Groups Say Bar Harbor’s Cruise Cap Doesn’t Ease Crowds, Just Hurts Commerce
The Bar Harbor Story is generously sponsored by First National Bank.
BAR HARBOR—The Association to Preserve and Protect Local Livelihoods (APPLL) and the Penobscot Bay River Pilots Association filed a joint brief to the United States District Court on the lawsuit against the town about cruise ship disembarkation limits yesterday.
The Bar Harbor case focuses on the voter-enacted ordinance that limits cruise ship passenger disembarkations to 1,000 a day without fines. Some businesses have said that this has affected their revenue as less cruise ships arrive.
The U.S. Court of Appeals for the 1st Circuit on Aug. 11 had partially upheld and partially sent back to a lower court Bar Harbor’s legal dispute with APPLL, the Penobscot Bay and River Pilot Association, and others over cruise ship disembarkation limits.
The court also ruled that each party involved would bear its own cost.
The federal court had also partially dismissed the appeal and dismissed a cross appeal in a sprawling 72-page decision from Chief Judge David Barron, who heard the case with Associate Justice (retired U.S. Supreme Court Justice) Stephen Breyer, and Circuit Judge William Kayatta.
That remand means that the lower court must look into the case again. The brief filed last night, October 14, is one of the many steps involved in the remand.
The lawsuit began after voters limited cruise ship disembarkations to 1,000 a day or less without fines in November 2022 (1,780 to 1,273).
An attempt to repeal that decision by bringing it back to voters in November 2024 lost by 65 votes and inspired a recount. The repeal would have been the first step to put in other measures limiting cruise ship visits that were not as strict as a 1,000-day cap.
Much of Acadia National Park sits in Bar Harbor. The park gathers almost 4 million visits each year, which is not the same number as unique visitors. The park is one of the state’s major tourist attractions, including for those who visit via cruise ships. Congestion in the area was a key element of the case and greatly discussed in the August 11 opinion.
Last winter, Judge Lance Walker’s federal district court ruling mostly agreed with the town and defendant intervenor Charles Sidman and upheld the disembarkation limits.
After the original November 2022 vote, pier operators, some local businesses, tour companies, and others brought the town to court. They, as well as the Penobscot Bay and River Pilot Association, argued that the new restrictions violated the U.S. Constitution as well as federal maritime law. It was also argued that the new rules would negatively impact their businesses.
In U.S. District Court in Bangor, after a three-day bench trial that occurred in 2023, Judge Walker disagreed with most arguments by the businesses and Pilots Association in a 61-page decision, upholding the town’s new cap.
In January 2025, the federal appeals court in Boston heard oral arguments from all parties involved in the case. The justices had weighed their decision which came out in early August.
“We largely affirm that ruling in this appeal, although we vacate and remand the portion that rejects the claims alleging that the ordinance violates the negative aspect of the U.S. Constitution’s Commerce Clause, which is often referred to as the Dormant Commerce Clause. We also dismiss as moot the appeal and the cross-appeal, insofar as each takes aim at the district court’s ruling on the one claim— based on an allegation of federal regulatory preemption—for which declaratory but not injunctive relief was granted,” Chief Judge Barron wrote, August 11.
The justices called the discussion of the Dormant Commerce Clause claims as the “centerpiece of the appeals.”
THE BRIEF
APPLL and the Pilots’ Association are also requesting oral arguments in the remand back to the U.S. District Court.
The new 47-page brief by Timothy Woodcock and Janna L. Gau of Katahdin Law and Twain Barden of Archipelago Law, and Kathleen E. Kraft and C. Jonathan Benner of Thompson Coburn argues that the Bar Harbor cruise ship disembarkation ordinance violates the Dormant Commerce Clause of the United States Constitution.
That clause basically is meant to keep states from making laws that might excessively burden interstate commerce or discriminate against interstate commerce. At its most basic definition commerce is the purchase and selling of goods. The brief delves into that definition, using past court cases to define it as relating to cruise ship passengers and activities.
Attorneys for the organizations lay out the reasons that the town’s disembarkation rules interfere with the clause as that the ordinance impacts and burdens multiple parties including vessels, cruise passengers, pilots, cruise ship tenders, pier operators, the Maine tourism industry, and other businesses related to it that serve interstate commerce.
It also says that the town’s cruise ship ordinance has implications beyond Bar Harbor and that limiting cruise ship disembarkations at the marquee port in the New England-Canada-East Coast Market impacts economies beyond the coast town’s.
The argument also says that the ordinance “does not meaningfully advance the town’s asserted public purpose of reducing pedestrian congestion in the downtown area.”
“A statement of purpose (‘purpose’) accompanied the ordinance when it was circulated as a proposed initiative measure. That purpose statement asserts that the ordinance is intended to preserve the town’s ‘ability to deliver municipal services,’ particularly those associated with police, fire, and EMS activities, and to combat ‘excessive congestion and traffic on public streets and sidewalks, frequent overcrowding of parks and other public spaces, and inundate[ion of] local amenities and attractions’ in the ‘downtown area’ and preserve the town’s ‘ability to deliver municipal services,’ particularly those associated with police, fire, and EMS activities. Both this Court and the Court of Appeals accepted the legitimacy of the Town’s proffered interests to the extent they were grounded in promotion of ‘comparative tranquility.’”
They argue that there is no evidence to prove that the ordinance has helped those needs or that there has been any emergency services failures because of congestion in town caused by disembarking cruise ship passengers. It also argues that congestion is primarily at the waterfront on West Street where passengers disembark and is a zero increase at 1,400 feet from that disembarkation point.
The brief also argues that cruise ship passengers are “a very small percentage of Bar Harbor’s overall tourist load, the causes of downtown pedestrian congestion in Bar Harbor originate elsewhere.”
They include short-term rentals, hotels, campsites, commuters, employees, seasonal workers, day trippers in the list of causes for congestion.
Any reduction in congestion, it argues, does not justify the ordinance’s negative impact on commerce.
“The town’s quest for comparative tranquility,” it argues, “can be promoted as well or better without burdening commerce.”
Note: When the town and/or plaintiff intervenor Charles Sidman file their responses, we’ll post that as another story.
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