildlife that inhabit beaches to be replenished by the planned October dredging of the Scarborough River will be adequately protected.

The Corps and U.S. Fish and Wildlife officials must agree on beach-management plans, including town-owned Ferry Beach. Bids for the $3 million project are expected to be opened Sept. 23.

Biologist Mark McCollough of the U.S. Fish and Wildlife Service said Sept. 4 the agencies could create a plan to shield the Corps from liability under the Endangered Species Act. But other communications from the Corps indicated a possible delay in the work if town councilors do not amend the Animal Control Ordinance.

"Could you please provide me with an indication of whether the Town is taking steps to pass an animal control ordinance that requires dogs to be leashed on Town beaches during the Plover nesting season? This will help me discuss the matter with our Office of Counsel and make decisions regarding awarding a dredging contract," Corps project manager Michael E. Walsh said in an Aug. 23 email to Hall.

Hall said his first objective is to work out the fine and give councilors and the public a clearer indication of what is at stake before Wednesday's meeting.

"It significantly changes the dynamics of the conversation," he said. "Now they have taken action and it shifts the focus in a different way."

David Harry can be reached at 781-3661 ext. 110 or dharry@theforecaster.net. Follow him on Twitter: @DavidHarry8.

Updated Sept. 14 to show Sept. 18 public hearing begins at 6 p.m.