Judge Finds for Bar Harbor in Cruise Ship Case
BAR HARBOR—Bar Harbor has won a federal court case about cruise ship disembarkation limits in its town.
Bar Harbor issued a statement, Thursday afternoon, along with the filing, writing, “The Town is pleased with the outcome of the lawsuit. The Council will provide a public statement concerning the decision after it assembles and meets with legal counsel in executive session on March 4, 2024. The Town remains committed to defending and exercising its home rule authority to enact and enforce reasonable regulations to protect the health, well-being, and happiness of its citizens.”
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.
Federal Judge Lance Walker wrote in the February 29 ruling,
“Based on my consideration of the evidentiary record, the arguments of counsel, and the law, judgment will enter in favor of the Defendant Town of Bar Harbor on every count but one, and even as to that one count, judgment will enter partially for the Town, as only limited declaratory relief is awarded in recognition of a partial preemption problem, without affording Plaintiffs and Plaintiff-Intervenor the relief they are seeking.”
The plaintiffs had argued that the new rules, violates 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 and partially about the Supremacy Clause, writing in his conclusion,
“As for the Supremacy Clause claims stated in the first counts of the Plaintiffs’ Complaint and the Plaintiff-Intervenor’s Complaint in Intervention, judgment will enter IN PART for the Town of Bar Harbor, as Plaintiff and 41 Cf. Nat’l Pork Producers Council, 598 U.S. at 382 (plurality opinion) (describing that weighing out-of state producers’ costs of compliance against the moral and health interests of California’s residents as “a task no court is equipped to undertake” and stating that in “a functioning democracy, policy choices like these usually belong to the people and their elected representatives”). Plaintiff-Intervenor fail to demonstrate cause to invalidate the Ordinance insofar as it operates as a restriction on passenger disembarkations, and IN PART for Plaintiff and Plaintiff-Intervenor, as they have demonstrated that the Ordinance is partially preempted in relation to seafarer shore access, although it is by no means self-evident that any material alteration of the legal relationship of the parties has thereby been achieved.”
In July 2021, there was a monthly cap of 65,000 visitors. In the fall of 2022, prior to the petition passing, the town created memorandums of agreement with the cruise lines, which lowered the daily passengers from 5,500 to 3,800 in May, June, October, and September and the monthly cap of 65,000.
Now, those disembarkations are limited to 1,000 a day with a $100 minimum penalty. Since the ordinance passed in November 2022 (the changes are a part of the town’s land use ordinance), town staff has been working on plans to implement those changes.
Walker wrote, “Although cruise ship passengers account for a limited portion of the total number of annual visitors to greater Bar Harbor and Mount Desert Island, they arrive at a destination that is already blessed and burdened by land-based tourism and at a waterfront of rather limited area. Cruise ship passenger traffic also has a pronounced impact on and near the waterfront, including the eastern portion of West Street and the northern portion of Main Street.”
He also noted in his background that tendering has “become a more efficient operation.”
“For some, the expansion of tourism resulted in a return on planning and investment. For others, it resulted in a growing disaffection with municipal life. Increasingly, town leaders heard from constituents who were experiencing this disaffection. Then came COVID. During the visitation-hiatus brought about by COVID quarantine orders—which restrictions impacted both land and sea visitation to Bar Harbor and Acadia National Park—some residents of Bar Harbor were reminded that there are measures of a municipality’s success other than its volume of business,” Walker wrote.
Congestion was cited as a primary issue for many residents feelings about cruise ships. Others worried about the cruise ships’ environmental impact. In a 2021 town survey, 55% of the 1,400 responding said cruise ships took away from Bar Harbor’s image and negatively impacted the town. Cruise ship supporters pointed to cruise ship fees that supported some town services as well as the income that passengers brought to businesses.
Walker wrote, “A variety of details remain for purposes of sorting out the best approach to implementing the Ordinance. These include proposed rulemaking to exclude crew from the 1,000-person limit (for reasons that will be explained shortly), determining how best to monitor passenger volume, and determining how to proceed in the event the limit is disregarded by the Pier Owners.”
Walker also spoke to the congested nature of Bar Harbor’s downtown waterfront, which he said was “empirically exacerbated by the regular morning and afternoon pulse of cruise ship passengers and the tour busses and other vehicles that cater to them.”
Walker believes that the ordinance’s impact will likely “reduce passenger visitation volume by a significant percentage, likely north of 80 and possibly as high as 90 percent (in the short term) compared with the peak numbers experienced in 2022 and 2023.”
LINKS TO LEARN MORE
To read the court's decision in full
This story was updated at 5 p.m., February 29 to include background information and more from Judge Walker’s ruling.
My heartfelt thanks to Charles Sidman for his refusal to allow the will of the people of Bar Harbor to be bulldozed by a handful of out of area businesses who seem to think that their interests are more important than those of the people who call Bar Harbor home. People like Charles Sidman form and have always formed the backbone of our democracy. Without their courage and willingness to take on the toughest of battles democracy would have long ago expired in America and elsewhere. Sadly the "good guys" in America have sustained many devastating loses over the past several decades as corporate corruption and greed has leveraged its deep pockets to nullify the basic precepts of a democratic republic. In filing this lawsuit those standing to gain financially through unlimited cruise ship access to the town cost the Town of Bar Harbor and those supporting cruise ship limits more than one quarter million dollars! As a rule this deep pocket approach winds up winning the battle as ordinary citizens are forced to quit the battle or face bankruptcy. Judge Walker has a golden opportunity here send a strong message to those using dollars to overrule sense. I would urge him to rule that plaintiffs recompense the defendants for all legal costs relating to this case.
OMGosh!
ThankYou Charles Sidman and the concerned residents of Bar Harbor.
ThankYou for Nothing to the corrupt and conniving previous Town Council who colluded with their corrupt and conniving previous Town Manager. Against the people of Bar Harbor and in favor of big money special interests. Many of these miscreants are still on the council. They should not be taking credit for this victory.
Keep in mind. Lance Walker is a Federalist Society jurist fast tracked by LePage and then Trump. And a Mainer who has also protected citizens' voting rights against GOP predation. Walker is the 'black swan' exception to the CharlesKoch/Leonard Leo captured Federal courts.