APPLL and Pilots Association Files Briefs in Case Against Bar Harbor's Cruise Ship Limits
APPLL and Pilots Association Files Briefs in Case Against Bar Harbor's Cruise Ship Limits
Website glitch blamed for late filing
BAR HARBOR— The Association to Preserve and Protect Local Livelihoods, et al., filed its post trial brief this weekend in the federal case against cruise ship disembarkation limits that were voted in last November. The plaintiff-intervenor, the Penobscot Bay and River Pilots Association also filed its brief.
The briefs were due on September 1, but APPLL’s was filed on September 2 because the electronic system was shut down by a third party vendor for a “patch” and the plaintiff’s attorneys from Eaton Peabody were not notified that this was occurring. The filings were put into the system when it was up again, which was early in the morning of September 2. There is a motion to allow the late filing. It has not yet been ruled on.
In July, the three-day trial in federal court in Bangor saw testimony from both town staff and officials as well as citizens’ initiative lead petitioner Charles Sidman, as well as from local business owners who said that the daily limit of 1,000 disembarkations is a violation of the U.S. Constitution’s Supremacy Clause, Commerce Clause or Due Process Clause, which are central to the case's legal question
Those limits were voted in during the November 2022 election. The limits are placed within the town’s land use ordinance and were created by a citizen’s petition. The Town Council also had a newly revised plan involving memorandums of agreements with cruise lines that would reduce the number of cruise ships visiting. Those agreements were based on cruise ships’ lower berth capacity and monthly caps rather than daily disembarkation rates.
District Judge Lance Walker presided at the July trial and will be making the decision once all the briefs are turned in after October.
The post trial brief submitted by the Pilot’s Association argues that the change, which was put into the town’s land use ordinance:
Violates the Supremacy Clause of the U.S. Constitution by “creating a complex regulatory network that cannot function effectively if ocean-going vessels can be excluded by local action at individual ports,” and that it “irremediably conflicts with federal requirements” about customs and immigration screenings, Transportation Security Act requirements, and the “U.S. Coast Guard’s designation of federal anchorages in Frenchman Bay.”
Violates the Commerce Clause of the U.S. Constitution by impeding “the free flow of interstate commerce across state and international lines,” that it is protectionist and “designed to benefit Bar Harbor interests at the expense of interstate commerce” and “burdens instrumentalities of interstate transportation” as well as excluding cruise lines that are not based in Maine and a majority of foreign-flag cruise vessels,” and that the “town cannot show that the ordinance is the least discriminatory means of achieving legitimate local interests.” It also states that it would “unduly and unjustifiably burden interstate commerce” and the foreign commerce clause.
Violates the Maine Constitution by interfering “with the Maine legislatures’s compehensive and exclusive regulatory scheme for state pilotage” and that it “frustrates the purpose of Maine’s economic and community development statues.”
The brief submitted by APPLL discusses the standing of APPLL, tender owners, and pier owners and then similarly argues that the ordinance conflicts with federal laws that protect seafarers and that govern “the admission of aliens,” as well as the Commerce Clause and local laws. It argues that if the changes are enforced, cruise ships will no longer visit Bar Harbor, and that the change fails the Pike Balancing Test as well as due process.
The briefs are each 60 pages long. In the 54-page joint filing of fact, the tourism industry, Bar Harbor’s cruise industry, and efforts to manage cruise ship visitation are discussed as well as the Town Council’s actions of the ordinance and the perceived impact of the ordinance.
The filings are below.
The town and Charles Sidman (lead petitioner and defendant intervenor) have up until October 6 to file their responses. Then the final briefs must be filed before or (on) October 28. Those briefs will be from the plaintiff and plaintiff intervenors. Walker will then rule after all the filings have been registered.
The Bar Harbor Town Council has an executive session at the end of its meeting tomorrow night to consult with the town’s attorney about cruise ships.
