Cruise Ship Litigation Steaming Ahead
Bar Harbor and Charles Sidman File Responses in Case Against the Town
BAR HARBOR—Both the Town of Bar Harbor and Charles Sidman (defendant intervenor) have filed responses in the case in federal court against the town concerning cruise ship disembarkation limits voted in by the town last November. The vote was brought by citizen petition and puts those changes in the town’s land use ordinance. They have not gone into effect yet because of the lawsuit.
After the vote, a group of businesses that said they would be negatively affected, the Maine Pilot’s Association, and the newly formed Association to Protect and Preserve Livelihoods challenged the changes saying that they violate the Commerce Clause of the US Constitution, as well as the Pike Balancing Test, Foreign Commerce Clause, citizens’ right to travel, deprives those businesses of substantive due process, and is pre-empted by the Pilotage Act.
The briefs that were filed Friday rebut those charges.
In July, the three-day trial in federal court in Bangor saw testimony from both town staff and officials as well as Sidman. It also saw testimony from local business owners who said that the daily limit of 1,000 disembarkations is a violation of the federal Constitution.
In Sidman’s introduction, it stresses that the ordinance is the will of the voters and writes, “this case will determine whether the cruise ship industry and its allies can subvert the rational desire of Town residents to put reasonable limits on congestion and crowding in their much-loved downtown.” It goes on to say that the ordinance is a “valid exercise of local police power that reaches ‘landward’ and only regulates how land within the Town is used.”
In the town’s post-trial brief, the town responds similarly, but stresses that the plaintiffs have failed to show that the ordinance discriminates against interstate or foreign commerce.
The town’s brief also states that the cruise ship industry “began to have increasingly negative impacts on Bar Harbor” and used the 2007 Comprehensive Plan to show that those problems were recognized by its creators at that time. It also states that in 2007 it had a cruise ship management tourism study. “Several key recommendations from this study—including implementation of passenger caps, the creation of a cruise ship committee, and observance of an annual review process—would become the foundation for how the town regulated cruise ships in subsequent years.”
The next year, the town capped visits via lower berth capacity as relating to passenger caps per day for 5,500 for May, June, September, and October and 3,500 per day for July and August.
The cruise ship committee was disbanded by the Town Council in September.
The briefs are both around 55 pages and below.
APPLL AND PILOTS ASSOCIATION POST TRIAL BRIEFS IN EARLY SEPTEMBER
The Association to Preserve and Protect Local Livelihoods, et al., filed its post-trial brief and the plaintiff-intervenor, the Penobscot Bay and River Pilots Association also filed its brief September 1 and 2.
District Judge Lance Walker presided at the July trial and will be making the decision once all the briefs are turned in after October.
The post-trial brief submitted by the Pilot’s Association argues that the change, which was put into the town’s land use ordinance:
Violates the Supremacy Clause of the U.S. Constitution by “creating a complex regulatory network that cannot function effectively if ocean-going vessels can be excluded by local action at individual ports,” and that it “irremediably conflicts with federal requirements” about customs and immigration screenings, Transportation Security Act requirements, and the “U.S. Coast Guard’s designation of federal anchorages in Frenchman Bay.”
Violates the Commerce Clause of the U.S. Constitution by impeding “the free flow of interstate commerce across state and international lines,” that it is protectionist and “designed to benefit Bar Harbor interests at the expense of interstate commerce” and “burdens instrumentalities of interstate transportation” as well as excluding cruise lines that are not based in Maine and a majority of foreign-flag cruise vessels,” and that the “town cannot show that the ordinance is the least discriminatory means of achieving legitimate local interests.” It also states that it would “unduly and unjustifiably burden interstate commerce” and the foreign commerce clause.
Violates the Maine Constitution by interfering “with the Maine legislature’s comprehensive and exclusive regulatory scheme for state pilotage” and that it “frustrates the purpose of Maine’s economic and community development statues.”
The brief submitted by APPLL discusses the standing of APPLL, tender owners, and pier owners and then similarly argues that the ordinance conflicts with federal laws that protect seafarers and that govern “the admission of aliens,” as well as the Commerce Clause and local laws. It argues that if the changes are enforced, cruise ships will no longer visit Bar Harbor, and that the change fails the Pike Balancing Test as well as due process.
WHAT THE TOWN IS CURRENTLY DOING
Town Council Chair Valerie Peacock explained during a September meeting that while the federal case against the town’s cruise ship limits is in court, the town is running two parallel threads as it tries to determine how to deal with upcoming seasons in two different scenarios.
In the first scenario, the changes are upheld and the town wins the lawsuit. That would mean that the disembarkation rules limiting cruise ship disembarkations to 1000 or less a day (without fines) are upheld or partially upheld. Those plans have been discussed in executive sessions because of the litigation, but they expect a draft to be made public in October. Town Attorney Stephen Wagner said it will be a stand-alone ordinance and include updates to the Harbor portion of the land use ordinance as well as updates to standard operating procedures.
In the second scenario, the town loses the case and the changes are not upheld. If that occurs, the town would continue with the new memorandums of agreement (MOAs) that the town began in 2022. Those MOAs also limited cruise ship visitation, but were not based on passenger disembarkations.
The memorandums of agreement are the town’s agreements with cruise lines about when they can visit and other details. These documents are currently being used as the town waits for the federal court decision.
According to a recent stipulation filing in APPLL vs Town of Bar Harbor,
“On August 16, 2022, the Town Council initially approved a memorandum of agreement (“MOA”) plan by a 5-2 vote. After several months of discussions and revisions, the MOA was finalized on September 28, 2022. The MOA included a shortened cruise ship season, by eliminating the months of April and November, and lower passenger caps that, in almost all cases, would reduce the number of daily cruise visitors disembarking at Bar Harbor.”
The Council negotiated with the industry for that series of reductions. The cruise ship disembarkation rules then happened quickly afterwards, passed by voters in November 2022.
The current MOAs expire at the end of December and have to be renegotiated, Peacock has said.
The town hasn’t yet taken new reservations for the 2025 season.
Last time the MOAs were negotiated by two councilors, Harbormaster Chris Wharff, former Town Manager Kevin Sutherland, and a representative of Cruise Maine. This time it will be Council Chair Val Peacock, Councilor Joe Minutolo, Finance Director Sarah Gilbert, Wharff, and Town Attorney Stephen Wagner as the working group. Anything that comes out of the group would come back to the Council for votes. That committee has met at least twice. Those meetings have not been publicly advertised.
LINKS TO LEARN MORE
I'm not a lawyer (thank goodness!) but I spent 10 years of my life involved in zoning and community planning issues. I would have to say that in all that time I never encountered a weaker more inane argument against local community regulation than that offered by Ocean Properties et al. in regard to cruise ship visitation limitations. If the citizens of Bar Harbor are found to have no right to regulate cruise ship visitation that is clearly having a negative impact upon their lives and their community then something is badly amiss. What this lawsuit is really all about is yet another attempt of those with deep pockets to use a ridiculously expensive court system to gain total control over Bar Harbor's future. That those opposing the continued destruction of Bar Harbor's quality of life have been forced to spend nearly one quarter million dollars to defend their Citizen's Initiative should cause all those believing in democracy to shake their heads in frustration. Fifty years ago this issue would have been decided in District Court in an hour or two for a couple of hundred dollars. Some years ago a sign appeared on the White House lawn reading "For Sale." Not long ago that sign was replaced with a second sign reading "Sold!" Many say that it's beyond the power of the average citizen to reclaim our capital. I strongly reject that cowardly assertion. The American people are more than capable of taking their country back from entrenched interests and the citizens of Bar Harbor are more than capable of regaining control of their communities’s and their children's futures!