SCARBOROUGH – The town of Scarborough has brokered a settlement agreement with the U.S. Fish and Wildlife Service, which on Sept. 11 issued a notice of violation claiming the town “did knowingly cause” the death of an endangered piping plover chick because its animal control ordinance allows dogs to run off leash on municipal beaches from sunrise until 9 a.m. during the summer months.

The plover chick was killed at the shoreline of Pine Point Beach at about 7 a.m. on July 15, by a dog belonging to a King Street resident. The chick was the only surviving hatchling of the only nesting pair of adult plovers on Pine Point Beach this year.

The agreement, which the Town Council was slated to vote on at its Wednesday, Oct. 2, meeting, knocks the $12,000 fine assessed by the feds down to $500, provided a series of conditions are met.

Chief among the requirements is that the town changes its animal control ordinance to require that dogs be kept on a leash no longer than 8 feet at all times between April 1 and Aug. 31 when on municipal beaches. The accord includes a “reopener clause” designed to discourage future councils from repealing this provision.

The town also must create and fund the position of piping plover coordinator to oversee protection of the endangered shore bird and train all employees who access the beach, such as reserve police officers and trash collectors, in local ordinances.

Scarborough also must “commit to a law enforcement presence” on the beaches and send to Fish and Wildlife a report by Dec. 1 of each year detailing enforcement action during the preceding season, as well as update printed brochures on the plover, to be provided with dog licenses, beach passes and horse/beach permits.

In return, the town does not have to admit guilt in the July 15 killing of a plover by a loose dog, gets “safe harbor” from future prosecution, and can cut the end of the leash restriction season by 15 days, from Sept. 15 to Aug. 31.

Dog lovers, however, are largely unsupportive of the agreement. A loosely affiliated advocacy group known as Dog Owners of Greater Scarborough, or D.O.G.S., has vowed to launch a petition drive to force a referendum vote on any new leash law, in hopes of maintaining the status quo.

“The council is being pressured into a stricter leash law by the U.S. Fish and Wildlife Service without any data that says a stricter law will help plover recovery, and without evidence that dogs are causing any problems,” wrote D.O.G.S. spokeswoman Suzanne Foley-Ferguson in a Sept. 30 email.

Federal endangered wildlife biologist Mark McCollough said at the Sept. 4 council meeting that dogs are suspected in just two plover deaths in Scarborough during the past decade. Under questioning from residents during the Sept. 4 meeting, he acknowledged that only the most recent death is unequivocally due to a dog.

In a Sept. 17 letter addressed to Town Manager Tom Hall, the D.O.G.S. group urged him to resist the federal pressure, claiming that one of its members would pay the $12,000 fine if the council refuses to amend the town’s leash law. What the group advocates instead is an ad hoc citizen task force charged with researching all issues relating to plovers, dogs and beach access and reporting a list of suggested ordinance changes by April 2014.

Brian Rayback, an attorney from Portland firm Pierce Atwood hired by D.O.G.S. member Dick LaRou, sent the council a Sept. 17 letter suggesting the town might actually prevail in any fight with the feds.

“The federal courts have taken care to distinguish between a regulation that affirmatively authorizes activity that results in a taking [killing of a bird] and a state or municipality’s mere failure to enact policies that prevent the taking,” he wrote.

Citing several court cases, Rayback said that while Scarborough’s leash law is not as strong as what federal and state wildlife officials have stumped for on at least five occasions since 2004, that fact alone does not automatically mean Scarborough would lose a legal challenge of the fine.

However, Town Councilor Jessica Holbrook, quoting information given by the town attorney, said legal fees for any court battle fine could potentially top $200,000. Few on the council, she suggested, have the stomach to make that kind of an exchange, even on principle.

A CLOSER LOOK

The Scarborough Town Council vote on a settlement agreement with the U.S. Fish and Wildlife Service took place on Wednesday, after the Current’s deadline. This story will be updated online with details of the vote and other events from that meeting, at www.keepMEcurrent.com.