Town Manager's Response to Residents' Letter

Written by Administrator
 | Tuesday, 11 June 2013 19:05
Mr. Bruce Fenton:
Duxbury, MA 02332
Re: Letter received on June 5, 2013
Dear Mr. Fenton,
Thank you for taking the time to write to my office to express your concerns (and those of a number of others) concerning the current disposition of Duxbury Beach.
In response to your questions, I offer the following:

1.)   Who exactly is responsible for the decision to close the beach? Please provide the name and title(s) of the person(s) responsible and the procedure used to make the decision.

Pursuant to the Duxbury Beach Management and Habitat Conservation Plan (hereinafter, the Beach Plan), the Duxbury Harbormaster/Coastal Natural Resources Department hires the Coastal Natural Resources/Endangered Species Officer through the Endangered Species Protection Grant funded by the Duxbury Beach Reservation, Inc. As noted in that document, “the Endangered Species Officers (ESOs) have complete control of all activities occurring on Duxbury Beach.” Further, Section 4.1.3 (b) of the Beach Plan state that “any decision to close the beach to ORV traffic is made by the Duxbury Harbormaster/Coastal Natural Resources Department or the CNR/ESO (Endangered Species Officer) at his/her discretion.” Further, Section 4.1.3 (c) of the Beach Plan states that “the Reservation, in concurrence with the Duxbury Board of Selectmen, has imposed the following speed limits on the beach and improved roadway – Nesting Season (April 15- August 15) – front and back beach; unfledged chicks present: no vehicles allowed. The Beach Plan Further states that “the presence of unfledged chicks is determined by the CNR/ESO or plover monitor.”

2.)   It has been reported that a government agency requested the beach closure, please provide details to whether this is correct and what the names, titles and agencies of the person(s) responsible are. Also, please detail what steps, if any, were taken to appeal this decision or represent the wishes of the citizens and sticker holders.

This is incorrect information. A government agency did not request the closure of the beach.

3.)   When was this information provided and when was this decision made? It is particularly troubling that we have learned that citizens purchased beach stickers as recently as yesterday morning and were not told about this issue when the selectmen had already been notified. At the very least this seems highly unethical if not also completely misleading and a false representation to sticker purchasers.

On Wednesday, May 29, 2013, en e-mail was forwarded to my office which originated from the Endangered Species Officer indicating that, dependent upon plover activities, the 1st, 2nd, and 3rdcrossovers and Blakeman’s parking area the need could arise for the closure of those areas – effectively closing the large majority of the beach to Off Road Vehicle (ORV) access. Following receipt of that e-mail, I forwarded it to the members of the Board of Selectmen advising the members that I would be providing an update on the situation at their meeting on Monday, June 3rdand that I had asked the Harbormaster’s staff to attend as well. Additionally, I contacted the Harbormaster thanking him for the information and suggesting that we consider drafting a press release and a series of “talking points” for use with the residents calling into our office how may express concern.
In that same e-mail, I was advised that “it is in the Town’s best interest and that of the organizers to seriously consider postponing the 4th of July Beach Party/Bonfire and or changing the venue as there will not be suitable space to hold the event on Duxbury Beach.” It was recommended to me that a meeting be held with the 4th of July committee “as soon as possible to brief them on these facts and assist in any way possible to determine where and when this event could take place on Duxbury Beach.” As a result, that meeting was held at 8:30 a.m. on Thursday, May 30th.
On Monday, June 3 at approximately 4 p.m. I received a verbal update from the Harbormaster and Endangered Species Officer confirming that there were 15 nests and 18 pair of Piping Plover on Duxbury Beach which I noted to the Board that night. Note: the intitial May 29th e-mail from the Endangered Species Officer had indicated there were 16 nests as of that date – one nest had been predated during the course of that 6-day period. As a frame of reference which illustrates the changing nature of the conditions on Duxbury Beach relative to the Plover population, on Thursday, June 6th there were 16 nests and 18 pair and as of this afternoon (June 10th), there are 18 nesting pair of Plover with 11 broods (consisting of approximately 31 chicks on the beach between the areas of Blakeman’s and Plum Hills), 4 nests due to hatch soon, 2 pairs expected to re-nest and 1 pair to lay a 1st attempt nest (pair 18).
The members of the Board of Selectmen were formally notified of the closure at their meeting at 7 p.m. on Monday, June 3.
The primary reason for the notification at the Board’s meeting on Monday, June 3 following the notification received the previous Wednesday (May 29) was to ensure that the circumstances were essentially the same and that the need still existed to close the beach (i.e. that no predation or other changes to the disposition of the birds had occurred which could have ultimately allowed partial restricted access to the beach). As noted above,  a change had in fact occurred which was the predation of a nest during that timeframe. Clearly, our office had taken a number of steps anticipating how best to address a number of concerns relative to beach activities and relaying the message to the general public as soon as the information regarding the restrictions and closures had been confirmed.

4.)   Who exactly is responsible for the decision to refuse reimbursement or partial reimbursement of the sticker purchases? Please provide name(s) and title of the person(s) responsible for this decision. Please also explain the procedure used to make this decision.

Decisions relative to reimbursement are made by the Town Manager pursuant to Section 4.7 of the General By-Laws of the Town of Duxbury.

5.)   What limits on protection of endangered species are there and what appeal and check and balance process is in place to prevent errors or instances of overreaching? What efforts, if any, did the town make to appeal this, investigate the legitimacy of this claim and review alternative means to protect the plovers? What additional expert opinions and options were explore by the town in this matter?

I have asked Dr. Scott M. Melvin, Senior Zoologist with the Natural Heritage and Endangered Species Program from the Massachusetts Division of Fisheries and Wildlife to be present at the Board of Selectmen’s meeting on Monday, June 10 to answer questions relative to the Endangered Species Program and the partnership between Massachusetts Division of Fisheries and Wildlife, The Duxbury Beach Reservation, Inc. and the Town of Duxbury.

6.)   We have seen communications reporting to be from your office stating: “The rules and regulations of Duxbury Beach are clear regarding the authority given the Town regarding public safety and endangered species protection. These rules are in place, under the watchful eye of the Federal government to ensure that the beach remains permanently open to the public. If not for these regulations and the overall Duxbury Beach Management Plan, the Beach would most certainly be secured by the government as Federally protected environment and hence lost to the public in perpetuity.” Please confirm if this is accurately attributed to your office. If so, please explain what Federal agency you are referring to which is keeping a “watchful eye” over the activities of the town. Please detail your offices communications with such agency. Please also explain by what authority you believe the Federal government would seize or “secure” the beach which is private and has been a private corporation since 1975. More importantly please explain whether you would fight such an action by the Federal government or whether you would support that seizure of the beach by Federal authorities.

That paragraph may be attributed to my office. The usage of the words “seizure” and “secure” are incorrect and should have instead read either “close” or “restrict.” I apologize for any confusion this may have caused.

7.)   What other remedies, if any, have been investigated on behalf of people who feel they were sold an ineffective sticker, or worse (especially in the case of those sold stickers after the situation was known) outright duped in their purchase? Was an exemption requested from US Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS)? If not, why not?

For those individuals whoa re not satisfied with the purchase of their sticker, and as acknowledgement that this year there have been very unusual circumstances resulting in unprecedented restrictions and closures to Duxbury Beach, the Town of Duxbury will provide a one-time only 100% refund for any resident over-sand or non-resident over-sand beach sticker purchased on or before June 3.
In order to apply for said refund, the sticker must be returned to the Town of Duxbury Treasure/Collector’s office, in person, on or before Friday, June 28. Mailed stickers cannot be accepted in an effort to alleviate any potential problems with claims being made regarding whether or not said stickers were actually mailed to the office and not delivered as a result of an error in the mailing process. The staff in the Treasurer/Collector’s office will be charged with ensuring and verifying the authenticity and completeness of each sticker returned. Refund checks will be mailed to each person requesting said refund.

8.)   It has been reported that the beach legally DOES NOT NEED TO BE CLOSED and the caravanning of the beach can be preventing by providing bird monitors and enclosures for every plover nest in accordance with state and Federal law provided this is the only reason for closing the best. Is this correct? Was this simply a rash and not-researched decision made without full exploration of the options? How much time was spent researching options such as this, by whom and with what consultations of town and outside experts and the public? If this is indeed an option, why has this solution not been implemented?

I believe the details concerning this question would be best addressed by either members of the Duxbury Beach Reservation, Inc., and/or the staff of the Harbormaster’s office and I will yield to their input.

9.)   Approx. 9,000 beach passes at a price of roughly $200- $295 each depending on type mean approx. $2,000,000- $2,600,000 not including additional revenue from daily parking leasing/beach house etc. it appears that roughly $400,000 goes to the Beach Reservation, leaving at least one and a half million dollars – where is the money? Please provide an accounting of these funds and any other citizen money now held in town custody as well as any related state or Federal money.

With respect to you question concerning the accounting for funds relating to the beach sticker program, I was unable to collect that information prior to this evening’s meeting but I will be happy to provide it to you at a later date (which I anticipate will be before the end of June, 2013).
10 .) Please also provide an explanation of procedures to deal with fraud/misrepresentation with regard to sticker sales and the refund procedures for cases of fraud. We have seen the explanation from your office that there is “no mechanism” for refunds and find this unacceptable since it appears that the town knew of the impending beach closure and fraudulently neglected to inform purchasers of this major material fact.
With regard to your question concerning “an explanation of procedures to deal with fraud,” I would kindly suggest that you contact the Attorney General’s office.
Again, I thank you for taking the time to write and expressing your concerns.
Mr. Rene’ J. Read
Town Manager