Written by Lincoln Millstein. First in a series of analysis of the federal cruise ship decision.
BAR HARBOR, March, 3, 2024 - The Association to Protect and Preserve Local Livelihood may continue to rattle its saber and prolong the pain of litigation to slow the inevitable, but the Town Council faces quite a different choice in the matter of cruise ship visitation.
A federal judge has now ordained that the town is engaged in an illegal activity - allowing many more cruise ship passengers to disembark than what voters approved on Nov. 8, 2022.
From the moment APPLL filed suit in December 2022, the council has been a willing partner of APPLL, agreeing to delay voter wishes and to oppose their representation in the litigation. Not until the judge allowed citizen petitioner Charles Sidman to join the lawsuit did the town attorneys grow a spine.
Now comes U.S. District Court Judge Lance Walker, whose 61-page decision last Thursday could not have been clearer, rejecting APPLL’s entire bucket list of demands, except for allowing a few sailors to come ashore.
Sidman, emboldened by the decision, told the Islander the time has come for the council to implement the voters’ wishes for a 1,000-passenger cap.
Furthermore, he said, any cruise ship which defies the local ordinance by trying to disembark more passengers than allowed will also be in violation of the law.
Walker did not pull any punches in his judicial opus last week.
It was nothing short of an indictment of the business people and enabling town officials who have turned this seaside burg into a hermetically sealed bubble with its own rules, ethos and sensibility. Residents were stunned and incredulous at Walker’s pervasive decision. “We’ve been manipulated and brainwashed for so long that we don’t think we have any rights,” said one village homeowner.
The bad behavior has been normalized for decades, so that every time a judge slaps the town, it feels like a shock. Over the last decade state judges have rejected the town’s sweeping zoning ordinances, its charter changes and challenges to its effort to cap vacation rentals.
But none of them possessed the gravitas of a sitting federal judge who wrote the longest and most detailed opinion thus far in a Bar Harbor court case.
Walker took considerable literary license in characterizing his views in colorful images which had some traditionalists cringing at his dramatic flair.
In ruling in favor of the town ordinance to limit cruise ship visitation, he wrote:
“I adhere to an antiquated notion that judges should not allow robes to suffocate a sense of judicial humility by steering wildly outside their lane into the role delegated to elected representatives. Whether the Ordinance is the wisest expression of democratic will is a question for which the Constitution does not hold the answer.
Judge Waker sounded like he was thoroughly enjoying himself in taking down the plaintiffs who threw all but the galley sink in hopes that they might win some small token of a win.
Walker only gave them a slice - that the passenger cap did not apply to the crew of sailors.
In ruling against the assertion that state law facilitating economic development trumped home rule, Walker wrote,
“The picture of commercial development is not painted in primary colors alone but rather exists in a pastiche of other municipal considerations. A municipality that rationally exercises its home rule authority in a manner which is modestly in tension with the highest marginal commercial harvest, the type which is the sine qua non of the tourism office, is not an outlaw.
Walker spent the first five of 61 pages introducing the opposing parties and their interest in the case.
On Page 6, he established that the industry and the town both recognized in 2008 that visitation by cruise ship passengers in a small town could not be an infinity pool of supply with the potential of drowning the town. He wrote that the so-called Town Council memorandum of agreement with the industry actually was an instrument profferred by the the president of the Cruise Lines International Association in July 2021 and accepted by the council as part of a “negotiation,” which Walker put in quotes.
“The proposal, accepted by the Town Council, involved a daily passenger reduction for the shoulder season and a new monthly cap of 65,000 visitors specifically to address concerns of capacity. Although public pressure was growing, the Bar Harbor Town Council, ultimately, was not then constituted to provide the pressure relief that many citizens hoped for.”
The town put up little resistance to CLIA despite public representation by then Town Manager Kevin Sutherland. In fact, the five council members who voted for CLIA proposal had little appetite for the 1,000-passenger cap which the citizens won at the ballot box.
Walker disagreed with the plaintiff businesses that the citizens ordinance discriminated against them.
“Ultimately, the costs and benefits of the various features of cruise tourism and the 1000-person daily passenger cap do not boil down to a neat finding of arbitrariness, irrationality, irrelevance, or discrimination,” Walker wrote. “A rational voter could take these features into consideration and conclude that a 1,000-passenger cap is an appropriate means of recalibrating the Town’s approach to this very local concern.”
Walker cited the Walsh Family-owned businesses specifically.
“When the Pier Owners and Tender LLCs disembark several thousand persons on a daily basis, they substantially burden Bar Harbor’s waterfront and intensify the experience of congestion more widely.”
Walker wrote that the industry has long acknowledged a need for a reservation system that uses caps and differentiated passengers coming by chip as opposed to by land.
“While cruise lines evidently consider local conditions in terms of the capacity of the area to provide their passengers with goods and services, they are not deterred by local ‘no vacancy’ conditions that would deter land-based visitors.
“Upon arrival, cruise line passengers congregate in volume, in relatively intense morning and afternoon waves, though they also enhance congestion throughout the day. When they arrive, they are joined by a caravan of the vehicles that cater to them, congesting the waterfront area with buses, minibuses, vans, motor coaches, and taxis.
“Their arrival demands significant attention by municipal authorities, mostly law enforcement personnel hired to manage the press of people and conveyances. Cruise lines also have the relatively unique ability to transform the shoulder season, calling in Bar Harbor on a near daily basis in especially large cruise ships. These are distinct features of cruise tourism in Bar Harbor that make differential treatment rational.”
In addition to Sidman, whom Walker allowed as an “intervenor” defendant, he named three witnesses whom, he said, were influential in his decision: Seth Libby, Warrant Committee chair, Bill Horner, legendary island physician, and former police chief NateYoung.
“As attested to by witnesses Dr. Bill Horner, Nathan Young, and Seth Libby, the press of people in the downtown intensifies on cruise ship days. Dr. Horner described it as a dramatic growth in the press of people with a tremendous amount of traffic, particularly in the waterfront area. Mr. Young described sidewalks busy enough that he prefers to walk in the street when he has to go downtown on a cruise ship day. Mr. Libby described the scene similarly, stating that cruise ship visits produce greater crowding.
“Horner, Libby, and Young all testified that they voted in favor of the initiative because they felt that elected officials had failed to act in a timely or meaningful manner to curtail the impact of cruise ship visits. I find that these witnesses provided a fair and accurate assessment of the impact of cruise ship visits in terms of both the intensification of congestion and the undesirability of a trip downtown for many residents on ‘cruise ship days,’ which increasingly means most days of the cruise ship season.”
Walker agreed with Sidman’ assertion that the citizens are opposing the industry’s business model and not interstate commerce laws.
“Cruise lines are utilizing ever larger vessels to achieve unprecedented economies of scale, principally for shareholder profit. At the same time, cruise lines will not call at a port unless the entire complement of passengers is permitted to come ashore.
“These characteristics of cruise tourism make it unworthy of overly solicitous judicial action that would negate an exercise in democratic self-determination that is better informed of existing, localized conditions. Nothing in the Constitution dictates municipal obeisance to the economies of scale of cruise tourism. Nor, as far as I can tell, does the dormant Commerce Clause legislate adherence.
“The history of cruise tourism at Bar Harbor demonstrates the unique challenges that cruise tourism imposes on Bar Harbor. These challenges gave rise to a democratic effort, where the voters weighed the relevant local commercial and noncommercial interests and ultimately adopted the Ordinance.
“Modern-day, board-directed cruise practices (particularly those of foreign-flagged cruise lines) do not allow much room for smaller municipalities to manage their local experiences based on daily limits on the number of passengers coming ashore.”
Despite his use of florid language, the QSJ’s panel of unofficial judicial experts stated that Walker covered the entire waterfront of plaintiff objections with aplomb and even cleverly gave them an empty victory on the question of limitations on disembarking crew, who are protected by federal law in ways the passengers are not.
APPLL’s chances of success in a appeal are slim, they stated.
“Walker accurately explains that their problem is not how to limit shore trips by cruise passengers, but whether they can profit using half-empty cruise ships that will stay below the 1,000 limit (including disembarking crew),” stated one former jurist.