Ass'n to Pres. & Protect Local Livelihoods v. Town of Bar Harbor

• Jurisdiction: United States,Federal
• Parties: ASSOCIATION TO PRESERVE AND PROTECT LOCAL LIVELIHOODS, B.H. PIERS, L.L.C., GOLDEN ANCHOR L.C., B.H.W.W., L.L.C., DELRAY EXPLORER HULL 495 LLC, DELRAY EXPLORER HULL 493 LLC, and ACADIA EXPLORER 492 LLC, Plaintiffs, v. TOWN OF BAR HARBOR, Defendant, PENOBSCOT BAY AND RIVER PILOTS ASSOCIATION, Intervenor-Plaintiffs, CHARLES SIDMAN, Intervenor-Defendant
• Decision Date: 29 February 2024
• Court: U.S. District Court — District of Maine
• Docket Number: 1:22-cv-00416-LEW

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ASSOCIATION TO PRESERVE AND PROTECT LOCAL LIVELIHOODS, B.H. PIERS, L.L.C., GOLDEN ANCHOR L.C., B.H.W.W., L.L.C., DELRAY EXPLORER HULL 495 LLC, DELRAY EXPLORER HULL 493 LLC, and ACADIA EXPLORER 492 LLC, Plaintiffs,PENOBSCOT BAY AND RIVER PILOTS ASSOCIATION, Intervenor-Plaintiffs, v. TOWN OF BAR HARBOR, Defendant, CHARLES SIDMAN, Intervenor-Defendant

No. 1:22-cv-00416-LEW

United States District Court, D. Maine

February 29, 2024

DECISION AND ORDER

LANCE E. WALKER UNITED STATES DISTRICT JUDGE

In this action, a group of Bar Harbor businesses and business owners who seek to preserve commercial relationships with cruise lines and their passengers challenge a local exercise of popular sovereignty by the people of Bar Harbor who seek to curtail cruise ship visitation to maintain a certain quality of local life.The resulting controversy is of constitutional dimension and tenders a host of questions, but chiefly asks whether a municipality with privately owned port facilities can restrain interstate cruise ship commerce for local welfare ends or must make way and permit whatever level of commerce the local market can support.

The matter proceeded to a bench trial following the Court's issuance of an expedited schedule and Plaintiff's withdrawal of a motion for preliminary injunction.The Town of Bar Harbor has agreed not to enforce the challenged land use ordinance pending the outcome of litigation.Following a three-day trial in July 2023, the parties submitted closing arguments in writing.Based on my consideration of the evidentiary record, the arguments of counsel, and the law judgment will enter in favor of the Defendant Town of Bar Harbor on every count but one, and even as to that one count judgment will enter partially for the Town, as only limited declaratory relief is awarded in recognition of a partial preemption problem, without affording Plaintiffs and Plaintiff-Intervenor the relief they are seeking.

Findings

The Parties

The Plaintiffs in this action are the Association to Preserve and Protect Local Livelihoods(“APPLL”); B.H. Piers L.L.C.; Golden Anchor, L.C., doing business as Harborside Hotel; BHWW LLC, doing business as Bar Harbor Whale Watch;Delray Explorer Hull495 LLC;Delray Explorer Hull493 LLC; and Acadia Explorer 492, LLC.

APPLL is a business league comprised of members who own or operate businesses in Bar Harbor and seek to capitalize on the economic opportunities associated with the provision of goods and services to cruise ship passengers.APPLL members include owners and employees of local restaurants, retail stores, and tour-related businesses.

The Delray Explorer Hulls and the Acadia Explorer are tender vessels owned by similarly named limited liability companies.The vessels carry cruise ship passengers from cruise ships anchored in Frenchman Bay to Bar Harbor.B.H. Piers and Golden Anchor own piers in Bar Harbor where the tender vessels disembark and embark cruise ship passengers.BH Piers operates the pier located at 1 West Street, known as Harbor Place.Golden Anchor operates the pier located at 55 West Street.The pier owners have received approval from the Coast Guard for the use of the piers for this purpose.

BHWW is a limited liability company doing business as Bar Harbor Whale Watch Company.BHWW coordinates whale watching tours to cater to the cruise lines' passengers.

The Penobscot Bay and River Pilots Association appears in this matter as Intervenor-Plaintiff.The Pilots Association is a private corporation that provides pilotage services in a region that extends 75 miles from Boothbay Harbor to Frenchman Bay and 75 miles from the west pilot station on Penobscot Bay to the Penobscot River Port of Brewer.By law, foreign-flagged and certain domestic cruise ships must be piloted within Frenchman Bay by a local pilot who is familiar with the Bay and its channels.Pilots board cruise ships (and other large vessels) eight to twelve miles offshore and direct navigation to anchorage grounds in Frenchman Bay (or to other destinations in Penobscot Bay).The anchorage grounds in Frenchman Bay are roughly two miles from the Bar Harbor waterfront and piers.The Pilots Association's pilotage operations are regulated by the Maine Pilotage Commission.In response to the expansion of cruise vessel traffic, the Pilots Association has invested in vessels and has expanded its employment of pilots.In particular, the Pilots Association now has a dedicated crew and purpose-built vessel to handle the piloting demands associated with cruise vessel traffic in Frenchman Bay.Fees for piloting services are established by law and are a function of the size of the vessel.Ex. 39.The larger the ship, the greater the fee.

The Defendant is the Town of Bar Harbor.Bar Harbor is, among other things, a Class A port of entry for foreign-flagged cruise vessels reentering the United States and a popular port-of-call on North Atlantic cruise ship itineraries.Bar Harbor is governed by a Town Council.The Bar Harbor Town Council has sponsored a cruise ship committee for more than a dozen years, but recently disbanded the committee.The Town of Bar Harbor has a year-round population of roughly 5,500 persons, a number comparable to the lower berth capacity (a rough measure of passenger capacity) of a solitary large cruise ship.

One of the residents of Bar Harbor is Charles Sidman, IntervenorDefendant.Mr. Sidman owns an art gallery in town.Mr. Sidman was a primary proponent and co-author of the initiative that resulted in the land use ordinance challenged in this case.

Non-Parties of Note

Among the cruise lines that visit Bar Harbor are several lines owning foreign-flagged cruise vessels.When they call, these vessels typically spend about nine hours at anchorage, enough time for passengers to clear customs and participate in a shore visit of reasonable duration.

The State of Maine has two other Class A ports of entry, Eastport and Portland.Neither is as proximate to Acadia National Park as Bar Harbor.If a cruise ship called in Eastport or Portland, travel by motor coach to reach and return from Acadia National Park would consume much of the day.

The Maine Office of Tourism is a marketing agency for the State of Maine.CruiseMaine, part of the Maine Office of Tourism, promotes cruise communities in Maine and Maine-based cruise ship tourism in general.CruiseMaine engages with cruise lines and the cruise industry trade association and sometimes functions as a municipality-to-cruise-line liaison.The Maine Office of Tourism and CruiseMaine perceive cruise travel as a positive type of tourism for Maine because it introduces many first-time visitors to Maine from a broader geographical region as compared to visitors who travel by land, most of whom are from east coast states and Canada.CruiseMaine maintains a software platform called the PortCall system, https://maine.portcall.com.Through the PortCall system, CruiseMaine posts real-time data related to vessel movements and port operations.State funding supports CruiseMaine.

Carnival, Royal Caribbean, and Norwegian are among the cruise line companies that are active in New England and market cruise itineraries that feature Bar Harbor as a marquee port.These three cruise lines are noted because they operate foreign-flagged vessels and operate some of the largest cruise vessels that call in Bar Harbor and elsewhere along the Maine coast.^[1] The foreign-flagged lines see Bar Harbor as the most convenient and desirable port of entry when coming from foreign waters (such as Canadian waters).

Background Facts

The Town of Bar Harbor lies on the shores of Frenchman Bay in the North Atlantic on the eastern side of Mount Desert Island.The Town is nestled in an area of great scenic beauty abutting Acadia National Park, a national asset that the Park Service refers to as the Crown Jewel of the North Atlantic Coast.Given Bar Harbor and Acadia National Park's placement and prominence among other North Atlantic attractions accessible by sea, the cruise ship industry regards Bar Harbor as a marquee destination, the kind which appeals to customers and around which an appealing cruise itinerary can be built.

Although Bar Harbor had long experienced healthy tourist seasons, in the 2000s there was room for growth.Additionally, the season was limited to the period between Memorial Day and Labor Day.Local businesses and their representatives on the Town Council hoped to expand the tourist season and saw cruise tourism as one means of doing so.

In 2006, the Maine Department of Transportation, the Maine Port Authority, and the Town of Bar Harbor joined in a task force to commission a cruise tourism destination management plan for Bar Harbor.The authors of the management plan proposed architectural and engineering improvements to develop the Town to facilitate expanded cruise ship passenger access, chiefly by means of improved pier facilities.Ex. 260.In 2008, the Town accepted a recommendation from the task force to embody a cruise ship committee and establish a policy of daily cruise passenger caps of 3,500 passengers for the peak-tourism, summer months of July and August, and 5,500 passengers for the shoulderseason months of May, June, September, October, and November.The cruise ship lines were receptive to the invitation and amenable to the passenger caps, and cruise ships began to call in Frenchman Bay in ever-increasing numbers.Local enterprise and investment gradually expanded to meet the increased demand for passenger tendering and other local services.

The Town established its daily passenger caps largely by reference to the lower berth capacities of existing cruise vessels.The caps were understood to be “voluntary” in that they were...