Updated: Bar Harbor Town Council Will Hold Litigation-Focused Executive Session Thursday
Reply Briefs in Cruise Ship Federal Appeal Filed
BAR HARBOR—The Bar Harbor Town Council announced on Tuesday that it will hold a special meeting on November 14, held in executive session, to discuss pending litigation which may be about cruise ship lawsuits.
Pending can mean imminent or not yet decided. In the agenda it was unclear in what context it was being used. The public is not allowed to attend executive sessions, but may attend the call to order and the call to adjourn.
According to Town Manager James Smith, the Town Attorney wanted an opportunity to update the entire council on the status of pending litigation matters.
“Some of these cases have been ongoing for some time and it has been awhile since Stephen (Wagner) has been able to answer direct questions individual councilors may have on any number of these cases,” Smith said. “The executive session is limited to ongoing litigation matters only and no decisions will be made coming out of this meeting.”
ELECTION RESULTS AND CONTINUING APPEAL
The special meeting announcement comes after Bar Harbor voters upheld the current 1,000-per-day disembarkation 1,776 to 1,713 at the November 5 election.
Article Four on the town’s warrant had asked if voters would like to repeal the current set of cruise ship disembarkation rules. That repeal would have allowed the town council to put in place a new set of limitation rules, which allowed for less disembarkations than in the recent past, but more than the current rules.
In 2022, voters approved 1,000-a-day cruise ship disembarkation limits. After the approval, the changes were subject to a federal lawsuit, an ongoing federal appeal of the decision of that case, and then lawsuits over the enforcement.
Reply briefs from the plaintiffs and Penobscot Bay and River Pilots’ Association in that federal appeal before the United States Court of Appeals occurred on November 4 and were uploaded to the town’s site on November 6. Both briefs are over 70 pages.
In its brief, the plaintiffs (Association to Preserve and Protect Local Livelihoods, B.H. Piers, Golden Anchor, B.H.W.W., Delray Explorer Hull 493 LLC, Delray Explorer Hull 495 LLC, and Acadia Explorer 492 LLC) asked for a “prayer for relief,” hoping that the court will do multiple things. One is to “declare that the Disembarkation Ordinance violates the Constitution of Maine and the state laws of Maine” and the United States Constitution.
It also asks “that, this court issue an injunction against the town barring the town from” enforcing the Disembarkation Ordinance including not allowing the town to enforce a Notice of Violation against the tendering facility, from voiding the facility’s tendering permits and pier operation, and “barring the town from requiring plaintiff to complete any permits required and imposed upon plaintiff by the Disembarkation Ordinance.” It also asks for attorney’s fees.
A notice of violation to the Golden Anchor LC from the town had been issued August 5. The Golden Anchor has since brought Bar Harbor to court about that violation. That notice of violation was issued because the 55 West Street property, which has been accepting cruise ship tenders for years, did not apply for a permit, which is now required under the 1,000-a-day-limit rules that were enacted this summer.
Charles Sidman, an intervenor in the federal court case on behalf of the town and lead petitioner for the 1,000-caps, has asked to be a intervenor in this district court case as well. That request occurred on October 25. This spring, he also sued the town in Hancock County Superior Court about the enforcement of the new rules.
The pilots’ association request is a bit simpler.
It asks “that this court reverse the district court’s judgment as to the Pilots’ Commerce Clause claims and Supremacy Clause claims apart from their seafarer preemption claim, affirm the district court’s judgment that the ordinance is preempted by the Seafarer Access rules, and otherwise hold the ordinance unlawful and permanently enjoin its enforcement.”
Tímothy C. Woodcock, and Andrew Hamilton from Eaton Peabody, in Bangor are arguing for the plaintiffs. The Penobscot Bay Pilots’ Association brief was filed by John S. Kingston, C. Jonathan Benner, and Kathleen E. Kraft of Thompson Coburn in Washington, D.C. and St. Louis, Missouri.
Benner and Kraft argue that the town’s ordinance and the limits the Commerce Clause creates on local authority can’t be reconciled because it burdens interstate commerce and the free flow of commerce, which they say, requires uniformity of port access across the nation. It also says that the harms the ordinance creates are harms to commerce not to cruise lines and their business models, and that it has a discriminatory effect.
The pilots also argue that the ordinance doesn’t decrease reducing downtown pedestrian congestion and that this purpose can occur “with a lesser impact on interstate and foreign commerce.” It also argues that the Supremacy Clause preempts the ordinance, that it conflicts with the Coast Guard’s establishment of Frenchman Bay’s anchorage grounds, and imposes “an additional local condition of entry in Bar Harbor” and “frustrates the purpose” of Maine’s Pilotage Act.
The plaintiffs argue that Judge Lance Walker’s late February 2023 decision was in error by “concluding that the ordinance did not impede the flow of commerce in violation of the dormant Commerce Clause.” It argues that the court also erred by saying that the ordinance doesn’t violate the flow of commerce, which is part of the Commerce Clause’s protection of the national economy. It creates economic discrimination, the brief argues.
It continues, arguing that the district court decision should have granted injunctive relief and in denying the claim “that the ordinance was preempted by federal laws governing the admission of foreign nationals,” and in a due process claim.
This story was updated at 4:45 p.m. to include statements by Town Manager James Smith. All those updates are in the top portion of the article.
LINKS TO LEARN MORE
Link to the Pilots Association reply
Link to the plaintiffs’ reply.
For all documents about the APPLL appeal that the town has uploaded.
For all documents about the Golden Anchor’s suit against Bar Harbor.
If you’d like to donate to help support us, you can, but no pressure! Just click here.
If you’d like to sponsor the Bar Harbor Story, you can! Learn more here.
Townspeople have spoken TWICE on this matter. It would seem incumbent upon the Town Council to respect the wishes of the voters of the town.