Town asks for dismissal of cruise ship disembarkation limit law suit
Both Town and APPLL Request Court Deny Charles Sidman’s Motion to Participate
BANGOR and BAR HARBOR—The lawsuit against the Town of Bar Harbor’s new cruise ship disembarkation limits continues to get complicated even as the Town Council is scheduled to have a lawyer discuss the suit tonight giving an update and conflict of interest advice.
TOWN’S FEBRUARY 6 RESPONSE
In a response filed by Rudman and Winchell, the town asks that the case be dismissed in its entirety. The response claims that the plaintiffs lack standing for the suit, that the initiated ordinance doesn’t discriminate against interstate commerce, and if it did, the ordinance doesn’t have a protectionist purpose and it “sets forth the least discriminatory means for achieving that purpose.”
The town’s lawyers also add that the new disembarkation rule “does not interfere with the federal government’s ability to speak with one voice when regulating commerce with foreign nations.” It also submits repeatedly that the “defendant lacks sufficient information to admit or deny the allegations” in various paragraphs of the initial complaint and “therefore denies the same.”
Yesterday, three responses were filed in opposition to lead petitioner Charles Sidman’s motions to participate in the court case, APPLL et. al vs. Town of Bar Harbor. The case was filed against the citizens’ referendum that capped daily cruise ship disembarkations to 1,000 before fines are incurred.
APPLL’s opposition to Sidman’s motion saying that he fails to meet the burden of intervening and “has only an undifferentiated, generalized interest in defending the ordinance,” and adds “not only would his participation as a party be unhelpful in fully developing the case, it would unduly delay and prejudice the adjudication of the original parties.”
It adds that the town is capable of defending the ordinance itself.
The Town of Bar Harbor also filed an objection to Sidman’s involvement, writing,
The town also argued about Sidman lacking standing and that being lead petitioner doesn’t give him standing. It included his January 17 letter to the town council asking for the former town manager, Kevin Sutherland, to be censured or dismissed for speaking about the cruise ship caps before a town committee.
It also included his op-ed to the Mount Desert Islander where Sidman expressed sympathy for Sutherland after his resignation, and that he’s committed to advocating for the home cause of the town. He has a GoFundMe to support these efforts.
Sidman has argued that being lead petitioner is a sufficient interest and cites Yniguez v. State of Arizona. APPLL argues that this case is an outlier “almost everywhere except the Ninth Circuit” where it occurred.
The Penobscot Bay & River Pilots Association (plaintiff-intervenor) asked to exceed the page limit on the plaintiff’s opposition to Sidman’s verified motion, hoping to be 15 pages so that the lawyers can prepare a detailed analysis.
THE ORIGINAL SUIT
The original group’s complaint, filed in the U.S. District Court by the 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 Maine Pilot’s Association has also moved to join the suit.
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.
Sidman was the lead petitioner in the citizens’ petition to create daily cruise ship cap changes. Bar Harbor residents approved that change in November. Just prior, the town had also enacted monthly cruise ship caps in conjunction with the cruise ship industry.
The new 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 plaintiffs argue that the ordinance violates three provisions of the United States Constitution:
They are asking for a declaratory judgement that it violates federal law and asks the town not to enforce it.
MOTION FOR INJUNCTION
Attorneys representing the town and APPLL met on January 26 about a stipulated preliminary injunction, which would pause the implementation of the caps and other changes. Another mediation session is scheduled for March 6. The Town of Bar Harbor has requested the deadline to respond be extended to March 20.
LINKS TO LEARN MORE
Bar Harbor Story is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.
The Town Council has opposed sensible limits on cruise ships. It opposed the Citizens Initiative being put on the ballot, campaigned against it before the vote, obstructed enactment after it passed, and essentially begged interested parties to sue the town for an injunction.
Charles Sidman should be at the table to represent the overwhelming majority of Bar Harbor who voted for the ordinance and to stop any back room deals.