PILOTS ASSOCIATION ASKS TO JOIN LAWSUIT AGAINST BAR HARBOR’S CRUISE SHIP CHANGES

Jan 17, 2023

BAR HARBOR—The number of parties involved in a law suit against the Town of Bar Harbor’s recent cruise ship caps may be getting bigger.

Victoria DeCoster of the Mount Desert Islander reported today that the Penobscot Bay and River Pilots Association “filed a motion to intervene in the case against the town” on Saturday and has asked to join the lawsuit, APPLL et. al vs. Town of Bar Harbor, against the citizens’ referendum that capped daily cruise ship disembarkations to 1,000 before fines are incurred.

The pilots association’s move isn’t unexpected.

On December 5, the Penobscot Bay & River Pilots Association sent a letter to Town Manager Kevin Sutherland stressing the organization’s concerns with the impacts of the cruise ship disembarkation changes passed by voters this November. The plan limits the amount of passengers disembarking cruise ships each day to 1,000, inserts the changes into the town’s Land Use Ordinance, and calls for mechanisms to count those disembarkations as well as fines if more people leave the ships and step onto Bar Harbor land.

The letter, written by its president, Captain David Gelinas says,

“We are deeply concerned about the impacts of this initiative. Bar Harbor cruise ship traffic represents approximately 50 percent of the work handled by our association. Once in full effect, the initiative is expected to reduce passenger landings in Bar Harbor by over 90 percent. This reduction in landings means a loss of revenue for the Association and a significant decrease in pilotage needs in the Frenchman Bay and Penobscot Bay area. The actions of the Bar Harbor citizens in passing the initiative will negatively impact the Association’s ability to recruit, train, and retain skilled and competent pilots and adequately cover the fixed costs of maintaining pilotage operations in the Association’s pilotage area.
“As I am sure you are aware, maritime pilots provide critical public safety services by ensuring the careful management and free flow of traffic within their pilotage area. If our association is compromised in its functions, this threatens the viability of the pilotage system that protects Maine waters and jeopardizes the safety and security of the entire Frenchman Bay and Penobscot Bay area.
“We have retained highly experienced maritime legal counsel to advise us on the options available to us to challenge the initiative. I would appreciate if you would convey our position as set forth in this letter to the Town Council at the next meeting on December 6th. Thank you for your attention to this matter.”

Nor is the pilot associations’ move unprecedented.

In July 2020, harbor pilots (Key West Bar Pilots Association) in Key West, Florida sued the city because of three charter amendments that were meant to limit cruise ship disembarkations to 1,500 and also limit the cruise ship capacity to less than 1,300.

The complaint

The original group’s complaint, filed in U.S. District Court, Association to Preserve & Protect Local Livelihoods aka APPLL (a recently formed nonprofit) and includes the Golden Anchor L.C. (Harborside) and Bar Harbor Pierce, LLC as plaintiffs, alleges that the cap on disembarkations is not constitutional. It also states that Bar Harbor’s economy will suffer. The plaintiffs do not ask for damages other than for attorney’s fees and expenses, but that the ordinance be overturned.

The plaintiffs also include BH Piers/Harbor Place, BHWW (Bar Harbor Whale Watch), 495, 493, and 492 (ferry/cruise ship tenders). The suit speaks to how the change would impact the harbormaster’s duties as well.

The petitioners wrote that, “Although not expressly stated, the Initiative’s purpose―and actual effect―is to bar virtually all cruise ships that have safely visited Bar Harbor for decades and to bar the passengers who patronize those cruise ships from entering the Town.”

The plaintiffs argue that the ordinance violates three provisions of the United States Constitution:

1. Supremacy Clause

2. Commerce Clause

3. Due Process Clause

They are asking for a declaratory judgement that it violates federal law and asks the town not to enforce it. The plaintiffs also filed a motion to temporarily keep the town to keep from enforcing the changes. The town has 21 days to respond regarding the injunction, but that time could potentially be extended. The town has 60 days to answer the complaint, which means filing a document with the court that presents the town’s defenses.

The Town Council is set to address the lawsuit in executive session during its meeting tonight. Maine law allows municipalities to hold executive sessions which are not open to the public for matters like personnel evaluation and law suits. Any potential votable action must be voted on outside of the executive session and in the public.

Town Manager Kevin Sutherland wrote in his manager’s packet for tonight’s council meeting:

In an article this weekend, The Bar Harbor Story reported that the lead petitioner for cruise ship caps, Charles Sidman has a Go Fund Me that is meant to help the town keep the ordinance in place. APPLL also has a crowdsourcing component on its website and is open to memberships. Sidman’s efforts have a goal of $50,000. In three days, he has raised over $13,000. The Bar Harbor Story has reached out to APPLL about its fundraising efforts so far. If we find out that number, we’ll update the story.