Town Attorney Expects APPLL Lawsuit Will Be Settled By August
Council Will Ask Cruise Ship Committee To Temporarily Stop Meeting
BAR HARBOR— Town Attorney Stephen Wagner from Rudman Winchell, one of a team of five working on litigation of APPLL et al vs Town of Bar Harbor gave a quick summary of the court case about the new daily cruise ship limits on Tuesday night during the Town Council’s meeting. After a quick executive session, he also relayed conflict of interest advice relating to the lawsuit.
That advice included asking the Cruise Ship Committee to temporarily stop meeting.
Wagner is a College Of the Atlantic graduate and former resident of Bar Harbor. His team, he says, includes federal litigators. He said he previously specialized in environmental litigation.
THE LAWSUIT BRIEFLY EXPLAINED
The general practice is to not discuss litigation, Wagner said, but he said he recognized the council’s need to balance the need for confidentiality and the need to be as transparent as possible with the community.
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 comprised mostly of business owners and employees) 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.
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. Because of the lawsuit, the town has to defend those changes. Charles Sidman, the lead petitioner in the case, has asked to be able to support the defense.
The plaintiffs argue that the ordinance violates three provisions of the United States Constitution:
Wagner said the council is very careful and deliberative working long hours with the case and that he was sorry that the public couldn’t see how hard the council members were working. He didn’t discuss any of the arguments raised in the defense. He directed people to look at the comments filed Monday, which we reported about yesterday. All the pleadings are public documents, he said. You must, however, pay .10 cents a page to review them on the PACER site where they are located.
“We have a handful of businesses that have claimed in their filings that they directly benefit from cruise ship traffic,” he said of the plaintiffs.
He added that the plaintiffs filed that the ordinance would cause them great financial harm. Though they have not currently filed any claims for damages, they could do so.
The preliminary injunction filed is an order issued by the court which tells the defendant to do something or not do something while the litigation is pending. It’s like having a mini trial. It puts the town in the place of having to go to two hearings, one for the court case, one for the merits of case.
“It is a very substantial burden that they have to meet,” to have this succeed, he said.
The town has until March 20 to respond and a hearing would be likely shortly thereafter.
He said it’s very challenging for a defendant to lose an injunction and win at a trial.
The pilots joined the lawsuit and the town has filed an answer on Monday, denying all the claims that the ordinance is unconstitutional and asserts several affirmative defensives.
“The council’s position is that the voters have spoke(n),” he said.
This means, he said, that the council will support that change and minimize the cost to the town. He said the council has acted aggressively to defend that ordinance. To say that this is something that is less than an aggressive a defense as possible is inaccurate, he said, referring to Sidman’s op-ed to the Mount Desert Islander and letter to councilors where he inferred it wasn’t.
The ongoing mediation on January 26 was strictly limited to the preliminary injunction, not about amending the ordinance or settling the case. He has received no offers of settlement, he said.
During that mediation meeting, he said, the parties discovered that they shared two issues in common:
Minimize potential damages and;
A quick resolution to the litigation.
“Litigation can take years. It often does,” he said, but in this case, the legal counsel has laid out a broad framework that would maintain the status quo by not enforcing the ordinance, but the town can make rules to enforce the litigation while waiting for the constitutionality of the ordinance be debated, the memorandum of agreements will take place in the meantime.
He expects that there could be a bench trial with a final decision by August, he said.
“That’s extremely fast and only possible because of the work of the council and other parties,” working in good faith, he said.
CRUISE SHIP COMMITTEE, WARRANT COMMITTEE, AND CONFLICTS OF INTEREST
Prior to the public discussion about conflicts of interest, the council and Wagner held an executive session about the subject.
The Cruise Ship Committee’s mission according to the town code is “to advise the Town Council on all matters related to cruise ships visiting Bar Harbor.”
The committee conducts yearly reviews of operational and environmental issues, of passenger service fees, port development fees and the annual cruise ship budget, maintain and furthers industry relation and communications, and can make recommendations about cruise ship visitation. The members are appointed by the council after application.
Its membership is quite specified and is meant to represent town, business, scientific and cruise ship interests.
The Warrant Committee’s mission is explained in the image below.
Wagner spoke about conflicts of interest with town committee members involved in litigation. He created a memorandum “Ethics Issues Relating to Cruise Ship Litigation” about conflicts of interest under the ethics ordinance specifically about the Cruise Ship Committee or Warrant Committee who have filed affidavits in support of the litigation or have stated that their businesses would suffer if the changes were enacted.
A conflict of interest is a fact specific analysis, he said. It is especially likely that a conflict of interest would especially arise under the Cruise Ship Committee, but not the Warrant Committee unless there was a specific article dealing with the litigation.
As a preliminary matter, while litigation of the town is pending, no official of the town should discuss the litigation to a party involved, no officer, official or employee should discuss litigation with anyone other than the town’s own legal counsel, he said.
Anyone with a financial interest with an outcome of the litigation rises to a conflict of interest under the ordinance if that financial interest could be altered by any rule making or vote of the ordinance, he said. He added that what is less clear is whether or not a general discussion would rise to that level.
He told the council and public that it is increasingly likely that at every meeting of the Cruise Ship Committee meeting there will probably be discussion about whether or not members of the committee have conflict of interest.
Many members are employed by the cruise ship industry or in jobs related to that industry because of the original mission and intended composition of the group’s members.
He suggested to the council that they could approach the chair of the Cruise Ship Committee to not schedule a meeting while the litigation is happening. He said that the council also could amend the ordinance to temporarily suspend the committee.
“There is also the option to disband the committee entirely,” he said.
A final option would be to find a better balance between wanting subject matter expertise with a very robust and broad ethics ordinance that defines conflict of interest really broadly, which is a tension in the existing ordinance, he said.
Council Chair Valerie Peacock said that she thinks there needs to be a time to study the committee and look at what it does. She’d like to stop the committee from meeting until they figure out its future.
Vice Chair Matthew Hochman said that the town is in a state of limbo and there is currently nothing for the committee to do other than give a report on what happened last year. He thinks requesting that they not meet for a couple of months is the easiest way to do it for now. He said he could reach out to the chair and make that request.
There was no official vote on Hochman doing so, but several heads nodded in the affirmative.
The ethics ordinance will most likely be studied in depth in March, Peacock said.
Editor’s Note: This story has been updated with the link to some of the documents that are now available for free on the town’s website.
LINKS TO LEARN MORE
As of 9 a.m. February 8, the council packet hadn’t been updated to include the ethics memo, but when it is, you should be able to locate it here.
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