Federal Judge Lance Walker Hears Oral Arguments After Partial Remand

Carrie Jones

Feb 13, 2026

BANGOR — U.S. District Court Judge Lance Walker heard oral arguments on Wednesday in a partially remanded federal case challenging Bar Harbor’s cruise ship passenger cap, following a nuanced ruling from the First Circuit Court of Appeals.

There were 30 attendees via Zoom, February 11, as four attorneys and Justice Walker took turns speaking about the case, which had been partially remanded from the First Circuit Court.

This means that the higher court sends a case back to a lower court for extra work on an issue or topic.

The Bar Harbor case focuses on the voter-enacted ordinance that limits cruise ship passenger disembarkations to 1,000 a day without fines.

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 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 First Circuit opinion.

Judge Lance Walker’s previous federal district court ruling mostly agreed with the Town of Bar Harbor and defendant intervenor Charles Sidman and upheld the ordinance and its disembarkation limits.

Those limits had been approved by voters in November 2022 (1,780 to 1,273) and were enforced in summer 2024. 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.

The U.S. Court of Appeals for the 1st Circuit on August 11, 2025, had partially upheld and partially sent back to a lower court Bar Harbor’s legal dispute with the Association to Preserve and Protect Local Livelihoods (APPLL), the Penobscot Bay and River Pilot Association, and others over cruise ship disembarkation limits.

The court had 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.

“The district court does not appear to have grappled with this divergence between its findings about the ordinance’s seemingly substantial impact on congestion occurring only in the waterfront and the ordinance’s apparent focus on relieving congestion in the downtown area more broadly. For example, the district court’s findings do not suggest either that the ordinance would relieve congestion in more than a modest way in any area of Bar Harbor beyond the waterfront area or that the ordinance’s salutary impact on congestion in the waterfront area would itself have an impact that made the ordinance’s role in achieving the claimed local benefits more than marginal. And, we note, this gap in the findings is manifest even though the district court relied heavily on the need to defer to the judgment of Bar Harbor’s voters in its ultimate Pike balancing,” Chief Judge Barron’s opinion reads.

It continues, “To be clear, we do not agree with the Pilots that this concerning divergence renders ‘illusory’ the ordinance’s ‘putative local benefits.’ Nor do we mean to suggest that, if the ordinance solely or principally improved congestion at the waterfront but not the rest of downtown, that the ordinance could not be understood to meaningfully advance a legitimate local purpose. But we do agree with the plaintiffs and the Pilots that the district court’s failure to grapple with the divergence kept it from making a meaningful finding about the magnitude of the benefits attributable to the ordinance. For, while it did find that the ordinance would yield some of its ‘putative local benefits,’ it did not make clear how substantially it would do so.”

The question, Chief Judge Barron writes, is whether or not the ordinance’s burden specifically to interstate commerce is “clearly excessive” compared to the “putative local benefits.”

The Pike Test referenced was established in 1970 by the Supreme Court.

Law Shun explains that it is “a legal standard used to determine the constitutionality of state laws that affect interstate commerce.”

It is often used in relation to the Commerce Clause in the U.S. Constitution. That clause allows Congress to regulate the commerce that happens between different states.

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WEDNESDAY’S ARGUMENTS

Tim Woodcock, an attorney for the businesses involved in the case stressed that since the cruise ship visitors make up approximately 5-7% of the town’s estimated total visitors, the ordinance itself doesn’t reduce the congestion downtown in a meaningful way.

Passengers are not there at night or evening, which would impact sidewalks then, and they don’t bring cars to the island, he argued. He said that they don’t impact parking congestion, take up spaces, nor do they contribute to road congestion via personal vehicles.

Woodcock focused on the ordinance’s impact to other coastal towns, whether it meaningfully advances the ordinance’s purpose of comparative tranquility, and if the ordinance’s objective could be achieved via less burdensome means.

“The commerce that is at issue here,” Woodcock said, is the international movement of cruise passengers and is a de facto ban of cruise ships of over 1,000 people in capacity.

“We heard a lot about other visitors to Bar Harbor (you might call them land-based tourists) and that the ordinance doesn’t do anything to address the congestion caused by those folks,” Jonathan Hunter said, representing Bar Harbor.

Pedestrian congestion can occur when no cruise ships are in port, Woodcock stressed, adding that cruise ships and their passengers don’t bring cars with them.

“We’re not dealing with different products here. We’re dealing with tourists” as a whole, Hunter said.

“I think the law is clear that states and towns don’t have to strike at all evils at once. I think this court’s decision explains very clearly why it’s logical and rational to treat cruise ship passengers differently from other kinds of tourists and visitors to Bar Harbor,” Hunter said.

Kathleen Kraft, one of the Penobscot Bay and River Pilots Association’s attorneys, said that the ordinance excessively impacts the association’s business revenue and is also focused solely on cruise ship passengers. Pilots earn their living by bringing boats like the CAT ferry or the cruise ships into harbor. Maine law mandates that certain large vessels must have pilots on them.

“Persons arriving by means other than cruise ships are more numerous and contribute more significantly to the very congestion the ordinance seeks to alleviate,” Kraft said when speaking to whether the ordinance impacts congestion in downtown Bar Harbor.

Many of the areas mentioned as congestion heavy (such as the grocery store and post office) are not in the waterfront area, she said, but midway or most of the way down Cottage Street.

Kraft also argued toward potential impacts to Maine cruise ship ports, stating that the town had previously hosted approximately 60% of Maine’s cruise ship visitors and is one of three ports that can welcome foreign-flagged ships into the state. Acadia National Park is a spot that is marketed to cruise passengers.

“By reducing the overall capacity, the ordinance also reduces the likelihood that these cruise lines can just find another port in Maine,” Kraft said. “Suggestions have been made that cruise lines can do that—just call another port, but ports are not fungible.”

The location of the port is important, she said, mentioning Bucksport only being accessible in daylight hours and other issues with ports along the coast. Excursions to Acadia from other ports would mean that busses from those areas would have to carry passengers onto the island.

“They’ve got different physical features, water depth, navigational characteristics, not every ship can go into every port,” Kraft said.

Robert Papazian, representing Charles Sidman of Bar Harbor, who led the citizen’s petition to create the ordinance changes said that other ports are investing in ways to welcome ships that will no longer port in Bar Harbor.

Sidman is the defendant intervenor in the case.

“Everyone on our side of it” would like to work with the town, Woodcock said, to create less burdensome means toward the advancement of the town’s comparative tranquility.

Attorneys for the town and for Sidman argued that other less burdensome means had already been tried and that another strategy had been rejected by voters in November 2024 when it lost by 65 votes.

Woodcock countered that the previously negotiated memorandums of agreement between the town and cruise ship lines had voluntary caps, cruise-ship free days, and didn’t have time to be used for a full season.

Prior to the oral arguments, Walker said he’d found the attorneys’ briefs “to be very helpful and I appreciate it.”

Hunter was interrupted by Walker about a minute into his argument and asked if he saw the impediment of all tourists or just cruise ships to be the point.

Cruise ship passengers, Hunter said, are concentrated more in space (waterfront exits) and time (daytime hours).

He also said he does not believe that there is any reduction in cruise traffic to other ports, countering Kraft’s argument.

“The court found there was a real and tangible impact outside of the waterfront,” Hunter said, which is part of the downtown area.

Papazian argued that the remand to Walker only asked the court to make the reasoning more explicit.

He agreed with Hunter that the plaintiffs had the burden of proving burden set out in the Pike Test.

He qualified tenders disembarking as “sheer chaos” downtown.

“Bar Harbor isn’t built for that,” he said in his argument in favor of a differential treatment for cruise ship passengers.

Other punitive benefits of safety and conservation of public safety services also matter, he said.

He also said that Bar Harbor isn’t irreplaceable as a marquee port. Cruise ship itineraries are elastic, he said, and Bar Harbor can still be sold as an excursion from another port.

Woodcock countered that approximately half of cruise ship passengers get on shuttles and go out of town. The town, he said, has effectively managed safety concerns and there have been no safety issues or incidents, which was testified to by the harbormaster and police chief previously.

“There had been no safety issues,” he said.

Walker concluded the arguments saying that the arguments assisted him greatly and that he’d give a decision as soon as he was able.

“Counsel, thank you all very much. It brings back good memories when we last were all together with all of the exceptional lawyering and I mean that sincerely,” Walker said.

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