Wednesday, December 11, 2013
By BRIAN KANODE
SCARBOROUGH - Here are the basic facts in the current controversy surrounding the killing of a piping plover in Scarborough this summer:
• On July 15, a Scarborough resident's uncontrolled dog killed a piping plover on Pine Point Beach.
• Federal law prohibits the harassing or killing of piping plovers; violation of the law carries a maximum civil penalty of $25,000.
• The U.S. Fish and Wildlife Service has chosen not to fine the dog's owner for the plover's death.
• Instead, the agency has filed a civil complaint and proposed a $12,000 fine against the town, alleging that the town "did knowingly cause to be committed an unpermitted take of a piping plover ... through the Animal Control Ordinance ... ."
• The town and the Fish and Wildlife Service are currently negotiating the proposed fine. The likely compromise: The federal government will reduce or eliminate the fine if the town will toughen its animal control ordinance to eliminate the current three-hour early morning window of off-leash beach access by dogs during the summer and lengthen by 2½ months the period during which dogs are prohibited from the beach between 9 a.m. and 5 p.m.
Why, one wonders, did the Fish and Wildlife Service decide to fine the town rather than the owner of the uncontrolled dog that actually killed the plover, in direct violation of federal law?
If the agency had fined the dog owner, say, $1,000, there would have been an immediate and direct benefit to the piping plover population. Dog owners in Scarborough -- and all towns and cities in southern coastal Maine -- would have instantly had a powerful reason to pay better attention to their dogs' behavior while on the beach. There's nothing like a stiff fine in a high-profile case to improve compliance.
Yet the Fish and Wildlife Service did not fine the offender. It is puzzling that the agency let this golden opportunity to make a point -- that harming a piping plover will cost you dearly -- slip by.
Instead, the agency elected to propose a $12,000 fine alleging the town had somehow "knowingly caused" the death of the plover. An environmental attorney for the Pierce Atwood law firm has determined that the the Fish and Wildlife Service's prospect of successfully imposing the fine -- if contested by the town -- is slim at best.
But the real goal of the Fish and Wildlife Service, it seems, is not to collect the fine, but to use the reduction or elimination of the fine as leverage on the town to make its animal control ordinance more restrictive. The agency knows the town cannot afford the estimated $200,000 in legal fees necessary to defend against an essentially frivolous charge.
The Fish and Wildlife Service's actions fit the classic definition of bullying: a more powerful entity using force, threat or coercion to intimidate or impose its domination over a weaker entity.
The agency is using the threat of an expensive legal proceeding against Scarborough to impose its preferred beach access guidelines on the town. We don't tolerate bullying among schoolchildren; we shouldn't tolerate it from our federal government, either.
But even if the Fish and Wildlife Service succeeds in bullying the town into a more restrictive animal control ordinance, how will that help protect the piping plovers? The short answer: It won't.
Scarborough has a long and quietly acknowledged history of not enforcing its current restrictions on dogs on the beaches. Enforcement of all animal control functions for a town of 54 square miles is currently the responsibility of a single officer -- an officer many frequent beach walkers have never encountered. And, to date, the town has never issued a fine for an uncontrolled dog on a beach.
Dog owners and non-dog owners alike embrace the need to protect the piping plover population. So how, one may logically ask, will a more restrictive animal control ordinance improve the safety of our piping plovers? Again, it won't.
It is wishful thinking to assume that the town will suddenly correct its abysmal history of non-enforcement of the animal control ordinance. Those who ignore the current ordinance with impunity will simply continue to ignore the new, more restrictive ordinance.
Only the responsible, law-abiding dog owners will be punished by obeying the new ordinance. And despite the outward appearance, the safety of piping plovers will not be enhanced.
It is unfortunate that the Fish and Wildlife Service decided to bully Scarborough. Equally unfortunate was its decision not to fine the owner of the uncontrolled dog. That would actually have improved the safety of our piping plover population.
Brian Kanode is a resident of Scarborough.