CERTIFIED MAIL RETURN RECEIPT REQUESTED

I1 SEPTEMBER 2OI3
U.S. FISH AND WILDLIFE SERVICE. Complainant
V.

Civil Penalty Proceeding

Endangered Species Act of 1973

l6 u.s.c. $$ l53t-rs44
File No. 13-502 INV 2013503524
Place of

TOWN OF SCARBOROUGH.
Respondent Seized on or

about: 24 JULY 2013

carcass

Item(s): One (l) Piping plover

Seizure: Town of Scarboroush. ME

NOTICE OF VIOLATION

Respondent, the Town of Scarborough, is a municipality in the State of Maine. Respondent manages public use on Pine Point Beach, which is located within the Town of Scarborough, seabirds including the piping plover (Charadrius melodus). The piping plover (Charadrius melodus) has been protected since 1985 as a "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,the piping 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. g 10.13; s0 C.F.R. $ 2l.l l.

Maine. Pine Point Beach is seasonally occupied by nesting

Piping plover (Charadrius melodus) eggs, chicks, and adults are vulnerable to a number of threats including 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 to avoid 'taking' this vulnerable species. Implementating this full suite of measures requires both considerable commitment and expense.I And failure to employ even one measure may undermine the guideline's intended conservation benefit.
On May 9,2001, a U.S. Fish and Wildlife Service (Service) endangered species biologist first sent a letter to the Respondent to provide comments on the "Town of Scarborough Piping Plover Protection Ordinance," which did not require that dogs be leashed at all times on the Respondent's beaches during the piping plover (Charadrius melodus) nesting season. The Service informed the Respondent that piping plovers (Charadrius melodus) are protected by federal and state laws, and that the Respondent's ordinance was insufficient to protect against a "take" under the ESA. The

I For instance, the Service's endangered species biologists have estimated that the cost of replacing just one piping plover (Charadrius melodus) fledgling and its future productiviry would exceed $ 16,000.

Service recommended 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 guidelines the [Respondent] is at risk of being held liable for dog and vehicle impacts to plovers."
On June 25,2002, the Service sent a second letter to the Respondent, reiterating previous concerns and informing the Respondent that "your policy does not adequately protect plovers from unleashed 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 plovers

could result in a law enforcement action by the Service if the dog should kill or otherwise harm a 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" under section 9 of the ESA. In subsequent 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 on voice command can be kept from their instinctive behavior to chase piping plovers."

plover." The letter included information

repeated the importance of keeping dogs leashed during the piping plover (Charadrius melodus) nesting season, and reminded the Respondent that as recently as 2003, a piping plover (Charadrius melodus) was killed 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 to impose civil and criminal penalties for such violations. The Service also rejected the Respondent's proposal to order that dogs remain under "voice control" stating that "Our decades of experience with dogs and piping plovers is that a voice control 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 On

April 12,2004, the Service sent a third letter to the Respondent, which

unenforcable by your local law enforcement." On May 5,2004, the Service and the Maine Department of Inland Fisheries and Wildlife (lFW) sent a fourth letter, which urged the Respondent to reconsider a leash requirement during piping plover (Charadrius melodus) nesting season. One of the Service's endangered species the biologists explained the Serviceos reasoning and position on this matter at the Scarborough Town Council Special Meeting on May 12,2004, emphasized that dogs must be leashed during the entire nesting season to adequately protect the piping plover (Charadrius melodus) because voice control for dogs is ineffective and unenforceable, and cited prior incidents of dog predation of piping plovers in the Town as well as at other beaches. Representatives from IFW, Maine Audubon Society, and the Conservation Commission also made statements in support of leashing dogs during the piping plover (Charadrius melodus) nesting season.

jointly

At the next Scarborough Town Council Regular Meeting on May 19,2004, the Respondent rejected proposals to increase the dates and times at which dogs are prohibited from Town of Scarborough beaches and tighten requirements on leashing dogs during the summer months. 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 responsible party maintains "voice control." On July 10,2073,IFW contacted the Respondent to ask for a

review of the Animal Control Ordinance, Chapter 604, less than five (5) days before the following take occurred.
On July 15,2013, the Respondent did knowingly cause to be committed an un-permitted take of a piping plover (Charadrius melodus) at Pine Point Beach in the Town of Scarborough, Maine through the Animal Control Ordinance, Chapter 604-10, which was adopted by the Town despite repeatedly being informed that voice control over unleashed dogs would be ineffective in preventing 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 the Service that the piping plover (Charadrius melodus) take occurred at Pine Point Beach. On July 16,2013, Maine Audubon and IFW examined the bird carcass and determined that it was a piping plover (Charadrius melodus) from Pine Point Beach. On July 17 , 2013, a Town resident contacted the Maine Game Warden and informed him that she was the owner of the dog that killed the piping plover (Charadrius melodus). The Town resident wrote and signed a statement admitting that her unleashed dog spotted a piping plover (Charadrius melodus), chased it, and killed it, despite her voice commands to the contrary. The Town resident stated that the take occurred on July 15,2013 at7:00am. On July 24,2013, the Service received custody 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 piping plover (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 Town law by the Respondent. The piping plover (Charadrius melodus) was listed as a "threatened" species on December I I, 1985 under the ESA (except in the Great Lakes watershed region where it is listed as an "endangered" species). l6 U.S.C. $$ l53l-1545; 50 C.F.R. $ l7.l l(h); 50 Fed. Reg. 50726-507 34 (Dec. I I , 1985). Under the implementing regulations, it is unlawful for any person to take any threatened species within the United States, 50 C.F.R. $$ 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 species means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. l6 U.S.C. $ 1532(19), 50 C.F.R. $ 17.3. It is also unlawful to cause any such violation to be committed or to solicit another to commit such a violation. l6 U.S.C. $ 1538(g). Knowing violations of the ESA carry a maximum of a $25,000 civil 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 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 (Charadrius melodus) nesting season in order to prevent a take as voice control over dogs is ineffective. Service biologists sent the Respondent letters on May 9,2001, June 25,2002,Apri1 12, 2004, and May 5,2004, informing the Respondent of federal laws and potential penalties for having an ordinance that does not

adequately protect against a take of the piping plover (Charadrius melodus) and informing the Town that voice control of dogs was ineffective in preventing take. Meetings and informal communications with Town officials making the same points also occurred. One of the Service's endangered species biologists, as well as other biologists, also explained the Service's reasoning and 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 permit dogs to go unleashed on the beach between sunrise and 9:00 a.m. as long as a responsible party

maintains "voice control."

Notwithstanding the Service biologists repeated warnings, at7:00am on July 15,2013, the Respondent 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 permitted Rachel Speed's dog to be unleashed and thereby take a fledged piping plover (Charadrius melodus). Respondent therefore violated l6 U.S.C. $ 1538(a)(l)(G), which prohibits any person from violating a regulation issued to protect threatened species, or violated l6 U.S.C. $ 1538(g) by causing a violation of $ 1538(a)(l)(G). Therefore a civil penalty of $12,000.00, the statutory maximum 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 civil penalty of $12,000.00. This notice initiates the civil penalty proceeding. Respondent may
answer this notice by:

paying the proposed $12,000.00 civil penalty; (2) undertaking informal discussions with Complainant, which may include settlement or mitigation 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 at 50 C.F.R. Part I I since they govern this proceeding and explain Respondent's rights therein. Any answer Respondent makes must be submitted within 45 days from the date of this notice and should be sent to the address at the end of this notice.

(l)

PAYMENT OF CIVIL PENALTY:

Respondent may resolve this matter immediately by paying the civil penalty and executing the following agreement. Completion and timely return of this agreement will terminate this civil

penalty proceeding.

Actions required to pay the civil penalty:

(l) An officer or agent authorized

date the following agreement:

to bind the Town of Scarborough, ME must sign and

The Town of Scarborough, ME, through its officer or agent who has signed below does hereby knowingly 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 Account
administered 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 or money 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 this notice. If the signed statement and payment are not returned within 45 days, this offer shall be deemed terminated.

Your case has been assigned to Dave Rothstein, who can be reached at (413) 253-8600. Should you have any questions or wish to discuss the matter further, please contact him. Please use your file number on all correspondence.

Return the signed statement, together with payment, to: Office of the Regional Solicitor U.S. Department of the Interior
One Gateway Center, Suite Newton, MA 02458-2881 (617) s27-3400

FOR THE DIRECTOR

612

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ANDREW TITTLER Acting Assistant Regional Solicitor

cc:

SAC, Region SA Holmes