Updated: APPLL Will Appeal Cruise Ship Ruling
Chamber posts statement
BAR HARBOR, ME – The Association to Protect and Preserve Local Livelihoods (APPLL) said Saturday that it will appeal Judge Lance Walker’s ruling after learning he ruled in favor of the Town of Bar Harbor.
“We have just learned of the judge’s decision and are collectively reviewing the ruling,” said Kristi Bond, APPLL president, and a Bar Harbor small business owner. “It is already difficult to own a business and afford to live here. With the possibility that cruise ships will disappear forever, the likelihood of greater difficulties just became very real. We have spent our entire lives building our businesses. It is a fact that the positive economic impact that cruise ships have on Bar Harbor, and throughout the State of Maine is critical to many small businesses. This ruling, if it stands, will make the lives of small business owners and their employees in Maine much more difficult. We will appeal Judge Walker’s decision to the US First Circuit Court of Appeals.”
The group’s statement says, “As detailed in courts filings, the initiative would eliminate cruise ships from visiting Bar Harbor permanently.”
In November 2022, Bar Harbor’s voters passed a citizen’s petition by Charles Sidman and several other residents, 1,780 to 1,273.
That 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 all objected to the decision and brought the case to federal court in December 2022. It 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 ruling by Walker spoke significantly to local control and home rule.
“We were very careful to make sure our opposition to the citizens petition was to keep the long established Town controls in place. It was never about removing local control. We always have, and always will, support the collaborative efforts to maintain balanced visitation in our community. We live here, too.” said Bond
Shawn Porter, an APPLL board director and local business owner said, "As difficult as it was to take this petition to court, we were overwhelmed by the amount of support we received from all parts of the community. I think many people were surprised at the impact this petition will have. We are not certain that, although voters approved the petition, they meant to eliminate almost all cruise ships."
“Clearly the hidden intent of restricting the number of passengers who can disembark down to 1,000 persons per day was to eliminate almost all cruise ships that visit Bar Harbor. 90-95% of cruise ship passengers that visit Bar Harbor do so on ships with a capacity greater than 1,000. It would be unfair to expect any cruise line to pick and choose which of their guests could come ashore. The loss of cruise ship passengers will have a devastating effect,” said Bond.
The APPLL release reads, “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.”
The plaintiffs had argued that the new rules, violate the Supremacy Clause of the U.S. Constitution; Commerce Clause of the U.S. Constitution, and violated the Maine Constitution by interfering “with the Maine legislatures’s comprehensive and exclusive regulatory scheme for state pilotage” and that it “frustrates the purpose of Maine’s economic and community development statues.” Walker disagreed with the plaintiffs fully on most arguments.
UPDATE:
On Saturday, March 2, at 6 p.m. Eaton Peabody released the following statement.
"Bar Harbor: The plaintiffs in APPLL et al vs. Bar Harbor are disappointed with the decision handed down on Thursday (February 29, 2024, as amended and reissued on March 1, 2024) by Judge Lance Walker ruling against their constitutional challenges to Bar Harbor’s cruise ship ordinance.
"The Bar Harbor ordinance was designed to bar a whole category of the transportation sector—traditional cruise ships—from coming to Bar Harbor. Plaintiffs contend, and continue to contend, that this sweeping ban violates the U.S. Constitution. Plaintiffs disagree that Bar Harbor’s exercise of this authority is only a matter of ‘home rule’ under Maine law.
"Accordingly, Plaintiffs will appeal Judge Walker’s decision to the US First Circuit Court of Appeals.
“'The ordinance reaches well beyond the town limits of Bar Harbor to effectively prohibit these cruise ships from coming to Bar Harbor at all. We remain confident that the exercise of this kind of wide-ranging power—severely limiting the numbers of persons who can disembark from a cruise ship in a single day—by local governments is limited by constitutional restraints,' Timothy Woodcock, Eaton Peabody attorney for APPLL said.
“'While we respect Judge Walker’s decision, we believe that, on appeal, APPLL’s claims will be upheld.'”
On March 4, the Bar Harbor Chamber said,
“The end of last week brought about a decision on the future of visitation in Bar Harbor. For many, it is causing a wide range of emotions and feelings about what the present and future holds. Our mission at the Bar Harbor Chamber of Commerce has always been to promote the business interests of Bar Harbor, improve the general welfare of our community, and provide exceptional visitor services to all who come to Bar Harbor and the surrounding areas. We have and will continue to work with our members and partners, to ensure that Bar Harbor remains a vibrant town with a strong economic future. As we continue to chart what tomorrow holds, our doors at the Chamber are always open to help, to listen, and to serve. Over the next few weeks, we will continue to watch as new developments arise and work together on the next steps forward.”
LINKS TO LEARN MORE
We have reached out to the town and Charles Sidman for statements about the potential appeal and had not received any as of press time or as of Monday.
For more information, you can visit the APPLL website at www.appll.me.
APPL will appeal? Of course they will. Despite crying poor-mouth, they have money to burn. And for them, there is not sufficient percentage in balancing cruise ship tourism with community. We'll see how APPL's throwing everything at the wall and pounding the table tactics play in the First Circuit Appeals Court.
Judge Lance Walker, a Federalist Society jurist fast tracked to the court by LePage and Trump, has impeccable conservative credentials and a proven commitment to constitutional protections for voters. In his meticulously articulated decision he notes:
1. [The APPL case] is unworthy of overly solicitous judicial action that would negate an exercise in democratic self determination that is better informed of existing, localized conditions.
2. Nothing in the Constitution dictates municipal obeisance to the economics of scale of cruise tourism. Nor, as far as I can tell, does the dormant Commerce Clause legislate adherence to neoclassical liberalism any more than the Due Process Cause compels observation of Mr. Herbert Spencer's Social Statics.
https://www.ca1.uscourts.gov/
In a previous comment I pointed out the deep pocket tactic of defeating democratic process via outspending the opponent. Sadly 9 times out of 9 that opponent is us, the average work-a-day American citizen. Not a week goes by that a news story does not appear where some corporate bully has pummeled the opposition into submission by filing appeal after appeal after appeal after appeal until they've bankrupted those opposing their corporate will. One of the more troubling questions waiting to be answered these days is "Can democracy survive within a legal system that has become so expensive that justice often takes a back seat to "Whoever has the most money wins!" As Judge Walker opined in his recent decision against APPL their case has little or no merit. In short he states that the citizens of Bar Harbor are well within their rights to regulate cruise ship visitation. While corporate power has become more and more concentrated and thus ever more threatening to democratic process, so too has the citizen's power to respond. Dozens of Internet sites exist these days through which the victims of corporate abuses can fight back. A few dozen negative user reviews on Trip Advisor can negate many thousands of dollars spent on advertising. A few dozen more and you are out of business! Clearly serious risks exist for those refusing to respect the views of those for whom "Whoever dies with the most toys wins." is nothing more than a bankrupt and childish slogan. In many ways the Internet has come to represent a huge yellow sign saying, " Bullies Proceed With Caution!" For those doubting the power of the little guy I will cite a local battle I fought back in the mid 1980s. A Bar Harbor business profiting through feeding bald eagles to attract them to their boat for tourist photos was repeatedly asked to cease the harmful practice by biologists at the Maine Department of Inland Fisheries & Wildlife. Despite promises to do so they kept right on feeding them. Having been involved in Bald Eagle Recovery efforts for years I asked federal officials to intervene in what clearly was a violation of the Endangered Species Act. They refused to act. So in cooperation with other concerned Maine citizens I managed to get a bill introduced before the Maine Legislature outlawing the practice. I testified in support of the bill before a legislative committee in Augusta but biologists from MDIF&W were ordered not to appear in support of the bill by the director of the department. The bill was defeated by a vote of 12 to 1. Rather than acquiescing I redoubled my efforts and several months later another vote was taken and the bill outlawing the feeding of Bald Eagles was passed by a vote of 12 to 1. I was working as a stock clerk at Don's Shop 'n Save at the time…it doesn't get much littler than that! Little guys can and do win if they just hang in there!