UPDATED: TOWN ALLEGES CRUISE SHIP VISIT VIOLATION
Vows to investigate and take action
Updated: This story has been updated with more recent and detailed information that we discovered June 23. Elements of the story are the same as our June 21 article.
BAR HARBOR—The Town Council briefly discussed the cruise ship disembarkation rule making at its regularly scheduled meeting Tuesday night and the next morning issued a press release stating,
“The Bar Harbor Town Council learned that on Thursday, June 15, the American Cruise Lines anchored the 170-person vessel “The American Constitution” within Bar Harbor waters without a confirmed reservation.
“American Cruise Lines knowingly took this action over the express objections of the town and in violation of the memorandum of agreement.
“Last night the Council instructed the harbormaster and town attorney to investigate the incident and take appropriate enforcement action.”
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 a decision in a federal court case concerning visitation caps of 1,000 passengers a day, a cap voted in last November.
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.”
American Cruise Lines had not responded to our message for a statement when we went to press, but has now. It’s the same statement that was sent to all press outlets. Alex Paolella its spokesperson said,
“We have been visiting Bar Harbor for more than two decades and enjoy being part of the community. We were even operating in 2021, the year that no cruise ships called on Bar Harbor or any other Maine port. We are confused that a small American passenger vessel would be barred from an American port, particularly one that is frequented by many other small passenger vessels running excursions and ferries. We trust this can be resolved quickly with the Town and look forward to continuing to work together.”
Bar Harbor’s interim Town Manager Sarah Gilbert said that passengers from the small ship did tender to shore. A request to Ocean Properties to try to find if the passengers tendered onto the private property has not been returned.
In an additional statement, June 23, American Cruise Lines said,
“We understand the town’s position and the exemptions granted to US-flagged ships accommodating fewer than 200 guests. We are committed to working with the Town on an ongoing basis for our future visits and are scheduled to be back in port this weekend with the 90-passenger American Independence. American Cruise Lines has been visiting Bar Harbor for several decades and looks forward to continuing our long partnership."
The town’s MOA has language in it about the ships under 200 passengers being exempt from the daily cap. It does not mention within the language of that specific paragraph as to whether or not the harbormaster must approve cruise ships with that exemption or if the harbormaster has to approve those bookings.
The PortCall of cruise ship visits, which is linked to from the town’s site, shows that the Constitution was on that list prior to May 28, 2023, but after May 26. The site updates to the closest cruise date.
PortCall shows the sister ship, Independence, heading to Bar Harbor this Monday, June 26. It does not currently show the Constitution coming back this Sunday, June 25, however the Constitution’s online itinerary currently does.
To make matters slightly more complicated, the Mount Desert Islander on April 28 shows the Constitution on the cruise ship arrival list for both that June 15 violation and the upcoming scheduled visit. The Islander schedule shows the Constitution arriving on June 26.
Gilbert told the Mount Desert Islander, “They had to book by Jan. 15, and they did not. That was part of the MOA.” The same article says that the ship tendered to Harborside Marina on West Street, which is owned by Ocean Properties.
According to the 2022 Cruise Ship Standard Operating Procedures, “All reservations made in Portcall will remain in requested status until further notice and should not be considered booked or confirmed.”
Last November, voters made a citizen’s petition restricting cruise ship passengers entering Bar Harbor into part of the town’s land use ordinance. Once enforced, the change also means that Bar Harbor would no longer use memorandums of agreement, but would limit passenger disembarkations to 1,000 or less a day. The current limit is between 3,500 and 3,800.
Local businesses have sued the town over that cap, stating that it goes against federal law. The town said it would not enforce the new rules about disembarkation until the case was resolved.
DISEMBARKATION RULE-MAKING
During the Town Council meeting on Tuesday, Gilbert said that the next July agenda will have a comprehensive look at the disembarkation rule making as related to that voted-in change. A more formal proposal will occur then. One of the items discussed was clarification of the meaning of “persons” as a term. In the disembarkation limits it does not refer to crew members because there are federal laws that the town can’t restrict crew disembarkations, Gilbert said.
Town Councilor Kyle Shank asked what happens if there is an emergency on a ship that carries over 1,000 people and they have to evacuate the ship; will that trigger the ordinance to trigger fines? He also wanted clarification about how the enforcement works within the town’s land use ordinance, which is where the new rules had been placed.
The town attorney said that there shouldn’t be too much discussion about the process at this time, but that the enforcement mechanism is within the land use ordinance process. It would be enforced just like a short-term rental violation, he said.
The council had also gone into executive session with its lawyer to discuss the court case. It was listed as an update from the town attorney. It also met about a personnel matter in executive session.
At 4:47 p.m., on June 23, the Town Council announced an executive session about personnel matters and also an item about the cruise ship MOA and litigation. This, as seen below, is not listed as an executive session though that is typical when the Council discusses litigation.
APPLL vs TOWN OF BAR HARBOR
Both the lead petitioner regarding the cruise ship changes, Charles Sidman, and the town have filed new documents in the federal court case, Association to Preserve and Protect Local Livelihoods (APPLL) et al vs. Town of Bar Harbor.
Many of those documents involve Sidman’s rebuttal to the plaintiff’s expert testimony and the plaintiff’s motion to exclude Sidman’s rebuttal testimony.
Sidman is a defendant intervenor in the case, which means he and the town are defending the recent cruise ship limit caps. That limit stemmed from a citizens’ referendum that was led by Sidman and passed 1,780 to 1,273 in November, 2022.
Since May, there have been numerous documents filed in APPLL’s federal lawsuit
APPLL has also been joined by other businesses that work with cruise ships such as B.H. Piers, L.L.C.; Golden Anchor L.C.; B.H.W.W., L.L.C.; Delray Explorer Hull 495 LLC; Delray Explorer Hull 493 LLC; and Acadia Explorer 492, LLC. It was also joined by the Penobscot Bay and River Pilots Association. The suit was filed in late December, 2022. An early case summary is here.
Most of the new documents explain Sidman’s extensive background in science and his reasons for rebutting the plaintiffs’ witness’ methodology.
RECENT COURT DOCUMENTS
Four additional pretrial motions were filed Thursday.
LINKS AND RESOURCES
For more background and earlier stories, you can search on the site for “cruise ships” or “APPLL.”
Our most recent stories:
https://barharborstory.substack.com/p/appll-issues-statement-saying-new
The link to the court site.
https://www.barharbormaine.gov/DocumentCenter/View/6294/Cruise-Management-Plan-flyer
UPDATES: This story has been updated to include the Cruise America statement, Gilbert’s acknowledgement that there were passengers tendered, PortCall and itinerary images, Mount Desert Islander information, as well as the additional pretrial motions in the federal court case. This possibly warranted a follow-up article, but I was trying to keep from overwhelming your email.
Disclosure: While looking at the witness lists, it appears that I, as well as the editor of the Mount Desert Islander and founder of the Quietside Journal are on one witness list sent by the plaintiff intervenor. I have not been contacted by any attorneys about this, but it feels like I should continue to mention it.