A group of Bar Harbor businesses is pressing on with its ongoing legal challenge of the town’s limits on cruise ship visits, after residents approved them in 2022 and affirmed them in another vote this past fall.
That group, which hopes to continue attracting large cruise ships to Bar Harbor, on Wednesday argued its case in court that the voter-approved restrictions conflict with federal commerce laws.
The latest appeal by the group, which is known by the acronym APPLL, comes after a lower federal court judge ruled in favor of the town last year, upholding the results of the 2022 local referendum. In November of that year, Bar Harbor voters set a limit of no more than 1,000 cruise ship passengers per day, which effectively will prevent visits from the large cruise ships that make up the majority of stops in town.
The appeal may be the group’s last hope to keep the 1,000-passenger limit from taking full effect, which local officials say hasn’t happened yet because of grandfathered reservations. At another referendum two months ago, voters again upheld the 1,000-passenger limit by rejecting a counter-proposal from town officials that would have set a daily limit of 3,200 passengers.
The businesses that hope to throw out the current daily limit argue that cruise ship visits are protected by the Constitution, which says that Congress has the power to regulate trade with foreign nations and among the states.
Because cruise ships — many of which are based in foreign countries — are a form of interstate commerce, the town does not have the authority to turn away ships that anchor in Frenchman Bay and want to bring crew and passengers ashore, they argue.
Bar Harbor is allowed to take steps to manage the inflow of people from cruise ships, as it has for the past several decades, but it cannot refuse to let their passengers enter the town, according to APPLL attorney Tim Woodcock.
“That’s a paramount right protected by the dormant commerce clause” in the Constitution, Woodcock told three judges presiding in the federal First Circuit appeals court in Boston, one of whom was retired Supreme Court Justice Stephen Breyer.
The judges pressed Woodcock, however, on the town’s right to prevent itself from being overrun by crowds. Bar Harbor has roughly 5,000 residents, they noted, and cruise ships can easily double that number on any given day.
Breyer noted that parks, whether city or national, attract people from all over and the governmental entities that manage them routinely set limits on when they are open or how big of a crowd can assemble. Why can’t Bar Harbor do the same when it comes to cruise ship traffic?
“It’s like 8 million people a day showing up in New York City,” he said, comparing the size of Bar Harbor to that of New York. “Does the commerce clause really bar any municipality from taking steps to prevent that?”
Jonathan Hunter, the town’s attorney in the appeal, argued that the daily limit does not amount to a ban on cruise ships and therefore does not run counter to Congress’ authority to regulate interstate commerce. Ships that carry more than 1,000 passengers may be heavily represented in the industry, but the town is not in any way obligated to cater to the industry’s dominant business model, he said.
And there are concerns that the crowded conditions in downtown Bar Harbor on cruise ship days pose a safety concern, he added. He likened the situation to states’ ability to regulate the sale of fireworks, saying that cruise ships are not merely vessels that carry commercial goods from one state to the next.
“The cruise ships are more like fireworks than they are trucks and trains,” Hunter said. “They are the product.”
But Woodcock disputed the notion that the volume of cruise ship passengers posed any kind of health and safety concern to the town.
Breyer said that the court record “seems bare” of any kind of documentation of how crowds of cruise ship passengers have posed urgent management or safety concerns in Bar Harbor, but Woodcock said town officials have had multiple discussions on that topic.
The town’s public safety officials, who are heavily involved in managing the flow of cruise ship passengers through Bar Harbor, have repeatedly said they’ve been able to effectively manage that flow and that it has not posed any undue health or safety risks to the town or its residents, he said.
The three-judge panel hearing the appeal is expected to render a decision in the coming months.
