APPLL Argues Cruise Ship Ruling Before Retired Supreme Court Justice

The Bar Harbor Story is generously sponsored by Swan Agency Real Estate.

BOSTON—Bar Harbor’s legal dispute with the Association to Preserve and Protect Local Livelihoods (APPLL), Penobscot Bay and River Pilot Association, and others over cruise ship disembarkation limits had a legal super star hearing the appeal of a lower federal court’s decision, Wednesday morning, January 8.

The United States Court of Appeals for the 1st Circuit heard oral arguments from multiple Hancock County cases Wednesday morning and retired U.S. Supreme Court Justice Stephen Breyer was one of the justices sitting on the bench. The oral arguments are part of the process of the appeal.

This is a day nearly three decades in the making, Judge William J. Kayatta, Jr. said of Breyer’s first time sitting in the courtroom that he helped create.

“It’s old home week, here we are,” Justice Breyer said. “It’s terribly nice.”

Federal appeals from Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island go before the First Circuit Court. Justice Breyer, Judge Kayatta, and Chief Judge David J. Barron heard the January 8 cases.

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APPLL ET AL VS TOWN OF BAR HARBOR

The Bar Harbor case focuses on the ordinance that limits cruise ship passenger disembarkations to 1,000 a day without fines. Many local businesses have said that this has impacted their revenue as less cruise ships arrive. Last winter, Judge Lance Walker mostly agreed with the town and upheld the limits. Those limits had been approved by voters in November 2022 (1,780 to 1,273). An attempt to repeal that decision in November 2024 lost by 65 votes and inspired a recount. The repeal would have been the first step to put in other measures limiting cruise ship visits, but was not as strict as a 1,000-day cap.

After that November 2022 vote, pier operators, some local businesses, tour companies, and others brought the town to court. They, as well as the Penobscot Bay and River Pilot Association, argued that the new restrictions violated the U.S. Constitution as well as federal maritime law. It was also argued that the new rules would negatively impact their businesses.

In U.S. District Court in Bangor last year, Walker disagreed in a 61-page decision, upholding the cap.

Much of Acadia National Park sits in Bar Harbor. The park gathered almost 4 million visits this year. It is one of the state’s major tourist attractions, including those who visit via cruise ships.

Some in Bar Harbor say that cruise ships benefit the town both in fees that help defray taxpayers’ property bills, in that the fees can support police, fire, and infrastructure that passengers utilize, and that it benefits multiple businesses and their workers.

Others argue that cruise ships increase congestion on downtown sidewalks and affect the quality of life for residents. A 2021 survey about cruise ships’ impacts on the town illustrated those feelings. Environmental factors are often cited in people’s worries about the ships, though that is not a part of the ordinance.

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ORAL ARGUMENTS

Oral arguments are defined as spoken presentations to the court by an attorney that usually focuses on the legal reasoning behind why their clients are right and should have judgement in their favor. The panel of judges often interrupted and interjected thoughts as the lawyers presented their cases in the time frames that were allowed. It’s usually meant to be a judge-centered approach and judges are meant to use those arguments along with other filings to decide a case in a way that’s fair and just.

Each side was given 15 minutes to present its arguments.

Timothy Woodcock and C. Jonathan Benner represented APPLL, the pier, and tender owners, hoping to focus their arguments that the Bar Harbor ordinance violates the Commerce Clause and Supremacy Clause.

Woodcock outlined his points as the purpose and effect of the ordinance, the protection the Commerce Clause gives to the flow of commerce, heightened standard of review for laws that interfere with that flow, and finally that the reasoning of the court and the ordinance’s logic defy the application of limiting principals.

For some of their questioning, the judges focused on how on large cruise ship days, the entire year-round population of Bar Harbor doubles with a cruise ship visit and how state and federal parks can mandate hours and entrance. Should the town not have the ability to do the same?

Woodcock said, “The ordinance essentially draws a line at the town pier and says, ‘You will not pass.’”

The town does have recourse in managing visits, Woodcock argued, by using mechanisms that it had been using (memorandums of understanding with cruise lines). The desire of a town for comparative tranquility vs the right to continuous transportation was also discussed. Under the ordinance, he argued, it would not allow 80 to 90% of cruise ships to visit because they wouldn’t be able to disembark all their passengers.

“Are there practical ways that Bar Harbor can get what it wants?” one judge asked. He said that there is not much of a record on what the practicalities are and what has already been done.

Discussion also ventured into who can and cannot be allowed to visit the town.

“It is rational to manage. It is not rational to exclude,” Woodcock argued.

But it is managing to limit to 1,000, a justice argued. A judge also worried that ruling on the Bar Harbor ordinance could create precedent in places where such a ruling doesn’t belong.

Benner and Kathleen E. Kraft represented the Penobscot Bay River Pilots and hoped to focus on how preemptive issues are independent reasons as to why the ordinance should be invalidated.

A distinction here, Benner said, is that they are dealing with instrumentalities of maritime commerce, which have a historic, complex, and imbued setting in the national history. The vessels that are calling to Bar Harbor are largely foreign-flagged vessels and subject to a complex network of permissions, inspections, and authorizations, he said, arguing that the ordinance creates a capacity limitation.

“We’re not arguing that the municipality has no recourse here,” Benner said.

Bar Harbor can manage people in town to manage the congestion impacts. Most visitors in town are not from cruise ships. Their argument is that focusing on these vessels, it diminishes the value of the federal anchorages and has impacts up and down the coast of Maine and the United States, reasoning that it could destroy the market and could have considerable negative effects on federally regulated commerce.

He likened the ordinance to an atomic fly—with a big impact on commerce and implications for various municipalities that also limits the visitation numbers (less than 1,000 passengers a day) to make the visitation not commercially viable.

“Commerce by it’s very nature is dynamic. It’s noisy,” Benner said.

Jonathan P. Hunter represented the town and defined APPLL as having a narrow business interest. He said cruise ship visitation has grown exponentially and cruise ship disembarkation has caused congestion issues in town. Hunter also argued that cruise ships are a vacation product.

One judge mentioned that cruise ship passengers and people outside of Bar Harbor are impacted by the town’s ordinance. He also asked Hunter to discuss if there is a record of how life and safety have been impacted.

The harbormaster and police chief said that they can manage passengers, Hunter said when questioned.

The judge also asked what the congestion is.

It’s the crush of the people disembarking, Hunter explained.

The judge asked what “crush” meant.

There should be no ambiguity in the record about health and safety risks. There’s never been a health or safety risk on disembarking passengers, Woodcock said, because the town has taken care of it.

“There is no public health threat here,” Woodcock said. “It has always been managed.”

Burdens on one method of traveling don’t implicate someone’s right to travel, Hunter argued.

“I find this rather difficult,” he said. There are both cons and benefits to the ordinance, he explained, and he’d thought of getting a more complete record.

Robert J. Papazian represented Charles Sidman, the lead petitioner in the new rules and a defendant intervenor in the original case. He said that it isn’t necessary to send the case back for more record. He also argued that the impact on commerce is unknown.

Bar Harbor is an untenable situation, he said, which shows the danger of cruise ships’ escalating visitation to the rest of the world. He said that residents can’t access the grocery store or waterfront when a cruise ship is in port.

“Coastal towns everywhere limit or outright prohibit” disembarkations all the time, he said. “The cruise ship industry doesn’t get to dictate” what a town looks like, he stressed.

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The Bar Harbor Story is generously sponsored by Rick Osann Art.

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LINKS TO LEARN MORE

The recording of the oral arguments will be here.

The town’s cruise ship information page for filings in the appeal and the original federal case.

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