Opponents Say Bar Harbor Cruise Cap Hurts Bar Harbor Businesses, Other Towns, and Commerce
Dec 18, 2025
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BAR HARBOR—Both the Association to Preserve and Protect Local Livelihoods (APPLL), and the Penobscot Bay and River Pilots Association have filed briefs this week in a long-lasting court case against the town’s rules that limit cruise ship disembarkations to 1,000 a day without fines.
Since the limits were approved by voters in 2022, Bar Harbor has had multiple lawsuits about the enforcement of the limits and their legality. A group of local businesses had appealed a federal court decision upholding those rules as has the Pilots Association.
In August, the U.S. Court of Appeals for the 1st Circuit partially upheld and partially sent back to a lower court Bar Harbor’s legal dispute with the groups over cruise ship disembarkation limits.
The court had also ruled that each party involved would bear its own cost.
The federal court 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 Stephen Breyer and Circuit Judge William Kayatta. Breyer is a retired U.S. Supreme Court Justice.
The judges called the discussion of the Dormant Commerce Clause claims as the “centerpiece of the appeals.”
“We largely affirm the District Court’s ruling in favor of the defendants as to these claims, but we do vacate and remand a portion of it,” Barron wrote in the August decision.
To remand a case to a lower court, means that the higher court — in this case the federal appeals court — orders the lower court to reconsider or further act on a portion of its original decision.
These briefs, filed December 16, are part of that process.
The first brief by Timothy Woodcock and Janna Gau of Katahdin Law rebuts arguments from the town and local businessman Charles Sidman, who is a defendant intervenor in the case.
It states that the restrictions on cruise ship passengers to get to the town are substantial and create an “excessive burden on commerce.”
It also argues that it burdens other coastal towns typically on the common cruise ship route in both Canada and New England, where Bar Harbor and Acadia National Park are highlights, and that the limit has not been proven to advance health and human safety nor has it “‘meaningfully advance(d)’ comparative tranquility through the reduction of congestion based solely on the exclusion of cruise visitation.”
Pedestrian congestion, Woodcock and Gau argue, varies throughout the season, the day, and has different sources. They reference a 2023 document by Bar Harbor Planning Director Michele Gagnon, which estimated that Bar Harbor can have approximately 20,500 overnight guests and approximately 2,900 commuters.
Much of Acadia National Park sits in Bar Harbor. The park gathered almost 4 million visits each year, which is not the same number as visitors. The park is one of the state’s major tourist attractions, including for those who visit via cruise ships. Congestion in the area and how it impacts residents has been a key element of the case and greatly discussed in the August 11 opinion.
“Moreover, aside from the well-documented impact on the displaced cruise lines, the record also shows that the ordinance would adversely affect geographically diverse cruise line patrons. As Sarah Flink, the executive director of CruiseMaine explained, about 12 percent of cruise tourists come from international origins and, of the domestic-origin tourists about 16 percent come from the Midwest, a percentage ‘in the teens’ come from California and a percentage ‘in the high single digits’ come from Texas. By contrast, ‘over 80 percent of land-based visitors come from the mid Atlantic, New England, or eastern Canada.’ Moreover, testimony at trial showed that this geographically diverse clientele was drawn to cruise ship excursions due to the unique port-to-port experience essential to this mode of travel.
“In addition, as this court also found, the ordinance’s burdens on commerce would extend beyond the cruise lines and their patrons to inflict significant harm on APPLL members, the pier and tender owners, and the pilots. According to Captain David Gelinas, the pilots made significant investments to accommodate cruise ships and derived a considerable portion of their revenues from doing so. The record also showed that certain parties among the plaintiffs, including the piers, the tenders, and witness Kevin DesVeaux, were particularly dependent on cruise tourism and, if the ordinance was to be implemented, would experience dramatic reduction in business.”
Woodcock and Gau’s brief also argues that the town’s 2019 “Operations and Maritime Study” as well as a 2022 Town Council proposal of memoranda of agreements (MOA) as less burdensome means of dealing with cruise ship visits. That proposal was narrowly defeated by voters 1,776 to 1,713 in 2024.
The second brief filed for the pilots’ association also argues that the ordinance causes a substantial burden on commerce.
Kathleen Kraft and C. Jonathan Benner wrote, “The ordinance seeks to promote the Town’s local interest in comparative tranquility through the reduction of pedestrian congestion in the downtown area, but fails to employ means capable of advancing that local interest to a meaningful degree.”
On November 25, Stephen Wagner and Jonathan Hunter of Rudman Winchell had filed a 29-page brief for the town arguing that (as the court had previously found) the town’s ordinance “does not discriminate against interstate commerce.”
Wagner and Hunter then focus on the Pike balancing test.
“Where a plaintiff cannot prove discrimination, the challenged law will be upheld unless the plaintiff shows that ‘the burden imposed on commerce is clearly excessive in relation (to) the putative local benefits,’” Wagner and Hunter write and add that the First Circuit Court places the burden of proving the Pike analysis on the plaintiffs and the pilots’ association.
Defendant intervenor Charles Sidman’s attorneys, Robert Papazian (Gebhardt & Kiefer) and David Silk (Curtis Thaxter), argue similarly in a 40-page brief filed on behalf of Charles Sidman, defendant intervenor in the case. That brief was also filed November 25.
Wagner and Hunter argue that the ordinance “does not significantly restrict the ‘volume of tourists able to reach Bar Harbor.’”
“As plaintiffs and the pilots are wont to point out, even at its peak, cruise tourism made up a very small portion of overall tourism to Bar Harbor. They describe cruise tourism as contributing ‘minimally’ to tourism in Bar Harbor. They set the figure at 7% of the town’s overall tourism. Thus, an 80-90% reduction in cruise traffic, in the short-term equates to an overall short-term reduction in tourism to Bar Harbor of roughly 6%. Even conservatively assuming a minimal adjustment by the market to maximize cruise visitation under the ordinance (a dubious prospect, in light of Bar Harbor’s attractiveness as a destination), the long-term reduction in tourism to Bar Harbor will be less than 5%. And this is before one considers that tourists who wish to come to Bar Harbor may, and very likely will, simply come to Bar Harbor by any other means,” Wagner and Hunter write.
Wagner and Hunter also argue that “there is no evidence the ordinance will ‘burden’ other coastal towns by reducing cruise tourism to those communities.”
There is no evidence that shows that the ordinance reduces cruise tourism to other ports, Wagner and Hunter write.
They argue that the ordinance reduces congestion and helps preserve quality of life. They also argue that the ordinance is the least burdensome way of dealing with the congestion.
Papazian and Silk also speak to this, writing, “Here, there are too many possible market reactions to the ordinance to reliably predict the precise consequences to the Bar Harbor cruise market and other coastal town markets. Additionally, the potential ‘ripple effects’ to other coastal towns is the very type of inquiry into the ‘extraterritorial’ impacts eschewed by a majority of the Supreme Court in National Pork Producers. Attempting to take the court deeper into this morass, plaintiffs extrapolate far-reaching theoretical impacts to ‘suppliers, marketers, airline partners, and land accommodation providers.’ These derivative harms require a cascade of conjecture. Plaintiffs make no attempt to measure these indeterminate effects, and provide no record evidence to support their argument of any impact on other coastal markets or their parade of horribles.“
Papazian and Silk write, “The putative benefits of lessening congestion, bolstering safety, and conserving municipal resources are unquestionably legitimate.”
“The town attempted to manage cruise ship impacts via various formulations of less restrictive caps that were amenable to or arrived at by agreement with the cruise lines over more than a decade, dating back to a 2007 cruise tourism management plan commissioned by the town and the state. As to ‘traffic management,’ multiple town witnesses testified to the considerable time and resources the town has dedicated over the years to improving shoreside operations, including moving disembarkations to areas where they could be better managed, blocking off paid parking areas for use as dedicated staging areas for cruise excursion buses, providing for sufficient police and traffic enforcement presence, supporting public transportation, widening and improving sidewalks, and the like. In short, far from representing viable, less burdensome alternatives to the ordinance, the failure of these measures to achieve the desired results are the very conditions that gave rise to the ordinance,” Wagner and Hunter write.
The burden on commerce, is not ‘clearly excessive,’ Wagner and Hunter argue, “compared to its local benefits.”
Similarly, Papazian and Silk write, “In the past, the town has tried all manner of alternatives to manage congestion, including providing additional services, implementing streetscaping changes, adding crosswalks, changing location of disembarkation, lowering voluntary caps to 3,500 per day, and requiring ships to anchor in the bay and tender passengers ashore in waves.”
Papazian also focuses on the Pike balancing test, writing, that it requires three steps, “First, [the court is] to evaluate the nature of the putative local benefits advanced by the statute. Second, [the court] must examine the burden the statute places on interstate commerce. Finally, [the court is] to consider whether the burden is ‘clearly excessive’ as compared to the putative local benefits.“
Papazian continues, “As this court held after trial, any burdens resulting from the ordinance are not ‘clearly excessive’ to its local benefits of giving the citizens of Bar Harbor access to their own downtown.”
Papazian argues that congestion could make Bar Harbor an undesirable destination for cruise ships, that passengers can visit in other ways, and that “other ports around Bar Harbor are likely to accept large cruise ships and transport their passengers to Bar Harbor as an excursion.”
“The spillover impacts are manifest: when 5,500 passengers inundate the waterfront, they not only spill into the rest of the town, but they also push other pedestrians out into the broader downtown,” Papazian writes.
He also argues that the influx of cruise ship passengers creates safety concerns.
UPDATE: This story has been updated to include the briefs from November 25. Those are also attached below.
LINKS TO LEARN MORE
UPDATED: Bar Harbor’s Cruise Ship Limits Lawsuit Partially Remanded to Lower Court
[250] Pilots’ Reply Brief On Remand
323KB ∙ PDF file
[251] Plaintiffs’ Reply Brief On Demand
910KB ∙ PDF file
The town’s remand brief
2025
377KB ∙ PDF file
The Sidman remand brief.
2025
229KB ∙ PDF file
The recording of the oral arguments is here.
The town’s cruise ship information page for filings in the appeal and the original federal case.
You can read the opinion in its entirety here.
For more filings via the town in the lawsuit and appeal, see its Cruise Ship Information page.
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