Police and Bar Harbor Man Reach Settlement

CRUISE SHIP CASE CONTINUES

NOV 10, 2023

BAR HARBOR—Two federal court cases involving the Town of Bar Harbor had substantial movement forward this week. One moved toward a settlement, while another exchanged a small volley of briefs.

DURAND-MCDONNELL CASE

The Bangor Daily News’ Bill Trotter has reported that Eli Durand-McDonnell, of Bar Harbor, and two police officers from Bar Harbor and Mount Desert have reached a settlement in a federal suit filed by Durand-McDonnell.

Durand-McDonnell had originally been charged with a misdemeanor while attending a protest outside Leonard Leo’s Mount Desert home. The charge stemmed from an interaction prior to the protest and was later dropped by Hancock County District Attorney Robert Granger.

The suit had alleged that the police had “arrested Durand-McDonnell in retaliation for his exercise of First Amendment rights” and that the arrest “caused Durand-McDonnell injuries by subjecting him to illegal physical restraint, illegal search, interfering with his right to speak and assemble … and subjecting him to the embarrassment and fear of an illegal prosecution for disorderly conduct.”

Leo co-chairs the conservative Federalist Society and has come under scrutiny for his interactions with Supreme Court Justices.

In a November 9 article, the New York Times’ Carl Huse writes,

”The Senate Judiciary Committee on Thursday abruptly put off its push to subpoena two conservative allies of Justices Samuel A. Alito Jr. and Clarence Thomas as part of a Supreme Court ethics inquiry that has met stiff resistance from Republicans.

Facing G.O.P. threats to engage in a bitter, drawn-out fight, Senator Richard J. Durbin, Democrat of Illinois and the panel’s chairman, halted his planned effort to compel cooperation from Leonard Leo, a longtime leader of the Federalist Society, and the billionaire Republican donor Harlan Crow.”

He goes on to say, “Mr. Leo, who has played a central role in pushing federal courts to the right, reportedly helped arrange an Alaskan fishing trip for Justice Alito while Mr. Crow also purchased real estate from Justice Thomas.”

The local parties had a settlement conference this past Wednesday in Bangor. Attorneys representing Mount Desert’s Lt. Kevin Edgecomb and Bar Harbor’s officer Nathan Formby, according to Trotter, “indicated that they had agreed to settle the case.”

Settlement details are not available in Trotter’s article or in the online website that lists other documents for the case or on Pacer, another source. The parties must finish the settlement process and ask that the case be dismissed in less than 30 days.

APPLL CASE AGAINST BAR HARBOR

The Town of Bar Harbor and Defendant Intervenor Charles Sidman filed a motion to strike pieces of a trial brief filed by the Penobscot Bay and River Pilots Association case against the Town of Bar Harbor and new cruise ship limits approved by voters in November 2022. The groups filed the suit against the town last December, saying that the changes and limits to 1,000 daily cruise ship disembarkation limits violates the U.S. Constitution and federal law.

The Association to Preserve and Protect Livelihoods (APPLL) and the pilots’ group had until November 9 to respond to the motion to strike. Presiding Judge Lance E. Walker has until November 13 to make a ruling on the motion.

On November 9, the pilots and APPLL both filed their opposition to the town’s motion to strike.

The briefs that the defendants are trying to strike include three exhibits, one of which is the Town Council’s October 17 agenda, which is most of the bulk of the 162-pages of exhibits. Two other exhibits are 2025 itineraries by the Holland America and Norwegian Cruise Lines. Both cruise lines have featured Bar Harbor in their New England destinations.

The Town of Bar Harbor and Sidman moved to strike the exhibits because they “are not part of the evidentiary record developed at trial.” That trial occurred in July. They also argue that any of the Pilots Association’s arguments relating to those exhibits should also be struck.

Bar Harbor and Sidman also both argued via their November filing that the associations makes “an entirely new argument, first raised in their reply brief, that the town requiring that cruise ships make reservations with the local harbormaster, or the harbormaster assigning ships to one of the federal anchorages, is unconstitutional.” They also argue that the argument is not relavent to whether or not the ordinance is constitutional.

In its November 9 response, the pilots association argued,

“These Exhibits were proffered in direct response to positions taken by Defendant Town of Bar Harbor (the “Town”) and Defendant-Intervenor Charles Sidman (“Sidman” and with the Town, “Defendants”) in their post-trial briefs. The Exhibits reinforce, but are not essential to, arguments that the Pilots advanced and fully supported in their opening brief. On November 1, Defendants jointly moved to strike the Exhibits and related, limited arguments in the Pilots’ Reply Brief. Defendants contend that the Pilots rely on the Agenda to advance an “entirely new” argument but fail to acknowledge that this “new” argument responds directly to the Town’s assertion of regulatory authority over federal anchorage grounds in its post-trial brief. Defendants object to the Exhibits on grounds of authenticity and timing but do not suggest that their authenticity is genuinely in dispute or acknowledge that all documents (including the Agenda, which is the Town’s document) were created well after discovery and trial. Defendants’ protestations do not warrant the relief Defendants seek.”

The group argues that the arguments are not new and that there is “no basis for striking the exhibits,” and write,

“Defendants also argue that the Exhibits should be disregarded because they were not previously disclosed or produced in discovery. All the Exhibits post-date the close of trial. The Pilots cannot produce in discovery documents that do not exist. Finally, Defendants argue that the Exhibits cannot be considered because the trial record is closed. This, too, does not require exclusion of the Exhibits. It is well within the Court’s discretion to take additional evidence on the request of a party or sua sponte.”