A Bar Harbor business group argued before a federal judge Wednesday that cruise ship passengers are being unfairly targeted by the town’s cruise ship restrictions.
Wednesday’s hearing was the latest development in a yearslong debate over limiting cruise ship visits to Bar Harbor that has produced two voter-referendums that impose a 1,000-passenger daily cap.
The judge will likely release a written order in the coming weeks.
Attorneys for a group of Bar Harbor businesses that are challenging the restrictions, argued that cruise ship passengers are a small portion of the total pedestrians causing congestion in downtown Bar Harbor. They make up just 5 to 7 % of visitors to the town, attorneys for the group said, citing numbers provided by the town. Because of that, they said, the ordinance doesn’t “meaningfully” reduce downtown congestion.
Kathleen Kraft, an attorney for the Penobscot Bay and River Pilots Association, argued the ordinance violates the Commerce Clause because of its “excessive” impact on business revenue. The pilots’ association joined the lawsuit because it claims its members, which guide the ships into port, have been harmed by the cruise ship limits.
“The ordinance aims its restrictions on cruise ship passengers alone,” Kraft said. “Even though persons arriving by means other than cruise ships are more numerous and contribute more significantly to the very congestion the ordinance seeks to alleviate.”
Cruise ship passengers don’t contribute to nighttime congestion nor do they bring vehicles to the island to worsen the town’s limited parking availability, the business group’s attorneys said. Previously-implemented voluntary caps were always respected by cruise lines, they said.
Bar Harbor previously brought in some 60 percent of the state’s cruise ship passengers, Kraft said. The town is also one of only three Maine ports that accept foreign-flagged ships. Portland and Eastport, the other two ports accepting foreign flagged vessels in the state, don’t have the capacity to absorb Bar Harbor’s portion of cruise ships.
“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. They’ve got different physical features, water depth, navigational characteristics, not every ship can go into every port. Location of the port is also very important.”
Among the alternatives to Bar Harbor, the group’s attorney said, was the port of Bucksport, about an hour and a half from Acadia National Park. But Bucksport does not accept foreign-flagged vessels and the port only welcomes ships during daytime hours, the attorney said. Portland and Eastport also have a number of restrictions that limit their capacity to replace Bar Harbor’s cruise ship port, the group’s attorney said.
Attorneys for the town underlined that Bar Harbor had tried alternative methods of reducing pedestrian congestion but ultimately decided upon an ordinance capping cruise ship passengers.
“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,” the town’s attorney Jonathan 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.”
Other ports have also begun investing in infrastructure to welcome “displaced ships,” said Robert Papazian, an attorney for Charles Sidman, a Bar Harbor resident who led the movement to limit cruise ships and has been granted intervenor status in the case
The oral arguments follow an appeals court ruling that partially upheld the cap while also sending the matter back to the lower court for clarity around the “excessive burdens” placed on commerce.
After the town formally passed an ordinance around the 1,000-passenger daily cap, some local residents and business owners say that limit has hurt business revenue.
A legal dispute against the ordinance followed, the plaintiffs of which, the Association to Preserve and Protect Local Livelihoods and the Penobscot Bay and River Pilot Association, argued the cap burdens business owners while ineffectively reducing downtown congestion, the ordinance’s very intention.
After federal district court Judge Lance Walker upheld the limits last winter, the business group appealed to the U.S. Court of Appeals for the 1st Circuit Court, which later partially upheld and sent back the lower court’s ruling. The appeals court mostly agreed with the lower court ruling but asked the district court to clarify their findings around the ordinance’s restrictions on maritime commerce, like whether the effects would reach neighboring coastal towns.
