Town Asks Court to Dismiss Sidman's Case

May 03, 2024

BAR HARBOR—On Thursday, May 2, the town and six of its individual councilors filed a motion to dismiss the district court case against it by Charles Sidman and also filed in opposition to Sidman’s motion for “trial of the facts.”

Councilor Earl Brechlin had been named in Sidman’s complaint, but has not been served, which is why his name is not on the document submitted by the town’s firm Rudman Winchell.

Like much of the town’s recent litigation, the case stems around cruise ships. Sidman was the lead petitioner in a successful change to the town’s land use ordinance that limits disembarkations from cruise ships to Bar Harbor to 1,000 a day without fines. This was supported by residents in a November 2022 vote.

After defending the ordinance’s constitutionality and other aspects in federal court, the Town Council won the judgement on March 1, 2024. That judgement is being appealed. However, this March ruling allows the ordinance’s changes to be enforced. On March 6, the council made a public statement about its plans for enforcement.

In that statement, the councilors “directed the town manager to prepare draft rules for council consideration necessary to ensure the ordinance may be implemented efficiently and in compliance with the (federal) court’s decision.” They asked that those rules be presented as soon as possible. Those rules, they determined, would go before a public hearing and then be enacted.

The Town Council also said for the 2024 season, it would honor reservations made before the November 8 vote, believing that canceling ships for that season, which starts in May, would be “fundamentally unfair” and “potentially expose the town to additional legal liabilities.”

There are 34 cruise ships scheduled for 2024 that have less than 1,000 passengers. There are 68 ships with over 1,000 passengers according to figures from January 2024. The first cruise ship arrived in Bar Harbor, May 2.

“Most of the ships in question are scheduled to arrive in less than 90 days. Cancelling the bulk of the 2024 season now would be fundamentally unfair, would potentially expose the Town to additional legal liabilities, and would have a drastic fiscal impact on an already strained and nearly complete municipal budget,” the March statement read.

In the 2025 season, the town would make ships with reservations “made and accepted after March 17, 2022” abide by the new rules.

Sidman said in a statement this past March that he believes that the Town Council overreached its authority by “ignoring the specific March 17, 2022 effectiveness date in favor of their preferred later November 8, 2022, thus expanding the number of 2024-allowed ships almost three-fold,” “issuing their March 6, 2024 decision without the required publicly recorded vote,” as well as directing town employees, and not giving a complete list of cruise ships booked as of that March 17 date, as well as the length of time it has taken to implement the ordinance.

The town’s attorneys argue that Sidman lacks standing to challenge the public statement, that his “claims are not ripe for judicial resolution,” and a public statement at issue that the council made on March 6 is not appealable under Rule 80B, and there is no true “genuine controversy” between the council and Sidman, and that he also fails to state a claim under section 1983, which requires showing a “deprivation of a right secured by federal law, statutory or constitutional, and that the deprivation was achieved under color of state law.”

A press release, the lawyers argue, does not deprive him of a right.

The lawyers for the town also argued that there is “no viable cause of action to which his request for injunctive relief could attach.” The documents also argue that Sidman’s claim against the town and the individual councilors is duplicative.

Rudman Winchell’s Jonathan Hunter writes, “The ordinance states that it does not apply to any cruise reservations accepted by the harbor master prior to March 17, 2022, but does apply on and after March 17, 2022, ‘regardless of the date on which it is approved by the voters.’ (Complaint 1131-32.) However, rulemaking is expressly required by the ordinance before it can be implemented and enforced:

‘The harbor master shall develop rules and regulations in order to establish (a) a reservation system for cruise ships that transport persons by watercraft for disembarkation in the Town of Bar Harbor; (b) a mechanism for counting and tracking the number of persons disembarking each day; ( c) a mandatory procedure for reporting violations to the Code Enforcement Officer; and (d) any other provisions that the Harbor Master deems necessary under this subsection. ‘“

Sidman and Council Vice Chair Gary Friedmann and Councilor Joe Minutolo along with Michael Boland, Nina St.Germain, and Nathan Young are running for two available council seats this June.