SCARBOROUGH – While continuing to allow dogs to run off leash on Scarborough beaches during the summer appears to be off the table, Town Manager Tom Hall says an accord may be reached with federal wildlife officials that will buy dog lovers a few extra days.

Under the ordinance now in place, the only time when dogs can be off leash between June 15 and Sept. 15 is from sunrise until 9 a.m., a compromise that was reached in 2001 when the town last updated its animal control ordinance to help protect the piping plover, an engendered shore bird.

However, the July 15 killing of a plover chick by a dog on Pine Point Beach, and a subsequent investigation that netted the town a $12,000 fine from the U.S. Fish and Wildlife Service has placed that time in jeopardy. An ordinance proposal that was to have been voted on at the Sept. 18 Town Council meeting would have required dogs to be leashed, when allowed on the beach at all, from April 1 to Sept. 15.

However, following an hour-long closed-door meeting with the town attorney and more than an hour of public comment, councilors voted 5-2 – with Richard Sullivan and Kate St. Clair opposed – to delay any decision until the next council session on Oct. 2. The hope was to give the town more time to negotiate with the Fish and Wildlife Service in hopes of reducing the fine, while also producing an agreement the public would have time to review in advance of the vote.

Now, Hall says that while allowing the early morning free-run time to continue is a “non-starter” for wildlife officials, there is hope of shortening the restricted access season by at least 15 days, and maybe more.

Hall says when the leash law is voted on, the new end date to the summer season will be Aug. 31, rather than Sept.15.

“That much I am certain of because that’s all their guidelines ask for,” he said. “We were a little too liberal there in the past and didn’t need to be.”

The real question, and a touchstone of ongoing negotiations, is the April 1 start date. That’s when Fish and Wildlife would like the restrictions on dogs to begin. However, at the Sept. 4 council meeting, federal wildlife biologist Mark McCollough could not say definitively that the plovers actually arrive on local beaches for their annual mating season by that date.

“It remains to be seen if it will happen, but one of the areas we are talking to them about is to see if we can push it a little later into the season,” said Hall. “In that regard, I think we can use their own data against them, because, for the April 1 date, there doesn’t appear to be data based on our research to support that. It’s more of an opinion of the biologist that they might be here that early.”

Acknowledging that “everyone is tired of this,” given the ruckus the attempt to restrict dog access has kicked up, Hall noted that any deal he can reach, and which the council can agree to, is likely to upset someone. A large part of the ongoing debate regarding dogs has been not only their impact on plovers, but also about people unwilling to share the beach with animals, and about the ever-present enforcement issue of policing a stricter ordinance when the existing one, according to local residents, is so often unheeded.

“Every day we push it earlier or later are days that these other beachgoers don’t have full beach rights,” said Hall. “So, a day matters.”

A final part of the negotiation, which Hall hopes to wrap up in time for the Oct. 2 meeting, is the concept of “safe harbor.”

“We want to know that if we do what they are asking us to do, that they don’t come back against us,” said Hall. “That’s a pretty important piece going forward. It’s hard to value it today, but it would be pretty nice to have.”

On Sept. 11, the town received a notice of violation from Andrew Tittler, acting assistant regional solicitor for the U.S. Department of the Interior, stating the town “did knowingly cause” the plover’s death because its animal control ordinance allows dogs to run off leash on municipal beaches from sunrise until 9 a.m. during the plover nesting season, if “under voice control.”

According to state and local officials, a dog belonging to King Street resident Rachel Speed mauled a plover chick at the shoreline of Pine Point Beach at 7 a.m., at a time when the dog was allowed to be off leash. To date, she has not been assessed a fine. Speed has refused comment to the press.

“Voice control over dogs is ineffective,” wrote Tittler in his notice, noting that wildlife officials on both the state and national level have asked the town five times since 2001 to require that dogs be leashed at all times during the plover nesting season. The most recent attempt from state officials was on July 10, Tittler said, just five days before the dog attack.

Under the proposed rules, dogs would have to be on a leash from sunrise until 9 a.m. in addition to the existing leash restrictions, which are all moved up to start on April 1. Leash lengths also are expected to be limited from 30 feet to 8 feet.

Between 60 and 120 residents have packed the Scarborough council chamber at various public meetings since August, with the vast majority opposed to the end of all free-run time for dogs during the summer on public beaches. A group calling itself Dog Owners of Greater Scarborough has vowed to launch a petition drive to undo any new restriction the council might adopt.

A number of residents have called on the town to fight the fine. Brian Rayback, an attorney from Portland law firm Pierce Atwood who is representing Higgins Beach property owner Dick LaRou, sent the council a letter Sept. 17 suggesting the town might actually prevail.

“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 the fact that Scarborough’s leash law is not as strong as federal and state wildlife officials have stumped for on at least five occasions since 2004, does not automatically mean Scarborough would lose a legal challenge of the fine.

“What he did not go on to say however, is how much that court battle might cost,” said Hall.

According to Councilor Jessica Holbrook, legal fees to fight the $12,000 fine could potentially top $200,000. Few on the council, she intimated, have the stomach to make that kind of an exchange, even on principle.