Bar Harbor Issues Statement About Court’s Cruise Ship Decision.
May 20, 2026
The Bar Harbor Story is generously sponsored by Restaurant Barn.
BAR HARBOR—The Bar Harbor Town Council issued a statement Wednesday morning about the recent court decision declaring the town’s cruise ship ordinance unconstitutional for the shoulder seasons.
In a 32-page order released last Friday, U.S. District Court Judge Lance Walker declared that the Bar Harbor cruise ship ordinance is unconstitutional and unenforceable in all months other than July and August.
“The Town Council wants to be clear that they will not allow a return to the unsustainable levels of cruise ship visitations of past years. Nothing about the District Court’s decision to reverse its conclusion on one narrow part of the legal challenges to the cruise ship ordinance passed in 2022 changes this,” the Town Council’s May 20 statement begins.
The ordinance was the result of a citizens’ initiative and limited passenger disembarkations to 1,000 or less a day without fines. It had initially been passed by voters in November 2022, 1,780 to 1,273. It was then upheld in November 2024, with a repeal losing by 65 votes. That repeal would have been the first step to put in other measures limiting cruise ship visits.
The ordinance has since spawned multiple lawsuits, but this was the main one, which headed all the way to the U.S. Court of Appeals.
Defendant intervenor, Charles Sidman, who also led the citizens’ initiative for the changes, said last week that he plans on appealing the most recent Walker decision.
“I’m glad they have the sense to go slowly, as the story still has many chapters yet to go, and the majority of the Town can and may still insist on obtaining what it wants despite Judge Walker and/or the Town Council. We’ll just have to see (and react) as matters unfold,” Sidman said Wednesday about the Town Council statement.
The changes have dramatically decreased cruise ship visits with more of an impact occurring each year since its enactment.
In December 2022, Association to Preserve and Protect Local Livelihoods (APPLL), the Penobscot Bay and River Pilots Association, and some other local businesses involved with cruise ship tendering sued the town over its cruise ship disembarkation limits saying the limits were unconstitutional.
Since then, for four years, there have been appeals and orders and remands, oral arguments, and briefs.
Judge Lance Walker’s initial late February 2024 ruling mostly agreed with the Town of Bar Harbor. It was then appealed.
The U.S. Court of Appeals for the 1st Circuit, on August 11, 2025, had partially upheld and partially sent Bar Harbor’s legal dispute back to Judge Walker. That meant that Judge Walker reviewed a portion of his original ruling again.
In Judge Walker’s decision, Friday afternoon, he wrote, “I conclude that the ordinance’s 1,000-passenger cap is not clearly excessive in relation to its local benefits during the peak summer tourism season but is clearly excessive in relation to the shoulder seasons. Accordingly, I declare the ordinance unconstitutional and unenforceable in all months other than July and August.”
He looked to differences in local conditions during those summer months and the shoulder seasons.
“As related in my findings, the Ordinance yields both substantial burdens on interstate commerce and substantial local benefits of the kinds that the initiative’s authors sought to achieve. Comparing the two interests is in some ways like inquiring ‘whether a particular line is longer than a particular rock is heavy.’ Nat’l Pork Producers Council, 598 U.S. at 381 (quoting Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888, 897 (1988) (Scalia, J., concurring in judgment)),” Walker wrote. “Still, that is the task.”
Walker continued, “When I reflect on the problem of articulating what the proper balance is, the one background circumstance that most readily provides a workable pivot point is the divide between peak and shoulder seasons. It has been an abiding personal impression, rational in my view, that what may be fair and balanced for the peak season may not be fair and balanced for the shoulder season.”
Judge Walker’s decision referenced the Pike balancing test.
The Pike balancing test is often used in constitutional lawsuits and has been since 1970, when the Supreme Court established it in Pike v. Bruce Church, Inc.
The test is meant to help determine if state laws that could impact interstate commerce—or do impact interstate commerce—are valid. It looks to if a law or ordinance creates an undue burden or an incidental effect on interstate commerce as well as if it serve legitimate local interests.
“Judge Walker’s remand decision twice reiterated that the Town Council had a ‘historic tendency toward excessive deference to the cruise line industry,’” Sidman’s attorney, Robert Papazian said, Wednesday. “The Council’s statement today does not instill confidence that things have changed. We will see if the Town Council is still beholden to the cruise line industry over its voters by not appealing this softball decision. Judge Walker lamented that the First Circuit’s instructions prevented him from applying the deference to voters that the Pike balancing test demands. The seasonal constitutionality of an ordinance (two months of the year) has no basis in law and will be overturned on appeal. The Town Council needs to decide whether it has the courage to defend the will of the voters and appeal this decision.”
How this impacts the town, its budgets, and current rules and regulations around cruise ship visits is not currently known.
“The Council must carefully consider the impact of this decision on related litigation as well as on the taxpayers. We appreciate the public’s patience and will be as transparent as we can,” the town’s statement continues.
The Town Council met in executive session on Tuesday, May 19, with legal counsel to review the decision and receive legal advice regarding next steps. There were no motions (except to adjourn) after the session, Town Manager James Smith said.
Executive sessions are not open to the public and often have to do with legal decisions or personnel issues or contracts.
The Town Council statement issued today continues, “This decision, even as revised, still clearly rejects the Plaintiffs’ position that the Town cannot regulate cruise ship disembarkations. It is a misreading of this decision to think the Town must return to prior cruise ship levels. Judge Walker affirmed that it is constitutional for the Town to regulate this, so long as it accounts for the fluctuation in intensity between the shoulder and summer seasons.
“The decision affirms our long-held concern that the initiative process, and the legislative approach enacted by initiative in 2022, is too blunt a tool to effectively manage tourism in Bar Harbor.
“Holding a clear mandate from the Bar Harbor voters to achieve an overall reduction in cruise ship visitations, the Town Council will immediately begin work on an approach to managing tourism from cruise ships. Substantial progress towards this goal has already been made with the work from the Sustainable Tourism Task Force. Building on that good work, we are confident we can arrive at a data-backed solution that is consistent with Judge Walker’s guidance and will welcome public input throughout that process.
“In the meantime, the Town will not accept new advance cruise ship reservations until a regulatory tool to manage disembarkations is enacted and the ongoing litigation is resolved. The cruise ship ordinance, as well as Chapter 52, remains good law, except that the 1,000-passenger cap can only be enforced in July and August.”
According to the Town of Bar Harbor, the maximum total number of cruise ship passengers visiting Bar Harbor for the 2026 season sits just beneath 50,000.
Prior to the change, the town saw more than 100 ships in the season, which typically runs from early May to early November.
LINK TO LEARN MORE
UPDATED: Bar Harbor’s Citizen-Initiated Cruise Ship Ordinance Deemed Unconstitutional for Town’s Shoulder Seasons.
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