The U.S. Court of Appeals for the 1st Circuit on Monday 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 also ruled that each party involved would bear its own cost.
“We are pleased that the First Circuit vacated the District Court on a core element of our opposition to this ordinance,” said Eben Salvatore, operations manager for Golden Anchor LC, one of the parties of the suit, and treasurer of APPLL’s board. “We are confident that the record is clear that the conditions necessary to allow this ordinance to stand are not there.”
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.
Kayatta also had a one-paragraph concurring opinion. The decision was written by Barron.
The town said Tuesday that the town’s attorneys are reviewing the decision.
It also said, “An executive session of the town council will be scheduled for next Tuesday to allow the town attorney to brief the council on the ruling and its potential implications. The Town is committed to keeping the public informed and will provide an update after the council has met.”
That meeting will be in the municipal building on Cottage Street.
Citizen petitioner and defendant intervenor Charles Sidman said earlier Tuesday morning, “Our citizens’ right to regulate has been resoundingly affirmed, and the remaining questions are readily addressable IMHO. Onward!”
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 justices 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.
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.
He continued later in the opinion, “They allege that the defendants bear no such burden, but that the ordinance nonetheless runs afoul of the Dormant Commerce Clause because of the clearly excessive burdens on interstate commerce that they can show that the ordinance imposes. Here, we conclude that the challenges do have merit and that, as a result, the judgment dismissing these claims must be vacated.“
Because the case has been remanded on that claim back to the federal district court, the lawsuit continues.
“The ordinance has had a devastating effect on our association’s ability to maintain the state pilotage system in mid-coast Maine,” the Pilot’s Association said Monday night. “While some of our arguments were rejected, we are gratified that the court recognizes our position that the justification to date for this severe restriction on maritime commerce does not meet the constitutional standard applicable to Commerce Clause challenges. The court appears to be aware that the burdens on commerce are substantial and that the local benefits of cruise restrictions have not been articulated in a way that permits reviewing courts to assess the constitutionality of the measure, a process that will continue to consume the resources of the town, its residents, its businesses, and those of us who make our living on the water. This outcome is unfortunate for all concerned and makes clear that collaborative measures to deal with community issues are well worth the time and effort that they require. We are reviewing with counsel and will determine our next steps in the near future.”
Much of Acadia National Park sits in Bar Harbor. The park attracts 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 Aug. 11 opinion.
Last winter, Judge Lance Walker’s federal district court ruling mostly agreed with the town and defendant intervenor Sidman and upheld the limits. Voters approved those limits in November 2022 (1,780 to 1,273), and enforcement began 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 that were not as strict as a 1,000-day cap.
After the November 2022 vote, pier operators, 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 last year, after a three-day bench trial in 2023, Walker disagreed with most arguments by the businesses and the pilots 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. Since then, the justices had weighed their decision which came out Monday.
“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,” Barron wrote.
However, the court wasn’t convinced by the pilots association challenge that the Maine Pilotage Act “‘establishes a comprehensive and compulsory pilotage system in aid of commerce and navigation’ that cannot be reconciled with the Ordinance.” It agreed with the district court’s decision.
It also agreed with Walker’s dismissal of the federal preemption claims made by APPLL and the pilots association. Those focused on the U.S. Constitution’s Supremacy Clause and reasoned that the claim is not accurate because anyone in Frenchman’s Bay is already in the United States. The anchorage access, it reasons, is not restricted, though the disembarkations into Bar Harbor are.
However, Barron wrote, “In the claim, the plaintiffs and the Pilots allege that the ordinance cannot survive under Pike, in which, as we just previewed, the Court held that if a local measure ‘regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation 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.
Barron wrote, “The district court properly found that the ordinance both imposed some cognizable burdens and yielded some of its putative benefits. But, in concluding that the plaintiffs and the Pilots had not met their burden under the ‘clearly excessive’ standard, it did not appear to account either for the substantial magnitude of those burdens or the potentially marginal nature of the benefits. Nor did it address whether there were possibly less burdensome means of achieving the benefits such as they were. As a result, we vacate and remand for the district court to reconsider the record in applying the Pike test.”
The brief also speaks to the congestion impact of cruise passengers on the waterfront rather than all of the downtown and whether it was substantial to all downtown areas.
“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,” the 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, Barron writes, is whether the ordinance’s burden specifically to interstate commerce is “clearly excessive” compared with the “putative local benefits.”
“And its failure to grapple with disjuncture between the measure’s waterfront-focused benefits and the initiatives broader downtown-focused purpose kept it from addressing whether the ordinance yielded a meaningful reduction in congestion in such a limited area that it did so in a manner that yields only marginal ‘putative local benefits,’” it continues.
It also speaks to the cycling in of passengers on tenders at approximately 149 people at a time in 30-minute intervals.
”The situation at the waterfront is not as dire, then, as one might expect were a high-berth cruise’s full complement of passengers to disembark and come ashore in that area at any single point in time,” Barron writes. “And so, it seems possible — as the plaintiffs and the Pilots urge — that the ordinance’s benefits, both with respect to congestion at the waterfront in the broader downtown area, could have been achieved via less burdensome means, such as voluntary cooperation with cruise lines, traffic management, or less restrictive caps.”
Since the district court didn’t delve into that evaluation under the Pike rules, the appeals court has remanded the evaluation to that count.
The vacated judgment, which is focused on the Pike-based claims, returns the case to district court.
“That way, the district court may evaluate in the first instance whether the burdens on interstate commerce here are ‘clearly excessive’ in relation to the ‘putative local benefits’ after doing what it has not yet done. Accordingly, on remand, the district court must expressly account, as to burdens, for the extent to which its findings show that the ordinance (1) restricts the volume of tourists able to reach Bar Harbor by virtue of the ordinance’s cap limiting the total number of passengers disembarking and coming ashore from any cruise ships in a single day, and (2) burdens other coastal towns by reducing the volume of cruise tourism to those jurisdictions. Moreover, as to benefits, the district court must make clear findings regarding the extent to which the ordinance (1) meaningfully advances Bar Harbor’s interest in lessening congestion, with an eye toward whether the ordinance does so in regard to the types of congestion that ultimately motivated Bar Harbor’s residents to pass the Initiative, and (2) produces such local benefits that could not ultimately be achieved through less burdensome means.”
This story was originally published by The Bar Harbor Story. To receive regular coverage from the Bar Harbor Story, sign up for a free subscription here.
