Town Council Authorizes Town Attorney To Mediate Cruise Ship Lawsuit Injunction

Councilor Asks For People To Send Opinions Not Insults

Jan 18, 2023

BAR HARBOR—The Town of Bar Harbor is looking to mediate an injunction in a lawsuit against the town’s new cruise ship caps. The injunction would pause the new rules.

After an executive session during its regular Town Council meeting Tuesday night, the Bar Harbor Town Council has released a statement via the town’s Communications Coordinator Maya Caines.

The council unanimously approved the town’s attorney for a proposed mediation of the preliminary injunction on January 26. The statement in whole reads:

press release that appeared this morning

The lawsuit in question is APPLL et. al vs. Town of Bar Harbor, which opposes the citizens’ referendum that caps daily cruise ship disembarkations to 1,000 before fines are incurred.

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 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

The plaintiffs 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 from enforcing the changes. The town had 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.

According to US Legal, home rule is,

“Home rule is the power of a local city or county to set up its own system of self-government without receiving a charter from the state. Home rule is allowed under some state constitutions. The authority to act in local affairs is transferred from state law to a local charter, adopted and, as need be amended, by the voters through referendum. Home rule shifts much of the responsibility for local government from the state legislature to the local community. A county that adopts a home rule charter has the ability to amend its governmental organization and powers to suit its needs. A home rule charter is, in essence, a local constitution.”

Maine has a home rule law.

Charles Sidman, lead petitioner for the town’s cruise ship disembarkation petition and initiative, sent a letter to the Bar Harbor Town Council and Warrant Committee yesterday prior to the scheduled executive session.

At the time of his letter, his GoFundMe was showing approximately $13,800. Sidman verified that the GoFundMe has also inspired personal checks bringing that total to the amount mentioned in his letter. APPLL also has a crowdsourcing opportunity.

The letter ends with Sidman writing, “We the voters will be carefully scrutinizing your decisions and rationale on all of the above, and if necessary, are fully prepared to campaign to replace any or all councilors who continue to employ and support a manager thumbing his nose at the citizens and town that employ him, and then to take under a new Council the actions necessary and requested above.”

Sidman also called on the council to censure Town Manager Kevin Sutherland for speaking about the lawsuit during a public town meeting

The council was scheduled for an executive session about Sutherland’s performance evaluation last night. Sutherland was hired approximately a year ago to the top staff position for the town. Sidman asked for the council to either terminate Sutherland, suspend him from involvement in the town’s cruise ship litigation or “do not remove him from the initial probationary period of his employment.”

Sidman’s request comes from Sutherland’s update at the Cruise Ship Committee meeting January 5 where the committee requested an update on the law suit against the town and the new cruise ship disembarkation limits. Sutherland explained at the meeting that the town council had not yet determined its course of action. Also during the discussion, he said that what Bar Harbor does impacts other towns up and down the Eastern coast of Canada and the United States.

Sidman wrote that Eben Salvatore, Warrant Committee and Cruise Ship Committee member, was employed by a plaintiff in the lawsuit. He is also a board member of the newly created APPLL, which is a plaintiff in the lawsuit.

Sidman also asked for Salvatore to be suspended from both committees. Salvatore is the cruise ship tender ops representative on the committee, which has certain requirements shown below:

During the time designated for individual councilor remarks during the Tuesday night Town Council meeting, Councilor Erin Cough commented about the amount of daily vitriol councilors were receiving .

“To get emails calling us cowards, calling us stupid, calling us immoral people?” Cough said was not helpful and inappropriate. She asked that people send opinions but stop the disrespect and insults. Stressing that she is all for freedom of speech, she said that councilors spend hundreds and thousands of hours to research issues, talk to residents, and read emails. She said the councilors literally have stacks and stacks (of paper) to go through.

As of press time, there has been no response about the town manager’s evaluation. Because evaluations of town employees are personnel matters and discussed in executive session, there may not be any information released.