Court Papers Claim Over a Million Revenue Lost in 2024 Season So Far as Businesses Again Ask for a Pause

Town Council Chair Issues a Statement

May 31, 2024

BAR HARBOR—The Association to Preserve and Protect Local Livelihoods (APPLL) and the Penobscot Bay and River Pilots Association have requested the United States District Court to pause the town’s implementation of a cruise ship disembarkation ordinance while the United States First Circuit Court of Appeals decides on an appeal that was in favor of the town’s new rules.

Bar Harbor Piers, Golden Anchor, Delray Explorer Hull 495, Delray Explorer 493, and Acadia Explorer 492 are also asking for the injunction.

The delay would be for the time that the appeal pends.

The ordinance was approved in November 2022 by town voters and limits the amount of daily disembarkations to 1,000 or less. Justice Lance Walker upheld the ordinance in a March 1 ruling.

The plaintiffs’ original request for an injunction pending an appeal of the federal court’s decision about a case involving cruise ship limits was denied without prejudice on Friday by the United States First Circuit Court of Appeals. If it is denied at the lower federal court, the plaintiffs can try again at the Court of Appeals.

This week’s filings include a request for an expedited process. If that request is granted, all parties must file briefs within 12 days. Then the judge makes a decision.

The request asks the court to not allow the town to implement, apply, or enforce the new ordinance. It also requests prohibiting the town from “relying on the ordinance to reject, deny, or fail to act on vessel reservation requests, and relying on the ordinance (which, by its terms, does not restrict access to the anchorages) to deny vessels access to the federal anchorages in Frenchman Bay, and to provide for such other relief as is just and appropriate under the circumstances.”

WALSH AFFIDAVIT

In a four-page affidavit, William Walsh, who owns the Bar Harbor Whale Watch, Bar Harbor Piers, and Golden Anchor wrote,

”I have been advised that on May 24, 2024, an authorized representative of Royal Caribbean Group formally advised Sarah Flink, Executive Director of CruiseMaine in the Maine Office of Tourism, that Royal Caribbean Group had canceled all visits to Bar Harbor by RCCL and CC vessels. The Royal Caribbean Group announcement removes 17 cruise ship visits from those that the Tender Owners would otherwise have served in the 2024 cruise season.

“Had the Royal Caribbean Group cruise ships visited Bar Harbor as planned, BHWW would have charged specific fees to provide tender services to each Royal Caribbean cruise ship and would have had more visitors for whalewatch and lighthouse tours.
“The Royal Caribbean Group cancellation means that the Tender Owners will, in the aggregate, be deprived of at least $664,000 in tender service fees that it would otherwise have earned for the tender services it would have provided to the Royal Caribbean Group cruise ships.”

The 2025 cancellations, he said, meant that the losses for that season will be greater.

CRUISE SHIP VISITATION NUMBERS

According to an affidavit from CruiseMaine’s Sarah Flink, “at the start of the 2019 cruise season, 180 cruise ships of all sizes were scheduled to visit Bar Harbor with a total lower berth capacity of approximately 292,000 passengers.”

During COVID, the seasons were cancelled. “At the start of the 2022 cruise season, 174 cruise ships of all sizes were scheduled to visit Bar Harbor with a total lower berth capacity of 292,212 passengers,” she said.

In 2023, the town began memoranda of agreements with the cruise lines and that decreased the schedule for the 2023 season to 134 visiting ships with a total lower berth capacity of 258,157.

By 2024’s season, that number had decreased to 100 with 181,926, Flink said. And for 2025, the requests have been approved for 18 ships with 57,482 passengers.

However, the affidavit reads, “as of April 29, 2024 Maine.Portcall.com also showed that 102 cruise ships of all sizes with a total lower berth capacity of 141,928 had requested to visit but had not been approved. Of these 102 requests, 40 cruise ships have a lower berth capactiy greater than 1,000 passengers. Those 40 ships represent 125,642 passengers.”

FILINGS’ ARGUMENTS

The filings say that the current memorandums are harming plaintiffs more than the town. The levels are so reduced, it argues, that it is at earlier levels that have been historically occurring and easily handled by the town. Plaintiffs say that there is irreparable injury to the pier business not only because of monetary losses, but also because the business would have to determine when accepting tendered people coming off the boats if it should enforce an ordinance that they believe is “unconstitutional.”

The monetary losses are for both the business and the pilots who rely on the cruise ships as part of its pilotage system. Those losses, the association says, are over $500,000 because of 2024 cancellations. The filings claim that Walsh’s businesses have lost a combined total of over $920,000 just with the Royal Caribbean 2024 cancellations.

It also claims that the appeal has a "likelihood of success" because of the ordinance’s use of "persons" instead of "passengers." That, plaintiffs argue, means that the ordinance restricts those working on cruise ships from disembarking after the daily limit is reached, which in turn, they say, violates the laws of the country.

“Until the ordinance is validly amended or the Town issues purportedly curative rules, it is applicable to seafarers as it is to all other disembarking persons,” they write.

All the filings are uploaded below.

TOWN COUNCIL STATEMENT

On Friday afternoon, Town Council Chair Valerie Peacock issued the following statement about what some perceive as increasing tension around the cruise ship discussion, including a sticker posted in public spots around downtown that had a profanity and a council candidate’s name.

“Ahoy Bar Harbor,” it begins. “There is no doubt that tensions, concerns, and emotions are running high as the Council is working through cruise ship policies.

“As we head into town meeting and local elections, I'd like to take a moment to remind us all that as members of a community we share a commitment to uphold the values of respect, integrity, and civility in our public discourse.

“Our focus must remain steadfast on the issues that matter most to our community as we find common ground for the policies that will ensure the well-being and prosperity of all. Whether it be regulations concerning cruise ship disembarkation, affordable housing policies, or the many other important matters of public concern our duty is to address these issues with diligence, respect, and a commitment to the greater good.

“I hope we can all reaffirm our commitment to fostering a culture of constructive dialogue and mutual respect within our community. One that allows us to resolve our disagreements through a healthy process.”

She added, “Together, we can build a stronger, more inclusive, and prosperous Bar Harbor.”