Updated: APPLL Appeals Cruise Ship Decision
Penobscot Bay Pilots Also Appeal
BAR HARBOR—The Association to Preserve and Protect Local Livelihoods and Golden Anchor, L.C. have filed their appeals of Judge Lance Walker’s decision to uphold cruise ship disembarkation limits in Bar Harbor deciding that the limits didn’t violate federal interstate commerce laws.
The appeal, filed March 29, will go to the United States Court of Appeals.
In November 2022, Bar Harbor’s voters passed a citizen’s petition by Charles Sidman and several other residents, which makes changes via the town’s land use ordinance about cruise ship disembarkations. That passed 1,780 to 1,273.
The petition restricted cruise ship passengers coming ashore each day to no more than 1,000 without fines.
Some businesses involved with the cruise ship industry and the Penobscot Bay Pilot’s Association objected to the decision and brought the case to federal court in December 2022, saying that the changes violated portions of the U.S. Constitution and federal maritime law and that it would also hurt the livelihoods of many Bar Harbor businesses.
The case went to trial in July 2023. BH Piers and Golden Anchor, Bar Harbor Whale Watch; and the Association to Preserve and Protect Local Livelihoods, a nonprofit of Bar Harbor business owners, were a part of the suit. Sidman was also involved as an intervenor. The Penobscot Bay Pilots’ Association also intervened, but on the plaintiff’s side.
The association of pilots also filed an appeal today.
Walker’s 61-page, early-March decision said that the rules were not protectionist nor violating federal or state laws.
Proponents of the change say it will help with congestion, the environment, and quality of life for residents. Opponents have said that most of the congestion comes from vehicular traffic and that many of Bar Harbor’s business community’s livelihoods and the town’s budget will be impacted.
APPLL’S STATEMENT
APPLL’s official statement is below.
Bar Harbor Businesses Appeal Decision on Cruise Ship Restrictions
The Association to Preserve and Protect Local Livelihoods (APPLL) has issued a formal appeal to a judge’s ruling on restrictive limits on cruise ship passengers in favor of the Town of Bar Harbor. APPLL is a non profit organization made up of many residents, businesses and business owners in Bar Harbor.
As detailed in the plaintiffs’ briefs filed with the courts, the initiative would eliminate almost all cruise ships from visiting Bar Harbor permanently.
“The secret intent of this petition was in fact to eliminate cruise ships from Bar Harbor. It's hard to say what would have happened if the true purpose and effect of this petition had been fully disclosed to the voters,” said Eben Salvatore, treasurer of APPLL. “1.4 million in annual cruise ship fees that the town could receive are going away because of this petition. That lost revenue must be replaced with tax dollars and that is a major reason why we are seeing such a massive tax increase in Bar Harbor. This predictable impact was also withheld from the voters.”
Tax increases of as much as 20% for residents of Bar Harbor have been discussed during budget meetings in recent weeks. The proposed tax increases have been of concern to residents and business owners alike. In response to the surging tax rate some people in Bar Harbor have floated the idea of petitioning the state to allow a local option tax on lodging establishments.
“It feels a little strange to be discussing a local option tax that would generate $1.4 million in revenue from people visiting Bar Harbor when some people just voted to eliminate 1.4 million in revenue generated from people visiting Bar Harbor,” said Salvatore.
According to a study done by Professor Todd Gabe at the University of Maine, cruise ship visitors represent about $20-30 million to the town’s economy. Without cruise ships stopping in Bar Harbor, those dollars will go elsewhere. This will result in the loss of many jobs and permanently harm many small business owners, their employees, and families.
“While we have no choice but to take this next step of the legal process, we hope the growing sentiment of locals to repeal this ordinance leads to action,” said Kristi Bond, president of APPLL, and a small business owner in Bar Harbor. “We continue to encourage and support the Town having control of balanced and beneficial cruise ship visitation. As the town moves towards a greater focus on the overall management of tourism in our community, we look forward to supporting that effort”
"Cruise ship passengers make up less than 10% of total visitors to Bar Harbor every year, yet the economic impact is huge for my business and many others. They are the perfect visitor. They come for the day with no car. They eat, shop, and maybe take a tour. And then many come back and spend money in other ways. I believe most residents and business owners are supportive of a plan that makes sense for us all," said Shawn Porter, APPLL Board Member and Bar Harbor business owner.
The citizens’ petition that was voted on in 2022 calls for limiting the number of cruise ship passengers who can disembark down to 1,000 persons per day. More than 90% of the cruise ship passengers that visit Bar Harbor do so on ships with a capacity of more than 1,000. This then creates a de facto ban on cruise ships with a capacity of more than 1,000 passengers.
“It does bring into question the true intent of the initiative and what might really be behind it,” said APPLL board member Tom Testa. “There are some valid questions as to whether this was truly a locally driven initiative for local reasons as it was portrayed,” he further added.
CHARLES SIDMAN’S STATEMENT
On March 30, Defendant-Intervenor Charles Sidman responded as below to the Bar Harbor Story’s request for statement(s) regarding the plaintiffs’ appeal of the Federal District Court’s February decision that the 2022 Bar Harbor Cruise Ship Ordinance is constitutional:
”In quoted remarks, Eben Salvatore and fellow APPLL officers claim that the Initiative had a “secret intent” that would have led to a different result “if the true purpose and effect of this petition had been fully disclosed to the voters.” Such statements could not be more false and misleading, and resemble what Heather Cox Richardson in her Letters from an American blog of March 29 wrote, that “Russia’s only strategy for success in Ukraine is to win the disinformation war in which it is engaged”, and “that disinformation operation echoes the Russian practice of getting a population to believe in a false reality so that voters will cast their ballots for the party of oligarchs.” Truth check – the initiative and now Oodinance clearly and explicitly intended to drastically reduce cruise ship traffic and disembarkation, a sentiment supported several times by the majority of Bar Harbor citizens (and businesses), and then enacted by voters in full awareness at the ballot box.
”APPLL’s members have evidently drunk their own Kool-Aid and simply cannot believe that our town does not support what is so beneficial to them, and largely to them. In this vein, they claim that “1.4 million in annual cruise ship fees that the town could receive are going away because of this petition. That lost revenue must be replaced with tax dollars and that is a major reason why we are seeing such a massive tax increase in Bar Harbor.” In fact, Bar Harbor is not slated to receive anything like $1.4 million in annual cruise ship revenue, income that in any case is legally required to be spent directly for the benefit of cruise ship passengers rather than general town expenses. If and when we are relieved to be deluged by fewer cruise ship passengers, their associated expenses should also go away and do not need to be replaced by tax dollars. This delusional revenue thus has little or nothing to do with the real tax burden on Bar Harbor citizens, and is simply more disinformation by the oligarchs!
”Lastly, the ordinance that APPLL contends is a major contributor to the town’s tax dilemma could be a significant solution instead. APPLL members receive and pocket many times more from cruise passenger tendering than the town sees from its meager fees (easily demonstrable or refutable by public release of APPLL members' accounts.) As a game-changer for taxpayers, the town could and should immediately remove the improperly granted monopoly and return to the tender-receiving business as the initiative clearly anticipated and ordinance allows, and put this income toward general town benefit. The over-reservation fees collectible from disembarkation landowners that the ordinance establishes could also make a major contribution to Bar Harbor’s budget (if and when the Town ever gets around to implementing them.). These possibilities are clearly major reasons why Ocean Properties through APPLL opposes the ordinance, and demonstrates the inconsistency between their public stance and private benefits.
”Overall, therefore, let us recall Shakespeare, as in, APPLL “thou doth protest too much.” Or follow the common maxim to “consider the source” of all claims and statements. Finally, there is a Latin proverb translating as “False in one thing, false in all.” Everyone should be clear on who and what we are dealing with.”
If we receive a statement or press release from the town, we’ll update this story again and/or make another piece (to make sure that people see it). The Penobscot Bay Pilots’ Association does not have a statement at this time. We’ve reached out to the defendants via email and updated the story to include Charles Sidman’s statement. We will also put that in a future story (and any statement from the town) to make sure that everyone can see it in our normal distribution method.
LINKS TO LEARN MORE
Bar Harbor statement after the Walker decision.
To read the court's decision in full
It will be interesting to read APPL's brief. (I wonder APPL doesn't sue former Town Manager Sutherland and the previous Town Council for ginning up the suit against Bar Harbor.)
"The appellate courts do not retry cases or hear new evidence. They do not hear witnesses testify. There is no jury. Appellate courts review the procedures and the decisions in the trial court to make sure that the proceedings were fair and that the proper law was applied correctly.
The Right to Appeal
An appeal is available if, after a trial in the U.S. District Court, the losing side has issues with the trial court proceedings, the law that was applied, or how the law was applied. Generally, on these grounds, litigants have the right to an appellate court review of the trial court’s actions. In criminal cases, the government does not have the right to appeal.
Grounds for Making an Appeal
The reasons for an appeal vary. However, a common reason is that the dissatisfied side claims that the trial was conducted unfairly or that the trial judge applied the wrong law, or applied the law incorrectly. The dissatisfied side may also claim that the law the trial court applied violates the U.S. Constitution or a state constitution."
https://www.uscourts.gov/about-federal-courts/court-role-and-structure/about-us-courts-appeals